Change of locks permitted when premises abandoned

This matter concerns whether a landlord can change the locks of a commercial premises when it appears that the tenant had abandoned it. At the trial, the trial judge ruled that the landlord had changed the locks before it was permitted to do so and had therefore improperly terminated the lease. The trial judge therefore ruled that the landlord could no longer sue for the remainder of the rent.

Unfortunately, the change of locks issue was one that the trial judge had come up with on his own after all the evidence had already been heard.  The defendant had not raised it as an issue at any time.  As a result, there was no proper evidence before the judge.  Despite Paul Gemmink raising an objection to this, the trial judge ruled that the landlord had improperly terminated the lease by changing the locks and was therefore not entitled to any damages for the early termination.

The Court of Appeal had accepted Paul Gemmink’s argument.  It held that a landlord can protect abandoned commercial premises by changing the locks.  If done properly, it would then still be entitled to damages.  The Court of Appeal also ruled if a trial judge believes that a new issue htat was not raised is important enough to deal with, the parties should have been given a proper chance to present evidence.  As a result, a trial of an issue was ordered to determine whether the landlord acted properly and would therefore have been entitled to damages.  2014 ONCA 816

At the trial of the issue, the judge (a different one) accepted that the tenant had abandoned the premises.  As a result, the landlord had been permitted to change the locks in order to ensure that the premises were properly protected.  She therefore found in favour of the landlord and granted damages.