No Right of Self-Help
|Caselaw.Ninja, Riverview Group Publishing 2021 ©|
|CLNP Page ID:||620|
|Page Categories:||[Eviction (Commercial Tenancy)], [RTA Exempt Tenancies], [Legal Principles], [Hearing Process (LTB)], [Judgement Enforcement]|
|Citation:||No Right of Self-Help, CLNP 620, <https://caselaw.ninja/r/5r>, retrieved on 2022-06-27|
2503257 Ontario Ltd. v. 2505304 Ontario Inc. (Good Guys Gas Bar), 2020 ONCA 149
 As a courtesy by letter dated June 17, 2019, this court’s Senior Legal Officer alerted the parties to a potential problem regarding this court’s jurisdiction to hear an appeal from an order granting vacant possession. She suggested that they could bring a motion before a single judge of this court or file a consent order transferring the appeal to the Divisional Court without the necessity of today’s attendance.
 The parties did not do so but argued that this court has jurisdiction to hear this appeal.
 We disagree. The application judge granted vacant possession to the respondent which, in our view, is caught under s. 78 (1) of the Commercial Tenancies Act, R.S.O. 1990. C. L.7, when read in light of the statutory scheme set out in s. 74 to 78, which deal with who is entitled to possession after a notice under the Commercial Tenancies Act is served. The February 13, 2019 order of Hourigan J.A., refusing a stay of the order under appeal and consequentially granting a writ of possession, was ancillary to the order granting vacant possession. It is therefore not an impediment to the Divisional Court’s jurisdiction to hear this appeal.
 As a result, the appeal from the January 23, 2019 order granting vacant possession must be made to the Divisional Court.
 Accordingly, the appeal in this court is transferred to the Divisional Court pursuant to s. 110 (1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
Regina v. Doucette, 1960 CanLII 138 (ON CA)
It should be made clear at the outset that the recaption or resumption of possession of goods by the act of the owner through an agent or bailiff acting under his written authority, is not a lawful execution of any process against lands or goods, or is not the making of a lawful distress or seizure within the meaning of s.110 (c) of the Cr. Code which is directed against resistance to or wilful obstruction of any person engaged in the performance of such acts. This is placed beyond question by the decision of the Court of Appeal in R. v. Shand (1904), 1904 CanLII 109 (ON CA), 7 O.L.R. 190.
The limitations upon the right of an owner to repossess his goods without process of law are stated clearly and succinctly in 3 Blackstone, Commentaries, pp.3-4, from which I quote
- Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal, ... in which case the owner of the goods ... may lawfully claim and retake them wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace. The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; ... if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again without force or terror, the law favors and will justify his proceeding. But as the public peace is a superior consideration to any one man's private property; and as, if individuals were once allowed to use provate force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided that this natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society.
This passage in Blackstone was commented upon and applied by Parke, B., in Patrick v. Colerick (1838), 3 M. & W. 483. See also Davis v. Whitridge, (1847), 2 Strob. 232.
It is very clear that whatever rights the vendor or his assignee or their authorized agent might have had under the terms of the conditional sales contract (the purchase money being in arrear and unpaid) to enter upon Chappell's premises to resume possession of the goods in question, it would be illegal for them to take such possession by force. Traders Bk. v. Browne Mfg. (1889), 18 O.R. 430, cited by counsel for the respondents is authority for this proposition. In Re Nu-Way Meat Market (1940), 22 C.B.R. 46, it was held that the liquidator might claim possession of a truck sold to a debtor under suspensive conditions of property, where the vendor had taken possession of it by force and deceit since the winding up, and had neglected to furnish the liquidator with the detailed account of what was still owned by the debtor; whatever the terms of the deed, no one had the right to take the law into one's own hands.
There must be reasonable limits imposed upon the right of self-help assumed and asserted by private individuals in order to preserve peace and tranquillity and to avoid the evil consequences which are bound to flow from insistence upon a right to use private force. Under s. 39 of the Cr. Code, the peaceable possessor of movable property under a claim of right is protected from criminal responsibility (although not from civil responsibility) for resisting its taking even by the person legally entitled.
- 2503257 Ontario Ltd. v. 2505304 Ontario Inc. (Good Guys Gas Bar), 2020 ONCA 149 (CanLII), <http://canlii.ca/t/j5jht>, retrieved on 2020-09-22
- Regina v. Doucette, 1960 CanLII 138 (ON CA), <http://canlii.ca/t/g18pq>, retrieved on 2020-09-11
- The King v. Shand, 1904 CanLII 109 (ON CA), <http://canlii.ca/t/htzk9>, retrieved on 2020-09-11