The B.C. Court of Appeal has ordered Victoria-based cannabis grower Evergreen Medicinal Supply to vacate the concrete building it leases on Lochside Drive by Jan. 31 and return the building and land to its owner.
This is the second time the court has ordered Evergreen to hand over the keys to Victoria real estate agent Philip Illingworth. In July, the B.C. Supreme Court ruled Evergreen had to vacate the premises by Aug. 31 as a result of a dispute over unpaid rent.
Instead, Evergreen filed an appeal on Aug. 28 saying the chambers judge had erred in multiple ways. The licensed medical marijuana company asked that the writ of possession be set aside.
The appeal was heard in Vancouver in October.
The case began in July 2013, when Shawn Galbraith approached Illingworth and asked him find a location for Evergreen. Galbraith intended to apply for a Health Canada licence to produce medical marijuana and he needed a production facility.
Illingworth agreed to purchase land at 6922 Lochside Drive and lease it to Evergreen. At the time, Galbraith was working for Welton Construction and the parties agreed that Welton would build the facility.
On Sept. 21, 2013, Illington and Evergreen signed a lease, but neither man had it reviewed by a lawyer before signing it. The “five-year lease” started Jan. 1, 2014 and was to run until Dec. 31, 2019, which is actually a period of six years.
The case centres around unpaid rent of more than $425,000, accrued in the three years before Evergreen had an occupancy permit for its facility.
Illingworth alleged he was owed rent for the period January 2014 to February 2017, while Evergreen claims its obligation to pay rent began in August 2017, when it was issued a municipal occupancy permit for the premises.
Appeal Court Justice Joyce DeWitt-Van Oosten upheld the previous court finding that rent was not suspended from January 2014 to February 2017 and Evergreen’s non-payment of rent rendered its notice of renewal ineffective.
She found the non-payment of back rent contravened Evergreen’s obligations under the lease.
“Evergreen owed Mr. Illingworth approximately $450,000 in rent and over interest and failed to pay,” wrote DeWitt-Van Oosten.
By failing to pay the $450,000 in rent and interest when demanded before expiry of the lease, Evergreen failed to perform the obligations and conditions contained in the lease, said DeWitt-Van Oosten.
She dismissed the appeal.
