DATE: 20030527

DOCKET: C37090 – C37089

COURT OF APPEAL FOR ONTARIO

RE: 1268227 ONTARIO LTD. o/a SEAMUS O’BRIEN’S (Plaintiff) v. 1178605 ONTARIO INCORPORATED (Defendant) – and – 1178605 ONTARIO INCORPORATED (Plaintiff by Counterclaim/Respondent) v. 1268227 ONTARIO LTD. o/a SEAMUS O’BRIEN’S JOHN TURNER LEE, PAULINE ANNABELLE LEE and MICHAEL F. O’BRIEN (Defendants to the Counterclaim/Appellants)

BEFORE: O’CONNOR A.C.J.O., SIMMONS and ARMSTRONG JJ.A.

COUNSEL: Marvin Shifman for the appellant, Pauline Annabelle Lee J. Sebastian Winny and Raymond A. Goddard for the appellants, John Turner Lee and Michael F. O’Brien James R. Smith for the respondent, 1178605 Ontario Incorporated

HEARD: May 21, 2003

RELEASED ORALLY: May 21, 2003

On appeal from the judgment of Croll J. of the Superior Court of Justice dated September 10, 2001.

E N D O R S E M E N T

[1] After a twelve-day trial, Croll J. found the appellants liable under s. 50 of the Commercial Tenancies Act and made an award of double the value of goods removed from the respondent’s premises. The trial judge found that each of the appellants was responsible for the removal of the goods from the commercial premises leased by a numbered company in which the appellants were the sole officers, directors and shareholders. The trial judge also found that the conduct of each of the appellants was intended to defeat the rights of the respondent landlord to the rent then in arrears and that as such it was fraudulent within the meaning of s. 50 of the Commercial Tenancies Act. In making those findings, the trial judge properly recognized that because of the penal nature of s. 50 and the stigma of dishonesty flowing from a finding under that section, she would apply an increased degree of probability for findings of fact that would be commensurate with all the circumstances.

[2] The appellants’ main argument is that there was insufficient evidence to support the trial judge’s findings of responsibility and intent. Those were findings of fact. Although there was little direct evidence linking the appellants to the removal of goods, there was circumstantial evidence pointing to the appellants’ responsibility for the removal and to their intent to defeat the respondent’s entitlement to rent. The trial judge carefully analyzed the evidence and clearly set out the basis for her conclusions. We see no basis upon which to interfere with those conclusions.

[3] The appellants also take issue with the trial judge’s findings that they were responsible for the amount of approximately $37,000 for damages to the vacated premises. The respondent’s claim for damages at trial totalled $61,223.81. The trial judge reviewed the evidence in support of the damage claim and after deducting amounts for inducements paid to the new tenants and an amount for an hourly rate she considered too high, she awarded damages in the amount of $37,437.88. This court accords considerable deference to a trial judge’s award of damages. In our view, there was evidence to support the trial judge’s award and accordingly we would not give effect to this ground of appeal.

[4] The trial judge’s award of solicitor-client costs was an exercise in discretion. Given the trial judge’s finding as to fraudulent intent, we are not prepared to interfere with the exercise of that discretion.

[5] The appeals are, therefore, dismissed.

“Dennis O’Connor A.C.J.O.”

“Janet Simmons J.A.”

“Robert P. Armstrong J.A.”