The point of this May of 2020 article became more significant with the so-called “Uber” decision of the Supreme Court of Canada (“SCC”) on 26 June 2020, which stressed the potential for unfairness in standard-form contracts. You’ll want to read this website’s companion article titled “Unconscionability” and may want to review the SCC decision, which can be found here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18406/index.do .
May, 2020: The B.C. Court of Appeal ruling on the question of window replacement expense found as a side issue that the Orchard House lease is “a standard form agreement”, which has political significance as well as legal. Of course, the appeal court’s ruling means that the other nine B.C. long-term residential leases that Hugh Trenchard put before the court and that the justices found to be the same are also standard-form agreements or contracts. The Orchard House “head lease” that is assigned to each suite’s lessee can be found here (opens new tab): OH Head Lease from LTO .
B.C. Ministry of Housing staff have for decades advised ministers of housing that we lessees are complaining signatories to a private or a commercial contract, while our true situation—recognized by the Court of Appeal—is that we are subject to a contract drawn up by others in their exclusive interest, that we did not and could not negotiate the lease, and that to obtain our housing we had only a take-it or leave-it choice.
The B.C. Court of Appeal decision (28 May 2020, docket CA46417) reads in part, “I (for the panel) agree with the appellant that they are in substance identical to the Lease in question (the Orchard House lease). The nine leases, each for a different building, reflect many multiples of leaseholders. It is reasonable in these circumstances to characterize this Lease as a standard form agreement. The interpretation of the Lease will have precedential value for the holders of substantially identical leases.” The many multiples the justice refers to is 840 leasehold suites in addition to the 211 at Orchard House.
There also are numerous other long-term residential leases in B.C. that have minor differences, so Mr. Trenchard did not present them, but which are arguably also standard-form-contract leases. All of the individual long-term residential lessees affected should tell their MLA that B.C.’s highest court directly contradicts how the leases have been portrayed by the Ministry of Housing. These leases were all created in 1974 by a landlord with no input or negotiation on behalf of lessees. A list of the leasehold buildings considered by the Court of Appeal is here, excerpted from Hugh’s affidavit (opens new tab): List of ‘same leases .
A key aspect of standard-form contracts is that they reflect inequality in bargaining power. It is this inequality between the lessees and the lessor companies and the take-it-or-leave-it foundation underlying it that justifies the Province legislating regulation of B.C.’s long-term residential leases.