



COURT OF APPEAL FOR ONTARIO

CITATION: Iannuzzi v. Couper, 2020 ONCA 426

DATE: 20200630

DOCKET: C67311

Feldman, Fairburn and Nordheimer
    JJ.A.

BETWEEN

Anthony Iannuzzi

Plaintiff

(Respondent)

and

Mark Couper

Defendant

(Appellant)

Mark Couper, acting in person

Riaz Ahmed, for the respondent

Heard: In writing

On
    appeal from the judgment of Justice Wendy M. Matheson of the Superior Court of
    Justice, dated April 3, 2019.

REASONS FOR DECISION

[1]

The respondent was the appellants landlord. The
    appellant found himself in financial difficulty. In 2008, the appellant
    requested that he be able to defer his rental payments to the respondent. The
    respondent agreed. On December 9, 2008, the appellant confirmed in writing that
    he owed rent for the entire year up to that time. He undertook to start paying
    rent again on January 1, 2010. He said that the back rent would become payable
    when [his] lawsuit against [a third party] is settled. He agreed to pay
    interest on the deferred rental payments, calculated at the rate of 10%
    annually starting with the missed payments on October 1, 2008. The respondent
    signed the letter confirming that agreement.

[2]

Although the date when the appellant was to
    start paying rent again got extended a few times, the substance of the original
    agreement did not change. On January 4, 2011, the appellant wrote to the
    respondent and enclosed a loan agreement that he had signed, acknowledging
    that he owed $69,806 in deferred rent and that he would repay that amount, with
    the ten percent interest, when the litigation he was involved in settled. The
    respondent refused to sign that loan agreement, claiming he had not agreed to
    anything with the appellant and that they needed to get together to discuss the
    matter.

[3]

The appellant started paying rent again in
    January 2011. In March 2012, the appellant gave the respondent two months
    notice. He had insufficient funds to cover two cheques for the April and May
    2012 rent. The NSF cheques gave rise to a small claims court action, where the
    respondent sought the two months rent to cover those amounts. The appellant
    cross-claimed. At that point, there was no claim relating to the deferred
    rental payments. Ultimately, the small claims court matter settled, as
    reflected in a settlement agreement dated December 2014, where the appellant
    acknowledged he would pay the respondent $6,248.48, spread out over 15 months.
    The parties released and discharged each other from all cause of actions and
    claims against each other.

[4]

Ultimately the appellants litigation with the
    third party settled in July 2016, at which time the respondent commenced this
    action to obtain the substantial amount of deferred rent. The trial judge
    concluded that the parties had a clear contract for the deferral of the rent,
    on terms agreed to, including the timing of repayment and the interest to be
    paid. The appellant says that the trial judge erred in that conclusion. We do
    not agree.

[5]

The trial judges careful reasons for decision
    demonstrate that she understood the evidentiary record before her, and her
    conclusions are supported by the factual record and her findings of fact to
    which we defer. As found by the trial judge, the appellants position that
    there was no agreement is undermined by the appellants acknowledgement in his
    December 9, 2008 letter that there was an agreement. It is also undermined by
    his statement in the May 26, 2010 letter that it constituted an agreement
    that superseded all other agreements.

[6]

The appellant also maintains that the trial
    judge erred in finding that the release signed by the parties in the small
    claims action did not bar the action. The trial judges reasons for concluding
    that the general words of the release did not cover the claim relating to the
    deferred rent are sound and well supported by the evidence. The release did not
    refer to future claims or to the deferred rent. The small claims action did not
    include a claim for the deferred rent. Her conclusion that if the appellant
    wished to include the deferred rent claim in the release, he should have
    specifically addressed it, makes sense. This is particularly true given that
    the appellants own proposed loan agreement in January of 2011 made specific
    reference to the fact that the deferred rent obligations were separate from
    all non-deferred rent.

[7]

Finally, the trial judge did not err in finding
    that the deferred rents constituted a contingent loan not covered by the
    release, contingent on the appellant completing his litigation with the third
    party. The deferred rent was clearly contingent upon a future event and was properly
    characterized by the trial judge.

[8]

The appeal is dismissed.

[9]

Costs of the appeal are to be paid by the
    appellant to the respondent in the amount of $10,000, inclusive of
    disbursements and taxes.

K. Feldman J.A.

Fairburn J.A.

I.V.B. Nordheimer J.A.


