Novotny v. Fowler, 2010 ONCA 120

CITATION: Novotny v. Fowler, 2010 ONCA 120

DATE: 20100211

DOCKET: C51143

COURT OF APPEAL FOR ONTARIO

Goudge, Juriansz and Watt JJ.A.

BETWEEN:

Dorothy Novotny

Applicant (Respondent)

and

Gary Fowler

Respondent (Appellant)

Gary Fowler, appellant appearing in person

Martha Cook, for the respondent

Heard: February 8, 2010

On appeal from the judgment of Justice William A. Jenkins of the Superior Court of Justice dated March 9, 2009.

APPEAL BOOK ENDORSEMENT

[1] There was ample evidence before the motion judge to sustain his conclusion that the appellant had breached the lease agreement in three respects. It is not open to this court to retry those findings of fact. The consequence attached by the motion judge properly follows, namely that the appellant’s option to purchase is null and void.

[2] The appellant has remained in the premises pending appeal and is up to date in rent payment. The respondent very fairly concedes that the judgment appealed from should be modified in two minor respects – by the deletion of paragraph one since the respondent claims no interest in the monies paid into court by the appellant, and the deletion of paragraph 4, since a writ of possession was not sought below.

[3] In all other respects the appeal must be dismissed. Costs to the respondent fixed at $5000 inclusive of disbursements and GST.