COURT OF APPEAL FOR ONTARIO

DATE: 20000629

DOCKET: C31122

RE: 809011 ONTARIO LTD. (Plaintiff/Respondent)

v. CHARLES ST. GEORGE (Defendant/Appellant)

BEFORE: McMURTRY C.J.O., MORDEN and ROSENBERG JJ.A.

COUNSEL: R. J. Reynolds,

for the appellant

W. W. Walker,

for the respondent

HEARD: June 28, 2000

On appeal from the judgment of Mr. Justice Richard G. Byers dated

November 20, 1998

E N D O R S E M E N T

[1] Byers J. gave some of his reasons for judgment in the form

of a running commentary during counsel's submissions. This is

unfortunate because it makes it difficult to extract the reasons

for judgment from what may have been no more than queries.

Nevertheless, we are satisfied that this appeal cannot succeed.

[2] The appellant’s essential argument is that Byers J. erred in

concluding that the breach of the covenant concerning ventilation

was not serious enough to entitle the appellant to elect to

rescind the lease. Counsel argues that the trial judge made a

number of factual and legal errors in reaching that conclusion.

For example, counsel points out that the trial judge made several

references to lack of proof of irreparable harm. He also notes

that some of the statements by the trial judge leave the

impression that the trial judge was of the view that the

appellant was foreclosed from electing to rescind because he did

not do so as soon as the ventilation problem became apparent.

[3] In our view, these alleged errors do not taint the trial

judge’s ultimate finding that the breach of covenant was not a

“fundamental breach”. It was open to the trial judge to reach

this conclusion on all of the evidence. He had the benefit of

the testimony of the two main witnesses and clearly was of the

view that the ventilation problem was not sufficiently serious.

We would not interfere with that finding.

[4] As to the second ground of appeal, Mr. Reynolds, who was not

counsel at trial, conceded that this issue was not raised in the

pleadings and was not argued before the trial judge. In any

event, given the trial judge’s view of the seriousness of the

breach, we see no basis for reducing the damages by reason of the

breach of covenant.

[5] Accordingly, the appeal is dismissed with costs.

(signed) "R. McMurtry C.J.O."

(signed) "J. W. Morden J.A."

(signed) "M. Rosenberg J.A."