



COURT OF APPEAL FOR ONTARIO

CITATION: V. Melfi Holding Ltd. v. Dourada Investment Inc.,
    2018 ONCA 290

DATE: 20180322

DOCKET: C64380

Sharpe, Juriansz and Miller JJ.A.

BETWEEN

V. Melfi Holding Ltd.


Appellant

(Defendant)

and

Dourada Investment Inc
.

Respondent

(Plaintiff)

Dominic Saverino, for the appellant

Varoujan Arman and Megan Hodges, for the respondent

Heard and released orally: March 15, 2018

On appeal from the judgment of Justice Chris de Sa of the
    Superior Court of Justice, dated September 11, 2017.

REASONS FOR DECISION

[1]

We do not agree that the motion judge made a palpable and overriding
    error in finding that the appellants failure to comply with the term of the
    agreement of purchase and sale requiring it to remove its goods from the
    premises amounted to an abandonment of those goods. The respondent insisted
    throughout that the appellant remove the goods and gave the appellant several opportunities
    to do so.

[2]

The motion judge found that the appellant failed to avail itself of
    those opportunities insisting that it would only remove its goods on its own
    terms. The evidence on this summary judgment motion provided a basis for the
    motion judge to find that the appellant had in effect abandoned its goods.

[3]

We do not accept the appellants submission that the motion judge erred
    in his calculation of the rent or damages payable by the appellant. The
    appellant was locked out of the premises on April 14, 2014 and rent is payable
    up to that date. Thereafter, the appellant was in breach of its contractual
    obligation to remove its goods from the premises. The appellants failure to do
    so made it impossible for the respondent to use or rent the premises and the
    motion judge properly calculated damages for breach of that contractual
    obligation on the basis of the rent that would otherwise have been payable.

[4]

We do not agree that the respondent failed to mitigate its damages prior
    to May 15, 2015 given the position taken by the appellant extending the lease
    from month-to-month and given the attempts being made by the parties to
    negotiate a settlement.

[5]

The appellant breached the term of the agreement of purchase and sale
    requiring it to remove its goods and the motion judge was entitled to find that
    that breach entitled the respondent to forfeit the $100,000 holdback.

[6]

The appellant conceded in oral argument that the provisions of the
Commercial
    Tenancies Act
regarding distress for nonpayment of rent are not
    applicable. He argues however, that while the letter of the Act does not apply,
    the procedure it lays down should have been followed by analogy.

[7]

We do not accept the argument but note the motion judge found that the
    respondent sold the goods after giving the appellant the opportunity to remove
    them and behaved in a commercially responsible manner. It obtained appraisals
    and sold the goods at a public auction. The motion judge found that there is no
    merit in the assertion that the sale was improvident.

[8]

Finally, while the amount awarded minimally exceeded the amount claimed
    in the statement of claim we see no prejudice to the appellant that requires
    this court to intervene.

[9]

For these reasons, the appeal is dismissed.

[10]

Costs
    to the respondent fixed at $7,283.88, inclusive of disbursements and applicable
    taxes.

Robert J. Sharpe
    J.A.

R.G. Juriansz
    J.A.

B.W. Miller J.A.


