Performance Plus Golf Academy constructed and operated a driving range on land leased to it by Hydeaway Golf Club. It continued to operate the driving range until it failed to pay its rent for three successive months (September to November). At that time, Hydeaway terminated their lease. There was no written lease. Performance claimed compensation for the unlawful distraint of its trade fixtures and chattels. The OPP were called to keep Performance out. The disputed chattels included a driving range deck (valued at $50 000), a deck canopy ($23 000), a ball shack, driving range barrier poles ($30 000), driving range barrier nets ($30 000), some desks, some chairs, and 35 000 golf balls.

1. Could the fixtures be characterized as trade fixtures?

2. Should Performance be allowed to remove the disputed property, or can Hydeaway sell it to pay for rent owing?

3. What advice do you have for how each business could have done better?

Case: 2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980