Court of Appeal for Ontario

Docket: C64380

Judges: Sharpe, Juriansz and Miller JJ.A.

Parties

Between

V. Melfi Holding Ltd. Appellant (Defendant)

and

Dourada Investment Inc. Respondent (Plaintiff)

Counsel

Dominic Saverino, for the appellant

Varoujan Arman and Megan Hodges, for the respondent

Hearing and Decision

Heard and released orally: March 15, 2018

On appeal from: the judgment of Justice Chris de Sa of the Superior Court of Justice, dated September 11, 2017.

Reasons for Decision

[1] We do not agree that the motion judge made a palpable and overriding error in finding that the appellant's failure to comply with the term of the agreement of purchase and sale requiring it to remove its goods from the premises amounted to an abandonment of those goods. The respondent insisted throughout that the appellant remove the goods and gave the appellant several opportunities to do so.

[2] The motion judge found that the appellant failed to avail itself of those opportunities insisting that it would only remove its goods on its own terms. The evidence on this summary judgment motion provided a basis for the motion judge to find that the appellant had in effect abandoned its goods.

[3] We do not accept the appellant's submission that the motion judge erred in his calculation of the rent or damages payable by the appellant. The appellant was locked out of the premises on April 14, 2014 and rent is payable up to that date. Thereafter, the appellant was in breach of its contractual obligation to remove its goods from the premises. The appellant's failure to do so made it impossible for the respondent to use or rent the premises and the motion judge properly calculated damages for breach of that contractual obligation on the basis of the rent that would otherwise have been payable.

[4] We do not agree that the respondent failed to mitigate its damages prior to May 15, 2015 given the position taken by the appellant extending the lease from month-to-month and given the attempts being made by the parties to negotiate a settlement.

[5] The appellant breached the term of the agreement of purchase and sale requiring it to remove its goods and the motion judge was entitled to find that that breach entitled the respondent to forfeit the $100,000 holdback.

[6] The appellant conceded in oral argument that the provisions of the Commercial Tenancies Act regarding distress for nonpayment of rent are not applicable. He argues however, that while the letter of the Act does not apply, the procedure it lays down should have been followed by analogy.

[7] We do not accept the argument but note the motion judge found that the respondent sold the goods after giving the appellant the opportunity to remove them and behaved in a commercially responsible manner. It obtained appraisals and sold the goods at a public auction. The motion judge found that there is no merit in the assertion that the sale was improvident.

[8] Finally, while the amount awarded minimally exceeded the amount claimed in the statement of claim we see no prejudice to the appellant that requires this court to intervene.

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

[10] Costs to the respondent fixed at $7,283.88, inclusive of disbursements and applicable taxes.

Robert J. Sharpe J.A. R.G. Juriansz J.A. B.W. Miller J.A.