Court of Appeal for Ontario

Date: March 6, 2018 Docket: C64189

Judges: Feldman, Pardu and Benotto JJ.A.

Between

Destaron Property Management Ltd. and 1260 Marlborough Court Holdings Limited Plaintiffs (Appellants)

and

Robert Hindmarsh Defendant (Respondent)

Counsel

For the appellants: Howard Borlack and Miranda E. Serravalle

For the respondent: Robert W. Dowhan and James Prosser

Heard and released orally: March 2, 2018

On appeal from: The judgment of Justice Patrick Monahan of the Superior Court of Justice, dated July 20, 2017.

Reasons for Decision

[1] The appellant argues that the motion judge erred in his interpretation of an agreement between a landlord and a tenant. The motion judge concluded that the landlord released the tenant from liability for damages for a fire the tenant caused in the apartment. The appellant agrees that to succeed on his appeal, he must show that the motion judge's interpretation is not one the document could reasonably bear. The appellant concedes that the document released the tenant personally, but argues that it left open the possibility of a subrogated claim by the landlord's insurer against the tenant's insurer.

[2] We do not agree that the motion judge's interpretation of the agreement was unreasonable. The letter proposed, as an alternative to legal proceedings against him, that the tenant agree to terminate the tenancy. The landlord referred in the letter to the damage caused to the tenant's and other units and indicated no claim would be made against the tenant personally.

[3] It was open to the motion judge to conclude that the letter amounted to a release of the tenant, as the appellant concedes.

[4] With respect to the phrase in the letter that "damages will be dealt with between the insurance companies", the appellant submits that the intent of the parties and the proper interpretation of the letter was to preserve the subrogated claim of the appellant's insurer against the tenant's insurer, which would require the tenant to be named as a defendant if an action were to be brought. The problem is that by releasing the tenant, the effect was to preclude any such claim.

[5] The appeal is dismissed with costs to the respondent in the amount of $10,000 inclusive of disbursement and HST.

K. Feldman J.A.

G. Pardu J.A.

M.L. Benotto J.A.