B.C. Court of Appeal ruling finds tenant responsible for an odour that landlord says never existed
A Nanaimo landlord has successfully appealed a B.C. Supreme Court ruling that ordered him to pay a commercial tenant nearly $19,000 for failing to eliminate an odour.
On June 3, a three-member B.C. Court of Appeal panel ruled that there was no evidence that Randall Stearman breached the term of "quiet enjoyment" to leaseholder Penny Powers, who operated Walkabout Casual Wear on Commercial Street in Nanaimo.
Speaking by phone from Nanaimo, Stearman told the Straight that he never smelled any odour in the building, which he owned for 10 years. He added that anyone he sent to inspect the building couldn't smell any odour, either.
"I called it the imaginary ghost smell from the land of make-believe," Stearman said. "They only did it to get out of the lease. That's my opinion. What a waste of money."
In a written decision, Justice Mary Newbury concluded that the trial judge, Loryl Russell, "erred in finding that the landlord's 'failure to eliminate the odour' constituted a fundamental breach of the lease, which entitled the tenant to repudiate it".
Newbury noted that Powers was able to conduct her business on the premises, as was a successor business, and couldn't prove any loss of sales or profits because of an odour.
"I am sure the odour was unpleasant to those who could smell it, but the tenant made little effort to 'get to the bottom of' what was causing it," Newbury wrote in the B.C. Court of Appeal judgement. "She elected to repudiate the lease offer after having only one repairman look at the HVAC system."
The court ruling noted that under the terms of the lease, the tenant was responsible for servicing and repairing the heating, ventilation, and air-conditioning in the building.