COURT FILE NO.: 59651/01
DATE: 2003-07-09
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ST. PAUL’S LUTHERAN CHURCH
Appellant
- and -
BAYVIEW MONTESSORI NURSERY SCHOOL LTD. AGNESWARY THURAIRAJAH and RAJNAM THURAIRAJAH, MRS. TERE MUNSEY
Respondents
Counsel: Mr. C. Schickedanz, for the Appellant, St. Paul’s Lutheran Church Mr. J. Gleiberman, for the Respondent, Tere Munsey
APPEAL HEARD: JULY 8, 2003
Loukidelis J.
[1] This is an appeal by the defendant St. Paul’s Lutheran Church from the decision of Deputy Judge A. Davis of the Small Claims Court at Richmond Hill on May 18, 2001 wherein he allowed the co-defendant one Tere Munsey full indemnity against St. Paul’s for the successful claim of the plaintiffs against Mrs. Munsey in the amount of $5,700.00.
[2] The issue here is not the correctness of the plaintiff’s award but the full indemnity award.
[3] Numerous common sense steps could and should have been taken by either party which would have avoided this litigation, including proper communication and securing a minimum of legal advice.
[4] Mrs. Munsey had for several years been a part time tenant at St. Paul’s operating a Montessori nursery pre-school Monday to Friday 9:00 a.m. to 3:00 p.m. from September 1 to June 30. This was an oral commercial lease.
[5] Mrs. Munsey seeking to retire, entered into a contract dated May 15, 1999 to sell her school business to the plaintiffs. Transfer of the said lease was crucial.
[6] Mrs. Munsey approached the pastor of St. Paul’s and secured a letter signed by the President of the Congregation dated May 15, 1999 setting out the terms of the lease and stating “….we would be willing to transfer your lease to the new tenant…..”.
[7] No mention was made of church by-laws requiring congregation approval.
[8] The aforesaid letter included the additional words “…with specific terms to be negotiated with them at that time….”. These additional words appear at first glance to imply certain conditions precedent, ie: an agreement to agree.
[9] However the trial judge specifically found that these additional words related to a possible extention of the current use, in answer to Mrs. Munsey’s enquiries made on behalf of the prospective purchasers….and not a conditional consent.
[10] That consent allowed Mrs. Munsey to complete her sale. Indeed the consent was tacitly confirmed by allowing the purchasers to make minor alterations and confirming to third parties in a letter dated August 27, 1999 that the purchasers were tenants.
[11] The original terms were also extended to the purchasers for 1 month ending September 30, 1999 by another letter dated August 27 with any further extention “subject to the determination of the congregation” at a meeting scheduled for September 19.
[12] At that last mentioned meeting the lease was terminated.
[13] All these events were in any event, subsequent to the original consent given to by Mrs. Munsey, which consent she relied upon to her detriment.
[14] In all the circumstances it cannot be said that the trial judge was patently wrong in allowing the indemnity claim.
[15] The appeal is therefore dismissed.
[16] Costs to the respondent fixed at $1,000.
Justice E. Loukidelis
Released: July 9, 2003
COURT FILE NO.: 59651/01
DATE: 2003-07-09
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE
B E T W E E N:
St. Paul’s Lutheran Church
Appellant
- and –
Bayview Montessori Nursery School Ltd., Agneswary Thurairajah and Rajnam Thurairajah, Mrs. Tere Munsey
Respondents
REASONS FOR JUDGMENT
Loukidelis J.
Released: July 9, 2003