COURT FILE NO.: CV-11-421611

DATE: 20120710

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

2009710 ONTARIO INC.

Applicant

– and –

CORBEL MANAGEMENT CORP. and S. WILSON & CO. BAILIFFS LIMITED

Respondents

Ranbir Mann, for the Applicant

Michael Hackl, for the Respondents

HEARD: April 25, 26, 27 and May 1, 2012

B. p. o’marra j.

reasons for decision

[1] The Applicant 2009710 Ontario Inc., through it’s principal, Sunny Brar (“Brar”), was the tenant of a commercial property located at 37 Precision Road in Toronto. The Respondent Corbel Management (“Corbel”), through its principal, Steve Pietrobon (“Pietrobon”), was the landlord. S. Wilson & Co. (“Wilson”), through its principal, Harvey Greber, is a Bailiff.

[2] The property was to be used for parking and storage of commercial trucks and vehicles.

the lease

[3] Brar and Pietrobon signed a lease dated July 1, 2008 that included the following terms:

1.01 (e) “Lease Period” means the 2 year period commencing July 1, 2008 for a term of 2 years and terminating June 30, 2010.

3.01 “Tenants Use” The tenant shall use and occupy the leased premises for truck and trailer parking.

4.01 “Minimum Rent” $7,500 per month plus GST. Payments to be made by post-dated cheques on the 1^st day of each month commencing August 1, 2008. The first month of term being July 1, 2008 shall be free of minimum rent. Rents shall commence August 1, 2008. The tenant is to deposit $15,000 plus GST towards the first minimum rent payment plus a deposit on the last month’s minimum payment.

5.01 (h) “Assignment and Subletting” The tenant will not sublet any part of the leased premises without the prior written consent of the Landlord.

8.01 (d) “Holding Over” If the tenant shall continue to occupy the leased premises at the expiration of the lease with the consent of the landlord and without any further written agreement, the tenant shall be a monthly tenant at the monthly rent for the six months of the term and otherwise on the terms and conditions set out in the lease, except as to the length of the tenancy.

9.02 Alterations and Improvements The tenant will not make any alterations or improvements to any part of the leased premises, except the Tenant’s office trailer, without first obtaining the Landlord’s prior written approval. All such alterations and improvements shall be at the sole cost of the Tenant.

21.01 Notices Any notice or demand required to be given under the Lease shall be delivered in person or by registered mail to the Landlord S. Pietrobon at a stipulated address in Concord, Ontario or to the tenant at the leased premises.

27.12 Landlord Use It is agreed by the Tenant and the Landlord that a portion (unspecified) of the property shall be used by the Landlord at no cost to the Landlord.

the facts

[4] Brar and Pietrobon did not sign an extension of the original term of the lease when it expired June 30, 2010. Brar intended to vacate the property on Monday, February 28, 2011 but was pre-empted by the actions of the Bailiff on Friday, February 25, 2011.

[5] Significant terms of the signed lease were not complied with on an ongoing basis. Brar did not provided post dated cheques and the rent payments were routinely late. Pietrobon never demanded post dated cheques. Brar claims that early on he paid for necessary improvements to the property and that the Landlord agreed to allow a credit towards rent for this cost. The landlord denies there was any such agreement or understanding.

[6] The Landlord claims there was a verbal agreement that Brar would pay $100 per month rent for use of the office trailer on site. Brar denies this.

[7] The first formal request for this specific rent is in a letter dated February 25, 2011 from Corbel to Brar.

[8] Brar understood he had leased the entire property, including an office trailer. There was no mention in the written lease of further or other rent payable for use of that office trailer. Brar received payments from other truckers who parked their vehicles on site.

[9] Brar equipped his office trailer with a computer, fax machine, phone and printer. He also kept his business records there.

[10] Luigi Michelin (“Michelin”) was Pietrobon’s father-in-law. He maintained a small fenced compound within the property leased by Brar. Michelin stored construction equipment and material on that site. He utilized this space before Brar leased the property and attended at his fenced compound routinely and often on a daily basis. He did not pay any rent to Brar for use of the fenced compound. Michelin had a key to access the leased premises whenever he chose to.

[11] A man referred to only as “Joe” resided in a trailer within the property leased by Brar. Pietrobon and Michelin claimed to not know who he was but Michelin understood that “Joe” paid monthly rent to Brar. Brar denied receiving any rent from this man and claimed he did not even know his name.

[12] Brar at no time complained to Pietrobon about the presence on site of either Michelin or the man named Joe.

[13] Brar testified that when the written lease expired in June of 2010 he continued to pay rent on a month-to-month basis. He claimed that he gave Michelin his rent cheque in February of 2011 and told him that he would be vacating the property at the end of that month. Brar claims that Michelin said that would be fine. Michelin denied that he was given any such notice to pass on to Pietrobon.

[14] Michelin testified that he noticed activity on site in January and February of 2011 that indicated Brar was scaling down his business and likely to vacate the property shortly. He conveyed this