DATE: 20030930 DOCKET: C38971

COURT OF APPEAL FOR ONTARIO

RE:

3601 VICTORIA PARK LIMITED (Applicant/Appellant) - and - 1279482 ONTARIO INC. and TIMOTHY NGAI (Respondents)

BEFORE:

LASKIN, FELDMAN and ARMSTRONG JJ.A.

COUNSEL:

Ford W. Wong and Sandy Yeung for the appellant

Roger A. Grosbee for the respondents

HEARD:

September 12, 2003

On appeal from the order of Justice Ruth E. Mesbur of the Superior Court of Justice dated September 24, 2002.

ENDORSEMENT

Released Orally: September 12, 2003

[1] On the record before us, we are not satisfied that the findings of the applications judge are supportable. The applications judge inferred from the parties' acknowledgement that business tax had been eliminated, that they took that fact into account when negotiating the rent.

[2] In our view, that inference is weak and directly conflicts with the one objective piece of evidence in the record: the terms of the offer to lease and lease. Moreover, the parties did not put before the court other objective evidence, for example, the rental history of the property, that would have permitted a reasoned consideration of section 444.1(1) of the Municipal Act, R.S.O. 1990. c. M.45, as amended.

[3] In the light of these considerations we think that the fairest disposition of this appeal and of the application is to order the trial of the issue whether the remedial provisions of section 444.1(1) have been met.

[4] Accordingly, the appeal is allowed, the order of Mesbur J. is set aside and the trial of an issue is directed. The costs of the application and the appeal shall be reserved to the trial judge. The trial judge may have regard for the court's view that a fair figure for the costs of the appeal is $7000 inclusive of disbursements and GST.

"John Laskin J.A." "K Feldman J.A." "Robert P. Armstrong J.A."