3601 Victoria Park Limited v. 1279482 Ontario Inc.
The applications judge's inference that the parties accounted for elimination of business tax in rent negotiation was unsupported and conflicted with objective documentary evidence (offer to lease and lease); accordingly the appeal was allowed, the order set aside, and the matter remitted for trial to determine...
Source-derived case information.
- Citation
- C38971
- Parties
- Applicant/appellant: 3601 Victoria Park Limited; Respondent: 1279482 Ontario Inc.; Respondent: Timothy Ngai
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 30 September 2003
- Procedural Posture
- Collection / Appeal; Remitted for Trial of Issue
- Outcome
- Appeal allowed; order of Mesbur J. set aside; trial of issue directed; costs reserved to the trial judge
- Legal Topics
- Rent Negotiation, Business Tax, Remedial Provisions, Section 444.1(1) Municipal Act, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
3601 Victoria Park Limited
Applicant/appellant
1279482 Ontario Inc.
Respondent
Timothy Ngai
Respondent
Procedural Posture
Collection / Appeal; Remitted for Trial of Issue
Legal Issues
- 1 Whether the applications judge properly inferred the parties accounted for elimination of business tax when negotiating rent
- 2 Whether the remedial provisions of s.444.1(1) of the Municipal Act have been met
- 3 Whether the matter should be remitted to trial for determination of the s.444.1(1) issue
Ratio Decidendi
The applications judge's inference that the parties accounted for elimination of business tax in rent negotiation was unsupported and conflicted with objective documentary evidence (offer to lease and lease); accordingly the appeal was allowed, the order set aside, and the matter remitted for trial to determine whether s.444.1(1) remedial provisions have been met.
Court Disposition
Appeal allowed; order of Mesbur J. set aside; trial of issue directed; costs reserved to the trial judge
Orders
- Appeal allowed
- Order of Mesbur J. set aside
Full Case Text
Judgment text and source record
1 paragraphs
3601 Victoria Park Limited v. 1279482 Ontario Inc. Collection Decisions of the Court of Appeal Date 2003-09-30 Docket numbers C38971 Judges Laskin, John Ivan; Feldman, Kathryn N.; Armstrong, Robert Patrick Subject Civil Decision Content DATE: 20030930 DOCKET: C38971 COURT OF APPEAL FOR ONTARIO RE: 3601 VICTORIA PARK LIMITED (Applicant/Appellant) - and - 1279482 ONTARIO INC. and TIMOTHY NGAI (Respondents) BEFORE: LASKIN, FELDMAN and ARMSTRONG JJ.A. COUNSEL: Ford W. Wong and Sandy Yeung for the appellant Roger A. Grosbee for the respondents HEARD: September 12, 2003 On appeal from the order of Justice Ruth E. Mesbur of the Superior Court of Justice dated September 24, 2002. ENDORSEMENT Released Orally: September 12, 2003 [1] On the record before us, we are not satisfied that the findings of the applications judge are supportable. The applications judge inferred from the parties' acknowledgement that business tax had been eliminated, that they took that fact into account when negotiating the rent. [2] In our view, that inference is weak and directly conflicts with the one objective piece of evidence in the record: the terms of the offer to lease and lease. Moreover, the parties did not put before the court other objective evidence, for example, the rental history of the property, that would have permitted a reasoned consideration of section 444.1(1) of the Municipal Act, R.S.O. 1990. c. M.45, as amended. [3] In the light of these considerations we think that the fairest disposition of this appeal and of the application is to order the trial of the issue whether the remedial provisions of section 444.1(1) have been met. [4] Accordingly, the appeal is allowed, the order of Mesbur J. is set aside and the trial of an issue is directed. The costs of the application and the appeal shall be reserved to the trial judge. The trial judge may have regard for the court's view that a fair figure for the costs of the appeal is $7000 inclusive of disbursements and GST. "John Laskin J.A." "K Feldman J.A." "Robert P. Armstrong J.A."