Court File and Parties

CITATION: Attention Business Systems Ltd. v. Nones Holdings Inc., 2007 ONCA 774

DATE: 20071113

DOCKET: C44913

COURT OF APPEAL FOR ONTARIO

CRONK, GILLESE and ARMSTRONG JJ.A.

BETWEEN:

ATTENTION BUSINESS SYSTEMS LTD. c.o.b. MAPLE PRINTING & BUSINESS FORMS

Plaintiff (Appellant)

and

NONES HOLDINGS INC.

Defendant (Respondent)

Counsel: Mark A. Klaiman, for the appellant Moses Muyal, for the respondent

Heard: November 7, 2007

On appeal from the order of Justice Ernest Loukidelis of the Superior Court of Justice dated February 7, 2006.

ENDORSEMENT

[1] This appeal concerns a dispute regarding the purported termination of a commercial tenancy in a multi-unit industrial complex in Brampton. The appellant tenant appeals from the judgment of Loukidelis J. of the Superior Court of Justice dated February 7, 2006 by which its action for a declaration that the termination of its tenancy was invalid, amongst other relief, was dismissed without costs.

[2] Of the various grounds of appeal advanced by the appellant, it is necessary for the disposition of this appeal to address only two. First, the appellant argues that the trial judge erred by failing to determine whether the lease in issue contained a termination clause in favour of the landlord, which the appellant claimed had been deleted in 1995 by agreement with the then landlord. The respondent, the current landlord, contends before this court that the alleged deletion of this termination clause was the core issue for determination by the trial judge, upon which the entire action turned, and that the trial judge, in effect, held that the appellant’s deletion claim was fabricated.

[3] We agree that the issue whether the termination clause had been properly deleted was central to the adjudication of the matters in dispute between the parties. Based on our reading of the trial judge’s brief reasons, we are not satisfied that this crucial question ultimately was answered by the trial judge.

[4] We recognize that the trial judge’s reasons include findings about certain of the conduct of the parties related to the alleged deletion of the termination clause and concerning some of the evidence bearing upon this issue. However, his reasons contain no finding on the respondent’s main submission that the evidence of the deletion was fabricated by the tenant to defeat the landlord’s interests or on the appellant’s claim that the landlord could not invoke the termination clause due to its consensual deletion from the lease in the mid 1990s. These findings were essential to the determination of the rights of the parties based on the issues in dispute as framed by them.

[5] In addition, in deciding to deny the relief sought by the appellant, the trial judge took into account information regarding the corporate status of the landlord dating from the fall of 1994. As this trial unfolded, this information was not properly admitted before the trial judge. Accordingly, it should not have formed part of his reasoning. This was particularly so given that: (i) the respondent’s pleading contained no challenge to the corporate status of the relevant landlord at the time of the alleged deletion of the termination clause, (ii) the trial judge had declined to admit the documentary evidence relied upon by the respondent in respect of this issue, with the result that it was not part of the evidential record, and (iii) the credibility of the parties concerning the validity of the alleged deletion was directly in issue.

[6] In light of these errors, the trial judgment cannot stand. The appeal is allowed, the trial judgment is set aside and a new trial is directed. The appellant is entitled to its costs of the appeal, fixed in the amount of $7,500, inclusive of disbursements and GST.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”