Appendix: Referenced Court Cases in Code of Practice Summaries
 |
Printable Version |  |
Search VCOP |
1. 409205 Alberta Ltd. v. Alberta (Human Rights & Citizenship Commission), 2002 ABQB 681 (pdf)
Madam Justice L. J. Smith of the Court of Queen's Bench of Alberta dealt with a review on appeal of a decision made against a landlord by the Alberta Human Rights & Citizenship Commission. The Commission determined that the landlord had "raised the rent" of the tenant for no other reason than to "get rid of them". The landlord was found to have discriminated against the tenant on the basis of the tenant's income, and the Justice did not disturb the decision by the Alberta Human Rights & Citizenship Commission.
2. Braden Equities Inc. v. Norman, 2003 ABQB 208 (pdf)
Court of Queen's Bench Master Funduk reviewed the landlord's earlier lawsuit against the tenant where a Master gave an order terminating the tenancy and requiring the tenant to deliver possession. A writ of possession had been issued on April 5, 2002. The Master declined to grant a second order for possession as the landlord should exercise the order and the writ it got. One writ of possession is enough. Piling writs on writs achieves nothing.
3. Burton v. Wright, 2000 ABPC 8 (pdf)
Provincial Court Judge D.J. Plosz had to consider a dispute between a landlord and tenant that included amongst the various claims and counterclaims of the one against the other whether the landlord's actions, in moving the tenant's belongings out of the rented house and padlocking the doors, was justified given that every time the tenant had provided a rent cheque in the 4 months previous it had been returned NSF. The Judge commented that while the landlord's actions were, in some measure, understandable, they were clearly unlawful. The tenant was entitled to judgment against the landlord for damages suffered as a result of the unlawful acts.
4. Christian Senior Citizens Homes of Northern Alberta v. Zilinski, 1998 ABQB 852 (pdf)
Master Walter Breitkreuz in Chambers of the Court of Queen's Bench of Alberta determined that certain complaints about the tenants were insufficient to warrant termination for substantial breach.
5. Coon v. Beck, 1999 ABQB 140 (pdf)
A decision of Master Funduk in the Court of Queen's Bench of Alberta. The landlord had failed to comply with an order under the Safety Codes Act, the building code and the building permit bylaw. The suites were illegal suites in what was supposed to be a duplex dwelling. The landlord gave notices of termination that the property had been sold. The tenants suggested that the landlord had not really sold the property and that the sale was fictitious. The tenants each had a room and they apparently shared the kitchen and bathroom. The Master determined that the RTA does not override illegal suites and the tenants had to vacate.
6. Corlis v. St. Croix, 2002 ABPC 19 (pdf)
A decision of Provincial Court Judge A. H. LeFever. This case was primarily concerned with whether a purported "inspection" by the landlord in the absence of the tenant, on the grounds advanced by the landlord that the tenant had abandoned the place. The Judge ruled that the landlord did not make reasonable efforts to contact the tenant to arrange the inspection.
7. Corlis v. St. Croix, 2002 ABPC 19 (pdf)
A decision of Provincial Court Judge A.H. LeFever. There are a number of issues dealt with in this case, but it is primarily a case concerned with whether the landlord validly conducted the alleged move-out inspection in the tenant's absence. After examining the evidence, the judge came to the conclusion that a landlord has an obligation under the Act to endeavor to contact the tenant and arrange for the move-out inspection report. A landlord must show to the Court that at least some reasonable steps have been taken without success in that regard before the Court will allow deduction from the security deposit in accordance with section 48(6). But even so, the judge concluded that the landlord's failure to properly conduct the inspection report did not stop the landlord from taking legal action.
8. Corlis v. St. Croix, 2002 ABPC 19 (pdf)
Provincial Court Judge A.H. Lefever reviewed the legislation and previous decisions and concluded that while the landlord may not apply security deposit monies to repairs and cleaning when there have not been the required inspections, no general limitation is created to stop a landlord from starting an action for damages because of alleged breaches of a residential tenancy agreement.
9. Cracknell v. Jeffrey, 2001 ABPC 11 (pdf)
A decision of Provincial Court Judge J.N. LeGrandeur. In this case, the landlord claimed a "late payment fee" of $5.00 per day for 30 days, on unpaid rent ($150.00). The Judge carefully examined the law relating to "legitimate pre-estimate of liquidated damages" and "penalties", and came to the conclusion that, in this instance, the so-called "late payment fee" was in law a "penalty", and as such would not be allowed by the Court. In summary, the Judge said, [15] whether the sum claimed is a penalty or a genuine pre-estimate of damage is a question of law to be decided upon consideration of the whole agreement. (Reimer v. Rosen, [1919] 1 WWR 429, Man.C.A.) Although the parties to a contract may always try to make a pre-determination as to damages, should the contract be breached, this must always yield to judicial approval of its reasonableness in the circumstances. (See: H.F.Clarke Ltd. v. Thermidaire Corporation Ltd., (1975) 54 DLR (3d) 385 per Laskin, CJC at 393) That approach is consistent with the principle that an injured party is entitled to be compensated and made whole, but not bettered by a damage award. (See: Neunier v. Cloutier, (1984) 9 DLR (4th) 986).
10. Demeter v. Demeter, 1999 ABQB 1061 (pdf)
Court of Queen's Bench Master Breitkreuz ruled that the reason in the notice to terminate this periodic tenancy was not one of the reasons in the regulations. The landlord will have to provide a new notice after he is able to satisfy one of the reasons set out in the regulations. The case was dismissed.
11. Dodds v. Schmeikal, AB 2004, Alta. Prov. Ct. #P0302000171 (pdf)
Tenant filed claim for security deposit refund. No inspections were completed. Provincial Court Judge Michael Horrocks allowed claim for refund less landlord's counterclaim for deductions, as per tenancy agreement, for damage caused by tenant.
12. Dorland Property Management v. Hood, 2000 ABPC 165 (pdf)
Judge D.G. Ingram in Provincial Court ruled that the discounted rent of $90 was strictly contractual. The penalty clause in this case was unconscionable and oppressive because the landlord terminated the lease and the claim for discounted rent was dismissed.
13. Dubois v. McCallum, 2002 ABPC 4 (pdf)
Provincial Court Judge D.G. Ingram considered the evidence from the landlord and the tenant, and their witnesses, concerning damage to the property. The tenant's notice of objection rendered the landlord's notice to terminate ineffective. The landlord took possession of the premises by changing all the locks. The Judge concluded that the tenant had abandoned the premises and the landlord's action was legitimate in seeking recovery of damages.
14. Fort McMurray Housing v. Royal Bank of Canada, 1999 ABQB 240 (pdf)
Justice Lee in the Court of Queen's Bench ruled the sale of the chattel was invalid and therefore void. Seized property cannot be sold without the Court's permission if a notice of objection is filed.
15. Guterman v. Rasmussen, 2002 ABPC 71 (pdf)
Provincial Court Judge D.G. Ingram considered the evidence from the landlord and the tenant, and their witnesses, concerning damage to the property. The tenant's notice of objection rendered the landlord's notice to terminate ineffective. The landlord took possession of the premises by changing all the locks. The Judge concluded that the tenant had abandoned the premises and the landlord's action was legitimate in seeking recovery of damages.
16. Jusza v. Dobosz, 2003 ABQB 583 (pdf)
Court of Queen's Bench Justice Donald Lee ordered termination of the tenancy on or before July 15, 2003 to follow the strict terms of the tenancy agreement between the parties.
17. K. Hansen Masonry Ltd. v. Trautman, 2002 ABQB 166 (pdf)
A landlord started the usual lawsuit as the tenant failed to pay rent when due. The building and suite were not unfit for human occupancy and the tenant could not withhold rent because of problems with the building or suite. Court of Queen's Bench Master Funduk had ordered the tenant to pay the outstanding rent into Court and the tenant was ordered to vacate the premises.
18. Klass Construction Ltd. v. Brown, 2000 ABQB 488 (pdf)
Court of Queen's Bench Master Funduk granted an order of possession, as it was clear the tenant did not pay all the month's rent.
19. Klys v. Foster, 2000 ABPC 23 (pdf)
Provincial Court Judge Jerry N. LeGrandeur found the tenant responsible for damage caused by her dog and for cutting and removal of weeds. The tenant had a duty under the tenancy agreement to maintain the yard area.
20. Kovacs v. Inter Pro Property Corporation, AB 1989, Alta. Prov. Ct. #89001948. Unreported (pdf)
Judge H. F. Wilson in the Small Claims Division of Provincial Court. The tenant changed the locks and the landlord, who served a notice to enter the premises, did not gain access to show the residential premises to prospective tenants, as he did not have a key. The landlord suffered a rent loss for the next month as he was unable to rent the premises and was awarded the security deposit as compensation.
21. Lansdowne Equity Ventures Ltd. v. Sandra Folland and Mike Davis, 2000 ABQB 809 (pdf)
A decision of Master K.R. Laycock that discusses the issue of distress and termination of the tenancy. In this case, the landlord served a 14-day notice to terminate, and then seized property in distraint before the 14 days had expired. The tenant objected on the basis that the landlord, in serving the 14-day notice, had effectively terminated the tenancy at that point, and was not entitled to a remedy of distress. The Master held that while it is true that if the tenancy has ended the landlord cannot then distrain, where the landlord has served the 14-day notice to terminate and distrains before the 14 days have expired, the distraint is valid as the Residential Tenancies Act provides that the tenancy continues up to the 14th day from the date the notice was served.
22. Lyman v. 637568 Alberta Ltd., 1999 ABPC 74 (pdf)
A decision of Provincial Court Assistant Chief Judge Donald E. Patterson. This case from Grande Prairie, primarily concerned with issues surrounding return of a security deposit when there has been extensive damage, illustrates what can happen in this circumstance. At the time of entering into the tenancy agreement, even though the landlord had a "no pets" policy, the tenant persuaded the landlord to allow her to keep her pet gecko - but she didn't tell the landlord that her pet gecko required live crickets as food. Some of the crickets escaped, and the building became infested with crickets, requiring fumigation. The landlord was entitled to deductions from the security deposit in accordance with the conditions agreed to by the tenant.
23. Lyman v. 637568 Alberta Ltd., 1999 ABPC 74 (pdf)
A decision of the Provincial Court Assistant Chief Judge Donald E. Patterson. The tenant sued the landlord for return of a $600.00 security deposit, notwithstanding her admission to the court that her boyfriend had been responsible for some $20,000.00 damage to the building. Additionally, the tenant was responsible for a cricket infestation of the building, having brought live crickets into her suite as food for a pet gecko, and 3 consecutive rent cheques had been returned N.S.F.
However, after serving the tenant a Notice to Vacate, and the tenant vacating the place, the landlord had failed to return the security deposit or provide a statement of account within the 10 days specified by the Act, and this formed the basis for the tenant's claim for return of the security deposit.
After first concluding that the failure of the landlord to comply with the provisions of RTA section 48(2) precluded the landlord from making a deduction from the security deposit, the Judge went on to decide that because the tenant had brought the action under s. 48(3), then pursuant to s. 48(4) the court was entitled to determine the actual damages suffered by the landlord that it would have been entitled to deduct from the security deposit, had s. 48(2) been complied with. In this instance, the actual damages exceeded the amount of the security deposit, so the landlord was entitled to judgment for the balance left owing after deducting the full amount of the security deposit from the damages.
Also of some interest in this case is that the landlord claimed a "late rent charge" of $10.00 a day for the days between the time the tenant's 3 cheques were returned N.S.F. and she made good on them. The Judge, without any reason given, did not allow this claim by the landlord.
24. MacNeill v. North American Leaseholds Ltd., AB 1980, 118 D.L.R. (3d) pp. 37-39 (pdf)
Provincial Court Judge D. E. Patterson found that in this case, the condition of the carpets and drapes was clearly caused by normal use only. The landlord could not deduct for further professional cleaning. The tenant was not excused from usual and ordinary cleaning or cleaning up from abnormal use. The landlord appealed the decision and Court of Queen's Bench Justice J. Stevenson dismissed the appeal.
25. Midwest Property Management v. Moore, 2003 ABQB 581 (pdf)
The tenant failed to comply with the eviction notice. The Court granted the landlord's application for termination of the tenancy. Court of Queen's Bench Madam Justice C.I. Johnstone denied the tenant's claim for damages, abuse of process, defamation, punitive damages and personal injury.
26. Morguard Residential Inc. v. Adams, 2005 ABPC 271 (pdf)
Provincial Court Judge B.K. O'Ferrall ruled that the tenant's verbal notice to end the tenancy was ineffective under the Act or under the lease. Multiple tenants remain jointly and severally liable for the obligations for the periodic tenancy after expiration of the fixed term portion of a residential tenancy agreement.
27. Munro v. Rusynyk, 2002 ABPC 107 (pdf)
Provincial Court Judge LeGrandeur considered whether there was, on the evidence, arrears of rent as alleged by the landlord. The judge found there were no arrears in rent. The tenant did repair work to offset rent as per the agreement between the parties. The application for termination of tenancy was dismissed.
28. R. v. Baziuk, AB 1994, Alta. Prov. Ct. #31610819P10101-0201. Unreported (pdf)
Judge Broda in Provincial Court found the landlord placed a lock on the door of the residential premises without the consent of the tenant. The tenant was denied access to the residential premises and to his belongings. The tenant did not pay the full rent for the month. The landlord was found guilty and was fined $25.00.
29. R. v. Cecil James Speirs, 1993 (pdf)
A decision of Provincial Court Judge Nemirsky. The forcible entry by a landlord caused a breach of the peace, or at least a reasonable apprehension of a breach of the peace, and will not be tolerated. Mr. Speirs was found guilty as charged under section 72(1) of the Criminal Code.
30. R. v. Erin Blacklaws, 1996 Alta Prov Ct. #960188745P101001 - 002, 960913605P101001 (pdf)
A decision of Provincial Court Judge Maher. The landlord without justification or excuse entered the tenant's residential premises unannounced to look for something belonging to the landlord that might have been stolen by the tenant. The entry of the premises by the landlord was a breach of the RTA.
31. R. v. Hyshka, AB 2002, #017245986P1-01-001-002 & 02-001-002 (pdf)
Judge A. Lefever in the Provincial Court of Alberta. The landlord took a frail, disoriented, and elderly man from a hospital bed to a bank for rent money. Before the tenancy ended, the landlord changed the locks and rented the suite to another tenant. The landlord pled guilty to changing the locks and was fined $2,000.
32. R. v. Touche Ross Limited et al., (AB, 1985) Q.B. #8503-0034-56 (pdf)
Receiver Managers appointed by court order incur the landlord's responsibility for refunding security deposits. The Alberta Court of Appeal dismissed the appeal of this judgment.
33. Rempel v. Fettig, 2002 ABPC 81 (pdf)
A decision of Provincial Court Judge J.N. LeGrandeur. This case is instructive because even though there was a move-in inspection report and the tenants took the place in the condition it was in (which was not good), it was held that they were entitled to damages by way of abatement of rent when the premises was condemned under the Public Health Act some 6 months after they had moved in. The Judge conducted an extensive review of decisions concerning the "habitability" of rental premises and concluded that the onus is on the landlord to ensure habitability at the time the tenants move in, and to maintain habitability thereafter:
"[32] The subject premises in this case were not habitable at the time the tenants took possession, nor did that change during the currency of their possession. These premises could not be dwelled in safely, in the sense of the health of the occupants, nor did the condition of the premises allow the occupants to live in reasonable comfort, having regard to the intended use of the premises. I am satisfied that the conditions noted by the health inspector which led to the Executive Officers Order (Exhibit #2) were in existence at the time the tenants took occupation. The fact that the tenants resided in the residence for some six months does not change that fact, nor may it be seen as some sort of a waiver by the Plaintiffs."
34. Sabetai Grunberg Profession Corporation v. Richard, 1998 ABPC 85 (pdf)
Judge B.E. Scott in the Civil Division of Provincial Court found that the alleged failure of the landlord to repair was exaggerated. The Judge allowed recovery of arrears and certain repairs, after credit of security deposit.
35. Sayers v. Lazaruk, 1998 ABPC 47 (pdf)
Provincial Court Judge J.N. LeGrandeur ruled that the evidence must demonstrate an act of omission by the landlord caused the flooding of the basement of the residential premises before it can be said that the covenant for peaceful enjoyment is breached. The landlord did not intentionally cause the flooding of the premises, or intentionally interfere with the operation of the sump pump.
36. Seaton v. Bernard, 2001 ABPC 182 (pdf)
Provincial Court Judge Jerry N. LeGrandeur confirmed tenants or their guests must not damage the premises or common areas wilfully or negligently.
37. Snethun v. Carson, 1998 ABPC 49 (pdf)
Provincial Court Judge J.N. LeGrandeur ruled that the landlord breached the landlord's covenant by entering the premises and changing the locks, with full knowledge that the tenant had not abandoned the premises. The landlord repudiated the tenancy and cannot have both the termination of the tenancy and the rent after the termination date.
38. Terrigno Investments Inc. v. Constant, 2003 ABQB 335 (pdf)
Justice A.G. Park in the Court of Queen's Bench found the landlord vicariously liable when his son caused the police to forcibly break down the doors of the residential premises after the son misrepresented facts to the police that were later recanted.
39. Trump Developments Ltd. v. Pipke, 2000 ABQB 197 (pdf)
Court of Queen's Bench Master Alberstat ruled that a corporate landlord cannot terminate the periodic tenancy for occupation of the premises by a corporate shareholder or a family member of a corporate shareholder. A corporate landlord is not a landlord for the purposes of obtaining possession. The case was dismissed.
40. Van Zant v. Thomson, 2002 ABQB 1077 (pdf)
Justice Sterling Sanderman in the Court of Queen's Bench found the residential tenancy agreement was prepared by the landlord and accepted by the tenants. The responsibility of paying for certain utilities was clearly set out. The landlord was responsible for water and heat during the tenancy as per the agreement.
41. Waverly Management Ltd. v. Sobie and Dunn, AB 1985, 39 Alta. L.R. (2D) pp. 51-59 (pdf)
Waverly was appointed receiver manager through foreclosure proceedings and refused to refund the tenant's security deposit. Provincial Court Judge Irwin Blackstone found Waverly responsible for the security deposit refund under the tenancy legislation even though the deposits were not obtained from the former landlord. Waverly's appeal was dismissed.
