Commercial tenancy disputes in British Columbia often arise when a tenant refuses to leave leased premises after the lease has expired or been terminated. These situations can create serious challenges for landlords, delaying property use and causing financial loss.
The Commercial Tenancy Act, RSBC 1996, c. 57 sets out the legal framework for resolving these disputes. Sections 18–22 of the Act establish a summary possession process that allows landlords to recover commercial property efficiently, while also giving tenants an opportunity to respond.
This guide explains how the Act works, the key steps landlords and tenants must follow, and the practical considerations involved in recovering commercial premises. Drawing on the Act and relevant case law, it provides clarity for anyone navigating commercial tenancy disputes in BC.
Summary Possession Under the BC Commercial Tenancy Act: What Landlords Need to Know
The Commercial Tenancy Act (CTA) governs landlord-tenant relationships for commercial properties in British Columbia. Sections 18–22 specifically address situations where a tenant wrongfully refuses to vacate leased premises after their lease or right of occupation has ended.
This process applies to all types of commercial tenancies, whether written or verbal, including:
- Week-to-week, month-to-month, or year-to-year leases.
- Tenancies at will.
- Any other terms, holdings, or occupations.
The process is designed to be swift and procedurally rigorous, balancing the landlord’s right to recover their property with the tenant’s right to due process. The British Columbia Court of Appeal in The Owners, Strata Plan VIS2030 v. Ocean Park Towers Ltd., 2016 BCCA 222, at paras. 16–17, clarified that this process involves a two-stage procedure, ensuring a structured approach to resolving disputes.
When Can a Landlord Seek Possession in BC?
A landlord may initiate the summary possession process under Section 18 of the CTA when:
- The tenant’s lease or right of occupation (whether created verbally or in writing) has expired or been legally terminated. Termination can occur through:
- Expiry of the lease term.
- A valid notice to quit issued under the lease or agreement.
- Any other act that legally determines the tenancy, such as a breach of lease conditions.
- The landlord has made a written demand for possession, and the tenant has wrongfully refused to vacate, either explicitly or by remaining in possession.
This process is triggered only after the tenant’s refusal to comply with the demand, setting the stage for a court application.
The Legal Process for Recovering Commercial Premises:
A Step-by-Step Breakdown
The summary possession process under Sections 18–22 of the CTA is technical and strictly procedural, requiring careful adherence to statutory requirements. Below, we outline the key steps, incorporating judicial guidance to clarify the process.
1. Application to the Supreme Court (Section 18)
The landlord must file an application with the Supreme Court in the judicial district where the leased property is located. The application requires a detailed affidavit that includes:
- Terms of the Lease: If the lease is verbal, the affidavit must set out its terms. If written, a copy of the lease or instrument creating the right of occupation must be annexed.
- Unavailability of Lease Document: If the lease document is unavailable (e.g., lost, destroyed, or held by the tenant), the affidavit must include a statement explaining the terms and the reason for the document’s absence.
- Demand for Possession: A copy of the written demand for possession, the tenant’s refusal, and any reasons provided by the tenant for refusing.
- Additional Explanation: Any further details regarding the tenant’s refusal.
Section 18(2) explicitly states that this process applies to all commercial tenancies, from week-to-week to tenancies at will, ensuring broad applicability. Section 18(3) mandates that the application be filed in the judicial district where the property is situated, emphasizing jurisdictional precision. In 1028840 B.C. Ltd. v.
The Heritage Dispensary Clinic Society, 2018 BCSC 82, at para. 32, the court noted that the application process often follows the “usual” Petition procedure, relying on affidavits rather than live witness testimony, highlighting the summary nature of the process.
2. Court’s Initial Review and Appointment of Inquiry (Section 19)
Upon receiving the application, the court reviews the affidavit to determine if the landlord has a prima facie case for possession. The court assesses whether:
- The tenant’s lease term or period has expired or been legally terminated (e.g., by notice to quit or otherwise).
- The tenant is holding possession against the landlord’s rights.
- The tenant has no legal right to continue in possession.
This stage is interlocutory, meaning the court does not weigh evidence or resolve disputes over credibility. Instead, it determines if there is a triable issue that, if proven, would entitle the landlord to possession, as explained in W. Hartley & Co. v. Yehia (1990, Vancouver C903767, B.C.S.C.) and Melanson v. Cavolo (1980, 25 B.C.L.R. 110, Co. Ct.), cited in The Owners, Strata Plan VIS2030 v. Ocean Park Towers Ltd., 2016 BCCA 222, at para. 16.
If satisfied, the court appoints a time and place for an inquiry to resolve the matter.
The initial application under Section 19 can proceed ex parte (without notice to the tenant), as no substantive relief is granted at this stage—only the scheduling of an inquiry. In CVL Properties Ltd. v. 662470 B.C. Ltd., 2008 BCSC 1743, at paras. 37–38, the court emphasized that this ex parte process is contemplated by the Act and appropriate, provided statutory requirements are met.
The court further noted that the landlord’s counsel in that case attempted to notify the tenant’s counsel, underscoring the importance of procedural fairness even in ex parte proceedings. The court in CVL Properties also clarified that the prima facie standard under Section 19 requires the landlord to show a triable issue that, if proven, would entitle them to a writ of possession.
3. Serving Notice of the Inquiry (Section 20)
The landlord must serve written notice of the inquiry’s time and place on the tenant or leave it at the tenant’s residence or place of business. The notice period depends on the distance from the tenant’s location:
- At least 5 days if within 32 km of the tenant’s residence or place of business.
- An additional day for every 32 km beyond the first 32 km, with any fraction above 32 km counted as a full 32 km.
The notice must include copies of the affidavit and all supporting documents to ensure the tenant is fully informed.
4. Summary Hearing (Section 21)
At the summary hearing, the court conducts a substantive review of the issues, including:
- The validity of the notice of termination.
- Whether the tenant is wrongfully holding possession.
- Whether the landlord is entitled to recover the premises.
Both parties have the opportunity to present evidence and arguments, typically through affidavits, though the court may examine witnesses under oath if necessary, as noted in 1028840 B.C. Ltd. v. The Heritage Dispensary Clinic Society, 2018 BCSC 82, at para. 32.
The hearing is designed to be efficient, reflecting the summary nature of the process. The British Columbia Court of Appeal in The Owners, Strata Plan VIS2030 v. Ocean Park Towers Ltd., 2016 BCCA 222, at para. 17, explained that the second stage involves determining the substantive issues, such as the reasons for termination and their sufficiency to support an order for possession, citing 0723922 B.C. Ltd. v. Karma Management Systems Ltd., 2008 BCSC 492, at para. 36, and Rossmore Enterprises Ltd. v. Ingram, 2013 BCSC 894, at para. 41.
5. Issuance of Writ or Order for Possession (Section 22)
If the court finds that the tenant is wrongfully holding possession and the landlord is entitled to possession, it may issue a writ or order for possession, allowing the landlord to recover the premises. This final order concludes the summary process, enabling the landlord to enforce their property rights.
Practical Considerations for Landlords and Tenants in BC Commercial Tenancy Disputes
The summary possession process under the CTA is technical and strictly procedural, as noted in CVL Properties Ltd. v. 662470 B.C. Ltd., 2008 BCSC 1743, at para. 35, citing W. Hartley & Co. v. Yehia. Both landlords and tenants must approach the process strategically to protect their interests.
For Landlords
- Strict Compliance with Statutory Requirements: The affidavit must be complete and accurate, including all required documents or explanations for their absence. Errors or omissions can lead to delays or dismissal of the application.
- Proper Notice: Ensure the written demand for possession and notice of inquiry comply with the Act’s requirements, including timing and service rules.
- Legal Counsel: Engaging experienced legal counsel early can help navigate the technical requirements, validate the termination notice, and anticipate potential tenant defenses. A lawyer can also ensure the application is filed in the correct judicial district and meets procedural standards.
- Ex Parte Applications: While the initial application can proceed ex parte, landlords should make reasonable efforts to notify the tenant’s counsel to uphold procedural fairness and avoid challenges, as demonstrated in CVL Properties Ltd.
For Tenants
- Understand Your Rights: Tenants have the right to participate in the summary hearing and present evidence to challenge the landlord’s claim. Potential defenses include arguing that the termination notice was invalid, the lease terms were not properly interpreted, or the tenant has a legal right to remain.
- Act Promptly: The summary process moves quickly, and missing deadlines for responding to the notice of inquiry can limit your ability to contest the eviction. Seek legal advice as soon as you receive a demand for possession or notice of an inquiry.
- Review Documentation: Carefully review the landlord’s affidavit and supporting documents to identify any procedural errors or substantive issues that could strengthen your case.
Why Legal Guidance is Essential
The summary possession process under the Commercial Tenancy Act is designed to resolve disputes efficiently, but its technical nature poses challenges for both landlords and tenants.
Landlords risk delays or dismissals if their application does not meet the Act’s strict requirements, while tenants may lose their opportunity to contest eviction if they fail to act promptly. Engaging a knowledgeable commercial tenancy lawyer early in the process can make a significant difference.
For landlords, legal counsel can ensure that the affidavit is properly prepared, the termination notice is valid, and the application complies with procedural rules. For tenants, a lawyer can help identify defenses, challenge the landlord’s claims, and ensure your rights are protected during the summary hearing.
How Legalbird Can Help Recover
At Legalbird, we specialize in commercial tenancy disputes and have extensive experience guiding landlords and tenants through the summary possession process under the Commercial Tenancy Act. Our team can:
- Assist landlords in preparing and filing Supreme Court applications, including drafting affidavits and ensuring compliance with statutory requirements.
- Represent tenants in challenging eviction proceedings, identifying defenses, and presenting evidence at summary hearings.
- Provide strategic advice to navigate the two-stage process and achieve a favorable outcome.
Whether you’re a landlord seeking to recover your property or a tenant facing eviction, we are here to provide tailored legal solutions to protect your interests.
Contact us today to schedule a 30-minute free consultation and learn how Legalbird can assist with your commercial tenancy dispute. Let us help you navigate the complexities of the Commercial Tenancy Act with confidence and clarity.
