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Morin v. Abdelmessih
Between
Joel Morin and Giovanni Tariello, plaintiffs, and
Soheir Abdelmessih, defendant
Court File No. 95-LT-104277
Ontario Court of Justice (General Division)
Pitt J.
Heard: March 22, 1996.
Judgment: April 15, 1996.
Counsel:
Simon Shields, for the plaintiffs.
Soheir Abdelmessih, in person.
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1 ????PITT J. (endorsement):-- This is a application by the tenant for return of
a security deposit in the amount of $1,295.53, retained by the landlord pursuant
to a lease for the period May 1, 1994 to April 30, 1996.
2 ????The landlord counterclaims for the sum of $3,804.20 being the difference
between the tenant's claim and rent which the landlord alleges is owed to her
for the months of January and February 1996, pursuant to the provisions of the
aforesaid lease.
Facts
3 ????The lease referred to above was terminated by the order of Paisley J. on
December 8, 1995 on the application of the landlord, for breach of covenant.
4 ????The court, in disposing of that proceeding, not only terminated the
tenancy, but granted the landlord damages in the amount of $600. That judgment
was not appealed.
5 ????The following comments made at the end of the trial, in dealing with a
suitable date for the actual termination of the tenancy, are relevant, although
admittedly reference to them is unusual:
Tenant (Morin): You know, the landlord failed to notify you that
she is holding the last month's rent.
? Landlord: We can settle the account.
Tenant: We're prepared to leave as of February 1 and have our
last month's rent applied to February.
? The Court: Are you content to ...
Landlord: No, Your Honour. December 15 and I will return whatever
money is owing to them.
6 ????Although the tenancy was terminated approximately five months before the
expiry date of the lease, there was no claim made by the landlord in her action
giving rise to the termination, for rent for the balance or part thereof of the
term.
Analysis
7 ????Section 113(2) of the Landlord and Tenant Act, provides the statutory
basis for the tenant's claim at this time and the landlord's statements in court
on December 8, 1995, provide a equitable basis for the tenant's action.
8 ????In my view, the case law provides a common law basis for the landlord's
cause of action although in Re Sam Richman Investments (London) Ltd. v. Riedel
et al., [1974] 6 O.R. (2d) 335 the Divisional Court held that such a claim
cannot be made in a summary proceeding under the Landlord and Tenant Act.
9 ????In all the discussion about credits and debits at the end of the original
trial, there was no specific mention by the landlord of a future claim for rent
when her damages were ascertained, although her statements that "we can settle
the account" and "I will return whatever money is owing to them" suggest that a
definite figure was not in her contemplation.
10 ????The Ontario Court of Appeal upheld the decision of Rutherford J. in North
Bay T.V. and Audio Ltd. v. Nova Electronics Ltd., [1984] 47 O.R. (2d) 588 that
notice of a intention to sue for prospective rent need not be given
contemporaneously with the termination of the tenancy. That claim, however, was
not made in a summary proceeding and it was not a follow up proceeding.
11 ????No case has been brought to my attention in which a landlord brings an
application in summary form to terminate a tenancy for breach of covenant, makes
no claim for prospective rent, makes no mention in the proceedings nor gives any
notice to the tenant of his intention to do so, and then subsequently brings
such a action.
12 ????While I understand that it was not possible for the landlord to have
known the damages at the time of the trial, it would have been within the
jurisdiction of the court to adjourn the trial for five months to fix a final
damage figure, after the expiry of the lease, when evidence of mitigation and
what actually transpired would have been available. The deposit would then have
been part of the equation.
13 ????In the case of Highway Properties Ltd. v. Kelly; Doubals and Co. (1971),
S.C.R. 572, the lease had several years to run and it would have been absurd to
have adjourned the case. Accordingly, it was remitted to the trial judge for
assessment of the damages to which the plaintiff/landlord was found to be
legally entitled as of the date of the cause of action.
14 ????The tenant, at the trial, actually made a plea for the return of the
deposit, albeit in an unorthodox manner. The landlord, may well have thought
about the prospective rent, but made comments so elliptical, as to not focus the
tenant's attention on the issue.
15 ????Taking all of the factors into consideration, including the public
interest in bringing litigation to an end, I dismiss both the claim and
counterclaim without costs.
PITT J.
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