Introduction

A case of superior force arising in the context of a commercial lease raises a delicate question: where the event does not render the leased premises entirely inaccessible but significantly restricts their use, what effect does this have on the respective obligations of the lessor and the lessee, having regard to the enjoyment actually provided?

This issue arose during the COVID-19 pandemic, when numerous businesses were subject to government orders restricting their operations while retaining partial access to their premises. In the recent decision Immeubles Redbourne South Shore inc. v. Soutex inc., 2026 QCCA 434, the Court of Appeal reiterated the applicable principles regarding superior force and clarified the consequences in the event of partial enjoyment of the leased premises.

Accessible leased premises whose use was restricted

In 2018, Soutex inc. (“Soutex“), the lessee, entered into a commercial lease with Immeubles Redbourne South Shore inc. and Immeubles Redbourne South Shore S.E.C. (collectively, “Redbourne“), the lessor, for the lease of administrative office space located in Longueuil.

Following the declaration of the public health emergency in March 2020, several government orders restricted occupancy in office buildings. Depending on the applicable period, only minimal or essential activities were permitted, or occupancy was limited to 25% of the premises’ capacity[1].

Taking the position that it no longer benefited from the enjoyment of the leased premises contemplated by the lease, Soutex ceased paying a portion of its rent during these periods, which totalled 340 days[2]. Redbourne disputed this position, maintaining that it had fulfilled its obligations by preserving access to the premises to the extent permitted under the applicable public health measures.

Judgment in first Instance

The Court of Québec concluded that the COVID-19 pandemic and the government orders issued in response thereto constituted a case of superior force that deprived Soutex of the peaceful enjoyment of the leased premises during certain periods[3]. The Court distinguished between periods during which all activities were prohibited and a period during which activities were only partially restricted.

For the periods during which activities were prohibited, the Court concluded that Soutex derived no beneficial enjoyment whatsoever from the premises[4]. For the period during which occupancy was limited to 25%, the Court found that Soutex nevertheless retained certain benefits, including access to its equipment and documents, while sustaining a loss of enjoyment assessed at 75%[5].

Relying on the relevant provisions of the Civil Code of Québec (“CCQ“), and in the absence of any applicable provisions in the lease, the Court concluded that Soutex was not required to pay rent during the periods in which it sustained a total loss of enjoyment[6].

Superior Force: a reminder of the concept

Pursuant to article 1470 CCQ, superior force is defined as an unforeseeable and irresistible event.

Unforeseeability means that the event could not reasonably have been anticipated by a normally prudent and diligent person at the time the contract was entered into[7].

Irresistibility, for its part, comprises two elements: the event must be unavoidable, in the sense that it could not have been prevented by a reasonable person, and insurmountable, in that it rendered performance of the obligation impossible, rather than merely more difficult or more onerous[8].

The Effect of Superior Force on the Obligation to Provide Peaceful Enjoyment of the Leased Premises

The Court of Appeal reiterated that the lessor’s obligation to provide peaceful enjoyment of the leased premises, being of the very essence of the contract of lease, is an obligation of result[9]. As a general rule, where the lessor fails to provide such enjoyment, it may be held liable to compensate the lessee[10].

However, the lessor may be released from this obligation where its non-performance results from superior force rendering performance impossible[11]. In such circumstances, the lessor cannot be held liable for any resulting damages.

Conversely, pursuant to article 1694 CCQ (unless otherwise stipulated in the commercial lease), the lessor cannot require the lessee to pay rent to the extent that the lessee has been deprived of the enjoyment of the leased premises[12]. Having been unable to perform the obligation to provide enjoyment because performance had become impossible, the lessor must therefore bear the economic loss resulting from the superior force.

The Scope of the lessor’s obligation to provide peaceful enjoyment of the leased premises

In the present case, the appeal concerned a particular situation in which, notwithstanding the occurrence of a case of superior force, Soutex continued to derive partial enjoyment of the leased premises. The Court therefore had to determine how the applicable legal principles should be applied in order to delineate the parties’ respective obligations.

The scope of the lessor’s obligation to provide peaceful enjoyment of the premises is a question of fact that must be assessed in light of the particular circumstances of the parties and of the premises at issue[13]. In this case, the leased premises were intended to be used as administrative offices.

The Court held that mere access to the leased premises, even where they remained maintained, heated and illuminated and were capable of serving as administrative offices, is insufficient to provide peaceful enjoyment of the premises[14]. Such enjoyment requires that the premises be capable of being used for the purposes contemplated by the lease[15].

In the present case, the public health restrictions limited the activities that could be carried on in the leased premises, as the presence of employees and clients was either prohibited or significantly restricted[16]. Consequently, employees could no longer work from the offices and were required to perform their duties remotely[17]. In these circumstances, Redbourne could not maintain that it had fulfilled its obligation to provide peaceful enjoyment of the premises. Accordingly, although it was relieved of that obligation by reason of superior force, it could not require Soutex to perform its corresponding obligation to pay rent[18].

The Court nevertheless concluded that partial enjoyment of the leased premises had been provided, since the premises were used for certain activities that the parties had intended in the lease. In this regard, it noted that Soutex had “…left its equipment, documents, files and archives in the leased premises, to which employees could have access for essential purposes…”, thereby enabling it to maintain its operations[19]. Thus, the offices continued to serve as the central hub for the organization of work, where employees had access to the information and tools necessary to carry on their activities remotely.

The Court of Appeal allowed the appeal in part and awarded Redbourne, after recalculating the rent owed based on the partial enjoyment of the leased premises, a greater amount of rent than had been granted at first instance, in order to compensate for the enrichment Soutex had derived from its partial enjoyment[20].

Conclusion

The Redbourne decision provides important clarification of the principle that, in cases of superior force, the lessor bears the economic consequences of being unable to provide peaceful enjoyment of the leased premises.

In cases of partial enjoyment, the issue is highly practical. It is necessary to examine the factual context, both with respect to the enjoyment contemplated by the lease and that actually afforded to the lessee, even if only partially, despite the occurrence of a case of superior force rendering performance of that obligation under the lease impossible. The assessment of the loss of enjoyment must take into account the usefulness of the leased premises for the partial performance of the activities contemplated by the lease. That benefit must be taken into account in calculating the rent that the lessee remains bound to pay, since the lessee is not released from that obligation to the extent of that enrichment.

[1]  Immeubles Redbourne South Shore inc. c. Soutex inc., 2026 QCCA 434 at paras 9, 42-46.

[2] Immeubles Redbourne South Shore inc. c. Soutex inc., 2023 QCCQ 249 at para 1.

[3] Ibid at paras 60-73.

[4] Ibid.

[5] Ibid at paras 80, 85.

[6] Supra note 1, at paras 14-15.

[7] Ibid at para 26.

[8] Ibid at paras 26-27; Where circumstances occurring subsequent to the formation of a contract, although unforeseeable, merely render the performance of an obligation more onerous, they do not give rise to superior force. Rather, they engage the doctrine of hardship (imprévision), which is not recognized under Quebec civil law.

[9] Ibid at para 23.

[10] Ibid at para 24.

[11] Art 1693 CCQ; see, for example : Saint-Hubert (Ville) c. Winzen Land Corporation, [1988] R.J.Q. 940; 9074-9508 Québec inc. c. Société de gestion Place Laurier inc., 2008 QCCA 2240

[12] Supra note 1, at paras 24, 29-30.

[13] Ibid at para 38.

[14] Ibid at paras 54-55.

[15] Ibid.

[16] Ibid at para 53.

[17] Ibid at para 55.

[18] Ibid at para 63.

[19] Ibid at para 65.

[20] Ibid at para 81.