Update, March 2021: The Canadian Legal Information Institute (“CanLii”) has published litigant lessee Hugh Trenchard’s analysis and commentary on the court rulings about whether he as a tenant lessee or the landlord should have paid to replace Orchard House windows. At issue is the lease’s wear-and-tear exception to tenant financial responsibilities. Here is a link to his article: https://canliiconnects.org/en/commentaries/73730 The article is also available here as a pdf that will open in a new tab: Whither the wear and tear exception
28 May 2020: The B.C. Court of Appeal has upheld the decision that allowed Westsea Construction to bill Hugh Trenchard his share of the cost of windows replacement. We lessees now know that our landlord can bill us for capital expenses that the courts agree are “maintenance” under our lease, with the proviso from the Court of Appeal that these expenses “must be prudent and reasonable” and not be a “betterment”. My comment after four years of following this is that the drafter of the lease could have saved us all a lot of time and money by stating that operating expenses include capital projects and major-component replacements, rather than listing things like “…elevator maintenance, electricity, window cleaning…”.
The three justices agreed with Mr. Trenchard that other leases should be admitted as evidence in his appeal (a precedent-setting ruling regarding appeal evidence), that they are identical standard-form leases, and that the case will have precedential value for other long-term residential leases. With those points made, the panel elevated its review of the lower-court decision from reasonableness to legal correctness, but then deferred to Justice Douglas in her more subjective evaluation that new windows at tenant expense were necessary for Westsea to maintain the building’s walls.
In closing 17 single-spaced pages of reasoning, the panel awarded no costs to either party, as Westea will seek to recover its full legal expenses from lessees, to which the court noted, “Whether the respondent (Westsea) has the contractual rights it asserts is not before us, and I (we) express no opinion on the matter.”
This decision makes clear that long-term residential tenants in B.C. need legislated protection so that huge costs require advance notice (two years?), and to prohibit such charges when the leases near their expiry.
The Court of Appeal decision can be read via the BCCA web site at: https://www.bccourts.ca/jdb-txt/ca/20/01/2020BCCA0152.htm . A Victoria Time-Colonist front-page news report on the Court of Appeal decision and the landlord’s billing to lessees of its litigation expenses in the case can be found here: T-C reports BCCA decision .
—A reverse-chrono list of updates and documents follows—
Update on 6 May 2020: A decision is pending from the B.C. Court of Appeal after three justices held a video hearing yesterday with appellant lessee Hugh Trenchard and Westsea’s lawyers. The panel judges had read both parties’ submissions in advance and heard from them about the case law that each side believe applies. It appears that this hearing was the first-ever B.C. Court of Appeal hearing to be held by video conference, was recorded, and may be used by the court to evaluate the process, which Mr. Trenchard said went well. The court has posted the hearing video here: https://www.bccourts.ca/Court_of_Appeal/videoconference/index.html . It’s a slow-moving 3 hours and 36 minutes and doesn’t cover everything in the parties’ written presentations posted below, which are very readable.
On an academic note, Hugh has described his experience with what was likely the nation’s first video hearing at the appeals-court level. That commentary appears on the web site of the National Self-Represented Litigants Project, which can be opened here: https://representingyourselfcanada.com/presenting-from-your-home-one-srls-experience-at-a-video-hearing/comment-page-1/?unapproved=3295&moderation-hash=3e957268b9df287270059f422c93f267#comment-3295 .
Update on 2 February 2020: Some commercial lawyers in Canada appear to be scratching their heads over Justice Douglas’ interpretation of our lease in favour of the landlord regarding the capital cost of replacing the Orchard House windows.
Follow this link to a large firm’s commentary on note-worthy Canadian commercial-lease cases of 2019; Trenchard vs Westsea Construction is the second case down: https://www.blakes.com/insights/articles/2020/commercial-leasing-in-canada-a-look-back-at-2019 .
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Hugh Trenchard filed his appeal on 22 November 2019 of Justice Douglas’ decision that our lease allows Westsea to bill the cost of new windows to its tenants, the lessees. His recently-updated appeal “Factum” is here (opens new window): Apellant’s Amended Factum filed February 21 2020 . The Factum reviews the facts of the case, details the errors of judgement that Hugh believes were made by Madam Justice Douglas, puts forward his argument, and closes with his request for an order to alter or reverse her decision.
Note that there was no class action in this regard; Hugh filed a personal suit regarding his share of that expense, and 17 other lessees filed small-claims actions regarding the replacement windows expense billed to them, which claims await the B.C. Court of Appeal ruling on Hugh’s suit.
The Vancouver law firm of Harris and Company showed interest in Hugh’s appeal last fall. Two of the firm’s lawyers reviewed his work to that point and advised him.
All lessees received a print copy of the Justice Douglas decision, distributed by Westsea, but if you recycled it and want to read how well she adopted the company’s position, it’s here (also opens in a new window): Judge Douglas, re Trenchard v. Westsea Construction Ltd., 10-01 . For those who thought that the Justice Douglas decision was convincing, Hugh’s appeal Factum will startle you; he identifies numerous issues of law that should cause appeal-court justices to frown.
Hugh’s appeal is supported by evidence and facts that he’s had to lay out with painstaking clarity for the Court of Appeal Justices. Here is his Appellant’s Notice of Motion Affidavit, a large document that will open in a new browser tab: CA46417_Appellants_Notice_Motion_Affidavit_ .
Hugh’s appeal hinges in part on the fact that the Orchard House lease is identical to numerous other long-term residential leases, which fact Justice Douglas refused to consider. He asks the B.C. Court of Appeal to rule that our lease is a “standard-form contract”. If the justices agree, their level of review for the decision of Justice Douglas would be raised. Because the case outcome would then take into account that it is a precedent affecting many other lessees than just those at Orchard House, the court of appeal would not consider only whether the Justice Douglas ruling was reasonable, they would consider whether it was also correct.
There is, further, an implication in law that a standard-form lease in dispute should be interpreted in favour of the party/parties that did not negotiate it, namely us lessees. Hugh’s request to submit identical leases and to obtain this ruling is contained in this smaller document, which also opens in a new browser tab: CA46417_Appellant_Motion_and_argument .
Westsea Construction’s Factum of reply to Hugh’s appeal is lengthy and largely says that Hugh is wrong and Justice Douglas was right. It’s posted here and opens in a new browser tab: Resp Factum filed Feb 12 2020 . As each party may summarize its reaction to the other’s submission, Hugh replied to Westsea’s Factum with this brief document, which opens in a new tab: Reply February 15 2020 .
The background regarding this suit is laid out on this site’s page titled Lessees pay for windows: Disputing WS’s legal billings .
OrchardHouseLeaseholder.ca 