Executive Summary – Key Legal & Evidentiary Issues

• Dispute over whether the parties are bound by a written lease, an oral lease, or a 2022 lease agreement.

• Petitioner seeks possession of the premises under the Commercial Tenancy Act, asserting the tenancy ended.

• Respondents claim renewal rights and argue continued occupancy is lawful based on prior agreements.

• Allegations of improper service and flaws in the notice of termination and notice to quit.

• Existence of a parallel civil action raises the issue of abuse of process due to duplicative proceedings.

• Credibility and factual disputes over the lease history suggest a need for full trial procedures, not summary judgment.

Facts of the Case

In this case before the Supreme Court of British Columbia, Collingwood Investment Ltd. (the landlord) sought possession of commercial premises leased to Masita Korean Cuisine Ltd. (the tenant), located at 6516 Kingsway, Burnaby, BC. The petitioner applied under sections 18–21 of the Commercial Tenancy Act (CTA) for a writ of possession — a legal mechanism for regaining property from a tenant allegedly wrongfully occupying it.

At the heart of the dispute were conflicting versions of the lease agreement:

• The petitioner relied on a written lease signed in March 2019, covering the term from July 1, 2018, to June 30, 2023. This lease had no renewal clause, and contained a standard overholding provision converting tenancy to month-to-month upon expiry, and a representation clause limiting liability to written terms only.

• The respondents (Masita and its guarantor, Youngsoon Kim) alleged there had been an earlier oral lease agreement (June 2018) which included a renewal option. They also argued that a subsequent 2022 lease agreement (allegedly agreed to but not signed) extended tenancy until June 30, 2028, including another renewal option.

On September 30, 2023, Collingwood delivered a termination notice citing the overholding tenancy. Masita refused to vacate, arguing they were operating under a valid renewed lease. Collingwood then initiated a separate civil action (the “New West Action”) and filed this petition shortly after.

Arguments and Court’s Analysis

The key legal and evidentiary issues included:

• Whether the respondents were overholding tenants or had a right to continued possession under a renewed lease.

• Whether the written lease’s lack of a renewal clause governed, or whether the oral or 2022 lease agreements were enforceable.

• Whether service of termination and notice to quit were valid and proper.

• Most notably, whether the petition itself was an abuse of process due to the earlier and still active New West Action addressing the same relief and issues.

The court did not resolve the substantive lease dispute. Instead, Justice Branch focused on procedural fairness and judicial integrity. The judge ruled that the petition constituted an abuse of process — a duplicative proceeding that undermined judicial economy, consistency, and fairness.

Citing principles from the Commercial Tenancy Act, prior case law (e.g., Concord Kingsway), and the Supreme Court of Canada’s recent guidance on multiplicity of proceedings, the court emphasized that allowing two overlapping actions to proceed would risk conflicting outcomes and be unfair to the respondents, who had already filed a counterclaim and responded in the New West Action.

Outcome

The petition was dismissed on grounds of abuse of process. The court ordered that the dispute should proceed through the previously filed New West Action, which was broader in scope and already involved counterclaims.

The respondents were awarded costs of the petition, unless future submissions dictated otherwise.