DATE: 20040227

DOCKET: C40642

COURT OF APPEAL FOR ONTARIO

RE: O.W. WASTE INC. (Plaintiff)(Appellant) – and – EX-L SWEEPING & FLUSHING LTD., MICHAEL CRUPI, DOMINIC CRUPI and JOHN BEST (Defendants)(Respondents)

BEFORE: WEILER, SHARPE and BLAIR JJ.A.

COUNSEL: Mark A. Klaiman for the appellant

Ronald Birken for the respondent

HEARD: February 25, 2004

RELEASED ORALLY: February 25, 2004

On appeal from the judgment of Justice Sarah Pepall of the Superior Court of Justice dated September 3, 2003.

E N D O R S E M E N T

[1] The motions judge did not err in granting summary judgment. OW submits that a lease between Target and Ex-L was assigned to it. EX-L, as landlord, had to agree to any assignment in writing for it to be valid. No assignment in writing was ever executed and there was no valid assignment.

[2] The appellant asserts that an oral agreement for a five year lease was reached and that all essential terms were agreed upon. In support of this submission he relies on the affidavit of his client which states that he made suggested changes to a draft lease and that, “Michael informed me they would edit my changes and get a revised copy back to me.” In the circumstances this statement cannot be elevated to an agreement to lease for five years. More importantly, the claim alleges that the respondent deceived the appellant and had no intention of entering into an agreement. As noted by the motions judge OW does not plead that EX-L agreed to any other 5-year lease.

[1] Finally we see no error in the motion judge’s conclusion that the order of Sachs J. effectively disposed of the issue of whether the tenancy was terminated and indeed abandoned.

[2] The appeal is therefore dismissed. Costs of the appeal to the respondent fixed at $5000 all-inclusive.

“K.M. Weiler J.A.”

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”