Susan E. Healey

The appellant tenant appealed a Small Claims Court decision dismissing her claim for the return of prepaid rent and deposits.

The tenant had signed a lease that explicitly exempted the premises from the Tenant Protection Act but also contained a schedule stating the Act would prevail in the event of a conflict.

When the tenant attempted to sublet and the landlord failed to respond within seven days, the tenant terminated the lease in accordance with the Act.

The Divisional Court allowed the appeal, finding the lease patently ambiguous.

Applying the principle of contra proferentem, the court construed the ambiguity against the landlord who drafted the document, holding that the tenant was entitled to rely on the termination provisions of the Act.

The appellants were successful on appeal from a Small Claims Court judgment and sought costs for both the trial and the appeal.

The court considered whether the 15% cap on costs under s. 29 of the Courts of Justice Act limits the 'double costs' provision under Rule 14.07 of the Small Claims Court Rules when a party beats their offer to settle.

The court held that s. 29 does not cap costs in these circumstances, as doing so would undermine the purpose of encouraging reasonable settlements.

The appellants were awarded $3,411.30 for the trial and $5,000 for the appeal.

The respondent subcontractor supplied building materials to a general contractor for the construction of a cottage on the appellants' property.

When the general contractor failed to pay, the subcontractor sued the appellants for unjust enrichment, having chosen not to shelter under a construction lien.

The trial judge found the appellants liable.

On appeal, the Divisional Court set aside the judgment, holding that the contract between the appellants and the general contractor provided a juristic reason for any enrichment, and that the subcontractor's proper remedy was against the general contractor or through the Construction Lien Act.