Distress for arrears on leases determined
41. A person having any rent due and in arrear, upon any lease for life or
lives or for years, or at will, ended or determined, may distrain for such
arrears, after the determination of the lease, in the same manner as the
person might have done if the lease had not been ended or determined, if
the distress is made within six months after the determination of the lease,
and during the continuance of the landlord’s title or interest, and during the
possession of the tenant from whom the arrears became due.
 This section has been passed down largely intact from the
original English statute in 1709, 8 Anne c. 14, and has remained
in its current form since its adoption into Ontario property law
at the turn of the 20th century.
 There is a long history of English courts interpreting the
section as extending only the time in which a landlord may exercise distress to six months after the end of a lease so long as the
tenant is overholding. See, for example, Grimwood v. Moss (1872),
L.R. 7 C.P. 360, per Willes and Keating JJ.
 The basis for this interpretation is that distress is a landlord’s self-help remedy that is only available where there is
a landlord and tenant relationship. A landlord who terminates
a lease and re-takes possession of the premises loses the right to
distrain tenant chattels for rent arrears.
 Contemporary Canadian courts have similarly held that
s. 41 only supplants the common law with respect to the
time period in which the distress remedy must be exercised. It
allows a landlord to distrain an overholding tenant’s chattels
within six months following the end or determination of a
lease. It does not change the common law rule that a landlord
cannot distrain tenant chattels, regardless of timing, if the
landlord terminates or forfeits the lease: Mundell v. 796586
Ontario Ltd.,  O.J. No. 2532, 8 O.T.C. 231 (Gen. Div.),
at para. 8; and Dubien v. Beechwood Promenade Inc., 
O.J. No. 368, 1992 CarswellOnt 555 (Gen. Div.), at para. 8 (
discussing s. 41 of the Landlord and Tenant Act, R.S.O. 1990,
c. L.7, which was the precursor to the CTA). See, also, Ian
F. Brown Ltd. v. Carling O’Keefe Breweries of Canada Ltd.,
 A.J. No. 1172, 64 D.L.R. (4th) 710 (Q.B.), at pp. 713-14
D.L.R.; Mybrie Investments Ltd. v. Icana Techno Corp., 
B.C.J. No. 2475 (S.C.), at paras. 42-43; and C.K. Franchising
Inc. v. Kassett,  S.J. No. 63, 2012 SKQB 52, at para. 133.
The appellant lost the right to distrain the respondent’s assets
when it elected to terminate the lease.
 In any event, the appellant cannot rely entirely on s. 41 of
the CTA because this case involves trade fixtures. This court
made clear that trade fixtures, while they remain affixed to the