COURT OF APPEAL FOR ONTARIO
RE: 809011 ONTARIO LTD. (Plaintiff/Respondent)
v. CHARLES ST. GEORGE (Defendant/Appellant)
BEFORE: McMURTRY C.J.O., MORDEN and ROSENBERG JJ.A.
COUNSEL: R. J. Reynolds,
for the appellant
W. W. Walker,
for the respondent
HEARD: June 28, 2000
On appeal from the judgment of Mr. Justice Richard G. Byers dated
November 20, 1998
E N D O R S E M E N T
1Byers J. gave some of his reasons for judgment in the form
of a running commentary during counsel's submissions. This is
unfortunate because it makes it difficult to extract the reasons
for judgment from what may have been no more than queries.
Nevertheless, we are satisfied that this appeal cannot succeed.
2The appellant’s essential argument is that Byers J. erred in
concluding that the breach of the covenant concerning ventilation
was not serious enough to entitle the appellant to elect to
rescind the lease. Counsel argues that the trial judge made a
number of factual and legal errors in reaching that conclusion.
For example, counsel points out that the trial judge made several
references to lack of proof of irreparable harm. He also notes
that some of the statements by the trial judge leave the
impression that the trial judge was of the view that the
appellant was foreclosed from electing to rescind because he did
not do so as soon as the ventilation problem became apparent.
3In our view, these alleged errors do not taint the trial
judge’s ultimate finding that the breach of covenant was not a
“fundamental breach”. It was open to the trial judge to reach
this conclusion on all of the evidence. He had the benefit of
the testimony of the two main witnesses and clearly was of the
view that the ventilation problem was not sufficiently serious.
We would not interfere with that finding.
4As to the second ground of appeal, Mr. Reynolds, who was not
counsel at trial, conceded that this issue was not raised in the
pleadings and was not argued before the trial judge. In any
event, given the trial judge’s view of the seriousness of the
breach, we see no basis for reducing the damages by reason of the
breach of covenant.
5Accordingly, the appeal is dismissed with costs.
(signed) "R. McMurtry C.J.O."
(signed) "J. W. Morden J.A."
(signed) "M. Rosenberg J.A."