



COURT OF APPEAL FOR ONTARIO

CITATION:
Farm
    Boy Inc. v. Mobius Corp., 2012 ONCA 692

DATE: 20121016

DOCKET: C53982

OConnor A.C.J.O and Goudge and Juriansz JJ.A.

BETWEEN

Farm Boy Inc.

Plaintiff (Appellant)

and

Mobius Corp. and 2030 10th Line Developments Inc.

Defendants (Respondents)

Benjamin Zarnett, Stephen Victor, Q.C., and Melanie
    Maia, for the appellant

Kenneth Prehogan, Hilary Book and Sandra L. McNeely, for the
    respondents

Heard: October 10, 2012

On appeal from the judgment of Justice J. Mackinnon of the
    Superior Court of Justice, dated June 7, 2011.

ENDORSEMENT

[1]

This is an appeal from the decision of the trial judge dismissing the
    appellants claim against the respondents. The appellant, a retail tenant in a
    shopping centre, claimed damages from the respondents, as landlord, for breach
    of contract by failing to provide an additional 12 parking spaces as required
    by the lease. The trial judge found the respondents breached the lease, but
    went on to conclude that the appellant had failed to show the respondents
    breach probably caused it to suffer a loss.

[2]

The trial judge properly set out the governing principles and reviewed
    the relevant evidence. The respondents were not obliged to provide the
    additional spaces in the section of the parking lot preferred by the
    appellant's customers.  The appellants evidence of customer complaints did not
    clearly relate to the entire parking lot as opposed to the preferred section.
    There was expert evidence that even at the peak periods observed, a large
    number of vacant parking spaces were available in the parking lot. In our view,
    it was open to the trial judge to find that the appellant had not shown that
    the breach caused it to suffer a loss and such a finding was consistent with a
    common sense approach to the evidence.

[3]

The appeal is dismissed.

[4]

The respondents cross appeal is dismissed as moot.

[5]

We grant leave to the appellant to appeal the costs order of the trial
    judge and allow that appeal. The trial judge concluded that the
    "considerable time spent at trial on the unsuccessful defence of the
    breach of contract issue" was offset by the weight of two offers to settle
    dated March 2009 and May 2010, neither of which was a Rule 49 offer. In our
    view, these offers do not support any such offset. The March 2009 offer was well
    before the picture at trial became clear and cannot play such a role. The May
    2010 offer contained no element of compromise and should not have been used to
    offset the trial time spent on the defence of the breach of contract issue. In
    these circumstances, we are of the view that the costs award should be set
    aside and it falls to us to determine an appropriate costs award for the trial.

[6]

We consider a fair and reasonable award of trial costs is in the amount
    of $200,000 in favour of the respondent, inclusive of disbursements and
    applicable taxes.

[7]

Considering the divided success in this court, we fix the costs of the
    appeal in favour of the respondents on a partial indemnity scale in the amount $30,000,
    inclusive of disbursements and applicable taxes.

D. OConnor A.C.J.O.

S.T. Goudge J.A.

R.G. Juriansz J.A.


