DATE: 20040315

DOCKET: C37669

COURT OF APPEAL FOR ONTARIO

RE:

LILLIAN STREISFIELD in her capacity as litigation administrator on behalf of the Estate of GERALD M. STREISFIELD, deceased, LILLIAN STREISFIELD in her personal capacity, CRAIG STREISFIELD, JEFFREY STREISFIELD, STEVEN STREISFIELD, SHERYL STREISFIELD, and MARLA STREISFIELD BORENSTEIN (Plaintiffs) and MARVIN GOODMAN, CAROL GOODMAN, JOYCE LAWEE, DAVID LAWEE and JEAN KARNOVSKY (Defendants)

AND BY COUNTERCLAIM:

MARVIN GOODMAN, JOYCE LAWEE, and JEAN KARNOVSKY (Plaintiffs by counterclaim (Appellants on cross-appeal)) and LILLIAN STREISFIELD in her capacity as litigation administrator on behalf of the Estate of GERALD M. STREISFIELD, deceased, LILLIAN STREISFIELD in her personal capacity, CRAIG STREISFIELD, JEFFREY STREISFIELD, STEVEN STREISFIELD, SHERYL STREISFIELD, MARLA STREISFIELD BORENSTEIN, 489223 ONTARIO LIMITED (carrying on business as “Field Construction, 1982”), THE PUBLIC GUARDIAN AND TRUSTEE, and LEONARD WEINSTEIN (in his capacity as Estate Trustee during litigation of the Estate of Dora Herberman, deceased) (Defendants to the counterclaim (Sheryl Streisfield: Respondent on cross-appeal))

BEFORE:

LABROSSE, LASKIN AND GOUDGE JJ.A.

COUNSEL:

Robert A. Watson

for the appellant

David S. Strashin

for the respondent

HEARD & ENDORSED:

March 12, 2004

On appeal from the judgment of Justice Gertrude Speigel of the Superior Court of Justice dated October 16, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] Liability for the payment of occupation rent began with the Court’s finding of a conspiracy to acquire the assets of Dora Herberman in which both Lillian and Gerald were found to have participated. Sheryl was not part of the conspiracy. The trial judge fixed the liability for the payment of occupation rent on the parents. There was no finding of joint and several liability. Clearly implicit in his reasons is the trial judge’s conclusion that effectively the tenants were the respondent’s parents and that she was simply living with them. It was open to the trial judge to take this view of the facts and to find that it was the parents not the daughter who was liable for occupation rent until the delivery of possession. We see no reason to interfere with the judgment of Carnwath J. and Spiegel J. correctly interpreted the trial judgment on the issue of occupation rent. Both appeals are dismissed. Costs for both appeals together fixed at $2,500 are inclusive.

_ “S.T. Goudge J.A.”