Canada: Max Aviation: A New Tendency To Favour Landlord Rights?

In March, the Quebec Court of Appeal handed down a much-anticipated ruling on commercial leases and landlord obligations. In its judgment, the court clarifies the limits of a landlord's obligation to provide tenants with peaceful enjoyment of leased premises and explains that the prohibition on changing the form or destination of the leased property is subject to the other provisions of the commercial lease. Such provisions in commercial leases should be reviewed carefully in light of this ruling, especially when one is acting on behalf of a tenant.


In this case, the tenants are air carriers, i.e. flying schools or companies offering chartered or commercial flights, that have their offices on the grounds of the Saint-Hubert airport. In 2004, the federal government handed over the airport to a company responsible for its promotion and development ("DASH-L"), which has managed, operated and maintained the facility and assumed the landlord's obligations towards the individual tenants since then. In response to numerous complaints from area residents who found the noise from the airport excessive, DASH-L set up a committee to analyze the noise situation in the vicinity of the airport. The committee found that the touch-and-go landings conducted by the flying schools were very noisy and harmful because they took place above the surrounding residential neighbourhoods.

The city of Saint-Hubert also assigned someone to study the noise situation in the vicinity of the airport and make recommendations to DASH-L's board of directors. Based on those recommendations, the board adopted a resolution that had the effect of temporarily restricting touch-and-go landings on one of its runways to certain times of the day.

Quebec Superior Court

The tenants (plaintiffs and later appellants in this case) applied to the Superior Court for a permanent injunction, claiming, among other things, that DASH-L had failed in its obligations as landlord by changing the destination of the leased premises, depriving the tenants of peaceful enjoyment of the leased premises and causing legal disturbances.

The plaintiffs argued, in effect, that the resolution of the board of DASH-L [translation] "would prevent the flying schools from properly carrying out their activities, as they would no longer be able to honour their commitments, and would limit the operations of the aviation companies at the risk of harming their reputation, thereby impeding the peaceful enjoyment of the leased premises."1 The tenants asserted their rights by relying on Articles 1851, 1854, 1856 and 1858 of the Quebec Civil Code.

The Superior Court judge found that such a restriction on flight times, while admittedly having a potential impact on the tenants' activities, did not constitute a change in the destination of the immovable during the term of the lease, as claimed by the tenants. A landlord may impose - through regulations or resolutions, for example - limits on the enjoyment of leased premises in a commercial lease. In the case at hand, as specified in their lease, the tenants were subject to the managerial authority of DASH-L, and DASH-L was within its rights to adopt a resolution reducing flight times and to thereby set limits on the enjoyment of the leased premises. The Superior Court judge therefore pointed out that tenants are required to submit to the landlord's managerial authority, and such managerial authority [translation] "includes the authority to mitigate noise issues by making decisions that restrict runway access."2 It is important to note, however, that the Superior Court judge was of the opinion that the injury claimed by the plaintiffs was not established and for the moment remained speculative and merely apprehended.

Quebec Court of Appeal

The tenants appealed the decision to the Quebec Court of Appeal. The Court of Appeal agreed with the trial judge that, while the obligations to provide the tenants with peaceful enjoyment of the leased premises, warrant them against legal disturbances and not change the destination of the leased premises are set out in the Quebec Civil Code, it is permissible to depart from those obligations in a commercial lease. Justice Gascon of the Quebec Court of Appeal cites another decision to that effect from that same court, Karrum Realties Inc. c. Ama Investments Inc. [translation]: "It is important to recall here that Articles 1854, 1858, 1859, 1861, 1863 C.C.Q., which govern the landlord's obligation to provide the tenant with peaceful enjoyment of the leased premises, are not public order obligations: the parties to a commercial lease can therefore, as they have freely done in this case, limit, even in a draconian way, the landlord's obligations (...)."3 Since each lease with the appellants specifies that the right to peaceful enjoyment is given subject to rules and regulations established by the landlord for the management and operation of the Saint-Hubert airport, the Court of Appeal also determined that DASH-L could restrict runway access during certain times, even if it might have a negative impact on the tenants. The Court of Appeal added that the injury claimed by the appellants was not supported by any financial or statistical evidence.

Conclusions to bear in mind

When negotiating a commercial lease, the tenant should pay close attention to the way the peaceful enjoyment of the leased premises provision is worded. The use of terms such as "subject to the management authority of the landlord" or "subject to rules and regulations that may be established by the landlord" means, quite simply, that the landlord may restrict, significantly even, the purpose for which the leased premises are used by the tenant.


1 2011 QCCS 528, para 63.

2 2013 QCCA 551, para 55.

3 2007 QCCA 880, para 35.

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Lindsay Kenney LLP
Norton Rose Fulbright Canada LLP
Thompson Dorfman Sweatman LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Lindsay Kenney LLP
Norton Rose Fulbright Canada LLP
Thompson Dorfman Sweatman LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions