ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-394140
DATE: 20140410
BETWEEN:
KIKI KAPALUA INC. carrying on business as LOKI SALON
Plaintiff
– and –
1203840 ONTARIO LIMITED
Defendant
H. Lissaman, for the Plaintiff
H.R. Bennett, for the Defendant
HEARD: April 7, 2014
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] This landlord and tenant dispute is scheduled for trial on June 2, 2014.
[2] The Plaintiff, Tenant, Kiki Kapalua Inc. carrying on business as Loki Salon, brings a motion for an order to amend, set aside, or vary an interlocutory order that I made on February 12, 2012.
[3] Because the action has been set down for trial, the Landlord submits that the Tenant requires leave to bring the motion. The Defendant, Landlord, 1203840 Ontario Limited opposes leave being granted and opposes any amendment to the February 12, 2012 Order.
[4] For the reasons that follow, I grant leave and I vary my Order to provide that the payments required under paragraph 2 shall terminate on July 31, 2013.
[5] I further order that the Tenant shall have the costs of this motion, which I fix at $10,000, all inclusive, payable by the Landlord setting off its entitlement to costs under the February 12, 2012 Order.
B. FACTUAL AND PROCEDURAL BACKGROUND
[6] The factual and procedural background to the dispute and to the motion now before the court is as follows.
[7] On July 2, 2003, the parties entered into a lease of a hair salon at 33 Hazelton Avenue in Toronto for a ten-year term expiring on July 31, 2013.
[8] Under the lease, the Tenant is obliged to pay base rent and additional rent. The Tenant has paid the base rent but has disputed the additional rent charges.
[9] In December 2009, after the Landlord locked the Tenant out, the Tenant commenced an action for relief from forfeiture, damages, and an accounting for an alleged overpayment of rent.
[10] On December 24, 2009, Justice Pollak permitted the Tenant to re-enter the hair salon upon terms that the Tenant pay into court $56,629.02 for alleged rent arrears of the additional rent.
[11] Twenty-six months later, in February 2012, the Landlord brought a motion for a variation of Justice Pollak’s Order to require the Tenant to pay into court $84,101.67 with respect to further additional rent charges under the lease.
[12] I heard the Landlord’s motion on February 12, 2012 and I made the following Order, which contains an error made by the Registrar in paragraph 2 that I have corrected below.
ORDER
This Motion made by the Defendant was heard this day ….
THIS COURT ORDERS that commencing March 1st, 2012, the Plaintiff pay to the Defendant monthly rent in the amount of $11,734.28.
THIS COURT ORDERS that in addition to the sum of $11,734.28 for monthly rent, the Plaintiff pay into Court the sum of $4,000 per month on account of alleged arrears without prejudice to the [Plaintiff’s] position that it has overpaid rent.
3 THIS COURT ORDERS that the Plaintiff answer its undertaking by April 1, 2012.
THIS COURT ORDERS that the Defendant move for any outstanding undertakings and set the matter down for trial by May 1, 2012.
THIS COURT ORDERS that the Plaintiff pay to the Defendant costs in the sum of $10,000, all inclusive, in any event of the cause. …
[13] As appears from the terms of the Order, the Order was designed to accomplish two purposes. First, it was designed to have the Landlord and Tenant dispute set down for trial and adjudicated promptly. Second, it was designed to balance the rights of the parties pending the trial. To achieve that balance, the Order provides for ongoing rent to be paid to the Landlord directly plus $4,000 to be paid into Court on account of the alleged but disputed arrears of $84,101.67 for additional rent.
[14] In February 2012, I did not envision that the trial would be scheduled for June 2014, which comes after the termination of the lease. The parties did not ask me to adjudicate about this possibility, because it is clear that nobody anticipated what happened later when at “Speak to Court,” Justice Pollak traversed the case from the short trial’s list to the long trial’s list and set a trial date for June 2, 2014.
[15] In any event, after I made my Order, the Tenant made payments pursuant to it until the end of July 2013, after which it stopped making payments. By that time, the amount in Court including the sum pursuant to Justice Pollak’s Order totalled $129,130.38, inclusive of interest.
[16] By my reckoning, by virtue of the $4,000 monthly payments, by July 2013, the Tenant had paid approximately $72,000 of the $84,000 alleged arrears that had prompted the Landlord’s motion in February 2012. By my reckoning, if the $4,000 monthly payments were to continue after the termination of the lease until June 2014, there would be an overpayment of approximately $32,000.
[17] In any event, the Landlord took the position that the February 2012 Order was clear in providing that the $4,000 payments should continue, and it brought a motion to have the Plaintiff’s Statement of Claim struck out for breach of the February 2012 Order.
[18] The default motion was heard by Master Abrams who made a conditional order on consent. Her endorsement reads as follows:
On consent. The Plaintiff’s claim is dismissed and its Defence to Counterclaim is struck subject to such further or other Order as may be made by the Court in respect of the Plaintiff’s motion now returnable, before a Judge, on February 26, 2014. Also on consent, the dismissal of the Claim and the striking of the Defence will not be given effect and unless and until the Judge, ruling on the February 26, motion rules that may be given effect.
Costs of this motion will be decided by me. …
[19] As appears, Master Abrams’ consent order was made subject to the pending motion by the Tenant for a variation of my Order of February 2012. I note here that the Landlord now takes the ignoble position that the Tenant’s motion for a variance of my Order requires leave.
[20] On February 26, 2014, the motion for a variance of the February 2012 Order came on before Justice Belobaba, who adjourned the motion to be heard by me.
[21] I heard the request for leave and the motion on its merits on April 7, 2014 and reserved my decision until today.
[22] At the hearing of the motion, the Tenant submitted that if successful, it should recover costs of $10,000 on a partial indemnity basis and if unsuccessful it should not be obliged to pay costs or in the alternative it should pay costs of no more than $10,000. The Landlord submitted that if successful it should recover costs of $18,000 on a substantial indemnity basis and if unsuccessful it should not have to pay costs or in the alternative it should pay costs of no more than $10,000.
C. DISCUSSION AND ANALYSIS
[23] Under rule 48.04(1), “[a]ny party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.” In the case at bar, the Tenant consented to the action being set down for trial and the Landlord takes the position that the Tenant’s motion requires leave.
[24] In the case at bar, there was no obligation on the Tenant to consent to the action being set down for trial, which is something I ordered in the February 2012 Order, but the Tenant did consent and so rule 48.04(1) may apply. However, in the circumstances of this case, I exercise the Court’s discretion under rule 2.03 to dispense with compliance, and I rule that leave to bring the motion is not required.
[25] Further, and in any event, I rule that if leave is indeed required, then I would exercise my discretion to grant leave in the circumstances of this case.
[26] Once a party has set an action down for trial or consented to the action being set down for trial, it is a matter of discretion in the particular circumstances of the case whether the court will grant leave to initiate or continue a motion. The Landlord did not need leave to bring its motion to enforce compliance of the February 2012 Order, and in my opinion, the Tenant should not be required to obtain leave to defend itself from the draconian effect of Master Abrams’ consent order.
[27] Turning now to the merits of the Tenant’s motion, rule 59.06(1) is a source of jurisdiction to amend an order. The rule states: “An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.”
[28] The rule is designed to amend judgments containing a slip, not to set aside judgments resulting from a slip.[^1] The errors to which the rule refers are clerical, mathematical and other errors due to misadventure or oversight.[^2] Generally speaking the court’s jurisdiction to amend an order or judgment is limited to: (1) cases of fraud; (2) where there has been a slip in drawing up the order; and (3) where there has been an error in the order expressing the manifest intention of the court from its reasons for decision.[^3] The rule is operative only in exceptional circumstances given the public interest in the principle of finality to the litigation process.[^4]
[29] In the case at bar, there is no error or slip in my February 2012 Order. The Order would have operated fairly had the action ordered to be set down for trial in May 2012 be tried within the next 15 months, which would have occurred if the action had not been traversed from the short trial’s list by Justice Pollak.
[30] Rule 59.06(1) is stated in the disjunctive, and under it, an order that requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding. My Order of February 2012 did not adjudicate on the particular of what should happen if the trial was scheduled after the termination of the lease in July 2013.
[31] Having the opportunity now to rule on the matter, I amend the Order to provide that the obligations under paragraph 2 terminate on July 31, 2013.
D. CONCLUSION
[32] For the above reasons, I grant the Tenant’s motion.
[33] I further Order that the Tenant shall have the costs of this motion, which I fix at $10,000, all inclusive payable by the Landlord setting off its entitlement to costs under the February 12, 2012 Order.
Perell, J.
Released: April 10, 2014
COURT FILE NO.: CV-09-394140
DATE: 20140410
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KIKI KAPALUA INC. carrying on business as LOKI SALON
Plaintiff
– and –
1203840 ONTARIO LIMITED
Defendant
REASONS FOR DECISION
PERELL J.
Released: April 10, 2014
[^1]: Central Canada Travel Services v. Bank of Montreal, 1986 2576 (ON SC), [1986] O.J. No. 1249 at para. 21 (H.C.J.); Dhaliwal v. Plantus, [2007] O.J. No. 5450 at para. 4 (S.C.J.).
[^2]: Hunter v. Hunter, 2005 47756 (ON SC), [2005] O.J. No. 5571 (S.C.J.); Clarke v. Clarke, 2002 78088 (ON SC), [2002] O.J. No. 3223 (Ont. S.C.J.); Bemrose v. Fetter, 2005 27895 (ON SC), [2005] O.J. No. 3362 (S.C.J.).
[^3]: Paper Machinery Limited v. J.O. Ross Engineering Corp., 1934 1 (SCC), [1934] S.C.R. 186; Re Wright, [1949] O.J. No. 3 (H.C.J.); Millard v. North George Capital Management Ltd., [1999] O.J. No. 3957 (S.C.J.); Vicckies v. Vicckies, [1990] O.J. No. 1659 (Gen. Div.).
[^4]: Toole v. Acres Inc., [2007] O.J. No. 2666 at para. 2 (S.C.J.).