The Poor Creature in Whitehorse on Nov. 1. A hearing to determine whether the business remains or leaves Yukonstruct wrapped up last week. (Crystal Schick/Yukon News)

Yukonstruct, Poor Creature wrap up legal arguments

Justice Ron Veale is expected to give his decision on the case next week.

Lawyers for the Yukonstruct Society and The Poor Creature wrapped up their arguments on Dec. 6 in a case that will determine the future of the café in the society’s downtown Whitehorse building.

James Tucker, representing Yukonstruct, urged Yukon Supreme Court Justice Ron Veale to find that café owner Brioni Connolly is an overholding tenant, and that Yukonstruct has the right to repossess the space she’s been using.

Vincent Larochelle, representing Connolly, said that his client was simply seeking an equitable outcome, and to be at least given a few more months to find a new location for her business.

The parties have been locked in a landlord tenant dispute that became public in October, when Connolly shared a letter she received from the Yukonstruct board stating her one-year lease would not be renewed at the end of the month.

Connolly claims her lease was renewed for another year, or that at least Yukonstruct acted in a way that made her believe it was. She has continued operating the café.

Yukonstruct, meanwhile, has argued that Connolly’s lease expired Oct. 31 with no discussions about renewal.

Continuing his submissions from the day before, Larochelle said that Yukonstruct executive director Lana Selbee and operations director Victoria Hampson had a duty to speak up when it became clear that Connolly was under the impression she was staying past Oct. 31.

When that point was, Larochelle said, was up for the court to decide. He did, however, give several suggestions of when that might have been, including Connolly asking to be put on a waitlist to have a sign for the café added to a display outside Yukonstruct’s building and Connolly seeking to hire staff into March 2020.

“The remedy sought here is an equitable remedy,” he told the court.

Connolly is seeking an estoppel — basically, asking the court to stop Yukonstruct from evicting her because while it’s within its legal right, it would be unfair to do so.

Connolly will be grateful no matter how long of an estoppel is granted, Larochelle said.

In his reply, Tucker said that most of the factors Larochelle claimed was evidence of Yukonstruct knowing Connolly was being blindsided by the decision to not renew the lease was simply Yukonstruct trying to be kind.

Tucker said he didn’t think there was any doubt that Yukonstruct and The Poor Creature’s relationship had “serious problems.” Hampson took the time to sit down with Connolly in September to try and fix the issues, Tucker said, but Connolly has now turned and is claiming the conversation amounted to her lease being renewed.

In reply to Larochelle’s argument that Yukonstruct didn’t tell Connolly her lease was ending, Tucker said Yukonstruct did, in fact — the end-date was on the lease the day Connolly signed it.

Intention and words matter, Tucker argued, and in this case, the intention of the September meeting was to try and fix the relationship, not renew it.

“(Hampson’s) mistake was being nice,” he said.

Tucker argued that the court finding that meeting and Yukonstruct giving Connolly written notice of her lease not being renewed as grounds for estoppel would set a dangerous precedent. Landlords, he said, would stop trying to work with their tenants on fixing issues and giving them notices, and instead would just wait until the lease expires.

“They’ll just turn around on Nov. 1 and say, ‘You’re still here?’” he said.

He added that if the court finds there’s an estoppel, which he urged it not to, Connolly should be given no more time than the end of December to leave.

Veale is expected to deliver his decision in court in mid-December, with written reasons to follow.

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

Small BusinessYukon courts

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