COURT FILE NO.: 03-BN-09658
DATE: March 24, 2004
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MEHDI HAGHIGHAT
Mehdi Haghighat, Appellant, in person
Appellant
- and -
ASHOK KUMAR
Amar Preet Singh, for the Respondent
Respondent
HEARD: March 19, 2004
REASONS FOR JUDGMENT
[On appeal from the judgment of Deputy Judge S. Gillis J. dated the 5th day of September, 2003]
BELLEGHEM J.
[1] This is an appeal from a Judgment of Deputy Judge S. Gillis released September 5, 2003. The claim was dismissed but the counterclaim was allowed in the sum of $4,780.00. While it was difficult to calculate, it appears that the judgment was based on 50% of the following amounts which were set out in the counterclaim:
"1. February 11, 2003 – Hydro = $ 1,000.00;
March 6, 2003 – Consumer Gas = $ 1,507.24;
March 2003 – Consumer Gas = $ 80.48;
June 30, 2003 – Canadian Wastage = $ 245.00;
June 30, 2003 – Bell Canada = $ 220.21;
July 15, 2003 – Security Lock & Key = $ 85.00;
Pizza Pizza Limited – (Sublandlord) Hydro and Administration Fees and Rent to be given yet = $6,632.00."
[2] Liability turned primarily on the issue of credibility. The trial judge found that "Mr. Kumar gave his evidence in a straightforward and honest fashion" and accepted his evidence. He said he was "convinced that he has made those payments".
[3] It appears from the wording on the counterclaim that the $6,632.00 was "to be given yet". This fact was confirmed informally on the hearing of the appeal. In fact, nothing further, apparently, has been done by the main tenant to follow up on the demand letter. If nothing further is done, it would be inequitable to require the defendant to "prepay" that part of the alleged expense. In any event, the trial judge was obviously in error when he was "convinced" that the payments had, in fact, been made.
[4] Apart from this, the actual Consumer Gas "account" of $1,507.24 appears actually to be a credit, while the outstanding amount is $80.48. On the other hand, it appears that the "credit" is nevertheless the property of Mr. Kumar. There is, therefore, no reason to interfere with this part of the claim.
[5] There is no doubt that he paid the Hydro account of $1,000.00, and that it was the joint responsibility of the partners.
[6] The Canadian Waste Services Inc. account includes at least a $100.00 expense incurred subsequent to Mr. Kumar locking Mr. Haghighat out of the premises. Mr. Haghighat should not be responsible for this amount. Mr. Kumar took it upon himself to "mitigate" the losses of the partnership. It was arguably reasonable for him to do so, particularly based on the findings of the trial judge that Haghighat had "abandoned the premises". However, I do not consider it appropriate to saddle Mr. Haghighat with an expense subsequent to being locked out of the partnership, even though he may have "abandoned it" earlier in time.
[7] The Security Lock & Key payment of $85.00 is the sole responsibility of Mr. Kumar because it represents the cost of changing the locks upon default of the subsequent person to whom Mr. Kumar had tried to transfer the property.
[8] The Bell Canada bill is dated June 22, 2003 and receipted June 30, 2003. I am not satisfied that the evidence supports a finding that this amount was referable to the partnership.
[9] In the result, the evidence only supports payment, (in rounded figures), of the following:
Hydro $ 500.00
Consumer Gas $ 750.00
Consumer Gas $ 40.00
Canadian Waste Services Inc. $ 75.00
Bell Canada 0
Security Lock & Key 0
Pizza Pizza Limited _______0
Total $1,365.00
[10] The appeal is allowed in part. Judgment on the counterclaim will be varied to $1,365.00, inclusive of claim, interest and costs.
[11] A number of other points raised by Mr. Haghighat are disposed of, as follows;
The $50.00 payment as a condition precedent for filing the counterclaim was dealt with by the trial judge by not allowing costs on the counterclaim.
The allegation that the claim was, in fact, for $53,000.00 is obviated by the fact that the judge treated it throughout as a claim for half of the amounts claimed on the top of page 3 of the claim, 50% of which roughly netted out to the $4,780.00 originally granted by the trial judge.
The most important issue – that of credibility – was resolved at trial in favour of Mr. Kumar. In turn, the most important issue arising by way of substance at the trial was whether Mr. Haghighat "abandoned" the partnership or whether he was driven out of it by Mr. Kumar transferring the lease. The evidence supports the trial judge's finding that Mr. Haghighat abandoned the partnership notwithstanding evidence of his phone calls to Pizza Pizza Limited, and in spite of the evidence tendered on his behalf. It is clear that what Mr. Haghighat wanted was either to get his money back or to be involved in how the business was to be dealt with in the future. However, he had already created a situation for his partner, Kumar, who was on the lease alone, and it was not unreasonable for Mr. Kumar to deal with the situation in which he found himself, as he did, namely, by transferring the lease to a third party with a view to mitigating his losses.
[12] Therefore, while the appeal has merit on the issue of quantum, I am unable to find fault with the trial judge's resolution of the issue of credibility and, hence, the substantive issue of who breached the contract, in favour of Mr. Kumar.
[13] The appeal is allowed. The judgment is varied so that the defendant by counterclaim, Mr. Haghighat, will pay to the plaintiff by counterclaim, Mr. Kumar, the sum of $1,365.00.
[14] I suggested to both parties on the hearing of the appeal before me, in the event that third party claims are pursued, it may be prudent to bring the new tenant, to whom Mr. Kumar attempted to sublease the premises, into any such action.
[15] As success on the appeal was divided, there will be no costs on the appeal.
BELLEGHEM J.
Released: March 24, 2004
COURT FILE NO.: 03-BN-09658
DATE: 2004 03 24
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MEHDI HAGHIGHAT
Appellant
- and –
ASHOK KUMAR
Respondent
REASONS FOR JUDGMENT
[On appeal from the judgment of Deputy Judge S. Gillis dated the 5th day of September, 2003]
BELLEGHEM J.
Released: March 24, 2004