Rent Distress Act needs a COVID-19 update, BC Court explains why only urgent cases, and releasing people from jail
The Rent Distress Act governs the seizure of property by commercial landlords for the non-payment of rent. Its provisions are utilized in cases, including a recent court decision concerning the seizure and sale of a pizza oven, by a landlord in Tofino.
Unfortunately, in the context of the COVID-19 pandemic, the act is hopelessly out of date. It only permits a tenant to keep $200 worth of property relating to their trade and sets out an archaic list of other property that a tenant is allowed to keep. The list includes one cooking stove with pipe, one lamp, one washboard, two pails, one table, one clock, one broom, one shovel, three smoothing irons, and one chair, knife, spoon, fork and plate for each member of the debtor’s family.
A smoothing iron is a predecessor to the modern iron that you would heat up on your stove, to press your “ordinary wearing apparel” which a landlord would also be required to leave a tenant with. Why a tenant would be allowed three smoothing irons, but only one spoon, is a distinction lost in time.
Section 15 of the Rent Distress Act actually authorizes landlords to “break open a house” to seize property “clandestinely conveyed or carried away by a tenant or lessee”.
In the context of small businesses being forced to close due to COVID-19, the Rent Distress Act need to be updated promptly to prevent commercial landlords from seizing and selling equipment that restaurants, and other businesses, will need when they are permitted to reopen.
Also discussed is a recent message from the BC Supreme Court explaining why it is currently only able to hear urgent cases. The message points out that it would be unsafe to require people to serve on juries with 11 other individuals, or to be compelled to attend in person as a witness.
The other important point made by the court is that the justice system needs to be open and transparent: it must be accessible to the public. As discussed during the show, one solution to this might be to permit public access to the digital audio recordings that are made of all court proceedings in BC. That would facilitate hearings being conducted using Zoom, Skype, or other technology.
Finally, the different mechanisms, and considerations, for releasing people from jail to avoid infection are discussed. BC has already stopped 95 people from having to serve weekend jail sentences as these individuals would be low risk and having them come and go from jails each weekend would place them, and others, at risk.
Automated transcript of the April 9, 2020 episode of Legally Speaking with Michael Mulligan:
Legally Speaking April 9, 2020
Adam Stirling [00:00:00] It’s time for legally speaking with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael. How are you?
Michael T. Mulligan [00:00:06] I’m doing very well, thank you. Thanks. Thank you for having me.
Adam Stirling [00:00:09] Always interesting to look at the latest in the world of legal affairs, especially in the context of the COVID- 19 pandemic. Where do we start this week?
Michael T. Mulligan [00:00:17] Well, there was a decision just released by the B.C. Supreme Court on Monday, and the judges are clearly back there diligently working away on things like reserve judgments. And it’s a case which I think calls to mind a need for some, fairly urgent, amendment of a provincial statute, which I’ll get to in a moment after I give the background. The particular case involved leasing of space up in Tofino, for a couple of tenants to open what was to be a takeout pizza restaurant. They rented the space, signed the lease, prepared by a landlord there, and then ordered a bunch of equipment, including a wood-fired pizza oven from Europe. Things started to deteriorate, it sounds like they got off on the wrong track when they discovered things like the zoning there didn’t permit takeout restaurant, and then other friction developed with the landlord. That ultimately led to the landlord deciding to at one point, change a lock on the building, and then eventually re rent the space to somebody else. The landlord, however, then declared that she was entitled to the fixtures, the property of the pizza, the proposed pizza restaurant, including an expensive pizza oven. And she took it upon herself to have those things sold. And this litigation arose dealing with the lease and whether the landlord was permitted to sell the fixtures of the tenant in that way. And the reference was made and an act was referred to called the Rent Distress Act and that is an act which, having now read that seems like it is something which is in, a clear and I think fairly urgent need of amendment and updating in the context of the current COVID-19 pandemic. That act is an act which deals with landlords, commercial landlords, seizing property to cover unmade rent payments. In this case, the thing was the pizza oven. Now there are a number of problems with this piece of legislation because it is so outdated it reads like something out of Dickens. For example, the Rent Distress Act lists various things that a commercial tenant would be allowed to keep, that a landlord couldn’t seize and sell, and they include things like this one fork, one spoon, one cup and saucer, one sewing machine, one washboard, one clock, one axe and one saw three (laughter)…smoothing irons, however, are permitted. And I had to actually look up what an earth is a smoothing…
Adam Stirling [00:03:28] I don’t know what is a smoothing iron?
Michael T. Mulligan [00:03:30] A smoothing iron would appear to be a non-powered version of an iron that you might use to iron your shirt. And I suppose three smoothing irons were permitted, in addition to the one washboard and one washtub,
Adam Stirling [00:03:44] huh.
Michael T. Mulligan [00:03:44] Presumably because you’d have to have them on the single one cooking stove with pipe. You’d also be permitted to keep, to heat them up and to continue to iron your single set of clothing that it permits you to keep. The act also has written into its things like an exemption to allow a tenant to keep the tools and implements or personal property ordinarily used in the debtor’s trade or occupation to a value of $200. So back at a time when people were using smoothing irons and would be concerned about their one washboard and single fork, a $200 exemption might have been reasonable. This needs to be updated and to my mind needs to be updated, now, because you can see the kind of mischief that this very outdated piece of legislation could cause in the current climate.
Adam Stirling [00:04:40] Yes.
Michael T. Mulligan [00:04:40] If, for example, you had a restaurant, I walked today through the empty streets of downtown Victoria and virtually every restaurant is closed.
Adam Stirling [00:04:49] Yes.
Michael T. Mulligan [00:04:49] I expect that none of them are in a position to pay rent to landlords and if you have landlords, if they decided to exercise authority under things like the provisions of the Rent Distress Act. You’re going to have a circumstance where all of the necessary equipment for somebody to reopen could be taken and sold, making it impossible for that business to reopen in the future. This outdated piece of legislation, even if you can believe it, includes things like permission for landlords to break into houses, lawfully, to recover any property that their debtor tenant might have taken out of their shop. So, if somebody…
Adam Stirling [00:05:33] Wow.
[00:05:34] …brought their, you know, second, you know, washtub or more than one clock or one lamp on the various other ridiculous items listed. A landlord would be entitled to attend to the person’s home and break into it, their employee, the landlord themself and recover those things. That just doesn’t make any sense in 2020 in the middle of a pandemic. And so, this act needs to be urgently and immediately updated. You would hope people aren’t acting in an unreasonable fashion. But we can’t simply count on that. And if anyone from the provincial government is listening, they should pull up the Rent Distress Act to revive statues in British Columbia, 1996, Chapter 403. And if they can find some way to get this thing immediately amended, they should be doing so. We do not need to have every restauranteur left with a single fork and spoon as landlords tried to seize and sell things, when restauranteurs and others are unable to pay their rent. This is something which is in current use. The court is referring to it this week and it is completely out of date and these provisions need to be changed in order to prevent the possibility of serious harm and real unfairness. And anytime I think in legislation we start writing in figures and things that might have been sensible and, who knows when this thing was written, they very quickly lose all meaning. And we don’t want to have the result of when some small businessperson is unable to pay the rent.
Adam Stirling [00:07:15] Yeah.
Michael T. Mulligan [00:07:15] All of their personal possessions being sold in order to meet that. So, well, more needs to be done. This needs to be fixed to my mind right away.
Adam Stirling [00:07:24] Absolutely. What is the time interval that must transpire before the legislation may be engaged and property may be seized?
Michael T. Mulligan [00:07:30] It doesn’t have a time limit. The, in this particular case, the one that I referred to, it was interesting. The the Tofino restaurant that didn’t, didn’t make it. That one, the landlord, had drafted the lease agreement, but then she didn’t follow the provisions of the lease agreement. She changed the locks. She re rented the space and then she declared, according to the judge, if you haven’t got the fixtures out, I own them. And then proceeded to sell the various things, including this expensive pizza oven. The judge found that the landlord did not have authority to do that. The rent, in fact, had been paid because she kept a damage deposit was provided for in the lease and then she re rented it so she’d lost no rent at all. One of the interesting provisions of this, the Rent Distress Act, is that if a landlord improperly takes things like that and sells them, which the judge found the landlord did in that restaurant case from Tofino, it provides that the tenant is entitled to double the value of the things that the landlord improperly took and sold. And so here, the unfortunate would be restauranteurs, wound up with twice the value that the landlord got for the pizza oven. Unfortunately for them, what the landlord managed to get for the fixtures was less than what they had paid for this unfortunate business venture.
Adam Stirling [00:09:02] Yeah.
Michael T. Mulligan [00:09:02] So there are some provisions in there and that that may be helpful to a tenant. But plainly we need to update these things and get the figures on items in touch with 2020, not something out of the 1800’s when people we’re concerned with whether they had a pipe for their one cooking stove or a single lamp. The act would permit them to keep.
Adam Stirling [00:09:26] One clock. You have to use that very parsimoniously when choosing which room, the clock will be housed in. Or perhaps it’ll be moved around the home.
Michael T. Mulligan [00:09:33] Yeah, you can spread it out. You’re also permitted to keep 1 axe, 1 saw, 1 shovel, a single washtub, 1 washboard, and maybe you can spread out your 3 smoothing irons into different rooms.
Adam Stirling [00:09:43] Yeah. OK. Well that’s… Thank you for bringing that one to our attention. Hopefully any potential issues there get dealt with in a timely manner. The latest from the BC Supreme Court explaining its response, Michael, to COVID-19.
Michael T. Mulligan [00:09:56] Yes. Now this looks like it may have been. Potentially a response to an editorial written about a week ago by Ian Mulgrew in the Vancouver Sun and the editorial that Mr. Mulgrew wrote who was entitled: “Gin before justice in Canada? Pity”. And the thesis of the editorial was, look, we’ve deemed, you know, alcohol sales to be an essential service. Why is it that BC courts are closed, you know the rule of law isn’t functioning or enforceable except in urgent cases? So, it was editorial was critical of the judiciary, only hearing urgent cases and adjourning other matters. And certainly, that’s an understandable point. Right? If you were prioritizing maintenance of the rule of law and weighed up against selling liquor, you know, we have clerks coming into, you know, stores putting himself in jeopardy to sell liquor and food and various other things. You know, shouldn’t we be able to come up with some way to keep the courts open in a more, more fulsome way? Now what the court released, the BC supreme Court released, release was entitled: “Message from the Supreme Court of British Columbia”, articulating why it was that the court didn’t think it could open up in a more fulsome way. And it made a few points. One of them was to reference jury trials.
Adam Stirling [00:11:20] Yes.
Michael T. Mulligan [00:11:20] And ask the fact that it’s simply not optional to serve on a jury, it’s your civic duty. And putting people in, forcing people to be sitting with 11 other individuals in a small space currently would not be tolerable. It also pointed out witnesses are not there voluntarily; they’re compelled to attend. This was an interesting point as well. And I think it sort of goes to the issue of, you know, can’t we do more of these things by use of technology? You know, can’t we or could we have, for example, court proceedings operating with Zoom or, you know, Skype or some other technology like that? And I should say there have been some efforts in that regard dealing with those urgent cases, like things like bail hearings or in custody matters. When they have a, what they’ve been doing is having a judge in a courtroom, having the in-custody person appearing by video link from the jail, and then having the lawyers by telephone making submissions. Some challenges arise with that, though, including the ability of everyone to hear what everyone else is saying. Like can the person in custody hear what the prosecutor is saying on the speaker phone? So, there’s some technological problems like that. But a more fundamental issue that the court points out in this latest release is the concept of transparency and pointing out that courts are open to the public and justice needs to be transparent and people need to be able to see it. So one of the other technological things that would need to occur would be, in addition to allowing a mechanism where everyone can see and hear each other, clearly, there needs to be a way that the public would be able to see what’s being done in court.
Adam Stirling [00:13:06] Yes.
Michael T. Mulligan [00:13:06] It would not be satisfactory if we had trials going on in a sealed building and nobody was able to report on them or see what on earth is going on. Now, that doesn’t seem like an impossible problem to solve. But it is an important problem and it does need to be addressed.
Adam Stirling [00:13:23] Would it not also, Michael, at least risk becoming a de facto change that would allow the televised broadcast of core hearings, which up until this point has been something that is very that has not been chosen by the judiciary?
Michael T. Mulligan [00:13:36] Yes, that is that could be an effect. Now, one thing I can say is that the courtrooms are and there would be technological issues of having a proper camera so people could see it. Now, that’s not insurmountable.
Adam Stirling [00:13:48] Yeah.
Michael T. Mulligan [00:13:48] The Supreme Court of Canada, for example, has a camera system. True. And it’s completely automated. So, it’s not distracting. It’s hooked up with the microphone. So, whoever is speaking the camera then focuses on that person, so you can watch it on TV if you want or online.
Adam Stirling [00:14:03] Yes.
Michael T. Mulligan [00:14:04] Courts currently, while, they don’t have that equipment in them. They are all equipped with audio recording equipment, which is all digital. And so, it’s called DARS. So, everything said in a courtroom is recorded and stored on a server. And it allows for things like in a jury trial, you can replay evidence if a jury needs something to be played back to them, or a judge in their chambers can simply go and click on it and listen to, you know, listen again to evidence, if there were some important points, they might have missed. That digital access is also provided where transcripts are ordered so they can be typed up. So, I could imagine a system, using the current audio recording system, whereby we could permit interested parties to listen to what was said in court. Now, I guess there have been concerns about the broadcast of the audio, I think various concerns have been raised, including things like, you know, would that interfere with witnesses feeling like they can testify in a complete fashion? But it seems to me that, while, there are and have been concerns about that in the current context, all these things are a matter of weighing up the pros and cons. Right.
Adam Stirling [00:15:24] Yes.
Michael T. Mulligan [00:15:24] And if this problem is a protracted one, as it may be, some of those concerns, it seems to me, are lesser concerns than allowing the rule of law to prevail in the justice system to function. And so, I can see a mechanism using the current technology that would permit court proceedings to be available online so people could at least listen to them.
Adam Stirling [00:15:51] Yes.
Michael T. Mulligan [00:15:51] And that’s going to really give you the substance of it. I mean, sure, somebody who might be preferable if you had a camera there, you could be there in person. But in terms of dealing with that need for transparency, it seems to me that that is a solvable technological problem. If you simply permitted reporters or the public, anyone who is interested to listen to everything that was said and all the reasons that were given. That to my mind would solve the transparency issue, which is an important one. And then if you had a mechanism by using something like Zoom or Skype or any of those things, that would permit the judge to see counsel and see the other parties, you might not be able to do everything, but it would open up another category of things which could be done. We may not be able to run a jury trial, but perhaps we can run that important family court…
Adam Stirling [00:16:45] Yeah.
Michael T. Mulligan [00:16:46] …proceeding or we could run the civil case. People waiting on a long time where it’s only a judge if we can get everyone hooked up. There’s no magic to the particular room even. Right.
Adam Stirling [00:16:56] Yeah.
Michael T. Mulligan [00:16:56] We need the judge. You’re going to hear the witnesses and parties. But so, there are challenges there. They’re working on it. But I think the point Mr. Mulgrew made is, is well-taken. And all of us involved in the system are aware of the challenges and are I think as this goes on and we get some sense as to whether this is simply a few weeks and, you know, not urgent cases can be put off. What they’ve done, they’ve just put off non-urgent cases into June and July to fix new dates. And if we’re all back up and running in June, well, that might be workable. But if we cannot have juries and witnesses and others, in person, for many months, we can’t simply push the problem further and further down the road because the justice system doesn’t have a lot of extra slack.
Adam Stirling [00:17:49] No, not very, very little in fact. I need to take a break. Michael, when you come back in just a sec. Yes. Thank you so much. Okay. Right. Let’s say quick break. Sorry, I lost track of the time there. Commercial break. Back after this.
[00:18:00] COMMERCIAL BREAK.
Adam Stirling [00:18:00] Back on the air here was a very extensive and another four and a half minutes left in today’s segment, Michael Mulligan for Mulligan Defence Lawyers talking about how the courts are modifying their procedures to deal with the COVID-19 pandemic. And I think you made a very important point, Michael, is that the paths that we chart forward, largely depend on our expectations of how long they will need to be sustained. Brief interruptions can be tolerated. But if this is to be extended well into the summer and beyond, more permanent solutions will likely be sought sooner rather than later.
Michael T. Mulligan [00:18:30] You’re quite right. We just can’t push every case off indefinitely. If it’s a few weeks, fine, we’ll do our best and we’ll catch up. But if it’s longer than that, I think we will need to explore some other more fundamentally different approaches to try to get as many things done as we possibly can so that the system isn’t intolerably backed up. The other thing to mention in just a few minutes, we have remaining.
Adam Stirling [00:18:55] Yes.
Michael T. Mulligan [00:18:56] We’ve talked about previously the concern about people in jail contracting, COVID-19 and staff and others. Some progress is being made in that regard, they’ve have now been apparently 95 inmates who are serving largely intermittent sentences, like serving them on weekends.
Adam Stirling [00:19:13] Yes.
Michael T. Mulligan [00:19:14] Who have been released to serve those at home, not have them come in every weekend and you can imagined just how dangerous that state of affairs would be, having people, you know, that were serving a number of days on weekends, coming in and out of a correctional Centre, it would be a just a recipe for having everyone involved pretty quickly infected.
Adam Stirling [00:19:35] Yeah
Michael T. Mulligan [00:19:36] And so in BC, I think ninety-five of those individuals have been administratively permitted not to come in on weekends. They’re clearly not in the category of dangerous, the people that need to be kept in jail, after all, they were going out to work Monday to Friday, really, and serving their sentences on the weekends. So that’s an advancement. Courts are also now struggling with the issue of bail and detaining; people are not detaining them while waiting for their trial. And judges are dealing with those things on an individual basis, bearing in mind the considerations on bail. Whether you keep somebody in jail waiting for their trial include things like, first of all, what are they going to show up if you let them out? But then the other principle consideration would be whether it’s necessary to detain somebody for the protection and safety of the public. And courts have now in BC made clear in several decisions, that the risk to accused people and others in custody, and the community broadly, need to be taken into consideration when determining whether a detention is necessary for the protection of the safety of the public. And the existence of COVID- 19, is not a get out of jail free card.
Adam Stirling [00:20:58] No.
Michael T. Mulligan [00:20:58] And where you have people who are dangerous or unlikely to show up or likely to commit further offences, if released, or in fact would be no safer if they were released. You know, somebody who’s living a lifestyle that might be very dangerous if they were to be let back out, are still likely to be detained. But it is a consideration now, for judges, and they need to think about that, and they are thinking about it. And you see decisions on both sides, of releasing or detaining somebody, taking into account factors like the danger that being detained would pose both to that person and to the community generally, because, of course, every person who winds up being infected, while they were either serving a weekend sentence or held in jail, is one more person that may be in the hospital on a ventilator or spreading the disease to others. So, the courts are now taking that into consideration when making bail decisions. And then administratively, the institutions are considering whether there are circumstances like with the weakened prisoners, whether there should be releases there to reduce the risk of infection, because we’ve already had reports in BC of inmates being infected.
Adam Stirling [00:22:15] Yeah.
Michael T. Mulligan [00:22:16] So we just need to address that.
Adam Stirling [00:22:18] Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers every week, Legally Speaking, on CFAX 1070 during the second half of our second hour. Pleasure, as always, Michael. Thank you for your knowledge and insight. Stay safe. We’ll talk to you next week.
Michael T. Mulligan [00:22:30] Thank you so much. You as well.
Adam Stirling [00:22:31] All right. Take care. Bye now.
Automatically Transcribed on April 9, 2020 – MULLIGAN DEFENCE LAWYERS