Court File and Parties

CITATION: Westdale Construction Co. Limited v. Hui Ying Coa, 2010 ONCA 142

DATE: 20100226

DOCKET: C50972

COURT OF APPEAL FOR ONTARIO

Moldaver, MacPherson and LaForme JJ.A.

BETWEEN

Westdale Construction Co. Limited

Respondent in appeal/ Appellant in cross-appeal

and

Hui Ying Coa operating as Sijan Restaurant

Appellant in appeal/ Respondent in cross-appeal

Counsel: Bernard B. Gasee, for the appellant/respondent in cross-appeal Paul Starkman, for the respondent/appellant in cross-appeal

Heard: January 29, 2010

On appeal from the decision of Justice Peter Daley of the Superior Court of Justice dated August 7, 2009.

Endorsement

[1] The application judge found that Hui Ying Coa (the “tenant”) breached the lease by permitting loitering and by failing to comply with the Liquor License Act, R.S.O. 1990, c.L-19 and regulations. He did not find that the tenant had contravened the Smoke Free Ontario Act, S.O. 1994, c.10 and regulations.

[2] The application judge also found that the tenant’s conduct was by way of “omission as opposed to willful conduct”, and although the disruption and inconvenience to Westdale Construction Co. Limited (the “landlord”) and other tenants of the shopping plaza was significant:

[I]n measuring the disparity between the value of the property, namely the balance of the term of the lease to October 31, 2013 as compared with the damages and inconvenience caused by the breaches, as evidenced in the record, it would be disproportionate to refuse relief from forfeiture, in all the circumstances…

[3] The terms of relief from forfeiture were:

That the tenant will provide at her expense a security person to be in attendance between the hours of 7:00 p.m. to 1:00 a.m. on those days when the tenant’s restaurant is open. The security person retained shall provide security presence to ensure there is no loitering by restaurant patrons on the common sidewalk area immediately adjacent to the front of the tenant’s restaurant.

[4] The tenant appeals only from the application judge’s order granting relief from forfeiture. That is, she is not appealing the findings that she breached the lease; she appeals the terms of relief from forfeiture.

[5] In turn, the landlord cross-appeals and submits that the application judge should not have granted the tenant relief from forfeiture but rather, he should have terminated the lease. In this regard, he argues that relief from forfeiture was not specifically sought in the application, but rather, in oral argument. Further, he cites several errors by the application judge including in respect of the Smoke Free Ontario Act.

[6] Both the appeal and cross-appeal should be dismissed for three elementary reasons.

[7] First, the application judge gave thoughtful reasons in arriving at a balanced remedy in all the circumstances of this case. We would not interfere with the manner in which he exercised his discretion pursuant to the Commercial Tenancies Act, R.S.O. 1990, c.L-7.

[8] Second, although the tenant may not have strictly complied with the Commercial Tenancies Act in seeking relief from forfeiture, the landlord suffered no prejudice as a result. The landlord was aware, prior to the hearing of the application that the tenant would seek such relief. No one was taken by surprise at the hearing and the issue was fully argued on the merits.

[9] Third, even if the Smoke Free Ontario Act were to apply to the tenant – an issue which we should not be taken to have decided – it would not have altered the result of this appeal.

[10] Accordingly, the appeal and cross-appeal are both dismissed. Given the result, there will be no order as to costs.

“M.J. Moldaver J.A.”

“J.C. MacPherson J.A.”

“H.S. LaForme J.A.”