COURT OF APPEAL FOR ONTARIO

CITATION: 1302207 Ontario Limited v. 1517676 Ontario Limited, 2013 ONCA 426

DATE: 20130620

DOCKET: C55813

Goudge, MacPherson and Juriansz JJ.A.

BETWEEN

1302207 Ontario Limited

Plaintiff (Appellant)

and

1517676 Ontario Limited, 1727299 Ontario Inc., Frank Paniccia and Maurizio Marchioni

Defendants (Respondents)

E. Fournie and O. Roslak, for the appellants

B. Pearce, for the respondent

Heard and released orally: June 17, 2013

On appeal from the judgment of Justice Thomas R. Lederer of the Superior Court of Justice, dated June 17, 2013.

ENDORSEMENT

[1] The appellant 1302207 Ontario Limited appeals from the judgment of Lederer J. of the Superior Court of Justice dated June 26, 2012 granting judgment to the respondents on their counterclaim in the amount of $1,212,000 plus costs of $120,000.

[2] The principal issue in the trial was the respondents’ counterclaim. The respondents were tenants leasing premises owned by the appellant. The counterclaim included a claim for compensation for the loss of business during two consecutive time frames: a period of seven months from April to October 2008; and a period of approximately ten years from November 2008 to the projected end of the lease.

[3] The trial judge awarded damages of $1,212,000 for the second time period. The appellant appeals only from this component of the judgment. It does so on three bases.

[4] First, the appellant contends that the trial judge’s factual conclusion that the appellant had begun the destruction of the premises in September 2008, a time when the respondents had a valid lease to the premises, was erroneous. The appellant contends that the factual allegations made by the respondents at trial were inconsistent with their prior sworn evidence and with the documentary record.

[5] We do not accept this submission. The trial judge carefully reviewed the evidence of all of the relevant witnesses on this issue. In our view, his ultimate conclusion on the issue – “Taking the evidence as a whole, I find that the landlord did undertake demolition work at the site prior to the release of the decision of Mr. Justice Gans, the Notice of Default of November 3, 2008 and the Notice of Termination” – was amply supported by the evidence of the respondents’ witnesses whom he was entitled to believe. In any event, this conclusion was far removed from being a palpable and overriding error.

[6] The second and third issues raised by the appellant are waiver and issue estoppel. There is no air of reality to either of these issues, especially in light of the parties’ joint agreement before the trial that there were three heads of damages to be determined, including:

(3) If the court finds that there is liability for the full term of the lease then the damages for loss of the business is agreed to be $1.5 million, less the $288,000 owing for rent.

[7] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $16,000, inclusive of disbursement and HST.

“S.T. Goudge J.A.”

“J.C. MacPherson J.A.”

“R.G. Juriansz J.A.”