CANADA Law and Practice Contributed by: Rachel V Hutton, Michael L Dyck, Mario Paura and Miguel Manzano, Stikeman Elliott LLP
6.21 Forced Eviction A tenant may be forced to vacate leased premises in the event of default. Leases often provide that a breach must be material and go uncured beyond a specified grace period before the tenant can be dis - possessed. In addition, in most jurisdictions a landlord is required to serve notice, specifying the breach and allowing a reasonable period to remedy the breach before they may re-enter the premises. In response to the COVID-19 pandemic, eviction mor - atoriums were also instituted by most provinces, all of which have now concluded. 6.22 Termination by a Third Party A lease may be terminated by government or munici - pal authorities pursuant to legislative authority relating to expropriation (ie, public taking) or condemnation of land. In such cases, compensation will depend on the relevant legislation and both the landlord and tenant may be compensated. In some jurisdictions, a lease for a term longer than three years may become invalid, and therefore termi - nated, if a bona fide third party acquires a landlord’s interest for value without notice of the lease. In such instances, however, equitable considerations may prevent an outright termination. 6.23 Remedies/Damages for Breach In the event of a breach of a commercial lease, a land - lord typically has four primary remedies: • to refuse to accept the repudiation or breach and insist on performance of the lease, in which case the landlord may sue the tenant for rent or dam- ages while the lease exists; • to accept the tenant’s repudiation of the lease and terminate the lease, retaining the right to sue for rent due until such termination, or for damages accrued up to the date of termination for previous breaches; • to give notice to the tenant that the landlord wishes to re-let the premises on the tenant’s account and repossess the property on that basis, and sue for shortfall in rent where it occurs; and • to terminate the lease on notice and repossess the property while reserving the right to sue for
prospective damages for the unexpired term of the lease (including unpaid future rent). The exercise of the remedies available to the landlord is subject to the principles of common law. The pri - mary restriction on the landlord is its duty to mitigate damages. In addition to common-law requirements, legislation in some jurisdictions also restricts how a landlord can exercise its right to distrain, prescribes notice requirements, and may provide a tenant relief from forfeiture. A landlord will often hold a security deposit to secure future payment and performance of obligations under a lease. This is typically provided as cash but may also be a letter of credit. 7. Construction 7.1 Common Structures Used to Price Construction Projects Canadian construction contracts generally adopt one or more of the following structures: • fixed price – a predetermined, stipulated or lump- sum price; • cost-plus – based on the contractor’s actual costs, plus a percentage or fixed fee applied to actual costs, potentially subject to an overall guaranteed maximum price; or • unit price – a predetermined fixed amount for each specified unit of work performed, which is multi - plied by the measured quantity of work performed for each specified unit. 7.2 Assigning Responsibility for the Design and Construction of a Project The allocation of responsibility for design and con - struction of Canadian construction projects is deter - mined by the project delivery model, and the form of construction contract used by the owner. Design-Build The owner engages a single design-builder, who assumes overall responsibility for the design and con - struction of the project, including price, schedule and performance. The owner generally retains the risks
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