DATE: 20010928
DOCKET: C35858
COURT OF APPEAL FOR ONTARIO
RE: ANNA HUNG YUK KAR (Plaintiff/Respondent) v. STEPHEN CHUNG and JENNY TRAN (Defendants/Appellant)
BEFORE: MCMURTRY C.J.O., FINLAYSON AND AUSTIN JJ.A.
COUNSEL: Richard H. Parker for the appellant
Raymond H. Raphael for the respondent
HEARD: September 25, 2001
On appeal from the judgment of the Divisional Court (Smith A.C.J.S.C., Southey and MacFarland JJ.) dated September 18, 2000.
E N D O R S E M E N T
Released Orally: September 25, 2001
[1] We disagree with the reasoning of both Mr. Justice Murphy and the Divisional Court.
[2] The lease was entered into on May 4, 1997 and it was to expire on May 4, 1998, subject to the tenant’s right to renew for another year on giving 60 days notice. The tenant did not give notice. The Landlord and Tenant Act R.S.O. 1990, C. L.7 was then in force. Section 104(1) of that act provided as follows:
Subject to subsection (2), upon the expiration of a tenancy agreement for a fixed term, the landlord and the tenant shall be deemed to have renewed the tenancy agreement as a monthly tenancy agreement upon the same terms and conditions as are provided for in the expired tenancy agreement.
[3] The legislation does not purport to affect or apply to guarantors. The guarantor in this case is not deemed to have done anything. There was no language in the guarantee itself dealing with renewals. In those circumstances it seems to us that the guarantee expired at the end of the first year.
[4] Part of the award of the Divisional Court was for damage to the premises. There was no evidence whether it occurred during the first year or after the guarantor’s liability had ceased.
[5] In these circumstances the order of the Divisional Court is set aside and the judgment of the trial judge restored. The tenant is entitled to her costs here and below. Those costs are fixed, on consent, at $5000.
“R. Roy McMurtry C.J.O.”
“G.D. Finlayson J.A.”
“Austin J. A.”