COURT OF APPEAL FOR ONTARIO

CITATION: Malka v. Vasiliadis, 2013 ONCA 239

DATE: 20130416

DOCKET: C54531

Feldman, MacFarland and Pepall JJ.A.

BETWEEN

Elie Malka and Circle Inc.

Plaintiffs (Appellants)

and

Larry Vasiliadis and Joe Lugassy

Defendants (Respondents)

Andrew Stein, for the appellants

Stephen Schwartz and Gillian Silverhart, for the respondent, Larry Vasiliadis

David R. Rothwell, for the respondent, Joe Lugassy

Heard and released orally: March 28, 2013

On appeal from the judgment of Justice Kenneth L. Campbell of the Superior Court of Justice, dated October 5, 2011.

ENDORSEMENT

[1] We are troubled by the fact that at trial the respondents changed their evidence from what it had been at discovery without giving proper notice.

[2] On discovery both Vasiliadis and Lugassy said that the key events with respect to the termination of the lease took place on Friday, February 19, 1999. At trial they changed their evidence and said that these events took place on Monday, February 22. Despite this known change in the evidence, notice of the change was not provided to the appellants in writing as the Rules of Civil Procedure require. The respondents were obliged to give written notice to the appellants when they became aware that their evidence would change.

[3] The key issue before the trial judge was whether the appellant Malka had made or tendered payment of the rent that was due on February 1, 1999 or on the subsequent extensions to February 19, 1999. The overwhelming evidence was that neither he nor his co-appellant, Circle Inc. did and furthermore that they did not have the financial ability to do so.

[4] The trial judge gave lengthy and extensive reasons for judgment following an acrimonious, six-day trial. He accepted the evidence of the respondents over that of the appellant Malka. While the trial judge appears to have misapprehended the evidence in relation to the value of the appellants’ inventory on hand in October of 1998, in our view, this misapprehension did not materially impact the result. The fact remained, as the trial judge found, that the appellants did not pay the rent on February 19 and had no ability to do so.

[5] We agree with the trial judge’s interpretation of article 8.1 of the lease.

[6] The appellants were afforded ample opportunity to recover any documents left in the premises after the lease was terminated and before the documents were destroyed. In any event, there is no basis in the evidence to conclude that those documents would have had any impact on the result. Any relevant financial information could have been acquired from the appellants’ bank at the time.

[7] On this appeal, the appellant raised and relied on the fact that both the respondents changed their evidence without complying with the notice requirements in the Rules of Civil Procedure. In our view, whether the termination events occurred on Friday, February 19 or on Monday, February 22 was immaterial to the outcome of the action in view of the trial judge’s amply supported finding that the rent was not tendered by the appellants on either date.

[8] While the change in evidence did not impact the result, in our view, at this stage, the appropriate remedy for the failure to give notice of the change in evidence is that there be costs consequences to the respondents. Therefore, while the appeal is dismissed, the respondents’ claims for costs of the appeal will be reduced and each of the respondents is awarded the reduced amount of $5,000, inclusive of disbursements and H.S.T.

“K. Feldman J.A.”

“J. MacFarland J.A.”

“S.E. Pepall J.A.”