COURT FILE NO.: 534/08
DATE: 20091023
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
1544396 ONTARIO INC.
Plaintiff
(Appellant)
- and -
DELO TRANSPORTATION INC. and ELIZABETH JOSIFOVSKA also known as Elizabeth Joslovski and Elizabeth Josilovska
Defendants
(Respondents)
David Rubin, for the Appellant
Zlate Vasilevski, for the Defendant, Delo Transportation
HEARD at Toronto: October 23, 2009
JANET WILSON J.: (Orally)
[1] The appeal from the decision of Deputy Judge M. Teplitsky dated September 15, 2008 is dismissed.
[2] The standard of review of a decision of a judge is stipulated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Findings of fact should not be reversed on appeal unless the lower court made a palpable and overriding error in the assessment of the facts or in the application of the facts to the law. For questions of law, the standard is correctness.
[3] The trial judge dismissed the claim of the landlord/plaintiff seeking the sum of $7,169.00 for alleged unauthorized parking fees for vehicles for a five-day period. He also dismissed the claim of the plaintiff for bailiff charges and legal fees prior to default by the defendants with respect to payment of rent.
[4] The relevant findings of the trial judge with respect to the parking issues raised are as follows:
I find that the vehicles parked at the premises were not in the possession or under the control of the Defendants and that they were parked in areas of the premises leased by other transportation companies. I note that the invoice the Plaintiff sent to the Defendants regarding the parking stated: “Re: Parking 16 vehicles in about the premises being leased by others”. I find that the vehicles were parked there either with the permission of the Defendants or with the permission of the other tenant transportation companies. The owners of the vehicles removed them when the Defendants requested that they do so. Therefore, although it appears that the Defendants were involved in the decision of the owners of the vehicles to park at the premises, the evidence falls short of demonstrating on the balance of probabilities that the Defendants, their employees or agents were in possession of the vehicles or under their control. In other words, it was ultimately the decision of the owner of the vehicles as to whether they were going to park them at the premises. It is clear that the Defendants did not have authority to grant them permission to park their vehicles at the premises and that they misled the Plaintiff as to who owned the vehicles. Although the Court does not condone the Defendants’ conduct, its conduct does not constitute a contravention of section 5 (of the Lease).
For the above reasons, the Plaintiff shall have no recovery for its claim relating to the alleged unauthorized parking. As an aside, I note that the amount charged by the Plaintiff is twice the amount that it would have been entitled to charge had the Defendants actually violated section 5 of the Rider.
[5] The trial judge also dismissed the charges incurred by the plaintiff for the bailiff, and concluded that the plaintiff had acted precipitously and with animus in calling the bailiff to the premises. The trial judge also declined to order compensation for any legal fees arising before the breach of the payment of the July 1 rent payment.
Conclusions
[6] The trial judge carefully canvassed the issues and reached his conclusions based upon the evidence. There is no palpable and overriding error with respect to the finding of fact that the defendants were not in possession or control of the vehicles in question. Similarly, the conclusions of the trial judge that the plaintiff acted precipitously are supported by the evidence and preclude a claim for the bailiff’s fees and legal fees.
[7] For these reasons, the appeal is dismissed.
Costs
[8] As the defendants are self-represented, and did not file materials, no order as to costs.
JANET WILSON J.
Date of Reasons for Judgment: October 23, 2009
Date of Release: November 12, 2009
COURT FILE NO.: 534/08
DATE: 20091023
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
1544396 ONTARIO INC.
Plaintiff (Appellant)
- and -
DELO TRANSPORTATION INC. and ELIZABETH JOSIFOVSKA also known as Elizabeth Joslovski and Elizabeth Josilovska
Defendants (Respondents)
ORAL REASONS FOR JUDGMENT
JANET WILSON J.
Date of Reasons for Judgment: October 23, 2009
Date of Release: November 12, 2009