Court of Appeal for Ontario

CITATION: Eskritt v. MacKay, 2008 ONCA 611

DATE: 20080908

DOCKET: C46326

Before: Weiler, Simmons and Rouleau JJ.A.

BETWEEN:

L. Joseph Eskritt and Diana Eskritt

Plaintiffs (Respondents)

and

Christopher MacKay, Rebecca Emlaw and David MacKay

Defendants (Appellants)

Counsel:

Patrick E. Hurley for the appellants

Kenneth J. M. Coull for the respondents

Heard: September 2, 2008

On appeal from judgment of Justice D. J. Power of the Superior Court of Justice dated November 6, 2006.

ENDORSEMENT

[1] The trial judge awarded the respondents $29,661.70 on account of damage occasioned to their house while Ms. Emlaw occupied the house as a tenant along with her disabled common law spouse, Christopher McKay. In addition, the trial judge awarded the respondents $3,395.70 on account of lost rent arising from the manner in which Ms. Emlaw terminated the tenancy.

[2] The appellants submit that the trial judge erred in awarding the respondents amounts on account of damage occasioned as a result of Mr. McKay's disability. We reject this submission. The trial judge made a finding of fact that the damage caused to the respondents' premises went beyond reasonable wear and tear. This finding was available on the evidence.

[3] The Human Rights Code does not obviate a disabled person's responsibility to pay for damage to a landlord's premises extending beyond reasonable wear and tear. The appellants have produced no authority to that effect and, in our view, that is not the intent of the Human Rights Code. In any event, much of the damage to the house was unrelated to Mr. McKay's disability.

[4] The trial judge made a specific finding that the appellants were joint tortfeasors. Accordingly, it was open to the trial judge to impose liability on both appellants.

[5] We reject the appellants' claim that in fixing the quantum of damages the trial judge failed to recognize the landlord's statutory obligation to minimize losses. The trial judge made findings of fact that the costs incurred by the respondents were necessary and reasonable. Further, the trial judge made an allowance for betterment. We see no basis to interfere with his findings concerning these matters.

[6] We are, however, of the opinion that the trial judge erred in awarding $3,395.70 for loss of rent. The trial judge did not make a specific finding as to whether the offer to pay “appropriate compensation for any financial losses the plaintiffs might sustain,” amounted to forbearance in exchange for not pursuing the application to terminate the tenancy. The overholding by Ms. Emlaw was lawful and the appellants vacated only after giving the two months notice required by the Tenant Protection Act. Had the respondents proceeded with their application to terminate the tenancy and entered into personal possession, they could not have recovered damages for loss of rent. In these circumstances, the trial judge erred in holding that the respondents were entitled to three months loss of rent. Accordingly we would allow the appeal with respect to the award of $3,395.70. In all other respects the appeal is dismissed.

[7] The costs of the appeal are fixed in the amount of $5000.00 inclusive of disbursements and applicable G.S.T. to the respondents.

“K.M. Weiler J.A.”

“Janet Simmons J.A.”

“Paul Rouleau J.A.”