Editor's Note: Addendum released May 16, 2008. Original judgment has been corrected, with text of addendum appended.
CITATION: 546400 Ontario Inc. v. Results Realty Ltd., 2008 ONCA 668
DATE: 20081002
DOCKET: C47211
COURT OF APPEAL FOR ONTARIO
ARMSTRONG, JURIANSZ and ROULEAU JJ.A.
BETWEEN:
546400 ONTARIO INC.
Plaintiff/Respondent
and
RESULTS REALTY LTD. and RE/MAX WEST REALTY INC.
Defendant/Appellant
Stuart Ghan and David Visschedyk for the appellant
Patrick C. Muise for the respondent
Heard and released orally: May 16, 2008
On appeal from the judgment of Justice Katherine van Rensberg of the Superior Court of Justice dated May 7, 2007.
ADDENDUM
[1] This is an addendum to our oral endorsement of May 16, 2008.
[2] After this appeal was disposed of we received a letter from counsel for the plaintiff/respondent advising that counsel had erred in response to a question from the court concerning whether there was evidence led at trial in respect of the cost of the removal of certain partitions referred to in paragraph 2 of our endorsement. Counsel advised that exhibit 47 contained such evidence.
[3] We called for further submissions in writing on this issue. After reviewing the submissions, we are not persuaded to change the result in this appeal.
“Robert P. Armstrong J.A.”
“R.G. Juriansz J.A.”
“Paul Rouleau J.A.”
CITATION: 546400 Ontario Inc. v. Results Realty Ltd., 2008 ONCA 403
DATE: 20080522
DOCKET: C47211
COURT OF APPEAL FOR ONTARIO
ARMSTRONG, JURIANSZ and ROULEAU JJ.A.
BETWEEN:
546400 ONTARIO INC.
Plaintiff/Respondent
and
RESULTS REALTY LTD. and RE/MAX WEST REALTY INC.
Defendant/Appellant
Stuart Ghan and David Visschedyk for the appellant
Patrick C. Muise for the respondent
Heard and released orally: May 16, 2008
On appeal from the judgment of Justice Katherine van Rensberg of the Superior Court of Justice dated May 7, 2007.
ENDORSEMENT
[4] In our view, the appellant Re/Max West Realty Inc. has no liability in respect of matters predating the 1999 lease. Under article 4 of the assignment of lease, Re/Max took over the lease as if it were the original tenant under the lease which is defined as the 1999 lease.
[5] While Re/Max may have been obligated to remove the partitions erected by it on the mezzanine floor of the premises, during the term of the 1999 lease, there was no evidence led as to the cost of such removal as distinct from the costs incurred to remedy the deficiencies in the construction of the mezzanine itself.
[6] The appeal in respect of the main action is therefore allowed and the action is dismissed.
[7] In respect of the counterclaim, the trial judge dismissed it and simply said that there was no breach by the landlord of the lease. There was no analysis in respect of liability or damages under the counterclaim. In the circumstances, the judgment on the counterclaim cannot stand.
[8] We therefore allow the appeal in respect of the counterclaim and order a new trial on the counterclaim.
Costs
[9] Costs are awarded to the appellant in the total amount of $11,000 inclusive of disbursements and GST.
“Robert P. Armstrong J.A.”
“R.G. Juriansz J.A.”
“Paul Rouleau J.A.”