A B.C. Supreme Court judge in Vancouver has dismissed an application for a writ of possession by Pakistan-Canada Association Inc. for property and premises occupied by Great Light Healing Ministries Int’l: City of Faith in Surrey.
Both are societies incorporated under the Societies Act. The PCA owns 12057-88 Ave. and leased it to Great Light in 2013.
The petitioner argued before Justice F. Matthew Kirchner that Great Light had committed a "fundamental breach of an implied term of the lease" by doing renovations without securing necessary building permits and authorization from the City of Surrey as well as extending the building across the property line, encroaching on the neighbouring railway right-of-way and exposing the PCA to a possible trespassing claim.
The petitioner demanded that the respondent give up the property by July 13 but Great Light refused, denying that the terms of the lease had been breached. Great Light also claimed the PCA consented to the renovations knowing the required permits hadn't been obtained (which the PCA denies) and that the PCA told it where it could build, "such that PCA is to blame for the encroachment on the railway right of way," Kirchner noted in his Sept. 16 reasons for judgment,
Great Light also claimed that the PCA breached an agreement to sell the property to it for $2.2 million, with that matter set for a trial in September 2025 in New Westminster. Meantime, the PCA brought this petition to court under the Commercial Tenancy Act.
The judge concluded that if Great Light breached an implied term of the lease agreement, "that breach, while serious, is neither fundamental nor a breach of a true condition that would allow PCA to terminate the lease. I would therefore dismiss PCA’s petition seeking a writ of possession but PCA remains free to pursue other remedies against Great Light."
The $300,000 in renovations and expansion were completed by volunteers from the church's congregation in 2021 with Great Light nearly doubling the building's footprint. On June 2, 2022, the City of Surrey issued a Stop Work Order. "Since the renovations and expansion had long finished, there was no longer any work to stop," Kirchner noted. "However, the order identified that the work had been done without a permit, that it had been done “in right of way”, and that it covered a manhole."
The judge noted that while the PCA is "understandably" concerned about its liability as landowner for any encroachment or trespass on the railway property, there are "factual disputes" between it and Great Light concerning "what PCA might have known or said to Great Light about the renovations, the requirement for permits, the location of the property line, and the location to which Great Light could extend the building. Some of the facts asserted on both sides seem improbable while others less so. Regardless, it is clear these cannot be resolved on a summary application like this petition."
Kirchner determined there is nothing in the lease itself "to suggest what the parties would have intended if those renovations were done without proper permits. Nor is there evidence of the surrounding circumstances in which the contract was made that might shed light on the parties’ intention. Almost all of the evidence on this application is of events that relate to the renovations and their aftermath.
"Great Light started and completed the renovations without obtaining necessary permits but they did obtain, or believed they obtained, PCA’s approval for the renovation and expansion. In granting that approval or purported approval, PCA asked no questions about design particulars or permits. Nevertheless, it was Great Light that undertook the renovations without a professional contractor and with no permits.
"At best," the judge added, it was "grossly naïve" for Great Light's pastor "to believe that a renovation that almost doubled the footprint of the building involved electrical and plumbing work could be done without permits."
"However, none of what Great Light has done is irreparable. What has been constructed can be demolished. It is just a matter of cost. While the breach is a serious one, it does not 'go without saying' that if the parties knew at the time they entered the lease that Great Light might naïvely or foolishly do renovations without required permits or extend the building over the property line that the lease would necessarily be terminated, particularly when some lesser form of remedy would preserve the parties’ fundamental bargain. I am not able to determine on the conflicting affidavit evidence whether Great Light might have acted deliberately rather than naïvely or foolishly. To the extent that might make a difference on the question of fundamental breach or breach of a true condition, that question will require a trial."
Meantime, the judge added he would suggest "that if Great Light refuses to bring the building into compliance with Surrey’s bylaws or remove the trespass on the right of way (absent some agreement with the right of way owner), it may well commit at least a breach of condition, if not also a fundamental breach. It seems to me that a tenant cannot change the landlord’s lawful building into an unlawful one and refuse to correct that change when called upon to do so.
Kirchner determined that it "goes without saying" that the PCA and Great Light "would have agreed, at the time of entering the ease, that if the tenant were to refuse a direction from the landlord, a municipal authority, or the neighbouring landowner to rectify an illegality caused by the tenant’s improvements, such a refusal would allow the landlord to terminate the Lease. However, matters have not reached that point since Great Light has not refused to correct the problem it has created. It is looking for ways to comply. To the extent PCA consented to or acquiesced in the renovations, it may need to give Great Light a reasonable opportunity to correct the problem before demanding the renovations be deconstructed. However, since those matters are not before me I will leave my remarks there.
"I find that Great Light’s failure to obtain the necessary permits before renovating and expanding the premises and failing to ascertain the property lines before expanding the building into the neighbouring railway right of way is a serious breach but not a fundamental one. Nor is it a breach of a true condition that entitles PCA to bring the lease to an end," he concluded, and dismissed the petition.
