The Poor Creature and Yukonstruct are squaring off in court over whether the café should be allowed to remain in the society’s downtown Whitehorse building, with lawyers for both accusing the other side of misrepresenting the situation.
Lawyers James Tucker, representing Yukonstruct, and Vincent Larochelle, representing Poor Creature owner Brioni Connolly, began laying out their arguments before Justice Ron Veale the afternoon of Dec. 5.
Yukonstruct filed a petition to the Yukon Supreme Court on Nov. 7 seeking to have Connolly evicted.
Yukonstruct claims that Connolly’s one-year lease, which expired Oct. 31, was never renewed and that she’s now an overholding tenant it wants gone.
Connolly, meanwhile, has insisted her lease was renewed for another year, or that she was at least given the impression it was renewed, and has continued to operate her business.
The spat has raised accusations of bullying, a child’s crying and screaming persisting for hours, and unreasonable and irrational conduct in the course of doing business.
Connolly has raised the defence of estoppel, a legal principle based on fairness. Basically, it allows a court to stop a party from asserting a legal right — in this case, Yukonstruct’s right, as a landlord, to repossess the café space — if it presented itself one way but then acted in another that, while technically legal, was unfair.
Tucker opened his submissions with definition of “distraction,” going on to say that Yukonstruct and the Poor Creature’s relationship, and the matter before the court, was full of them.
“There’s a lot of noise in this application … This application is not about a fragile business or a child-friendly one,” he said.
“…This application is about the refusal of a commercial tenant to leave after her lease has expired.”
Tucker said it was “misleading” that the The Poor Creature was claiming the lease was renewed because Connolly believed it was. If that were true, he argued, then any time someone thought they had a deal, regardless of the other party’s conduct, they would have an enforceable estoppel.
What matters, Tucker argued, is what was actually said and the context.
Tucker denied there were ever any agreements or promises between Yukonstruct and Connolly that her lease would be renewed, arguing there was no evidence to show otherwise.
He pointed to the large volumes of email correspondence between Connolly, her husband, Yukonstruct executive director Lana Selbee and operations director Victoria Hampson filed as exhibits in the case. The emails discuss everything from meetings to complaints to the literal kitchen sink, Tucker said, but not once is anything about lease renewal mentioned.
While The Poor Creature’s future at Yukonstruct was discussed at a Sept. 23 meeting between Connolly and Hampson, Tucker said that it was a “conditional discussion” — Hampson said Yukonstruct would consider renewing the lease if it found a way to work together with The Poor Creature on ongoing issues like noise coming from the café.
That condition, however, was never met, Tucker argued — instead, the relationship between Yukonstruct and The Poor Creature got so bad that they couldn’t even talk to each other.
Larochelle, on the other hand, argued that it’s not the words that matter, but the effect they have on the party on the other side.
Connolly genuinely believed, and continues to believe, that her lease was renewed, he said, and Yukonstruct’s conduct up until giving her the Oct. 11 notice was the reason for that belief.
There’s evidence of Connolly’s belief dating back to July, he argued, when Connolly contacted the makers of a Whitehorse city guide book requesting that her business be listed in its 2020 edition with its current address.
Why, Larochelle asked the court consider, would Connolly do that if she had known she would be required to leave by October?
There was also other conduct on the part of Yukonstruct staff, Larochelle said, that would lead any reasonable person to believe the lease was renewed — Hampson had set up monthly meetings with Connolly; Yukonstruct had continued to refer catering requests to the Poor Creature for events scheduled after Oct. 31; they helped Connolly hire on a new staff member, knowing the employment term was to go until March 2020; they were discussing renovations to the café, including the expensive repair of the kitchen sink, as late as early October.
Larochelle said it was telling that Yukonstruct gave Connolly a non-renewal notice at all — they knew, he argued, that she was not expecting to leave on Oct. 31.
It was also telling, he said, that Yukonstruct offered to give Connolly more time beyond Oct. 31 to pack up the café. Again, he argued, they knew that Connolly didn’t know she would have to leave and that it would be unrealistic for her to clear out in under three weeks.
Connolly, at this point, is simply taking Yukonstruct up on its word, he said, asking for more time to relocate her business. The Whitehorse real estate market is slow in the winter, he said, and Connolly has every intention to search for a new space once the market picks up again the summer.
He argued that Connolly wasn’t asking for anything unreasonable.
“She wants what’s fair,” Larochelle said of his client.
Larochelle was expected to finish off his submissions the morning of Dec. 6, with Tucker expected to deliver a reply.
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