DATE: 20031027

DOCKET: C40095

COURT OF APPEAL FOR ONTARIO

RE: LORENZO CARRANZA (Applicant) (Respondent) – and – ADAM MATI (Respondent) (Appellant)

BEFORE: O’CONNOR A.C.J.O., CATZMAN and WEILER JJ.A.

COUNSEL: Harvey S. Margel

for the appellant

Mark Wainberg

for the respondent

HEARD: October 20, 2003

RELEASED ORALLY: October 20, 2003

On appeal from the judgment of Justice Alexandra Hoy of the Superior Court of Justice dated May 12, 2003.

E N D O R S E M E N T

[1] The appellant, Mr. Adam Mati, appeals from the judgment of Justice Hoy, finding that Mr. Mati had no estate or interest in the basement premises of 2-4 Satterly Road, Toronto, except non-exclusive access to the washroom and to the electrical panel and directed that the tenant remove all of his chattels from the basement premises.

[2] The issue on this appeal is whether the motions judge erred in finding that the lease did not include the basement.

[1] In our opinion, the motion judge ignored two pieces of relevant evidence indicating that the basement was included in the demised premises. The first is the reference on Schedule B attached to the lease agreement that reads, “Note Actual Basement.” The second is the affidavit of Michael Polensky, who is the original landlord on the lease in issue. He states at paragraph 3 of his affidavit that “The basement was included in the leased premises.” It is therefore open to this court to review the motion judge’s determination of the application and to come to our own conclusion on the proper interpretation of the lease.

[2] The lease describes the demised premises as “consisting of approximately 1545 square feet and all the lands outlined in red on Schedule ‘B’ attached to this lease.” The wording of this recital, in particular the word “and” that follows the reference to 1545 square feet is significant. Having regard to this recital; to the reference on Schedule B to the “actual basement”, to the affidavit of Mr. Polensky, and to the affidavit of Mr. Mati the other party to the lease, we are satisfied that the basement was included in the demise to the appellant.

[3] The appeal is allowed, the decision of Hoy J. is set aside and an order will go dismissing the application of Mr. Carranza.

[4] Costs of the motion below in the amount of $1,750 are to be paid to the appellant In addition, costs of the appeal fixed in the amount of $3,500, inclusive of disbursements and GST, are awarded to the appellant.

“Dennis O’Connor A.C.J.O”

“M.A. Catzman J.A.”

“K.M. Weiler J.A.”