



COURT OF APPEAL FOR ONTARIO

CITATION: 772067 Ontario Limited v. Victoria Strong
    Manufacturing Corporation, 2018 ONCA 36

DATE: 20180117

DOCKET: C63852

Laskin, Trotter and Fairburn JJ.A.

BETWEEN

772067 Ontario Limited

Plaintiff/
Appellant

and

Victoria
    Strong Manufacturing Corporation and Paul
    Terlecki

Defendants/
Respondents

Paul Starkman, for the appellant

Clifford Cole, for the respondent

Heard and released orally: January 12, 2018

On appeal from the judgment of Justice Stephen Firestone
    of the Superior Court of Justice, dated May 2, 2017.

REASONS FOR DECISION

[1]

The appellant raises two issues on this appeal. First, can parties
    contract out of s. 19(2) of the
Commercial Tenancies Act
. And second,
    did the motion judge err in finding that the parties reached an agreement to
    reinstate the 2012 lease and that the landlord fundamentally breached that
    agreement.

[2]

It is unnecessary to decide the first issue. The motion judge found that
    the appellant landlord had a right of re-entry for non-payment of rent. That
    finding is not challenged. And this appeal turns on the second issue.

[3]

On the second issue, the motion judge made findings of fact that the
    parties agreed to reinstate the lease and that the landlord fundamentally breached
    the agreement by insisting additional terms be met before allowing the tenant
    back in the premises. Those two findings are supported by the evidence and are
    entitled to deference in this court.

[4]

On the first finding, the appellant contends that the agreement required
    the respondent tenant to pay the costs of re-entry, not just promise to pay
    them. The motion judge was alive to that issue, but reasonably held at paras. 62
    and 63 of his reasons:

I find that the defendant did match the terms of the offer and
    thus an agreement to reinstate the lease was created. Although the plaintiff
    gave evidence to the effect that he understood the defendant to be refusing to
    pay the costs of re-entry, the evidence indicates that the defendant was
    willing to pay re-entry costs and was simply waiting for an accounting

Further, it would be illogical for the defendant to pay the
    full $22,759.81, despite disputing $13,759.81 unless it was making a
bona fide
effort to regain access to the premises by complying fully with the plaintiffs
    terms.

[5]

The motion judges second finding is supported by the landlords October
    7, 2014 letter. In that letter, the landlord insisted that the tenant pay for
    terms in addition to the unpaid rent and costs of re-entry before being allowed
    to re-enter the premises.

[6]

Accordingly, the appeal is dismissed. The respondent is entitled to its
    cost of the appeal in the agreed on amount of $15,000, inclusive of
    disbursements and HST.

John
    Laskin J.A

G.T.
    Trotter J.A.

Fairburn
    J.A.


