COURT OF APPEAL FOR ONTARIO

CITATION: 4439155 Canada Inc. v. Albert Tower Inc., 2015 ONCA 859

DATE: 20151207

DOCKET: FILE C59941

Sharpe, Cronk and Miller JJ.A.

BETWEEN

4439155 Canada Inc.

Plaintiff (Respondent in Appeal)

and

Albert Tower Inc. and Mehdi Fard

Defendants (Appellant in Appeal)

and

Albert Tower Inc. and Mehdi Fard

Plaintiffs by Counterclaim (Appellants in Appeal)

and

4439155 Canada Inc. and Zhengping Yang

Defendants by Counterclaim (Respondents in Appeal)

Marcus Boire, for the appellants

Steven Greenberg, for the respondents

Heard and released orally: December 3, 2015

On appeal from the judgment of Justice Robert Smith of the Ontario Superior Court of Justice, dated January 19, 2015.

ENDORSEMENT

[1] This appeal arises from the termination of a commercial lease. We will refer to the appellant landlord, Albert Tower Inc., and its principal officer, Mehdi Fard, collectively as the appellant and the respondent tenant, 4439155 Canada Inc. and its principal, Zhengping Yang, collectively as the respondent.

[2] The trial judge found as a fact that the appellant landlord had wrongly terminated the lease as the parties had reached an agreement on the quantum of arrears owing and that the landlord had thereby waived any additional arrears.

[3] We do not agree with the appellant that the trial judge erred by finding there was such an agreement on the ground that the agreement and waiver had not been pleaded. The respondent did plead that there were no arrears. The issue of whether or not there was an agreement and waiver was fully canvased at trial and the appellant did not object to evidence being led on the ground that those issues had not been pleaded. In the absence of an objection, we are not persuaded that the appellant was in any way prejudiced.

[4] We see no error in law in relation to the trial judge’s finding of waiver.

[5] There was evidence that the landlord prepared a written summary of the arrears he claimed and evidence that the parties had agreed on those arrears. The trial judge accepted that evidence. The trial judge further found that one of three post-dated cheques given to the appellant by the respondent in satisfaction of the agreed arrears was cashed. On those factual findings, the trial judge was entitled to find that the landlord had unequivocally waived any amount in excess of the arrears as stated in the written summary he prepared and as agreed to by the parties.

[6] The appellant argues that the trial judge erred in accepting the evidence of Mr. Yang and rejecting that of Mr. Fard in relation to the agreement. The trial judge explained the basis for his findings of credibility. They attract deference on appeal and we are not persuaded that there are any grounds for us to interfere with the trial judge’s acceptance of Mr. Yang’s evidence and rejection of Mr. Fard’s.

[7] The appellant seeks a reduction of the amounts owing on two grounds. The first relates to taxes. This was a net lease that allowed the landlord to require the tenant to pay its share of the estimated annual taxes during the first six months of the year. The landlord exercised that right. In our view, it was entirely open to the trial judge to find that the tenant was entitled to a credit for the taxes it had paid for that period of the lease that followed the wrongful termination.

[8] The second ground relates to the amount the trial judge found the appellant should pay on account of the respondent’s equipment left in the premises. In our view, it was open to the trial judge to find on the basis of Mr. Yang’s evidence, when read in light of the landlord’s agent’s letter dated August 22, 2011 that clearly stated that the landlord required the tenant to pay the arrears he claimed as a precondition for the tenant being allowed to access the premises to retrieve his equipment, that the tenant had been wrongfully deprived of the equipment.

[9] The final point relates to an apparent typographical error as to the trial judge’s assessment of the value of that equipment. At para. 59 of his reasons he states the value to be $7,500 but at para. 66 and in the judgment the value is stated to be $17,500. This is a matter to be resolved by the trial judge and we refer it back to him if the appellant wishes to pursue the issue.

[10] For these reasons, the appeal is dismissed.

[11] Costs payable to the respondent fixed at $15,000, inclusive of disbursements and applicable taxes.

“Robert J. Sharpe J.A.”

“E.A. Cronk J.A.”

“B.W. Miller J.A.”