ONTARIO
SUPERIOR COURT OF JUSTICE
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Giovanni Siesto, Maria Siesto, Luisa Maria Cancelli and Antonio Siesto
Applicants
v.
Elio Potestio
Respondent
BEFORE: The Honourable Mr. Justice Stephen Firestone
COUNSEL: Christopher A.L. Caruana,
for the Applicant
Robert Rastorp,
for the Respondent
HEARD: October 11, 2013
ENDORSEMENT
FIRESTONE J.:
[1] The Applicants move for the following declaratory relief:
- Any purported amendments to the lease of the tenant, Elio Potestio (“Potestio”) of
the first floor commercial, garage and parking areas of the premises municipally known as 2030 Eglinton Avenue West in the City of Toronto, are not binding against the applicants.
Potestio’s lease terminated at 11:59:59 p.m on January 14, 2013.
A month-to-month tenancy replaced the lease as of January 15, 2013 and that a valid termination of the month-to-month tenancy was given such that Potestio should have vacated the premises by 11:59:59 p.m on March 14, 2013.
Potestio has wrongly refused to go out of possession of the Premises and the applicants are entitled to possession of the premises forthwith and that leave be granted to issue a Writ of Possession.
[2] In this Application the main issue is whether the lease in question expired as of 11:59:59 on January 14, 2013 as the applicants contend or in the alternative whether it remains in force until January 12, 2015 with automatic renewal until January 14, 2020 as the respondent contends
[3] I have reviewed the record before me and have considered the submissions of counsel.
[4] It is clear that no proper or effective notice was ever provided by Potestio or Kennedy Persad (“Persad”) of either the lease in question or any purported amendments to it until after the applicants/landlords obtained possession of and became landlords.
[5] I agree with the applicants that subsequent to becoming mortgagees in possession, the only notice given was of the original lease which did not include any purported amendments.
[6] As a result, purported amendments extending the term of the lease in question are not binding against the landlords and the lease therefore terminated effective January 14, 2013 at which time Potestio was an overholding tenant. After January 14, 2013 there was a month-to-month tenancy which was properly terminated in accordance with Section 28 of the Commercial Tenancies Act, R.S.O. 1990, c.L.7.
[7] As a result, the applicant/landlords are entitled to immediate possession of all parts of the property currently occupied by Elio Potestio and Kennedy Persaud.
[8] I, therefore, grant the moving parties Application and grant the following relief:
An order declaring that any purported amendments to the lease of the tenant, Elio Potestio of the first floor commercial, garage and parking areas of the premises municipally known as 2030 Eglinton Avenue West in the City of Toronto, are not binding against the applicants.
An order declaring that Elio Potestio’s lease terminated at 11:59:59 p.m on January 14, 2013.
An order declaring that a month-to-month tenancy replaced the lease as of January 15, 2013 and that a valid termination of the month-to-month tenancy was given on or about January 31, 2013 such that Elio Potestio should have vacated the premises by 11:59:59 p.m. on March 14, 2013.
An order declaring that Elio Potestio has wrongly refused to go out of possession of the premises and that the applicants are entitled to possession of the premises forthwith.
An order granting leave for a Writ of Possession of the subject property.
[9] At the hearing of this Application I heard submissions on costs and reviewed the Costs Outlines submitted by counsel.
[10] A successful party is entitled to costs in the absence of a very good reason(s) not to award them. (Schreiber v. Mulroney, 2007 31754 (ON SC), [2007] O.J. No. 3191 (Sup.Ct.) at para. 2)
[11] I have considered the factors enumerated under Rule 57, including the time spent, the results achieved, and the complexity of the matter, as well as the application of the principle of proportionality: Rule 1.04(1).
[12] Furthermore, I have taken into account the principles set forth by the Court of Appeal in Boucher v. Public Accountants Counsel for the Province of Ontario 2004 14579 (ON C.A.), (2004), 71 O.R. (3rd) 291 (C.A), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.
[13] Given the complexity of the matter, the result achieved and the experience of counsel, I order partial indemnity costs of this Application in the all-inclusive amount of $8,900.00 payable by Elio Potestio to the Applicants within 60 days.
FIRESTONE, J.
DATE: October 23, 2013