DATE: 20051007

DOCKET: C41564

COURT OF APPEAL FOR ONTARIO

RE:

TIJE LIMITED (Plaintiff/Respondent) – and – JEFF MASON operating as J.T. BEAN COFFEE MARKET and JEFF MASON (Defendants/Appellant)

BEFORE:

LASKIN, CRONK and ARMSTRONG JJ.A.

COUNSEL:

David Lees

for the appellants

Michael Gayed

for the respondent

HEARD & RELEASED ORALLY:

October 3, 2005

On appeal from the judgment of Echlin J. of the Superior Court of Justice, dated February 25, 2004 made at Toronto.

E N D O R S E M E N T

[1] The appellant’s principal submission is that the trial judge failed to give Mr. Mason, a self-represented litigant, a fair opportunity to present his defence. The appellant focuses on the trial judge’s alleged failure to give him an adequate opportunity to call Gail D’Alesssandro, whom he considered crucial to his case.

[2] We do not agree with the appellant’s submission. On our review of the record, we are satisfied that the trial judge afforded Mr. Mason a reasonable opportunity to defend the claim. Moreover, we have no basis to interfere with the trial judge’s exercise of discretion to complete the trial without Ms. D’Alessandro’s evidence in the absence of any indication of what evidence she might give relevant to the issues in dispute. The appellant provided no summary of her proposed evidence other than her vague affidavit, which offered no support to his defence. This ground of appeal therefore fails.

[3] The only ground of appeal for which we called on the respondent concerned the damages the trial judge awarded for the appellant’s failure to abide by the closing hours in the lease. In our view, the provision in the lease for fines for closing early absent the landlord’s consent is only enforceable if it is not oppressive. Here, enforcing the fine provision is oppressive in the light of both the amount of monthly rent and the landlord’s acquiescence for many years to an early closing. Moreover, there is no evidence to show that the amount of fines is a genuine pre-estimate of damages.

[4] Accordingly, the appeal is allowed in part and the judgment reduced by the amount of the fines, $4,040. 50.