4439155 Canada Inc. v. Albert Tower Inc., 2015 ONSC 30
COURT FILE NO.: 11-52362
DATE: 2015/01/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
4439155 Canada Inc.
Plaintiff
– and –
Albert Tower Inc. and Mahdi Fard
Defendants
– and –
Albert Tower Inc. and Mahdi Fard
Plaintiffs by Counterclaim
Steven J. Greenberg for the Plaintiffs/Defendants by Counterclaim
Marcus J. Boire, for the Defendants/Plaintiffs by Counterclaim
– and –
4439155 Canada Inc. and Zhengping Yang
Defendants by Counterclaim
HEARD: October 21-24, 2014
REASONS FOR Decision
R. Smith j.
[1] The plaintiff tenant is a numbered company, 4439155 Canada Inc., which is wholly owned by Zhengping Yang, and they are also the Defendants by Counterclaim in this matter and are collectively referred to as “Yang” or “the tenant”.
[2] The defendant landlord is Albert Tower Inc., which is wholly owned by Mahdi Fard, They are the Plaintiffs by Counterclaim in this matter (and are collectively referred to as “Albert Tower” or “the landlord”).
[3] The tenant seeks damages as a result of the landlord’s wrongful termination of the lease when the rent payments were not in default because the landlord made an agreement with the tenant to accept three postdated cheques to pay the arrears of rent owing as of July 1, 2011.
[4] The landlord denies that he agreed to accept the three postdated cheques as payment for the arrears of rent and in any event, submits that he had a right to change his mind and terminate the lease even if it did make such an agreement. The landlord also has counterclaimed for the damages that it alleges it suffered as a result of the tenant’s alleged breach of the lease by failing to pay the full rent when due.
BACKGROUND
[5] On July 31, 2007, the parties entered into an agreement to lease 2,800 square feet of a building known municipally as 501 Hazeldean Road in the city of Ottawa. The lease was for a period of 10 years commencing on September 1, 2007 with basic rent of $4,200.00 per month during the first five years, based on a calculation of $18.00 per square foot with increases at subsequent time periods.
[6] The lease was a net lease and the tenant agreed to pay additional rent and charges for its share of the cost of snow, garbage and trash removal, landscaping and planters, heating, ventilating and air conditioning, water, realty taxes and assessments, and insurance for the building.
[7] The premises had been damaged by the previous tenant. On September 26, 2007, MCL Hospitality Ltd provided the landlord with an estimate of $78,400.00 to bring the leased premises up to an acceptable state of repair. The landlord also had a second damage inspection report prepared by Paterson Group Consulting Engineers dated September 25, 2007. The landlord also obtained a quote from Eastern Building Consultants dated September 7, 2007, who provided an estimate to repair the damages to the leased premises at $205,139.36.
[8] The lease was signed on September 17, 2007 and the tenant paid a deposit of $14,518.47, one half of which ($7259.23) was to be applied to the last month’s rent.
[9] Article 6.0 of the lease states that the tenant was required to pay its proportionate share of taxes for the rental year.
(a) Article 6.0(i), states that the tenant agrees to pay his proportionate share of taxes for the rental year within ten days following receipt by the tenant of written notice of the amount of such taxes for the rental year.
(b) Article 6.0(v) states as follows:
Notwithstanding the foregoing, if the Landlord so requests, the Tenant agrees to pay the property tax component of the operating expenses during the first 6 months of each calendar year as per the landlord’s billing forecast to be provided to the Tenant prior to January of each calendar year.
[10] The landlord requested that the tenant pay the property tax component of the operating expenses over the first six months and provided an annual estimate to the tenant before January 1st of each year from 2008 until the lease was terminated in 2011.
[11] In Schedule D of the lease, at page 28, the tenant agreed to take the premises on an “as-is” and “where is” basis.
[12] In Schedule E of the lease, at page 29, the tenant agreed that it was responsible for any and all work required to be done to the premises.
[13] In Schedule G of the lease, at page 31, the parties agreed that there had been serious damage caused by the previous tenant, including damage to the fixtures and leasehold improvements. The landlord agreed to pay the tenant $54,000.00 toward the repairs in three payments of $18,800.00 as set out in the lease. The tenant acknowledged that the landlord actually paid him $56,400.00, an amount slightly greater than the $54,000.00 agreed by the parties. This is not an issue in this case.
[14] The tenant operated an Irish pub-style restaurant called Welcome Kelly’s Irish Pub on the premises throughout the lease period.
[15] The parties entered in an addendum to the lease agreement on September 17, 2007, wherein they agreed that the “Landlord shall, in its sole discretion, determine if it wishes to pursue a claim against the previous tenant of the Premises for damages caused to the Premises by the previous tenant…” If the landlord pursued its claim, “any amount recovered … (after payment of all costs and expenses related to the claim…), shall be divided equally between the Landlord and Tenant.” The tenant agreed to cooperate fully with the landlord in pursuing its claim. The landlord subsequently decided not to pursue its claim for damages against its former tenant.
[16] The lease also provided that the tenant was to maintain $5,000,000.00 of liability insurance and was to provide confirmation to the landlord that the landlord was added as a named beneficiary on the insurance policy. Additionally, the lease provided that the tenant was to provide the landlord each year with a certificate stating that the HVAC system was properly maintained by approved service providers.
[17] The landlord sent numerous letters starting on February 22, 2009 requesting evidence that the HVAC unit had been serviced by an approved mechanical company and also proof of the required insurance with the landlord named as an additional insured. It is not disputed that the tenant never provided the landlord with evidence of insurance for $5,000,000.00 and never provided confirmation that the landlord was added as an insured party to his insurance policy, notwithstanding the numerous letters requesting such confirmation from the tenant.
[18] The tenant obtained liability insurance on the leased premises in the amount of only $2,000,000.00 as he testified this is what his insurance agent told him was the usual practice. I find that the tenant was in breach of the lease on this matter as he failed to comply with the terms of the lease by failing to provide confirmation of insurance in the amount of $5,000,000.00, with the landlord named as an additional insured. The tenant also failed to provide confirmation that the HVAC unit had been serviced each year by an approved mechanical service provider. Notwithstanding this finding, the landlord has not terminated the lease as a result of either of these two breaches. The landlord was not permitted to terminate the lease for these breaches without giving 15 days written notice requesting compliance in any event, which it failed to provide.
[19] On May 28, 2009, counsel for the landlord requested payment of $4,976.28 for the tenant’s share of the additional rent for 2008 which remained unpaid. The landlord gave notice that this was a default in payment of rent. In addition, the landlord made numerous requests for confirmation of insurance as well as the confirmation that the HVAC system had been maintained. These letters were ignored by the tenant. I find the landlord had reasonable grounds to be upset with the tenant’s conduct of ignoring reasonable requests for items that were agreed to in the lease document.
[20] On May 27, 2010, the landlord sent the invoice, in the amount of $1,179.35, for the adjustment owing for basic rent and the tenant’s share of the actual operating costs component for January 1, 2009 to December 31, 2009. The tenant paid this invoice on August 10, 2010.
[21] On December 2, 2010, the landlord provided the tenant with its estimate of the monthly rent payments required under the lease for the year commencing January 1, 2011. The estimate included both the basic rent and the tenant’s estimated share of operating costs and taxes for the upcoming year. The landlord apportioned the tenant’s share of realty taxes for the 2011 year over the first six months as it was permitted to do under the lease.
[22] Sometime in January of 2011, Mr. Yang gave to the landlord, cheques for the combined basic rent, plus operating costs and taxes for January and February 2011 in the amount of $8,200.00 rather than the $8,980.00/month requested by the landlord. The tenant reduced the tax payment amount unilaterally without the landlord’s consent because its business was slow. The tenant asked that the landlord accept the reduced monthly amount of rent until he was able to sell the restaurant.
[23] On January 19, 2011, the landlord sent the tenant a letter requesting confirmation of insurance and payment of the difference of $780.00 for the months of January and February.
[24] On March 7, 2011, the landlord invoiced the tenant, in the amount of $5,830.95, for the adjusted amount for the basic rent and its share of actual taxes and operating costs for the period of January 1, 2010 to December 31, 2010. The landlord requested that this amount of rent be paid to it by March 25, 2011. The landlord again requested payment for the shortfall of $780.00/month for January, February and March of 2011 as well as the confirmation of insurance and proof of maintenance of the HVAC system.
Issue 1: Did the landlord agree with the tenant to accept three post-dated cheques as payment for the arrears of rent owing as of July 1, 2011?
[25] The tenant testified that he couldn’t remember when he had received the letter dated March 7, 2011 from the landlord, requesting payment of $5,830.95 for adjustments of rent for 2010 plus the shortfall of $780.00 per month for January, February and March of 2011. The tenant testified that he travelled to Beijing between March 8 and April 14, 2011 and stated that he could not remember whether he received the letter at the end of May or the end of June of 2011.
[26] Mr. Yang testified that, after he received the letter from A. Martin, an agent for the landlord, dated July 11, 2011, Mr. Fard met with him to discuss the payment of arrears of rent. Mr. Yang testified that they went to the back room of the restaurant and they agreed that the tenant would give the landlord three cheques, one dated July 1, 2011, one dated August 1, 2011 and one dated September 1, 2011 and agreed the issuing of these cheques would pay all arrears of rent owing. The cheques were each for the amount of $3,503.65 and they totalled $10,510.95.
[27] Mr. Yang testified that Mr. Fard calculated that the amount of arrears of rent owing as of approximately July 11, 2011 was $10,510.95 in his own handwriting, on a piece of paper. Mr. Fard acknowledged that the handwritten notes on the sheet of paper in Exhibit 6 were in his handwriting and that he had calculated the amount of $10,510.95 as the arrears owing. The landlord’s handwritten calculation of arrears of rent of $10,510.95 corroborates the tenant’s evidence that they met and agreed that the landlord would accept the three postdated cheques which total this amount, in satisfaction of the arrears of rent owing at that time.
[28] Mr. Fard acknowledged that he made the calculation of the arrears of rent owing but testified it was in error. A more accurate calculation of the arrears would have been as set out at Tab 16 of the Book of Documents where the arrears of rent were calculated at $7,608.00 being the shortfall in the monthly payments for January 1 to July 1, 2011 plus the adjustment of rent of $5,830.95 for 2010. The actual total rent in arrears at July 11, 2011 was $13,438.95.
[29] The calculation by the landlord, of arrears of rent owing at Tab 16 of the Book of Documents ($7608.00 + $5830.95) was prepared after the meeting between Mr. Yang and Mr. Fard because it contains a credit for the first cheque of $3503.65 dated July 1, 2011. This cheque was only cashed on July 21, 2011, just before the landlord changed the locks and terminated the lease.
[30] The tenant testified that he acknowledged that he owed the landlord the adjustments of rent for the actual operating expenses and taxes for the previous years of $5,830.95. He testified that they agreed that he would pay a further $4,680.00, as set out in Exhibit 6, which the landlord calculated was owing for arrears of rent to July 11, 2011 in three postdated cheques,, for a total of $10,510.95.
[31] The landlord acknowledged attending a meeting with the tenant in early July 2011 to discuss the arrears of rent. He acknowledged that the calculation of arrears of rent in Exhibit 6 was in his the handwriting. The landlord’s written calculation Exhibit 6 corroborates the tenant’s evidence. However, the landlord testified that he never agreed to accept the three post-dated cheques totalling $10,510.95 as full payment of the arrears of rent owing. The landlord testified that he received the three post-dated cheques under his door the morning after the meeting with the tenant occurred and that he never agreed that they constituted full payment of the arrears in rent owing.
[32] On July 11, 2011, Mr. Martin sent a letter to the tenant requesting a certified cheque or bank draft for $13,560.00 or else the landlord would retain a bailiff to serve a Notice of Termination and obtain possession of the restaurant without further delay. Mr. Yang testified that he spoke with Mr. Martin after he received this letter.
[33] The landlord cashed the tenant’s first cheque dated July 1, 2011 for $3503.65 on July 21, 2011. On the next day, July 22, 2011, the bailiff attended and locked the tenant out of the premises and posted a Notice of Termination on the door of the restaurant.
[34] In a letter of July 25, 2011, the tenant’s solicitor denied that there were any arrears of rent owing as he had delivered three post-dated cheques for the arrears of rent owing as agreed and because the first of the three cheques had been cashed by the landlord, confirming his agreement. The letter mentioned that the landlord had obtained a new tenant to take over the lease and requested that the landlord return of all of the inventory and equipment in the restaurant.
[35] I find that the landlord’s handwritten calculations of the arrears of rent owing of $10,510.95, in his own handwriting in Exhibit 6, is very persuasive evidence that the parties agreed at their meeting in early July of 2011, that this amount was owed as arrears of rent after July 1, 2011.
[36] Mr. Martin testified that he was advised by the landlord that he had received three post-dated cheques from the tenant for the arrears of rent; however, he testified that Mr. Fard told him that he had considered just cashing the cheques but then changed his mind and decided to terminate the lease. Mr. Martin testified that he then received instructions from Mr. Fard to proceed with the termination of the lease and change the locks.
[37] I find that an agreement was made between the landlord and the tenant, that the landlord would accept the three post-dated cheques as provided to him in payment for the arrears of rent for the following reasons:
a) Mr. Fard calculated the arrears of rent owing after July 1, 2011 in writing on a piece of paper, filed as Exhibit 6 in these proceedings, which totalled $10,510.95;
b) the tenant gave the landlord three post-dated cheques of $3503.65 each totalling this exact amount;
c) the landlord cashed the first cheque and deposited it in its account on July 21, 2011 indicating that it had accepted the payment arrangement;
d) Mr. Martin testified that Mr. Fard advised him that he had changed his mind with regards to accepting the post-dated cheques. I infer from the fact that he changed his mind that he had previously agreed to accept these cheques in full satisfaction for the arrears of rent owing; and
e) I accept Mr. Yang’s evidence, that he reached this agreement with the landlord as it is corroborated by the landlord’s own calculations in Exhibit 6 and Mr. Martin’s evidence that Mr. Fard had changed his mind.
Issue 2: Did the landlord’s agreement to accept the three post-dated cheques amount to an implied waiver of default in the rent payments?
[38] In submissions, the landlord argued that it was free to change its mind and terminate the lease even if it had made an agreement with the tenant to accept the three post-dated cheques to pay the outstanding arrears of rent. I do not agree with this submission and find that the landlord’s agreement to accept the three postdated cheques in full satisfaction of the arrears of rent owing at that time constitutes a waiver of the default in payment of the rent and that the landlord is estopped from changing his mind and breaching his agreement.
[39] I am satisfied that the landlord’s agreement to accept the three post-dated cheques, amounted to an implied waiver of the default in rent payments because the landlord agreed to this arrangement proposed by the tenant. The landlord could not unilaterally change his mind after making this agreement. As a result, I conclude that the lease payments were not in default as of July 22, 2011, even though the arrears were not calculated accurately by the landlord when he made the representation to the tenant. Both parties relied on the landlord’s calculation and representation and agreed to this amount.
[40] As a result, I conclude that the landlord terminated the lease when the rent was not in default and his actions constitute a breach of the lease agreement.
Disposition of Issue 2
[41] I find that the landlord’s agreement to accept the three post-dated cheques in satisfaction of the arrears of rent owing amounted to an implied waiver of the default in the rent payments and the landlord breached its agreement when it terminated the lease having made this agreement.
Issue 3: What damages have been suffered by the tenant as a result of the landlord`s wrongful termination of the lease?
[42] In his Examinations for Discovery, the landlord stated that he was advised that another tenant was interested in his premises in July of 2011; however, in his evidence at trial, he stated that he only became aware of the possibility of another tenant in August 2011. I find it is more probable that the landlord became aware that there was another tenant who would lease the space for a greater amount than Mr. Yang in July 2011. I further find that this circumstance was a factor which led him to change his mind about accepting the three post-dated cheques and motivated him to terminate the lease with Mr. Yang.
[43] On July 25, 2011, the solicitor for the tenant requested that all his inventory and equipment be returned to him, and that he be released from his obligations under the lease. The landlord replied on July 26, 2011 and advised that he was prepared to provide a key to the tenant provided he receive a draft money order for the balance of the adjustment of rent and also his certificate of insurance showing Albert Tower Inc. as an additional insured.
[44] On August 22, 2011, the landlord gave notice to the tenant to remove all of his belongings from the premises on or before August 30, 2011 and also requested a draft cheque in the amount of $29,475.05. The landlord attached a breakdown of the calculation which included rental charges and his share of expenses to July 22, 2011.
[45] On August 25, 2011, the landlord wrote to the tenant and offered to settle the damages for $22,754.53 and to allow the tenant to pick up his items, which appear to be the items owned by third parties who wished to remove them from the leased premises. I find that in both the above proposals, it was reasonable for the tenant to understand that he had to pay the amount requested in order to obtain the return of his property.
[46] On September 28, 2011, the tenant advised that a number of items that did not belong to him and could be released to the third parties who owned them, including a dishwasher, Interac machine, coffee machine, pool table, gas tanks and a Pepsi system.
Damages Suffered by the Tenant
[47] The tenant has claimed damages of$330,000.00 for leasehold improvements, $25,000.00 for inventory, $7,000.00 for employees’ salaries, $7,259.00 for the return of its deposit for the last month’s rent, $2,323.00 for utilities, $100,000.00 for equipment, $2,661.29 for rent adjustment, $7,000.00 for miscellaneous pocket expenses and $25,000.00 for third party losses as well as a claim for punitive damages in the amount of $100,000.00.
[48] The plaintiff relies on his financial statements ending July 31, 2011, the receipts for the purchase of the items listed and leasehold improvements, and his testimony to prove his damages. The financial statement shows that the restaurant lost $9,586.00 in 2010 and $31,555.00 in 2011. The tenant abandoned his claim for the loss of the goodwill in his business.
[49] The tenant’s financial statement shows that he spent $221,849.00 on capital expenditures for the restaurant in 2007. These leasehold improvements were amortized at 10% per year over a ten-year period and had a remaining book value of $143,284.00. The financial statements indicate that the tenant spent $8,852.00 for signs which were amortized at 10% per year leaving an amount of $5,892.00 remaining July 31, 2011. The tenant also purchased furniture for $15,482.00, with an undepreciated balance of $5,534.00 remaining as of 2011. The tenant also purchased equipment for $33,944.93, which had a remaining book value of $12,957.00 by July 31, 2011.
[50] The tenant claims for the loss of his leasehold improvements, signs, equipment and furniture based on the remaining book value as of July 31, 2011 after the cost of these items had been depreciated for four years in accordance with the rates permitted by the Income Tax Act, (R.S.C., 1985, c. 1 (5th Supp).)). No independent evidence was called by the tenant to provide opinion evidence of the actual fair market value of these assets as of July 22, 2011.
[51] In addition, the tenant also had inventory with a cost value of $23,042.64 exclusive of HST. The tenant also claims for kitchenware, china, glass and cutlery worth $2,000.00 based on the 2011 financial statements.
[52] The landlord rented the premises effective September 1, 2011 to a new tenant to operate a restaurant in the same premises. The lease to the new tenant included the right to use the leasehold improvements, furniture and equipment that remained on the premises. By re-renting the premises at a higher rent, the landlord has mitigated its damages following September 1, 2011.
[53] The plaintiff owed the landlord rent up until July 22, 2011 when the lease was terminated. The tenant had paid a deposit for the last month’s rent of $7,259.23. The tenant also paid rent for the month of July in the amount of $6,608.85. The monthly amount paid by the tenant for rent included one‑twelfth of its share of the estimated annual taxes, instead of being paid over the first six months of the lease. The tenant unilaterally reduced the amount of his share of property taxes for the year.
[54] When the last month’s rent deposit of $7,259.23 is added to the cheque for $3,503.65 dated July 1, 2011, plus the amount of $7,468.00 paid on July 4, 2011, the tenant would have overpaid the rent owing for July, 2011. The tenant effectively paid $18,230.88 ($7,259.23 + $7,468.00 + $3,503.65) in July of 2011 for rent.
[55] The tenant acknowledged that he owed the landlord a rent adjustment for the additional rent for 2010 of $5,830.95.
[56] The tenant actually paid $8,200.00 for the first two months and then $7,468.00 per month for March, April, May, June and July. If the property taxes were apportioned over twelve months ($1230.00/month), the tenant should have paid $7,590.00 per month for the first seven months of the year. The tenant should have paid $53,130.70 (7 x $7,590.10) for the first seven months’ rent for 2011. The tenant actually paid $8,200.00 per month for January and February (for a total of $16,400.00) and five months at $7,468.00 for a total of $53,740.00. The tenant therefore overpaid the landlord $609.30 ($53,740.00 minus $53,130.70).
[57] The tenant owed the landlord adjusted special expenses for 2010 of $5,830.95; however, when the last month’s rent deposit $7,259.23 plus the first post-dated cheque for July 1, 2011 of $3,503.65 is credited to the tenant, the tenant has overpaid the landlord $10,762.90 towards rent for July of 2011. After offsetting the amounts ($10,762.88 + $609.30 - $5,830.95), I find that the landlord owes the tenant $5,541.23 for overpayment of rent to the end of July 2011.
Value of the Inventory
[58] The tenant has not provided any independent evidence of the value of the inventory in the restaurant as of July 22, 2012. The financial statements indicated that the inventory was $25,017.77 including HST and the tenant did provide receipts for June of 2011. The tenant did not provide evidence of the inventory as at July 22, 2011 other than it was about the same as in previous year. The restaurant was losing money during the last two years. I find that the fair market value of the inventory in the restaurant on July 22, 2011, should be substantially discounted to $7,500.00.
Value of Furniture, Equipment and Signs
[59] The tenant was given the opportunity to attend at the restaurant to remove any of his items but stated that he did not attend because he had no place to store the items and the landlord insisted on payment of $29,475.05. The landlord was not entitled to insist on payment of this amount as a condition of return the tenant its property. The book value indicates that items of furniture, equipment and signs amount to a value of approximately $20,000.00. I find that the fair market value of these items should be substantially discounted to $7,500.00 as a reasonable estimate of their value.
Value of Leasehold Improvements
[60] The tenant claims $143,284 for lost leasehold improvements based on their net book value. The tenant has not provided any independent valuation of the fair market value of the leasehold improvements as at July 22, 2011.
[61] The leasehold improvements could not be removed by the tenant according to the lease but the tenant had spent a substantial amount of money to install the leasehold improvements, including improving and fixing the restaurant from a damaged condition when he initially signed the lease. The landlord contributed approximately $56,500.00 to these renovation costs.
[62] The new tenant has continued to use the plaintiff’s leasehold improvements, furniture and equipment and has benefited from the tenant’s leasehold improvements. This may partially explain the fact that the landlord was able to rent the restaurant to a new tenant at a higher rent. The new lease was for $64,400.00 per year on a net basis, subsequently increasing to $70,000.00 per year as opposed to $50,400.00 rising to $53,200.00, per year, on a net basis for the plaintiff. The landlord was able to rent the premises to a new tenant for at least $10,000.00 more per year than the rent he had been collecting from the plaintiff, for the six remaining years on the lease, producing $60,000.00 of extra income to the landlord.
[63] I find that the book value of the leasehold improvements should be substantially discounted because they have been used by the tenant and no independent evaluation was provided. The landlord has been able to rent the premises to a new tenant for an extra $10,000.00 more per year, for at least six years partly because the tenant was forced to leave all his leasehold improvements, in the restaurant to be used by the new tenant. This has allowed the new tenant to operate a restaurant with minimal leasehold improvements. As a result, I find that the Plaintiff has suffered a loss which I estimate at $60,000.00 on his leasehold improvements.
Salaries, WSIB, Gas & Hydro
[64] I am not satisfied that the tenant has proved on a balance of probabilities that he was required to pay any extra amount for salaries, WSIB, gas and hydro as a result of the landlord’s breach of his agreement.
Punitive Damages
[65] I also find that the landlord’s conduct does not merit the granting of punitive damages. The landlord’s conduct was not so egregious that it would shock the sensibilities of a reasonable member of the public. The landlord had been quite patient with the tenant who had refused to provide him with proof of insurance in the amount of $5,000,000.00 as stipulated in the lease and had arbitrarily reduced his monthly rent payments to amortize the taxes over twelve months without the landlord’s consent. The tenant also ignored notices and did not respond promptly and reasonably to the landlord’s reasonable request to comply with the terms of the lease.
Disposition of Damages Issue
[66] The landlord is therefore ordered to pay damages to the tenant of $60,000.00 towards the tenant’s loss of leasehold improvements, $7,500.00 towards the tenant’s inventory, $17,500.00 towards the tenant’s loss of equipment and $5,541.23 towards the overpayment of rent to the end of July 2011.
Counterclaim by the Plaintiff
[67] The landlord has counterclaimed for $400,361.60 for unpaid adjustments of taxes and rent to July 22, 2011, $4,000.00 in legal costs, plus $450.00 for bailiff fees.
[68] In view of my findings that the tenant was not in default of payment of rent as a result of the landlord’s agreement to accept three post-dated cheques towards payment of arrears of rent, and my conclusion that the landlord has therefore breached the lease by terminating the lease when there were no arrears of rent, the landlord’s counterclaim is dismissed.
Costs
[69] The plaintiff may make submissions on costs within 15 days. The landlord shall have 10 days to respond and the plaintiff shall have 7 days to reply.
The Hon. Mr. Justice Robert J. Smith
Released: January 19, 2015
CITATION: 4439155 Canada Inc. v. Albert Tower Inc., 2015 ONSC 30
COURT FILE NO.: 11-52362
DATE: 2015/01/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
4439155 Canada Inc.
Plaintiff
– and –
Albert Tower Inc. and Mahdi Fard
Defendants
– and –
Albert Tower Inc. and Mahdi Fard
Plaintiffs by Counterclaim
– and –
4439155 Canada Inc. and Zhengping Yang
Defendants by Counterclaim
REASONS FOR Decision
R. Smith J.
Released: January 19, 2015