In British Columbia, the Commercial Tenancy Act, R.S.B.C. 1996, c. 57 (the CTA) provides landlords with a streamlined mechanism to obtain a court order to recover possession of commercial premises from tenants who wrongfully refuse to leave when a commercial lease is terminated or ends.[1]
Although the CTA process is summary in nature, it typically requires at least two court appearances.[2] Accordingly, it is not the preferred remedy for low-risk evictions where the landlord’s right to terminate is clear. However, where the landlord faces the prospect of significant damages for wrongful termination, or if there is uncertainty as to the landlord’s right to evict, proceeding under the CTA is recommended.
The Commercial Tenancy Act process
As an initial matter, a landlord wishing to preserve the option of proceeding under the CTA should carefully document the delivery of a notice to quit, which is often included in the notice of termination, followed by a separate demand for possession. This is a pre-condition to an application under the CTA, and the order of delivery is critical. Courts have emphasized that strict compliance with the provisions of the CTA is required by landlords seeking possession.
Provided the required notices have been properly delivered, the landlord may then apply to the Supreme Court for an order directing the issuance of a writ of possession to recover the leased premises.[3] The application must be supported by an affidavit setting out the terms of the lease, attaching a copy of the lease instrument, a copy of the demand for possession, and a statement of the tenant’s refusal and reasons, if any.[4]
At the first hearing of the application, the judge determines whether the landlord has established a threshold right to an inquiry into the application for an order of possession. The landlord’s filed materials must demonstrate a credible basis for the claim.[5] If the court determines that the materials establish, on a prima facie basis, that the tenant wrongfully holds possession of the leased premises against the right of the landlord and that the landlord is entitled to possession, the court will appoint a time and place to inquire and determine the matter.[6]
The court’s jurisdiction at this stage is limited. It should not weigh the evidence or resolve questions of credibility, except in determining whether the applicant has complied with the procedural requirements of the proceeding. This first-stage order is interlocutory in nature and does not determine the legal rights of the parties; it simply grants or denies the inquiry into the landlord’s application.[7]
If a prima facie case for possession is established, the matter proceeds to the second stage under section 21 of the CTA. This hearing is akin to a summary trial and includes examination of witnesses.[8] Critically, the tenant bears the burden of showing why it ought not to be required to vacate the premises.[9] The judge will determine substantively whether the tenant wrongfully remains in the premises.
The summary nature of section 21 proceedings means that extensive pre-trial processes, such as examinations for discovery, are generally inappropriate, as they would undermine the speed the statute is designed to provide.[10] The Court of Appeal has clarified that the statutory process contemplates hearing parties, examining the matter and administering oaths to witnesses, but does not extend to full pre-trial questioning or document production of the kind available in ordinary lawsuits.[11]
If the landlord is successful, the court can issue a writ of possession, directing a sheriff or bailiff to evict the tenant from the premises.[12]
Relief from forfeiture
It is important to note that, in CTA proceedings, the equitable remedy of relief from forfeiture[13] may be available to tenants. Broadly speaking, relief from forfeiture allows a court to excuse a tenant’s breach and reinstate the lease. The court will consider the gravity of the breaches relative to the impact of the termination on the tenant.[14]The potential for relief from forfeiture should inform the landlord’s approach to tenant defaults, including the manner of lease termination and subsequent litigation strategy. If seeking relief from forfeiture, tenants must demonstrate “clean hands,” meaning honest and good-faith conduct, a willingness and ability to remedy defaults and that the forfeiture would be disproportionate to the breach.
The CTA provides a useful tool for landlords in managing high-risk evictions when used properly and as part of a coordinated strategy. However, strict compliance with the technical requirements of the CTA is critical, and procedural missteps may allow a tenant to resist or delay the process.
For more information or if you require assistance with tenant defaults, please reach out to Emmanuel Fung, Kay Scorer and Liam Edmondstone.
[1] Commercial Tenancy Act, RSBC 1996, c 57, ss 18–21 [CTA].
[2] Broadway – Heb Property Inc. v Renegade Productions Inc., 2019 BCSC 1693 at para 38.
[3] CTA, supra note 1, s 18(1), s 21.
[4] Ibid, s 18(1)(a)–(e).
[5] The Owners, Strata Plan VIS2030 v. Ocean Park Towers Ltd., 2016 BCCA 222 [Ocean Park Towers].
[6] CTA, supra note 1, s 19.
[7] Ocean Park Towers, supra note 8 at para 16.
[8] CTA, supra note 1, s 21(2).
[9] G.W.G. Woodcrafters Ltd. v Bourque, 2022 BCSC 2228 at para 9.
[10] 1008718 B.C. Ltd. v. Osiria Welding & Fabrication Ltd., 2023 BCCA 149 at para 19 [Osiria BCCA].
[11] Ibid at paras 16, 18.
[12] CTA, supra note 1, s 21(3).
[13] Law and Equity Act, RSBC 1996, c 253, s 24.
[14] Saskatchewan River Bungalows Ltd v Maritime Life Assurance Co, [1994] 2 SCR 490 at 504; Sechelt Golf & Country Club Ltd v District of Sechelt, 2012 BCSC 1105 at para 139; Peninsula (Kingsway) Seafood Restaurant Inc v Central Park Developments Ltd, 2021 BCCA 93 at para 9.
