COURT OF APPEAL FOR ONTARIO

CITATION: 2155091 Ontario Limited v. 379014 Ontario Limited, 2012 ONCA 446

DATE: 20120625

DOCKET: C53206

BEFORE: O’Connor A.C.J.O., Rosenberg and Simmons JJ.A.

BETWEEN

2155091 Ontario Limited c.o.b. Rockford’s Bar & Grill

Applicant (Appellant)

and

379014 Ontario Limited and Vincent Forgione

Respondents

COUNSEL:

Riaz S. Ahmed, for the Appellant

Lori Marzinotto, for the Respondents

Heard and released orally: June 19, 2012

On appeal from the judgment of Justice Anne Mullins of the Superior Court of Justice, dated December 17, 2010.

ENDORSEMENT

[1] The principle issue on this appeal is whether the work performed by the tenant fell within clause 11 of the lease as leasehold improvements or clause 18 as repairs. If the former, the costs were to be borne by the tenant. If the latter, and if the repairs were structural, then the costs were to be borne by the landlord.

[2] It is apparent from paragraph 41 of the reasons that the trial judge found that the work done was for leasehold improvements. This is a finding that was open to her given that the premises were taken on an “as is” basis and some of the work was done well before the “as is” lease was signed. We also note that the tenant carried out the work without complying with its obligations in clause 11 to obtain the approval of the landlord.

[3] The reasons were sufficient given the issueS raised, which turned simply on the application of the wording of terms commonly found in commercial leases. The finding by the trial judge that the work done was “renovations” was determinative of that issue.

[4] As to the patio, the formal order does not deal with this issue and accordingly this matter may be pursued as part of the trial of the issue or otherwise as the appellants may be advised.

[5] Accordingly, the appeal is dismissed.

[6] Costs to the respondent are fixed in the amount of $10,000, inclusive of H.S.T. and disbursements.

Signed: “D. O’Conor A.C.J.O.”

“M. Rosenberg J.A.”

“Janet Simmons J.A.”