DATE: 20041015

DOCKET: C41526

COURT OF APPEAL FOR ONTARIO

RE:

1413910 ONTARIO INC., carrying on business as BULLS EYE STEAKHOUSE & GRILL (Plaintiff/Respondent) – and – SELECT RESTAURANT PLAZA CORPORATION and VICTOR MCCULLOUGH (Defendants/Appellant) – and – BENTALL RETAIL SERVICES LIMITED PARTNERSHIP (Third Party)

BEFORE:

SIMMONS, GILLESE JJ.A. and HENNESSY J. (ad hoc)

COUNSEL:

Jeffrey Radnoff and Melvyn L. Solmon

for the appellant

Joseph C. D'Angelo

for the respondent

HEARD & ENDORSED:

October 14, 2004

On appeal from judgment of Justice P. Ted Matlow of the Superior Court of Justice dated February 18, 2004.

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

[1] We see no error in the result or reasoning below. There was ample evidence upon which the motions judge could find, as he did, that the respondent was not in arrears of rent but, rather, had a credit in its favour in its rent account. As the respondent was not in default, the appellant was not entitled to terminate the lease.

[2] There is nothing in the record to support the appellant’s contention that the respondent engaged in wrongful conduct to mislead the appellant so that the respondent could somehow get out of its lease obligations. While the respondent might have been more forthcoming, it cannot be said to be wrongful conduct nor was the respondent required to do more.

[3] The motions judge made no error in finding that the appellant wrongfully terminated the lease and in granting partial summary judgment to that effect.

[4] Accordingly, the appeal is dismissed. Costs of the appeal to the respondent on a partial indemnity bases fixed at $5934.00 inclusive of disbursements and GST.