COURT FILE NO.: 350/08
DATE: 20081020
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
lederman, swinton and baltman jj.
B E T W E E N:
MARITANO HOLDINGS LIMITED
Plaintiff
(Respondent)
- and -
YOUNG MIN KANG
Defendant
(Appellant)
Jeffrey C. Goldberg, for the Plaintiff (Respondent)
Guy Ungaro, for the Defendant (Appellant)
HEARD at Toronto: October 20, 2008
swinton J.: (Orally)
[1] The motions judge concluded that the appellant had signed the indemnity agreement and that there was irrefutable evidence that summary judgment should be granted. The appellant has not shown that the motions judge made any error of law. While the reasons are brief and conclusory, that alone is not a reason to allow the appeal (see R. v. Walker, 2008 SCC 34, [2008] S.C.J. No. 34 at para. 20).
[2] There is ample evidence in the record to support the conclusion of the motions judge that the appellant signed the indemnity agreement, including a comparison of his signature on the June 17, 2008 affidavit and the indemnity agreement, the affidavit of the witness Galea to his signature, the cheque he provided when his brother defaulted on the rent and his release of bank information to the landlord so he could become an indemnifier. Moreover, Mr. Smith, in his affidavit filed on behalf of the appellant, states that it was clear that the appellant was a party to the lease (see paragraph 5). See also paragraph 4 where he states that his offer would absolve the appellant for the remainder of the lease.
[3] There was also evidence to support the calculation of damages. Even if the landlord agreed to accept $8,000 from the previous tenants, that does not affect the appellant’s obligation for the balance of the rent, given the terms of the indemnity agreement. The calculation of rent owing gave credit for the third floor sub-tenant’s rent. There was evidence upon which the motions judge could conclude that the landlord made reasonable efforts to mitigate. The record shows that the landlord and Smith had unresolved issues with respect to the chattels and did not come to an agreement.
[4] The appellant argued that the landlord failed to produce the original lease in the record. As the lease agreement was available prior to the motion, if requested, we would not give effect to this ground of appeal.
[5] As the motions judge did not make an error of law nor is there any palpable and overriding error in her appreciation of the evidence, the appeal is dismissed.
LEDERMAN J.
[6] The respondent will have its costs of the appeal fixed at $3,000.00.
SWINTON J.
LEDERMAN J.
BALTMAN J.
Date of Reasons for Judgment: October 20, 2008
Date of Release: October 27, 2008
COURT FILE NO.: 350/08
DATE: 20081020
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
lederman, swinton and baltman jj.
B E T W E E N:
MARITANO HOLDINGS LIMITED
Plaintiff
(Respondent)
- and -
YOUNG MIN KANG
Defendant
(Appellant)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: October 20, 2008
Date of Release: October 27, 2008