Ontario Superior Court of Justice
COURT FILE NO.: CV-22-690414
DATE: 20221223
RE: VICTOR OPARA, Plaintiff
-and-
ANTONIO CIAMARRA, Defendant
BEFORE: FL Myers J
COUNSEL: Victor Opara representing himself
No one, for the defendant
HEARD: December 23, 2022
ENDORSEMENT
[1] Mr. Opara is a lawyer. The defendant is the landlord of his law office.
[2] The office lease is for a three-year term that commenced December 1, 2019. It expires on December 30, 2022. [It says December 30 rather than the 31st.]
[3] Mr. Opara moves urgently for an order prohibiting the landlord from evicting him before April 30, 2023.
[4] Rent under the current lease was initially set at $650 plus HST per month. In addition, Mr. Opara is required to pay $300 per month towards the landlord’s TMI.
[5] Schedule “A” of the lease provides that the lease “is subject to a 2% annual increase”.
[6] Apparently, Mr. Opara continued to pay rent at $950 throughout the term. However, on November 3, 2022, Mr. Opara advises that the landlord posted a notice on the door of the office saying that he was going to evict Mr. Opara unless he paid the additional 2% for 2021 and to date in 2022.
[7] Mr. Opara was very offended at not being given any notice of what he views as a retroactive rent increase. But he paid to avoid calamity.
[8] Apparently, when the landlord went to leave Mr. Opara’s office that day, he hit Mr. Opara’s car and caused some minor damage to the fender and paint. The landlord called Mr. Opara to come down to the parking lot area behind the building to see the damage. Mr. Opara says he did not go because there were no cameras there and he was concerned that the situation might become dangerous.
[9] Mr. Opara says that the situation has since turned toxic and he just wants to leave. But it is too late in the year now to arrange to move his law practice with just one week to go in the lease.
[10] There is a basis for Mr. Opara to claim a right to stay.
[11] By email dated Nov. 29, 2022, Mr. Opara asked for a six-month extension of the lease and offered a 2% rent increase.
[12] By email dated Nov. 30, 2022, Matt Ciamarra, the defendant’s son, advised that “[w]e don’t renew lease in 6 month intervals”. Instead, he offered:
We can do an extension for 12 months (1 year) with post-dated cheques for the entire year, including 2% rent increase.
[13] Matt copied his father on the email.
[14] By email dated December 6, 2022, Mr. Opara responded:
Let’s go ahead with the 12 months (1 year) extension.
[15] By email dated December 8, 2022, Mr. Opara asked Matt Ciamarra to confirm the extension for one year and offered to drop off post-dated cheques.
[16] By email dated December 9, 2022, Matt Ciamarra advised:
The extension has been approved. Tony will have the paperwork ready for you by the end of the week.
[17] By email dated Saturday, December 17, 2022, Matt Ciamarra provided a draft lease to Mr. Opara. The draft lease is in the form of a standard OREA agreement to lease. It recites the landlord’s offer of a one-year lease but at a rent of $1150 per month. The offer was irrevocable until 8:00 p.m. on Monday, December 19, 2022. The offer expired if it was not accepted by that time.
[18] In this offer the landlord sought a rent increase of around 20% after seemingly agreeing to accept 2%.
[19] Mr. Opara delivered a Notice of Motion and supporting Affidavit to the court’s urgent email address on December 21, 2022. This was in accordance with s. C.1.8 of the Notice to Profession and Parties – Toronto Region. During the morning of December 22, 2022 I convened a case conference for this morning. I directed Mr. Opara to ensure that the landlord had notice of the case conference and the Zoom details. Mr. Opara notified the landlord by email.
[20] Tony Ciamarra responded to Mr. Opara on December 22, 2022 at 12:17 pm. He advised that it is his position that he delivered an offer to lease to Mr. Opara that was not accepted before it expired. He asserts that the case conference is scheduled with an unreasonably short return and he needs time to hire legal counsel. He wrote expressly that he would not be attending this case conference.
[21] I waited for the landlord until 10:20 a.m. in case he chose to appear. It is unfortunate that the landlord did not to attend. The case conference could have been used to try to find common ground between the parties instead of just consigning them to potentially expensive proceedings.
[22] In any event, I accept that the landlord is entitled to some time to retain and instruct counsel. I do not think it fair to schedule a return date without giving the landlord time to do so. Accordingly, I adjourn this case conference to Civil Practice Court on January 11, 2023 for scheduling. Mr. Opara is directed to provide the Zoom and telephone details for CPC to Mr. Ciamarra or his counsel once he receives them from the court.
[23] Mr. Opara asks me to order, as a term of the adjournment being provided to the landlord, that the landlord is prohibited from re-entering the leased premises at least until the next hearing on January 11, 2023.
[24] The court has authority to add terms to an order under Rule 1.05 of the Rules of Civil Procedure, RRO 1990, reg 194, and to make any interlocutory order at a case conference under R. 50.13 (6).
[25] On the evidence before me, Mr. Opara could be entitled to interim relief. The evidence meets the well-known three-part test:
i. Mr. Opara’s affidavits establish at least a serious issue to be tried as to whether he and Matt Ciamarra agreed to a binding contract extending the lease in their exchange of emails. Mr. Ciamarra offered a one-year extension with a 2% rent increase. Mr. Opara accepted thereby creating a contract. Then Mr. Ciamarra confirmed that the extension had been approved. I assume that approval was by Tony Ciamarra. It may not matter. If Matthew was acting as Tony’s agent (expressly, impliedly, or ostensibly) a contract may already have been concluded without the confirmation.
ii. A lawyer being evicted on a week’s notice will likely suffer irreparable harm. It is not just a question of paying money to obtain new premises. Rather, he has professional obligations to his clients that may be imperilled if his practice is interrupted on the sudden.
iii. The balance of convenience favours maintaining the status quo for the brief period of time for these parties to arrange an early return date through CPC. There is a question of whether Mr. Opara may be the author of his own misfortune by waiting so long to see to the renewal. That may be an issue for the return of the motion. For now, in my view, the harm of refusing an order would greatly outweigh the harm of making the order and keeping Mr. Opara in place for just over two weeks.
[26] However, Mr. Opara expressly and knowingly declines to advance a claim based on the one-year renewal of the lease in the emails. Although he accepted the offer when it was made, Mr. Opara does not want to be bound to a one-year lease now. He wants to leave in April.
[27] The difficulty is that without asserting the extended lease, Mr. Opara has no legal basis to remain in the premises once the current lease expires.
[28] Mr. Opara submits that he is entitled to stay on because the landlord has been acting with “malice and prejudice”. Mr. Opara submits that the landlord just wants him to leave and he has acted improperly in demanding the retroactive 2% rent payments, damaging his car (or not promptly paying for the damage), and now demanding a 20% increase for an extended term.
[29] Mr. Opara takes particular exception to the landlord having delivered the offer to lease subject to a term making it irrevocable until the evening of December 19, 2022. Mr. Opara says that he only saw the email delivering the offer to lease on coming into his office on Monday the 19th. This left him less than one day to agree to a demand for a 20% rent increase.
[30] Mr. Opara submits that the landlord has acted autocratically and manipulatively to force him to leave. Mr. Opara says that he is entitled to be dealt with as a decent person of business. He feels dehumanized. He is not an animal to be treated in such an unseemly manner.
[31] Mr. Opara submits that staying for more than four months would be unpalatable because the relationship between the parties is so toxic. He fears what the landlord could do to him – like turning off the lights etc. He submits that there is no prejudice to the landlord if he stays for four months. He is even willing to pay the landlord’s 20% increase for those four months.
[32] This is all the stuff of a potential negotiation. But I am not aware of any basis in law for me to find that the landlord’s behaviour entitled Mr. Opara to stay on let alone for a period of time convenient to him. Mr. Opara was not able to point to any legal basis for him to stay (apart from the one-year extension that he chooses not to claim).
[33] It is hard to find bad faith execution of the current lease given that Mr. Opara had no right to an extension. If the doctrine of bad faith applied to negotiations of a new or extended lease (which is does not) the bad faith would be coming up with a new offer seeking a 20% rent increase rather than the 2% already seemingly accepted. This would just let Mr. Opara rely on the earlier extension agreement that he does not wish to rely upon.
[34] I also do not accept Mr. Opara’s submission that the landlord did something wrong making his offer to lease irrevocable to 8:00 p.m. on December 19, 2022. The offer was sent by email on Saturday, December 17, 2022. It is perfectly proper for Mr. Opara to decide that he will not read his emails over the weekend. But that does not convert the landlord’s offer into a last second bully-offer. Mr. Opara had more than two days to respond.
[35] Moreover, even if the offer was only open for 12 hours, that too is not problematic legally. The irrevocability period is a matter for negotiation. Bully-offers are a known negotiating tactic. If you don’t like it, you are always free to reject it. In any event, Mr. Opara did not want either the one-year term offered or the 20% increase. So, he was going to refuse the offer regardless of the irrevocability period. There was no substance to this submission.
[36] I am not sure why the risk of untoward action by the landlord is a hard stop for Mr. Opara for a one-year lease but not for a four-month lease. Perhaps Mr. Opara has other reasons of his own for wanting a shorter extension. Regardless, the availability, length, and price of an extension are matters for negotiation. Mr. Opara was not able to point to a known cause of action or a legal basis for him to remain in the premises after the lease expires.
[37] Therefore, he advances no serious issue to be tried on which the court could act in the interim even if I would otherwise be inclined to do so.
[38] The motion, if still sought, will be scheduled in CPC on January 11, 2023.
FL Myers J
Date: December 23, 2022