DATE: 20060426

DOCKET: C43181

COURT OF APPEAL FOR ONTARIO

RE:

EDWARD KLINGER (plaintiff (Appellant)) – and – FRANK WAGNER (Defendant (Respondent))

BEFORE:

MOLDAVER, GOUDGE AND LANG JJ.A.

COUNSEL:

Daniel Fife

for the appellant

Tim J. McGowan

for the respondent

HEARD & ENDORSED:

April 26, 2006

On appeal from the order of Justice Barry M. Matheson of the Superior Court of Justice dated January 3l, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant takes the position that paragraph 5 of the Agreement created a license. We agree with the trial judge that a condition of this agreement was that the appellant continue as the caretaker/manager of the property. The finding of fact that the appellant resigned as manager (which the appellant does not contest) necessarily terminated the license and therefore, the right of the appellant to remain in the stone house.

[2] However, on the question of occupation rent, we see no basis for the award of such rent made by the trial judge given that the appellant had lost his right to be on the premises.

[3] Accordingly, the appeal is allowed in part and the order below is varied to give effect to these reasons.

[4] Success is divided. In the circumstances, we are of the view that the parties should bear their own costs of the appeal.