ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
carnwath, ground and pitt jj.
B E T W E E N:
JERMAR PROPERTIES INC.
Plaintiff
(Respondent in Appeal)
- and -
BEATTY & WOODS LIMITED
Defendant
(Appellant)
Joy Casey, for the Plaintiff
Bruce C. Robertson, for the Defendant
HEARD: September 21, 2004
CARNWATH J.: (Orally)
1The appeal and cross-appeal are dismissed.
REASONS FOR DISMISSING THE APPEAL
2Firstly, the trial judge was correct in finding that the acknowledgment, signed by the appellant, fixed it with the obligations of the lease from its inception to November 30, 1999. The wording: “Beatty & Woods will pay to Ontario forthwith all arrears of rent and other sums payable pursuant to the Lease in respect of the period up to and including November 30, 1999” is clear and unambiguous. We reject the submission that the terms of the Agreement of Purchase and Sale are relevant to the construction of the acknowledgement document.
3Secondly, the trial judge found the tenant caused damage to the premises, beyond ordinary wear and tear. This was a finding he was entitled to make in the evidence. He was not clearly wrong in so finding.
REASONS FOR DISMISSING THE CROSS-APPEAL
4The trial judge discounted the damages by 50%. He was entitled to make this finding on the evidence. There was testimony that the installation of the tank contributed to the sinking floor. There was also testimony that the new owner moved heavy loads over the floor after taking possession. Counsel for Jermar submits that the trial judge should have concluded that any damage caused by Jermar is attributable to the original structural weakness caused by Beatty & Woods. That he did not do so we find was open to him on all of the evidence. We cannot say he was clearly wrong or that he misapprehended the evidence.
5No order as to costs.
___________________________
CARNWATH J.
Date of Reasons for Judgment: September 21, 2004
Date of Release: September 24, 2004
COURT FILE NO.: 296/03
DATE: 20040921
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
carnwath, ground and pitt jj.
B E T W E E N:
JERMAR PROPERTIES INC.
Plaintiff
(Respondent in Appeal)
- and -
BEATTY & WOODS LIMITED
Defendant
(Appellant)
ORAL REASONS FOR JUDGMENT
CARNWATH J.
Date of Reasons for Judgment: September 21, 2004
Date of Release: September 24, 2004