When in litigation against a tenant, one of the best judicial procedures available to the landlord during legal proceedings is a safeguard order.
In certain circumstances, this extraordinary recourse allows the landlord to obtain monthly payment of rent due, in whole or in part, and to prevent the tenant from using the premises free of charge until the dispute has been heard in court one, two or three years hence (or indeed, even longer).
That being said, although this recourse is as a general rule quite useful for the lessor, there is no guarantee that it will be granted as a matter of course.
For example, in the recent decision Maiorino c. Garderie des petites étoiles Nour et RYM Inc.[1], Honorable Justice Marie-Christine Yvon, J.C.S. refused to issue such an order following her analysis of the applicable criteria (i.e. urgency, appearance of right, irreparable prejudice and balance of convenience).
Two reasons were evoked in her judgement:
- The landlord waited 5 months before filing suit and requesting a safeguard order, as the rent from February to June was still outstanding. According to the judge, that waiting period constituted an admission on the lessor's part that the lack of payment from the tenant did not represent a real situation of urgency; and
- The tenant left the rented premises in February 2019, ceasing from that moment to pay the rent. Consequently the judge reckoned that, given the absence of a tenant on the rental premises, the landlord should have taken the steps necessary to find a new tenant. It was thus not a situation where the landlord was financing the activities of the tenant.
Although he must not automatically litigate in every situation of a tenant's non-payment of rent, what the lessor must retain from this decision is the necessity of acting promptly and with diligence before taking legal action. If not, the Court could see that as an admission of a lack of urgency and refuse to issue a safeguard order.
Likewise, when a tenant absconds without paying the rent due, the Court will not simply issue a safeguard order. It will only do so in absolutely exceptional circumstances. The landlord must then suffer in silence and wait a few years before recovering what he is owed, if applicable.
François Nantel
Lawyer
Cain Lamarre
[1] 2019 QCCS 4640.