DATE: 20060111

DOCKET: C43290

COURT OF APPEAL FOR ONTARIO

RE:

652013 B.C. LTD. (Respondent) –and- RON PAONESSA A.K.A. RINALDO PAONESSA cob HAIR STUDIO VISIBLE CHANGES, VISIBLE CHANGES and/or SALON VISIBLE CHANGES

BEFORE:

FELDMAN, LANG AND LAFORME JJ.A.

COUNSEL:

Avril Hasselfield

for the appellant

Joshua J. Siegel

for the respondent

HEARD & RELEASED ORALLY:

January 9, 2006

On appeal from the judgment of Murray J. of the Superior Court of Justice, dated March 1, 2005 made at Toronto, Ontario.

E N D O R S E M E N T

[1] This is an appeal from the judgment of Murray J., which awarded damages to the respondent for breach of a lease. Under the lease, the appellant rented a commercial sign from the respondent for the appellant’s hair salon.

[2] In our view, this appeal must be dismissed.

[3] The appellant acknowledges that it breached the lease, but takes issue with the quantum of interest awarded on the accelerated payment. The relevant provision of the contract specifically provided for compound interest on that payment. Any issue of an interest component contained within the accelerated payment was not raised either at trial or before us.

[4] In any event, the trial judge calculated the interest at a rate effectively lower than that specified in the relevant provision of the contract. He also awarded post-judgment interest at the Courts of Justice Act rate rather than at the higher contractual rate. In all the circumstances, we are not persuaded that the trial judge erred in his determination of interest on the amount owing.

[5] The appellant also argues unconscionability on the basis that a breach of an earlier (1994) lease had not been enforced for the full amount of the interest owing. This is not sufficient to entitle the appellant to relief with respect to the 1996 lease and the breach of that lease.

[6] On mitigation, the sign was clearly unique and of use only to the appellant. This was acknowledged by the appellant in the lease. Accordingly, the appellant’s mitigation argument cannot succeed.

[7] On costs, the trial judge was entitled to exercise his discretion to enforce the terms of the lease between the parties that, in the event of default, the appellant would pay the respondent’s solicitor and client costs. The amount of $12,903.00, inclusive of disbursements and GST, was found by the trial judge to be reasonable in the circumstances. We agree.

[8] We also see no reason to interfere with the trial judge’s determination that the appellant’s offer to settle, which involved payments over time, did not trigger Rule 49 costs consequences.

[9] For these reasons, we dismiss the appeal. Costs to the respondent on a partial indemnity basis fixed at $6,000, inclusive of disbursements and GST.