The Poor Creature in Whitehorse on Nov. 1. A Yukon judge has ruled the café will have until Jan. 31 to vacate its current location after a lengthy landlord-tenant dispute. (Crystal Schick Yukon News file)

Poor Creature must leave Yukonstruct by end of January, court rules

The café’s one-year lease for the space had not been renewed, contrary to owner’s claims, judge finds

The Poor Creature café will have until Jan. 31 to vacate its current location within Yukonstruct’s downtown Whitehorse building, a Yukon judge has ruled.

Yukon Supreme Court Justice Ron Veale issued his written decision on Dec. 13. The decision, made public Dec. 16, marks the end of a bitter landlord-tenant dispute between Yukonstruct and café owner Brioni Connolly.

The parties had been at odds over whether Connolly’s year-long lease for the café space had been renewed to October 2020. Connolly argued that it had, or that she had been led to believe it had, and continued operating her business past the lease’s Oct. 31 expiry date.

Yukonstruct, meanwhile, said the lease had not been renewed, nor were there indications it would be, and that Connolly was an overholding tenant. It filed a petition seeking Connolly’s eviction in November.

The case was heard earlier this month.

In his decision, Veale wrote that Connolly was wrong to believe the lease had been renewed.

“I have found no words or conduct that resulted in such an intention being expressed or from which an inference should be drawn that there was a renewal of the Lease or an agreement to enter negotiations to renew the Lease,” he wrote.

“To the contrary, the efforts of Yukonstruct staff indicate a desire to maintain a good relationship with Ms. Connolly and (her husband, Traolach) O Murchú in a challenging situation.”

Veale found that the major dispute between Connolly and Yukonstruct “was the noise caused by her child crying and screaming which caused complaints from other tenants in the Yukonstruct premises.”

However, that issue was never resolved “despite many discussions and emails,” he wrote, and “staff at Yukonstruct did their best to deal with and diffuse a difficult situation that began with noise complaints but escalated to allegations of discrimination against women entrepreneurs by Ms. Connolly and Mr. O Murchú.”

While there was no estoppel — basically, Yukonstruct had not acted in a way that misled Connolly, so there was no reason for the court to stop it from acting on its rights as a landlord — Veale found that Yukontruct had previously promised to give Connolly more time past the lease’s expiry to leave.

He concluded, therefore, that Connolly was not a wilfully overholding tenant in a way that would warrant an immediate eviction or for her to be liable for double rent, as Yukonstruct had requested.

Instead, he granted Connolly until Jan. 31, 2020, to vacate the premises, paying regular rent until then. He also granted Yukonstruct a writ of possession — basically, the right to evict — beginning Feb. 1, 2020.

In an emailed statement, Yukonstruct executive director Lana Selbee said it was “unfortunate” that the situation had to be resolved in court, but that the decision “has validated that we were within our rights to not renew this lease.”

“Our organization tried many approaches to make a business relationship with The Poor Creature work, but it became clear that continuing it was not in the best interest of our organization,” the statement says in part.

“… We will work with The Poor Creature as best we can to facilitate a smooth transition out of the space in January.”

In an interview Dec. 16, Connolly said she was “grateful” because the decision offers her “a bit of certainty” in regards to timelines, and because Veale rejected the idea of having her removed immediately.

Finding a new space, however, had been hard, she said, and she’s not sure about the future of the café.

“To be honest, this has really broken me, financially and mentally, too, so I’m really not sure what’s next,” Connolly said.

“I feel like if the board members had to pay their own legal fees from their own pockets, they never would have been so keen to go to go to court and they would have actually sat down and talked to me before all of this got out of hand.”

Connolly added she thinks that “a lot has gone unanswered” on the part of Yukonstruct, especially with how the board came to its decision to not renew her lease and why it stuck by its “completely ridiculous” claim about her child screaming and crying for hours.

“I still believe in Yukonstruct and I hope it can find its way again under the right management and right board, but yeah, something went awry,” she said.

“The Poor Creature may not survive, but hopefully in some manner it will.”

Contact Jackie Hong at jackie.hong@yukon-news.com

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