Medalist Holdings Limited v. General Electric Capital Equipment Finance Inc.

Medalist Holdings Limited v. General Electric Capital Equipment Finance Inc. Collection Decisions of the Court of Appeal Date 1998-11-04 Docket numbers C27481 Judges Weiler, Karen Merle Magnuson; Rosenberg, Marc; O’Connor, Dennis Subject Civil Decision Content DATE: 19981104 DOCKET: C27481 COURT OF APPEAL FOR ONTARIO RE: MEDALIST HOLDINGS LIMITED, LOUIS WEISFELD LIMITED, HILLHOLM HOLDINGS LIMITED, ANITA LOMBERG and LOLA WEISFELD c.o.b. under the name and style of HARVESTER EXECUTIVE PARK (Plaintiffs / Respondents) and GENERAL ELECTRIC CAPITAL EQUIPMENT FINANCE INC. (Defendant / Appellant) BEFORE: WEILER, ROSENBERG and O'CONNOR JJ.A. COUNSEL: C. G. Paliare and E.M. Gray, for the appellant L.J. Levine, Q.C., K.D. Sherkin and S. Skopit, for the respondents HEARD: November 2, 1998 ENDORSEMENT [1] This was an action brought by a commercial landlord against the tenant for damages for "overholding" on a lease -- The trial judge framed the issue before the court as follows: The issue before me was whether the defendant was overholding on the lease, or whether the parties had come to a new arrangement between themselves, or whether the defendant was now a year to year tenant; and, depending on what terms were in place between the parties, how the damages were to be calculated. [2] The parties agree that the trial judge correctly framed the issue. In our view the trial judge erred in concluding that, "any further written agreement" necessarily required the parties to enter into, as she put it, "a new lease" and that in the absence of a new lease or an agreement to lease the overholding provision applied. [3] The trial judge did find that : Y the only agreement reached by the parties was the rental rate of $12 which was not to be the rent under the written Lease but an interim rent until a written agreement was entered into about the renovations. [4] This agreement was reduced to writing in the letter of June 14th, 1991 and was a "a further written agreement" within the meaning of s. 9.04. Accordingly, the trial judge's finding that the overholding provision applied cannot stand. [5] The trial judge stated: If I had not held that the overholding provision applied, I would have found that a yearly tenancy existed at a monthly rate of $16,400.75, as was eventually being paid by the parties. Given that the rent cheque for October 1993 was never cashed by Harvester, under this scenario, notice would be required to be given 6 months before the year end, namely the month of June. For the 8 month period in question, GE Capital would have owed $131,206. Plus the overhold of one month of $7,969.78, for a total of $139,175.78 with appropriate pre-judgment and post-judgment interest rates to apply as noted above. [6] We agree that a yearly tenancy was created. For these reasons the appeal is allowed, the judgment is set aside and in its place the appellants are ordered to pay to the respondent the sum $139,175.78 plus pre-judgment interest. [7] With respect to costs, we are of the view that the respondent should have its costs at trial. In view of the divided success of this appeal we would award no costs of the appeal