DATE: 20061127

DOCKET: C42925

COURT OF APPEAL FOR ONTARIO

RE:

C. AND M. HOLDINGS LIMITED, TARTAR INVESTMENTS LIMITED, WHITLAND CONSTRUCTION COMPANY LIMITED, CARVIL ENTERPRISES LIMITED, SHUDELL INVESTMENTS LIMITED, GARTHORNE INVESTMENTS LIMITED AND INVESTORS GROUP TRUST CO. LTD. (as Trustees for INVESTOR REAL PROPERTY FUND) (Plaintiffs/Respondents) – and – TIFFANY GATE LIMITED (Defendant/Appellant)

BEFORE:

LABROSSE, DOHERTY and BLAIR JJ.A.

COUNSEL:

Melvyn L. Solmon

for the appellant

F. Paul Morrison and Sarit E. Batner

for the respondents

HEARD & RELEASED ORALLY:

November 22, 2006

On appeal from the judgment of Justice Andromache Karakatsanis of the Superior Court of Justice, dated December 16, 2004.

E N D O R S E M E N T

[1] This case involved a landlord suing a former tenant at the end of the tenancy for the cost of restoring the premises to the condition required under the leases.

[2] The trial judge, after an eight-day trial, found that the landlord was entitled to reimbursement for many, but not all, of the repairs undertaken.

[3] In our view, the trial judge made no error when she held that the tenant’s obligations to repair were not eliminated by virtue of the 1999 consolidation lease and that the tenant had to restore the premises to the conditions they were in when the tenant first occupied them. The 1999 lease is more appropriately characterized as an extension of the three previous leases in that the landlord chose to extend the tenancy to permit the tenant to finish its own building. It did not wipe out the obligations arising from the earlier leases.

[4] The balance of the issues raised by the appellant relate to factual findings and assessment of damages by the trial judge. The findings and the assessment of damages in respect of the floor, electrical repairs and HVAC repairs are all supportable on the evidence.

[5] In particular, with respect to the floor, there was evidence of the cost of replacing the floor and quotes to repair the floor. The trial judge also had evidence of the areas of concern with the floor. More importantly, there was a quote for repairs that was reasonably close to the amount she found owing. This quote had been proffered by the appellant in the course of the landlord’s engineer’s cross-examination. The landlord’s engineer acknowledged that the amount quoted represented the cost to repair the floor. In light of this evidence, it cannot be said that her conclusion is not supported by the evidence.

[6] The administration fee for the loss of rent cannot be supported by the wording of the lease and we will allow the appeal to that extent.

[7] In all other respects, the appeal is dismissed with costs, fixed at $20,000 plus disbursements.

“J.M. Labrosse J.A.”

“Doherty J.A.”

“R.A. Blair J.A.”