COURT OF APPEAL FOR ONTARIO

CITATION: Farm Boy Inc. v. Mobius Corp., 2012 ONCA 692

DATE: 20121016

DOCKET: C53982

BEFORE: O’Connor A.C.J.O and Goudge and Juriansz JJ.A.

BETWEEN

Farm Boy Inc.

Plaintiff (Appellant)

and

Mobius Corp. and 2030 10th Line Developments Inc.

Defendants (Respondents)

COUNSEL:

Benjamin Zarnett, Stephen Victor, Q.C., and Melanie Maia, for the appellant

Kenneth Prehogan, Hilary Book and Sandra L. McNeely, for the respondents

HEARD: October 10, 2012

On appeal from the judgment of Justice J. Mackinnon of the Superior Court of Justice, dated June 7, 2011.

ENDORSEMENT

[1] This is an appeal from the decision of the trial judge dismissing the appellant’s claim against the respondents. The appellant, a retail tenant in a shopping centre, claimed damages from the respondents, as landlord, for breach of contract by failing to provide an additional 12 parking spaces as required by the lease. The trial judge found the respondents breached the lease, but went on to conclude that the appellant had failed to show the respondents’ breach probably caused it to suffer a loss.

[2] The trial judge properly set out the governing principles and reviewed the relevant evidence. The respondents were not obliged to provide the additional spaces in the section of the parking lot preferred by the appellant's customers. The appellant’s evidence of customer complaints did not clearly relate to the entire parking lot as opposed to the preferred section. There was expert evidence that even at the peak periods observed, a large number of vacant parking spaces were available in the parking lot. In our view, it was open to the trial judge to find that the appellant had not shown that the breach caused it to suffer a loss and such a finding was consistent with a common sense approach to the evidence.

[3] The appeal is dismissed.

[4] The respondents’ cross appeal is dismissed as moot.

[5] We grant leave to the appellant to appeal the costs order of the trial judge and allow that appeal. The trial judge concluded that the "considerable time spent at trial on the unsuccessful defence of the breach of contract issue" was offset by the weight of two offers to settle dated March 2009 and May 2010, neither of which was a Rule 49 offer. In our view, these offers do not support any such offset. The March 2009 offer was well before the picture at trial became clear and cannot play such a role. The May 2010 offer contained no element of compromise and should not have been used to offset the trial time spent on the defence of the breach of contract issue. In these circumstances, we are of the view that the costs award should be set aside and it falls to us to determine an appropriate costs award for the trial.

[6] We consider a fair and reasonable award of trial costs is in the amount of $200,000 in favour of the respondent, inclusive of disbursements and applicable taxes.

[7] Considering the divided success in this court, we fix the costs of the appeal in favour of the respondents on a partial indemnity scale in the amount $30,000, inclusive of disbursements and applicable taxes.

“D. O’Connor A.C.J.O.”

“S.T. Goudge J.A.”

“R.G. Juriansz J.A.”