2012 QCCQ 14871, 2012 QCCQ 14871

Bryskiewicz (Nash Corner Shop) c. Pacific International Inc. 2012 QCCQ 14871 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-126250-101 DATE: December 20, 2012 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.Q.C. ______________________________________________________________________ Tadeusz Bryskiewicz (d.b.u.n. of Nash Corner Shop) and Barbara Bryskiewicz (d.b.u.n. of Nash Corner Shop) Plaintiffs v. PACIFIC INTERNATIONAL INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs claim from Defendant the sum of $6,540.00. [ 2 ] More particularly, in the demand filed by Plaintiffs before the Court, their claim is presented as follows: « We are kindly asking to resolve the rent overpayments issue between us, owners of Nash Corner Shop, and our previous Landlord, Pacific International Equities Corp. Inc. We were overcharged in the total amount of 6,539.90$ by Pacific International.

The reason for rent overpayments was incorrect estimation by the Landlord of the store gross area as 446 square feet and using it in monthly rent calculations. This error has recently been revealed to us by the new building manager hired by the new Landlord. The store gross area, measured by a certified land surveyor, turns out to be 347 square feet. This value was supposed to be used in rent calculations instead of 446 square feet. » [ 3 ] Defendant, represented at trial by its vice-president, Mr. Morris A.

Abdulezer, admits that the correct measurement of the premises leased to Plaintiffs is 347 square feet as alleged by them and that the amount overpaid by them in rent is of $6,540.00. [ 4 ] However, Defendant contests the action instituted against it alleging, principally that: 1. The lease concluded between the parties is governed by the laws applicable in the Province of Ontario. 2.

The claim of Plaintiff is prescribed on the basis of the prescription law applicable in the Province of Ontario namely the Ontario Limitations Act. [ 5 ] The evidence adduced at trial has revealed that the lease on which Plaintiffs are relying to support their claim, was concluded on November 18, 2005, between Defendant (the lessor) and Jin Woo Lee and Haesook Park (the lessee) (exhibit D-1). [ 6 ] The lease concerned the renting of commercial premises situated in the city of Ottawa, Province of Ontario. [ 7 ] On March 31 st , 2008, the lease was assigned to Plaintiffs (the Assignee) by Jin Woo Lee and Haesook Park (the Assignor).

Defendant (the Landlord) consented to the said assignment (exhibit D-2). [ 8 ] Articles 1, 2 and 4 of

Section I of the assignment read as follows: « I. Assignment

(1) The Assignor hereby transfers, assigns, conveys and sets over to the Assignee all of the Assignor's right, title, estate, benefit and interest in, to and under all of the Lease and all of the Premises, to have and to hold, with full power to the Assignee to take all measures for the enjoyment of rights under the same as the Assignor might take.

(2) Subject to the performance by the Assignee of its obligations under the Lease, the Assignee shall enjoy the Premises demised by the Lease for the residue of the terms under the Lease and any renewals thereof, without interruption by the Assignor or any person claiming through the Assignor. (…)

(4) It is acknowledged and agreed that, pursuant to the terms of this Assignment, the Assignor is assigning to the Assignee all of the Assignor's rights contained in the Lease including, without limiting the generality of the foregoing, the right or option to renew or extend the term of any of the Lease. » [ 9 ] Defendant sold the building to a third party namely KS Slater Inc., the sale being effective on January 1 st , 2010.

As of this date, the rent owed pursuant to the lease (exhibit D-1) was paid by Plaintiffs to KS Slater Inc. [ 10 ] The amount claimed by Plaintiffs concerns the rent paid in excess to Defendant from April 1 st , 2008 to December 31, 2009. [ 11 ] The Court record reveals that the action instituted by Plaintiffs against Defendant was issued on December 2, 2010. [ 12 ]

Section 31(

b) of the lease (exhibit D-1) stipulates the following: « This Lease shall be governed by and construed in accordance with the laws of the Province of Ontario. » [ 13 ] This being so, it is appropriate to refer to

article 2809 of the Civil code of Quebec which stipulates the following: « Judicial notice may be taken of the law of other provinces or territories of Canada and of that of a foreign state, provided it has been pleaded. The court may also require that proof be made of such law; this may be done, among other means, by expert testimony or by the production of a certificate drawn up by a jurisconsult.

Where such law has not been pleaded or its content has not been established, the court applies the law in force in Québec. » [ 14 ] In view of the preceding, the Court must therefore apply the law of prescription applicable in the Province of Ontario. [ 15 ] This being so, the Court refers to sections 4, 5. (1) and 5. (2) of the Limitation Act of Ontario [1] which read as follows: « Basic limitation period 4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24 , Sched. B, s. 4.

Discovery 5.

(1) A claim is discovered on the earlier of, (

a) the day on which the person with the claim first knew, (

i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by

an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (

b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). » [ 16 ] For the purposes of deciding on the merits of the contestation of Defendant based on prescription, it must be noted that the evidence adduced at trial has revealed that Plaintiffs never took the time to measure the premises when they purchased the business from Jin Woo Lee and Haesook Park and before accepting the assignment of the lease. [ 17 ] Had Plaintiffs done so at that time as they did at the end of April 2010, they would have realized that the exact measurement of the premises was of 347 square feet and not 446 as represented to them. [ 18 ] Considering that the prescription period applicable under Ontario Law is of two years, the Court is of the opinion that ''a reasonable person with the abilities in the circumstances'' of the Plaintiffs, ''first ought to have known'' as of April 1 st , 2008, that the premises leased measured 347 square feet and not 446 square feet. [ 19 ] Consequently, the two year limitation period stipulated in the Limitation Act of the Province of Ontario began to run on April 1 st , 2008 and thereafter, each month for which the excess rent was paid. [ 20 ] This being so, considering that the action of Plaintiffs was issued on December 2, 2010, all the excess rent paid by Plaintiffs between April 2008 and December 2008 ($2,982.78) is prescribed and cannot be claimed by them.

[ 21 ] However, as concerns the excess rent paid by Plaintiffs as of January 1 st , 2009, until December 31 st , 2009 ($3,557.22), their claim is not prescribed. [ 22 ] Regarding this latter part of the claim, in its contestation, Defendant alleges that it should be dismissed as Plaintiffs and their ''assignor'' Jin Woo Lee and Haesook Park did not measure the premises when they respectively became parties to the lease. [ 23 ] This in itself is not a valid defence to the action instituted by Plaintiffs.

They are entitled to claim reimbursement for the overpayment of rent resulting from the involuntary misrepresentation of Defendant regarding the exact measurement of the premises leased to them. [ 24 ] Plaintiffs should have been paying rent on the basis of an occupation of 347 square feet and not 446 square feet. [ 25 ] Consequently, the action instituted by Plaintiffs is maintained, in part, for an amount of $3,557.22. FOR THE FOREGOING REASONS, THE COURT: MAINTAINS in part the action instituted by Plaintiffs.

CONDEMNS Defendant to pay to Plaintiffs the sum of $3,557.22 with interests at the legal rate plus the additional indemnity provided for by

article 1619 of the Civil Code of Quebec as of June 14, 2010. THE WHOLE with costs in the amount of $207,00. __________________________________ ARMANDO AZNAR, J.Q.C. Date of hearing: December 10, 2012.