2013 ONSC 377

COURT FILE NO.: DC-11-00399

DATE: 20130118

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Aim Business Furnishings & Filing Systems Inc.

Plaintiff

– and –

Alterior-Designs

Defendant

Wayne Epp, Self-represented

Jayson Thomas, Counsel for the Defendant

HEARD: January 15, 2013

REASONS FOR JUDGMENT

HEALEY j.

Background

[1] This is an appeal by Aim Business Furnishings & Filing Systems Inc. from the decision of Deputy Judge Stancer sitting in the Richmond Hill Small Claims Court.

[2] The appellant raises three points in argument. First, that the respondent is estopped from seeking relief because the respondent defaulted under the head lease. Second, the trial judge misapprehended the evidence leading to his finding that the appellant left the premises voluntarily. Third, the respondent is estopped from seeking damages because its principal was aware of, and party to, an agreement with the head lessor, which relieves the appellant from any obligation to pay under the sublease. It is submitted that the trial judge misapprehended the evidence on this last point as well.

[3] The first of these arguments was not raised before the trial judge and a review of the defence filed by the appellant indicates that no such facts were pled by the appellant at first instance. Further, such argument does not form part of a ground of appeal in the Notice of Appeal. Accordingly, the appellant may not raise the argument or issue on appeal.

[4] With respect to the second argument, the appellant asserts that the trial judge misapprehended the evidence regarding the circumstances under which the appellant left the premises. The standard of review of an appellate court with respect to alleged errors in consideration of the evidence by the trial judge requires the appellant to show that a palpable and overriding error was committed: Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 (S.C.C.). Absent such an error, the evaluation of the evidence and findings made by a trial judge are to be given considerable deference by a reviewing court. The trial judge made the finding in his reasons at paragraph 14 that the appellant made a conscious choice to vacate the premises. A review of the transcript of the evidence taken at trial, at pp. 27-28, shows the type of clear evidence relied upon by the trial judge in reaching such a finding. Accordingly, I am unable to find that he committed a palpable and overriding error.

[5] Further, the trial judge's conclusion follows the law which holds that a verbal demand to vacate is not tantamount to an "eviction" or re-entry by the landlord, which requires methods of re-entry such as an action for possession or changing the locks: Maverick Professional Services Inc. v. 592423 Ontario Inc., 2001 CarswellOnt 1154 (S.C.J.) at paragraph 4; Church of Our Lady of Fatima v. Equity Three Holdings Inc., 2010 CarswellOnt 7024 (S.C.J.), at para. 8. With respect to this second argument, the trial judge correctly stated the law that the head landlord had no privity of contract with the sub-tenant, and no ability to enforce the terms of the sublease.

[6] Finally, with respect to the third argument, the trial judge could find no evidence that the respondent had suggested to the appellant that it would acquiesce to any arrangements made between it and the head landlord. He made a finding that such a decision would have been entirely unreasonable given the respondent’s continued liability to the head landlord. Again, such an evaluation of the evidence and such a finding is subject to the "palpable and overriding error" standard of review. The appellant suggests that because the respondent was aware of, but did nothing to stop the eviction, it permitted the head landlord to represent its position to the appellant. Even if that is the case, such evidence would fall short of the evidence required to show that the respondent was forfeiting the sub-lease and terminating all of the appellant’s obligations under the sublease. However, having reviewed the transcript of the evidence given at trial, I agree that there was no evidence to support such a contention, and therefore there was no error made by the trial judge in his apprehension of the evidence.

[7] There was further no error of law in his statement that the principle of estoppel has no application to the facts of this case.

[8] As there were no errors made by the trial judge, the appeal is dismissed with costs to the respondent.

[9] The parties may make brief cost submissions in writing, to be delivered to the office of the judicial secretaries in Newmarket by the dates below. If the respondent chooses to make submissions beyond the cost outline filed at the hearing, it shall do so by February 1, 2013.

[10] Responding material from the appellant is due by February 8, 2013, and any reply from the respondent by February12, 2013. Submissions are to be limited to two double-spaced pages, not including any costs outline.

Justice S. Healey

Released: January 18, 2013