COURT FILE NO.: DC-06-0101-00
DATE: 20071211
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NORTHSTAR INVESTMENT INC. v. DEBBIE HOLMES and SAM COSTA
BEFORE: Daley J.
COUNSEL: Arnold H. Zweig, for the Respondent, Northstar Investments Inc.
David A. Brooker, for the Appellants, Debbie Holmes and Sam Costa
On appeal from the judgment of Deputy Judge J.D. Shaw, Small Claims Court at Brampton, Ontario, dated August 30, 2006.
E N D O R S E M E N T
[1] The appellants, as tenants, had entered into a written release with the respondent landlord. The lease was executed by the parties on October 2, 2004 and related to a home located in the Town of Caledon. The lease was for a term of one year commencing October 1, 2004 through to September 30, 2005.
[2] The lease provided for the payment of rent by the appellants at the rate of $2500.00 per month for a total of $30,000 for the full term of the lease.
[3] During the term of the lease, the appellants had paid the rent indicated, except for one month’s rent, but had not paid the costs related to propane used to heat the premises nor in respect of hydro.
[4] It was in respect of the costs of propane, hydro and the one month of unpaid rent that this matter first came before the court.
Position of the Parties
[5] The respondent takes the position that under the terms of the lease, the appellants were required to pay the cost of propane and hydro. The lease provided that:
... the Lessee covenants with the Lessor that the Lessee will pay all propane and electrical charges in connection with the demised premises and shall heat the said premises in a reasonable manner.
[6] It is the position of the respondent that at all times the appellants were required to pay the cost of propane and hydro in accordance with this term.
[7] It is the position of the appellants that they had a verbal agreement with the respondent landlord that utilities, i.e. hydro and propane, would be included in the rent amount of $2500 per month for the first year of the occupation of the premises.
[8] It was further the position of the appellants that the respondent landlord had agreed to allow one half month’s free rent in exchange for the appellants cleaning up the premises prior to moving in. In his judgment, the trial judge concluded that in spite of the oral evidence with respect to the lease contract, the written document was clear as to the appellants’ responsibilities as tenants and he concluded that the appellants were obligated to pay propane and electrical charges.
[9] The trial judge granted judgment to the respondent in the sum of $7,920.74 plus costs in the sum of $175. The judgment was made up of unpaid rent of $2500 and the balance being in respect of the unpaid propane and hydro costs.
[10] The appellants had made a counterclaim for certain expenses they incurred with respect to maintenance and repairs at the premises. The trial judge dismissed the appellants’ counterclaim on the basis that no evidence was led in respect of these claims.
[11] It is the appellants’ position that the trial judge erred in not properly applying the parole evidence rule and in failing to consider the oral agreement as alleged by the appellants. Finally, the appellants also assert that the trial judge erred in failing to fully hear the evidence of a witness, namely Tanya Chislett.
Analysis
[12] It is not open to this court to retry this case but rather to determine if an error had been made by the trial judge which would warrant interference with the conclusions reached.
[13] The standard of appellate review on questions of law is that of correctness. The applicable standard of review with respect to judicial findings and inferences drawn from facts is that of a palpable and overriding error.
[14] If the question is of mixed fact and law and involves the application and facts to an incorrectly characterized or applied legal standard, the failure to properly consider the requisite elements of a legal test or similar error of principle, the applicable standard of review is that of correctness and as such the error may amount to an error in law.
[15] For the reasons indicated, I am of the view that the appeal fails.
[16] While there are many circumstances in which exceptions to the parole evidence rule arise, this case is not one of them.
[17] Although the respondent may not have called upon the appellants to pay the costs of propane and hydro during the term of the lease, in my view, the language in the lease, as referenced above is clear and unambiguous.
[18] In my view, in accordance with the terms of the written lease, the appellants were obligated to pay “all propane and electrical charges in connection with the demised premises".
[19] If there was an ambiguity in the language of the lease, with regard to the appellants’ obligations to pay for the costs of propane and electrical charges, it might have been open to the appellants to use extrinsic evidence to demonstrate that the true intention of the parties to the lease contract was not properly reflected in the written document.
[20] Further, with respect to the appellants’ position, the respondent was not entitled to the payment of the sum of $2500 in respect of rent, I am of the view that this position cannot be sustained either. Counsel acknowledged that this sum represents rent owing for a period of time during which the appellants were in possession of the rented premises, whether they actually occupied the premises or not.
[21] Finally, with respect to the appellants’ assertion that the trial judge failed to allow the witness Tanya Chislett to give evidence on their allegations of an oral contract, I am of the view that this position is not maintainable. I have reviewed the trial evidence. Tanya Chislett did testify, however, the evidence offered by her related to discussions she had with the respondent concerning another property owned by him. In my view, the trial judge did not err in the manner in which he dealt with her evidence.
[22] In the result, I would dismiss the appeal.
[23] At the conclusion of argument and before delivering these reasons I asked counsel for their submissions on the issue of costs. Counsel for the appellants submitted that in the event of success his client was seeking costs on a partial indemnity basis inclusive of disbursements and GST of $4,171.08. Counsel for the appellants submitted a bill of costs outlining the time and disbursements incurred.
[24] Counsel for the respondent did not submit a bill of costs, but submitted that in the event his client was successful he would be seeking costs on a partial indemnity basis in the sum of $3,500 along with disbursements and GST. No particulars with respect to the disbursements were available.
[25] Recognizing the amount in issue, and further recognizing that an unfortunate misunderstanding as to their legal obligations resulted in the appellants becoming involved in litigation and further considering, what I understand are the modest means of the appellants, I award costs to the respondent inclusive of disbursements and GST in the sum of $2,000.
Daley J.
DATE: December 11, 2007
COURT FILE NO.: DC-06-0101-00
DATE: 20071211
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NORTHSTAR INVESTMENT INC.
- and -
DEBBIE HOLMES and SAM COSTS
BEFORE: Daley J.
COUNSEL: Arnold H. Zweig, for the Respondent, Northstar Investments Inc.
David A. Brooker, for the Appellants, Debbie Holmes and Sam Costa
ENDORSEMENT
Daley J.
DATE: December 11, 2007