COURT OF APPEAL FOR ONTARIO

CITATION: Iannuzzi v. Couper, 2020 ONCA 426

DATE: 20200630

DOCKET: C67311

Feldman, Fairburn and Nordheimer JJ.A.

BETWEEN

Anthony Iannuzzi

Plaintiff

(Respondent)

and

Mark Couper

Defendant

(Appellant)

Mark Couper, acting in person

Riaz Ahmed, for the respondent

Heard: In writing

On appeal from the judgment of Justice Wendy M. Matheson of the Superior Court of Justice, dated April 3, 2019.

REASONS FOR DECISION

[1] The respondent was the appellant’s landlord. The appellant found himself in financial difficulty. In 2008, the appellant requested that he be able to defer his rental payments to the respondent. The respondent agreed. On December 9, 2008, the appellant confirmed in writing that he owed rent for the entire year up to that time. He undertook to start paying rent again on January 1, 2010. He said that the back rent would become payable “when [his] lawsuit against [a third party] is settled”. He agreed to pay interest on the deferred rental payments, calculated at the rate of 10% annually starting with the missed payments on October 1, 2008. The respondent signed the letter confirming that agreement.

[2] Although the date when the appellant was to start paying rent again got extended a few times, the substance of the original agreement did not change. On January 4, 2011, the appellant wrote to the respondent and enclosed a “loan agreement” that he had signed, acknowledging that he owed $69,806 in deferred rent and that he would repay that amount, with the ten percent interest, when the litigation he was involved in settled. The respondent refused to sign that loan agreement, claiming he had not agreed to anything with the appellant and that they needed to get together to discuss the matter.

[3] The appellant started paying rent again in January 2011. In March 2012, the appellant gave the respondent two months’ notice. He had insufficient funds to cover two cheques for the April and May 2012 rent. The NSF cheques gave rise to a small claims court action, where the respondent sought the two months’ rent to cover those amounts. The appellant cross-claimed. At that point, there was no claim relating to the deferred rental payments. Ultimately, the small claims court matter settled, as reflected in a settlement agreement dated December 2014, where the appellant acknowledged he would pay the respondent $6,248.48, spread out over 15 months. The parties released and discharged each other “from all cause of actions and claims against each other.”

[4] Ultimately the appellant’s litigation with the third party settled in July 2016, at which time the respondent commenced this action to obtain the substantial amount of deferred rent. The trial judge concluded that the parties had a clear contract for the deferral of the rent, on terms agreed to, including the timing of repayment and the interest to be paid. The appellant says that the trial judge erred in that conclusion. We do not agree.

[5] The trial judge’s careful reasons for decision demonstrate that she understood the evidentiary record before her, and her conclusions are supported by the factual record and her findings of fact to which we defer. As found by the trial judge, the appellant’s position that there was no agreement is undermined by the appellant’s acknowledgement in his December 9, 2008 letter that there was an “agreement”. It is also undermined by his statement in the May 26, 2010 letter that it constituted an “agreement” that superseded all other “agreements”.

[6] The appellant also maintains that the trial judge erred in finding that the release signed by the parties in the small claims action did not bar the action. The trial judge’s reasons for concluding that the general words of the release did not cover the claim relating to the deferred rent are sound and well supported by the evidence. The release did not refer to future claims or to the deferred rent. The small claims action did not include a claim for the deferred rent. Her conclusion that if the appellant wished to include the deferred rent claim in the release, he should have specifically addressed it, makes sense. This is particularly true given that the appellant’s own proposed loan agreement in January of 2011 made specific reference to the fact that the deferred rent obligations were “separate” from all non-deferred rent.

[7] Finally, the trial judge did not err in finding that the deferred rents constituted a contingent loan not covered by the release, contingent on the appellant completing his litigation with the third party. The deferred rent was clearly contingent upon a future event and was properly characterized by the trial judge.

[8] The appeal is dismissed.

[9] Costs of the appeal are to be paid by the appellant to the respondent in the amount of $10,000, inclusive of disbursements and taxes.

“K. Feldman J.A.”

“Fairburn J.A.”

“I.V.B. Nordheimer J.A.”