DATE: 20050120

DOCKET: C39476

COURT OF APPEAL FOR ONTARIO

RE:

DANIEL AGUACIL and INSIDE MODERN LIVING INC. (Plaintiffs/Respondents) – and – 520301 ONTARIO INC. (Defendant/Appellant)

BEFORE:

WEILER, MOLDAVER and LAFORME JJ.A.

COUNSEL:

Lorne M. Honickman

for the appellant

Howard L. Shankman

for the respondent

HEARD & RELEASED ORALLY:

January 14, 2005

On appeal from the judgment of Justice Lloyd Brennan of the Superior Court of Justice dated January 20, 2003.

E N D O R S E M E N T

[1] The appellant landlord appeals from the judgment of Brennan J. ordering him to pay damages in the amount of $55,120 to the respondent tenant on the basis of promissory estoppel.

[2] The trial judge found that the tenant undertook renovations to premises that he was renting from the landlord at his own expense based on the landlord’s representation that he could use the premises as a location for film, photography and special events as well as his existing business of furniture display and prop storage. The trial judge further found in effect that when the landlord learned how much business the tenant was doing, he wanted to increase the rent and, when the tenant demurred, he interfered with the tenant’s business by sending him a letter indicating that he could no longer use the premises for this purpose.

[3] The appellant submits that the trial judge made overriding and palpable errors in his findings of fact and this affected his ultimate decision. We do not agree. In our opinion it was open to the trial judge to make the findings he did.

[4] Although the appellant submits that the trial judge ignored relevant evidence from the appellant and his witnesses, the trial judge’s reasons overall demonstrate a strong grasp of the evidence including the evidence of the appellant. In his reasons for reaching the conclusion he did, the trial judge referred to a number of factors from a number of witnesses that led him to make the findings he did. We would dismiss the appeal respecting liability.

[5] With respect to damages, the appellant submits that the evidence respecting damages was so deficient that it was not possible to calculate them. We disagree. While it may have been difficult, as the trial judge said, it was not impossible, and there was evidence that permitted him to make an assessment of damages.

[6] That said, the tenant ceased conducting his new business in August, 2000 until he was able to obtain a court order allowing him to resume his business in May, 2001. Although the tenant was able to resume his business, “the business wasn’t very flourishing.” The trial judge found the tenant suffered damage from lost location rentals in an assessed amount of $55,120 for a period of 17 months from August 2000 until December 31,2001 based on average revenues of $6800 a month from January 2000 to July 2000. The tenant testified, however, that “everyone in film in Toronto had a very slow summer in 2001.” He also said that by dint of hard work they had had some production.

[7] Despite this evidence from the tenant, the trial judge did not adequately consider it in assessing damages on a straight line basis and in concluding that the negative and positive contingencies cancelled each other out. Had he done so, we are of the view that he would have reduced the gross revenue for the period in question. On the particular circumstances of this case we are of the view a figure of $21,000 fairly represents the reduction in revenue that he ought to have factored into the damages assessment.

[8] Accordingly the appeal is allowed to the extent that the damages are reduced from $55,120 to $34,120.

[9] Recognizing the partial success of the appellant with respect to the damages issue, partial costs of the appeal are awarded to the appellant and, on consent, are fixed in the amount of $6,000 all inclusive.

“K. M. Weiler J.A.”

“M. J. Moldaver J.A.”

“H. S. LaForme J.A.