Simon's Legal Resources

Landlord and Tenant (Commercial) - Distress

. Cassandro v. Glass

In Cassandro v. Glass (Ont CA, 2019) the Court of Appeal the discusses common law distraint in a commercial landlord and tenant dispute:

[25] The defence of distress damage feasant is an ancient common law right that permits an occupant of land to distrain a chattel found on that land in certain circumstances. Mr. Cassandro referred us to several Canadian cases that establish the requirements of the doctrine of distress damage feasant. Those cases appear to establish two main requirements. First, the chattel the occupant of the land has seized must have trespassed or have been unlawfully present on the occupant’s land: Stewart v. Gustafson, 1998 CanLII 14001 (SK QB), [1999] 4 W.W.R. 695 (Sask. Q.B.), at para. 32; Forhan & Read Estates Ltd. v. Hallett and Vancouver Auto Towing Service (1959), 1959 CanLII 338 (BC SC), 19 D.L.R. (2d) 756 (B.C. Co. Ct.), at p. 759. Second, the chattel must have caused actual damage to the occupant’s land and must be continuing to cause such damage at the time of its seizure: R. v. Howson, 1966 CanLII 285 (ON CA), [1966] 2 O.R. 63 (C.A.), at pp. 77-78, per Laskin J.A. (as he then was); Forhan, at pp. 758-759; Barbour v. University of British Columbia, 2009 BCSC 425 (CanLII), 310 D.L.R. (4th) 130, at para. 50, rev’d on other grounds, 2010 BCCA 63 (CanLII), 316 D.L.R. (4th) 354, leave to appeal refused, [2010] S.C.C.A. No. 135. If these requirements are met, the occupant can distrain the offending chattel in order to secure compensation for the damage it has caused from its owner: Stewart, at para. 32; Forhan, at p. 758.