



COURT OF APPEAL FOR ONTARIO

CITATION: Cooper v. The Laundry Lounge,
    Inc., 2020 ONCA 166

DATE: 20200303

DOCKET: C67158

Lauwers, Hourigan and Thorburn
    JJ.A.

BETWEEN

David Cooper by his Litigation Guardian,
    Annette Cooper

and Annette Cooper

Applicants (Respondents)

and

The Laundry Lounge, Inc. and
    André Fiset

Respondents (Appellants)

André Fiset on his own behalf and on
    behalf of The Laundry Lounge Inc.

Krista Chaytor and Caitlin Steven, for
    the respondents

Heard: February 24, 2020

On
    appeal from the judgment of Justice Paul B. Schabas of the Superior Court of
    Justice, dated May 27, 2019, with reasons reported at 2019 ONSC 3216.

REASONS FOR DECISION

Introduction

[1]

This appeal arises from a successful application
    brought by the respondents, David and Annette Cooper, for an order terminating
    two commercial leases for non-payment of rent, an order requiring vacant
    possession of the premises, an order granting leave for the Registrar to issue
    a writ of possession, and orders requiring payment of arrears of rent and
    damages for lost future rent.

[2]

The appellants challenge both final and
    interlocutory orders made by the application judge. We agreed to hear both the
    final and interlocutory aspects of the appeals because the appeals are so
    interrelated that there is good reason to hear them together:
Azzeh v.
    Legendre
, 2017 ONCA 385, 135 O.R. (3d) 721, at paras. 25-26. We also
    granted leave to permit the appellant, André Fiset, to represent the corporate
    appellant.

[3]

At the hearing of the appeals, Mr. Fiset advised
    that the appellants have vacated the premises. Therefore, the relief they now
    seek is limited to setting aside the orders with respect to rental arrears,
    lost future rent damages, pre-judgment interest, and costs.

Facts

[4]

The leases in issue are for two properties on
    adjoining premises.  One property was used as a laundromat, and another was
    used for a dry-cleaning business. Mr. Cooper and the Laundry Lounge, Inc.
    entered into the laundromat lease in 2003. In 2010, Mr. Cooper and The Laundry
    Lounge or a yet-to-be incorporated corporation executed the dry-cleaning
    lease.

[5]

In December 2017, the heat failed in the
    laundromat and subsequently, a frozen pipe burst, causing water damage. The
    respondents offered to reimburse all expenses related to the loss of heat and
    further agreed to a rent abatement for both leases for January 2018.

[6]

The appellants did not provide any receipts for
    expenses to the respondents. Instead, starting in February 2018, the appellants
    stopped paying rent. In March 2018, the appellants brought an action, advancing
    several claims, including breach of contract, misrepresentation, and loss of
    income. The appellants did not serve their statement of claim. The respondents
    commenced their application in August 2018.

[7]

In October and November 2018, the respondents
    took steps to terminate the leases, but the bailiff's efforts to take possession
    were unsuccessful.

[8]

In December 2018, Mr. Fiset paid $35,000, and in
    January 2019, he started paying $7,000 per month, about half of what was owing
    under the leases. These payments were made under Mr. Fiset's obligations for
    the dry-cleaning lease.

[9]

The application judge ruled that the respondents
    were entitled to the relief sought and that the appellants had not established
    a right of set-off pursuant to s. 35 of the
Commercial Tenancies Act
,
    R.S.O., 1990, c. L.-7. He found that there was no evidence filed in support of
    the claim for set-off.

Analysis

[10]

The appellants raise several grounds of appeal,
    which may be broadly categorized as follows: (i) procedural irregularities
    regarding the application; (ii) objection to the respondents use of self-help
    remedies; (iii) failure to mitigate damages; and (iv) an allegation that the
    application judge was biased.

[11]

We do not give effect to any of these grounds of
    appeal.

[12]

We agree with the application judge that an
    application was the appropriate procedure, given the straightforward factual
    and legal issues in play. The fact that the appellants commenced an action does
    not impact that conclusion.

[13]

The respondents, as the title holders to the
    properties, were the proper parties to the application, even though they did
    not manage the properties. Their son, Allen Cooper, who is involved in the day-to-day
    operation of the properties, provided evidence and was extensively
    cross-examined.

[14]

There was nothing improper in the appellants
    exercising their self-help remedies under the
Commercial Tenancies Act
.

[15]

The submission made in the appellants factum
    regarding mitigation of damages is based on a failure to re-let the laundromat
    after it was allegedly vacated before the return of the application. The application
    judge's finding that the laundry lease was not surrendered was well-grounded in
    the evidence. Therefore, we see no error in his conclusion that rent was owing
    up to the date of the hearing.

[16]

Mr. Fiset further argues that the application
    judge erred in awarding damages for lost rent for the balance of the lease
    term, being approximately 11 months, because the respondents failed to
    establish that they made reasonable efforts to re-let the properties. We do not
    give effect to that ground of appeal. Implicit in the application judges
    reasons was a finding that given the relatively short period left in the
    leases, this was a reasonable period to market the properties and obtain new
    tenants. That was a conclusion available to the application judge and we see no
    basis for appellate interference.

[17]

The allegation regarding bias appears to be
    based on the fact that the application judge did not make specific reference to
    heating and flooding issues in the dry-cleaning premises. The application judge
    was under no obligation to reference every fact in his endorsement. In any
    event, the failure to do so does not constitute bias.

[18]

Finally, in his oral reply submissions, Mr.
    Fiset requested that we make clear in our reasons that nothing in the application
    judges reasons or judgment precludes the appellants from prosecuting their
    action. We cannot accede to that request. The determination of that issue is
    not for this court but may be dealt with by a judge of the Superior Court at
    trial or on a motion.

Disposition

[19]

The appeal is dismissed. The appellants shall
    pay the respondents their costs of the appeal, fixed in the all-inclusive amount
    of $10,000.

P. Lauwers J.A.

C.W. Hourigan
    J.A.

Thorburn J.A.


