Court File and Parties

CITATION: Chen v. Vardy, 2017 ONSC 4233

COURT FILE NO.: DC-15-16

DATE: 2017-07-14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Tai-Lee Jonathan Chen and James Chen Plaintiff, Appellant in Appeal

– and –

Nicholas George Vardy and Asif Khan Defendant, Respondent in Appeal

Counsel:

Gloria Ichim, Counsel for the Plaintiff / Appellant in Appeal

Asif Khan, Self-Represented Defendant / Respondent in Appeal and Agent for Nicholas Vardy, Defendant / Respondent in Appeal

HEARD: June 6, 2017

BEFORE: The Honourable Mr. Justice R. D. Reilly

DECISION ON APPEAL

[1] The plaintiffs and the defendants are both appealing the decision of Deputy Judge Sebastian Winny of November 9, 2016, seeking a variation of his judgment.

[2] I have had the opportunity to read that judgment, as well as a partial transcript of the trial, together with the submissions of counsel and the material they have filed.

[3] The facts on the appeal are not largely in dispute. Both parties claim that the trial judge made a palpable and overriding error in his interpretation of the facts. I disagree.

[4] This was a contested and ambiguous fact situation.

[5] The parties were living in what is essentially a residential premise, with one kitchen and one bathroom and otherwise share premises. There may have been three, four or more bedrooms. At any given time, there may have been four, five or more persons in residence, including a landlord, tenants and sub-tenants.

[6] It appears there was originally a contract, a tenancy agreement entered into. However, this was varied by verbal agreements between the parties as time went on.

[7] As noted above, I have read the transcript of trial, including the handwritten agreement as to facts, together with the facta submitted by counsel.

[8] As presiding justice on this court of appeal, I have to determine if the trial judge made a palpable and overriding error with respect to the facts he found in the case and upon which he based his decision. I then have to determine whether he was correct in his application of the law to those facts.

[9] This was, as noted above, an ambiguous living arrangement for all concerned. Their living arrangements changed with the passage of time.

[10] The findings of fact made by the trial judge are revealed in his decision.

[11] The basic living arrangements, which the parties agreed to by contract (such as it was) are set out in paragraph 2 of the decision. The judgment then goes on to detail the changes to those arrangements with the passage of a brief period of time. The parties would have been well-advised to enter into their agreements in writing, together with any changes. This they did not do. The trial judge had a certain challenge in determining what exactly the facts were in this case. However, his conclusions are clear. He found that Mr. Chen breached the lease terms (see paras. 10-12 of the decision).

[12] Having considered all the material filed, I conclude the trial judge correctly applied the law to the facts he found. I therefor confirm his judgment. The defendants are entitled to the admitted amount of $1,188.69 plus prejudgment interest. All other claims are dismissed.

[13] If the parties cannot agree as to costs of this appeal, they may make brief written submissions to me in chambers within 30 days of publication of this ruling.

R. D. Reilly J.

Released: July 14, 2017