) ) JAY-PEE DRYCLEANERS INC. (LEE BYEONGHEON Plaintiff – v. –, 2017 ONSC 7874

CITATION : Jay-Pee Drycleaners Inc. v. 2321324 Ontario Inc . 2017 ONSC 7874 COURT FILE NO.: 14-61522 DATE: 2017/01/06 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) JAY-PEE DRYCLEANERS INC. (LEE BYEONGHEON Plaintiff – and – 2321324 ONTARIO INC. A.K.A.JASAAB HOLDINGS INC. Defendant AND BETWEEN: 2321324 ONTARIO INC. Plaintiff by Counterclaim -and- JAY-PEE DRYCLEANERS INC. (LEE BYEONGHEON, J.P. LALANDE A.K.A. JEAN-PIERRE LALANDE AND 1292144 ONTARIO INC. Defendants to the Counterclaim ) ) ) ) ) ) ) ) )) ) ) )))))))))))))) Lee Byeongheon (Self-Represented) for Plaintiffs and Defendants by Counterclaim. Kenneth M.

Wright/ Kyle Van Schie for the Defendants and for the Plaintiff by Counterclaim HEARD: December 1 , 2016 REASONS ON

SUMMARY judgment motion Introduction: [ 1 ] This was a motion for a

summary judgment in relation to a commercial tenancy matter, whereby the plaintiff/defendant by counterclaim, Lee Byeongheon (Mr. Lee) had his tenancy at unit 38, 105 Denzil Doyle Court in Ottawa, Ontario (the premises) terminated pursuant to a commercial lease agreement. [ 2 ] Mr. Lee issued a statement of claim against the landlord for various heads of damages arising for what he alleges was the wrongful termination of his lease. [ 3 ] The moving party defendants/ plaintiffs by counterclaim (the landlord) submitted that at the relevant time Mr.

Lee was a month-to-month tenant who failed to comply with the requirement in his lease that he be in compliance with all applicable statutes, laws, bylaws, regulations, ordinances and orders affecting his tenancy. The landlord further submits that the tenancy with Mr. Lee was lawfully terminated which justifies the dismissal of his claim by way of

summary judgment.

[ 4 ] The landlord also seeks a

summary judgment for their counterclaim for specified damages that flow from the lawful termination of the lease and the failure of Mr. Lee to vacate the premises in accordance with the provisions in the lease agreement.

Summary judgment motions: [ 5 ] Rule 20 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 stipulates that a defendant may, after delivering his or her statement of defence, move with appropriate affidavit material or other evidence for

summary judgment dismissing all or part of the claim in the statement of claim. The court is mandated to grant

summary judgment if it is satisfied that there is no genuine issue requiring a trial respecting a claim or defence. Rule 20.04 (2.1) provides that: In determining under clause (2) (

a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial: 1. Weighing the evidence. 2. Evaluating the credibility of a deponent. 3. Drawing any reasonable inference from the evidence. [ 6 ] The Supreme Court of Canada in the case of Hryniak v. Mauldin , 2014 SCC 7 , 366 D.L.R. (4th) 641. provided guidance to trial courts respecting the determination of rule 20

summary judgment motions. At paras. 49-51, Justice Karakatsanis indicated the following: [49] There will be no genuine issue requiring a trial and the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [50] These principles are interconnected and all speak to whether

summary judgment will provide fair and just adjudication. When a

summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost-effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve the dispute.

It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. [51] Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself. However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.

Analysis: [ 7 ] In the case before me, the plaintiff’s claim can only succeed if the landlord unlawfully terminated his tenancy. The uncontroverted evidence supports the proposition that the landlord lawfully terminated Mr. Lee’s tenancy. The affidavit evidence of Mr. Joseph Saab sworn September 29, 2016 and November 8, 2016; used in conjunction with the evidence provided by Mr.

Lee during his examinations for discovery conducted on April 19, 2016, allow for the following findings of fact: • The lease to the premises was originally executed by Jay-Pee Drycleaners it was for a 12 year period from March 1, 2000 to February 28, 2012. It was for a 1300 ft.² unit identified as unit 38. • On October 13, 2004 the lease was assigned to Mr. Lee pursuant to an assignment and amendment of lease and consent agreement. Mr. Lee continued to run a dry cleaning business. Through this agreement Mr.

Lee became bound by the terms and conditions of the lease. • On February 28, 2012 the 12 year lease came to an end. There was no clause providing for an automatic renewal nor did the parties agree to a new long term lease. The provisions of the existing lease thereby converted the tenancy into a month-to-month tenancy. Mr. Lee became a monthly tenant. • On April 5, 2012 the landlord became the owner of 105 Denzil Doyle Court, which included the premises being leased by Mr. Lee. The former landlord provided an estoppel certificate signed by Mr.

Lee and dated March 12, 2012, to the landlord and CIBC mortgages Incorporated. In the estoppel certificate it was indicated that the lease expired and Mr. Lee was now a month-to-month tenant. • It was a term of the lease that the tenant strictly comply with all federal and provincial statutes and regulations governing the premises. Mr. Lee failed to provide evidence that he had taken a dry-cleaning course, or that he had a trained person working at all times on the premises. The regulations governing dry cleaning businesses required this designation. • On August 29, 2012 notice was provided to Mr.

Lee that for this specific reason he was in breach of the lease and that as of September 30, 2012 his lease would be terminated. • On October 4, 2012 a bailiff posted a notice to terminate on the door to the unit and changed the locks to officially terminate Mr. Lee’s lease. The notice indicated that Mr. Lee had five days to remove any assets from the premises if he failed to do so he would be charged storage costs.

• Mr. Lee made arrangements with the bailiff to remove customer items and personal belongings but never arranged for the removal of the dry cleaning equipment. • The landlord as a consequence incurred expenses resulting from the termination of the lease including: the services of the bailiff, costs associated with removal of equipment, costs to repair damages, and arrears of rent. [ 8 ] The statement of claim prepared and issued by Mr. Lee is predicated on the landlord unlawfully terminating the tenancy. The simple truth is that the tenancy was lawfully terminated and consequently Mr.

Lee has no claim against the landlord. Therefore his claim is dismissed. [ 9 ] The counterclaim by the landlord sought total damages of $29,786.82 said to have resulted from the actions of the plaintiff following the lawful termination of the tenancy. [ 10 ] The amounts and basis offered for the claims were as follows: • Bailiff services in the amount of $2,209; • Costs associated with the removal and disposable of contents of the premises in the amount of $7345; • Arrears of rent for September 1, 2012 through to December 1, 2012, during which time Mr.

Lee failed to deliver vacant possession of the premises rent for each month was $3332.13. • Costs associated with preparing damage caused by the plaintiff to the premises: including repair to the unit $2796.75, costs or roof equipment ductwork and for prepares the amount of $3666.05, cost or to replace damaged window $440.70 damaging [ 11 ] I would allow all that they claim save and except for the rent claimed for the months of November and December.

The bottom line is the tenancy was terminated in October and I am not satisfied that the landlord took all reasonable steps to obtain vacant possession by November 1, 2012. Therefore the arrears of rent I would allow is $6,664.26 in lieu of the $13,328.52 claimed. [ 12 ] Therefore defendants/plaintiffs shall have a judgment against Byeongheon Lee in the amount of $23,122.56 plus interest in accordance with the Courts of Justice Act. [ 13 ] With respect to the issue of costs, landlord, defendants/plaintiffs by counterclaim are entitled to a reasonable amount for costs.

I will allow the parties 15 days from the release of this decision to provide me with two pages of written submissions as to what amount of costs should be ordered in the circumstances of this case. _________________________________ The Honourable Mr. Justice Robert L. Maranger Released: January 6, 2017 CITATION : Jay-Pee Drycleaners Inc. v. 2321324 Ontario Inc . , 2016 ONSC 7874

COURT FILE NO.: 14-61522 DATE: 2017/01/06 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: JAY-PEE DRYCLEANERS INC. (LEE BYEONGHEON Plaintiff – and – 2321324 ONTARIO INC. A.K.A.JASAAB HOLDINGS INC. Defendant AND BETWEEN 2321324 ONTARIO INC. Plaintiff by Counterclaim -and- JAY-PEE DRYCLEANERS INC. (LEE BYEONGHEON, J.P. LALANDE A.K.A. JEAN-PIERRE LALANDE AND 1292144 ONTARIO INC. Defendants to the Counterclaim REASONS on a summury judgment motion Maranger J. Released: January 6, 2017