Court File and Parties
Citation: Annett v. Robert Breadner Children's Trust, 2008 ONCA 787
Date: 2008-11-24
Docket: C48331
Court of Appeal for Ontario
Before: Rosenberg, Feldman and Simmons JJ.A.
Between:
Campbell Annett
Applicant (Appellant)
and
Trustees of Robert Breadner Children’s Trust
Respondent (Respondent in Appeal)
Counsel:
Sarah Armstrong for the appellant
Clarke Melville and Jennifer Krotz for the respondent
Heard and released orally: November 19, 2008
On appeal from the judgment of Justice A.J. Stong of the Superior Court of Justice dated January 11, 2008.
Endorsement
[1] It was open to the application judge to find that the persistent late payment of rent was a material breach of the tenancy agreement entitling the respondent to terminate the option agreement.
[2] Assuming s. 98 of the Courts of Justice Act was applicable, we have also not been persuaded that the application judge erred in the exercise of his discretion in refusing relief from forfeiture of the option. The application judge applied the correct test as laid down in Liscumb v. Provenzano (1985), 1985 CanLII 2051 (ON SC), 51 O.R. (2d) 129 (H.C.J.) and we see no error in principle in his application of that test.
[3] Accordingly, the appeal is dismissed with costs fixed at $10,000 inclusive of GST and disbursements.
"M. Rosenberg J.A."
"K. Feldman J.A."
"Janet Simmons J.A."