Executive Summary: Key Legal and Evidentiary Issues

• A commercial landlord sued its tenant and the tenant's surety for unpaid April and May 2020 rent, reducing the $19,460.56 owed to $15,000 to proceed in small claims.
   
• The tenant argued that COVID-19 public health closures of its retail store freed it from rent and that it was owed $7,975.16 for rent paid during later closures.
   
• Under the Court of Appeal's Redbourne framework, superior force releases a landlord from providing enjoyment, but a tenant who still receives partial enjoyment must pay up to the extent of its enrichment.
   
• Conflicting evidence on how the premises were divided between store, office and warehouse led the court to find the store likely occupied 50% of the space.
   
• Continued use of the office and warehouse, on-site storage of inventory, common-area services, and prominent signage established partial enjoyment worth 60% of the rent during closures.
   
• Online sales growth was rejected as an enrichment factor because a different group entity made those sales, the warehouse was not used for them, and they were marginal at the time.
   

Facts of the case

Antoine Morin & associés inc. owned first-floor commercial premises at 1961 and 1963 Frank Carrel Street, leased to a numbered company doing business as Planet Vidéo. Planet used the 5,905-square-foot space mainly as an adult entertainment products store, along with office and storage space. Jean-Luc Audet stood as surety for the tenant.

Morin claimed unpaid rent for April and May 2020 totalling $19,460.56 but reduced its claim to $15,000 to fall within the small claims rules. Planet answered that COVID-19 public health rules prevented it from operating the store during those months. It also pointed to rent it had paid for December 2020 and January and February 2021, when the store could not open to the public, and calculated that Morin actually owed it $7,975.16. Planet asked that the claim be dismissed.

Policy and legislative provisions at issue

Clause 4 of the lease restricted use of the premises to office, retail business and warehouse purposes. Rent consisted of a base rent per square foot plus the tenant's pro rata share of operating costs for the building. Other lease provisions relied on by the court covered common-area maintenance and facilities in clauses 5 and 10.1, cleaning of glass surfaces in clause 11, and signage in clause 9.

On the legal framework, the court applied Immeubles Redbourne South Shore inc. v. Soutex inc., 2026 QCCA 434, together with articles 1470, 1693, 1694 and 1851 of the Civil Code of Québec. Under those principles, a landlord's main obligation is to provide peaceable enjoyment of the premises. Where superior force makes that impossible, the landlord is released and cannot demand rent, which must be returned if already paid. If the landlord shows it still provided partial enjoyment, the tenant must pay up to the amount of its enrichment. The court noted that, in commercial leases, these Civil Code rules are suppletive and can be modified by contract. COVID-19 public health rules met the unforeseeability criterion and the unavoidability component of irresistibility, leaving insurmountability as the live question.

Reasoning and analysis

Morin proved that 2020 rent amounted to $117,536.03 including taxes, or $322.02 per day. Because Morin had also adjusted operating costs downward by $64.30 per month, the court credited $2.11 per day for 2020. Planet established four closure periods totalling 86 days: March 25 to May 4, 2020; December 25 to 31, 2020; January 1 to 8, 2021; and January 9 to February 8, 2021. Rent for those periods came to $27,681.06. On Planet's premise that no rent was owed during closures, Morin would have had to repay $8,220.50 after subtracting the $19,460.56 in unpaid rent.

The court held that premise was wrong. Planet's directors kept using the on-site office to manage the network's six stores, and Planet kept using the warehouse, which also served the Galeries de la Capitale store. Store equipment and inventory stayed on the premises, giving Planet storage in the retail space until restrictions lifted, a form of enjoyment recognized in Redbourne. Planet also continued to receive lease services such as parking, common-area maintenance and window cleaning. Operating costs, which made up about one third of total rent, were expenses Morin bore for the benefit of all tenants. Planet's name also remained prominently displayed at the front of the building, visible to the many people passing along Charest Boulevard, which the court found had definite commercial value.

The parties' evidence on how the space was divided was contradictory and approximate. Planet put the store at 70% of the premises and the offices at 5%, while Morin estimated 40% for each. Comparing the premises with Planet's 2,800-square-foot Beauport location, which had storage but no office, and considering that the office administered the entire network, the court concluded the store likely occupied half the space.

Morin's argument that the network's online sales rose substantially during the restrictions failed. Another group company, 9256-1125 Québec inc., ran those sales from the Beauport store, the leased warehouse played no part in them, and the evidence showed they were marginal at the time. Weighing all the factors, the court assessed Morin's partial enjoyment at 60% of the rent payable during closures, entitling Planet to a 40% credit.

Ruling and overall outcome

Morin was the successful party, though its recovery fell short of the $15,000 claimed. After applying Planet's 40% credit against the unpaid rent of $19,460.56, the court ordered Planet and Jean-Luc Audet, solidarily, to pay Morin $8,383.14, with interest at 5% per year and the additional indemnity under article 1619 of the Civil Code of Québec from October 29, 2022, the expiry of the ten-day period after receipt of the formal notice. The defendants were also ordered, solidarily, to pay Morin's legal costs of $318.