Cite as: Vinland Holdings Ltd. v. Wisniowski, 1990 NSCA 7
IN THE SUPREME COURT OF NOVA SCOTIA
APPEAL DIVISION
Jones, Pace and Matthews, JJ.A.
BETWEEN:
VINLAND HOLDINGS LIMITED
Appellant
-
and -
LEO WISNIOWSKI
Respondent
THE COURT: Appeal
dismissed
with
as
per
reasons
for
Jones and Pace, JJ.A., concurring
S.C.A. 02134
Alex M.
Cameron
for appellant
John H.
Graham
for respondent
Appeal heard:
February 6, 1990
Judgment delivered:
February 26, 1990
costs
to
the
respondent
judgment
of
Matthews,
J .A. i
MATTHEWS,
J .A. :
This is an appeal from a
Judge
Cacchione
dated
June
8,
of
rent
owed
by
the
respondent
landlord.
The
appellant is the
premises situate at 5963 College Street in Halifax.
rooms
there
to
students
only.
student,
under
a
written lease in the standard form required
by the Residential Tenancies Act,
to
lease
room
25
from
September I,
1988,
at
$285.00
per
month.
or about February 1, 1988.
Mr. P. J. Cabrera, another tenant
in the
same
premises
was
forced to vacate his
or about February
20,
1988,
due to
there
were
three
vacant
rooms
25.
Cabrera agreed to occupy
On
February
27,
1988,
he
moved
for the remainder of the respondent's tenancy; and on September
1,
1988,
entered into a
lease of that
period
of
one
year.
On
November
filed
an
application
with
the
pursuant to the ~, claiming damages against the respondent
of
$1,830.00,
being the value
respondent's
lease,
that is,
1, 1988, minus security deposit, and interest of $155.00.
decision of the Honourable
1989,
respecting
the
amount
tenant
to
the
appellant
owner
of
certain residential
It rents
The
respondent,
a
medical
S.N.S.
1970,
c.
13, agreed
1987,
to
September
1,
He
abandoned
his
tenancy
on
room
(A2)
on
flooding.
At that
time
in the
premises,
A2,
11
and
room lIon a
temporary basis.
into
room
25:
stayed
there
room for an additional
24,
1988,
the
appellant
Residential
Tenancies
Board,
of
the
unexpired
term of
the
from
February
1
to
September
-
2
By
virtue
of
s.
10C(2)
required
to
file its
report
concluding
paragraphs
of
the
26, 1989, are:
The
Board
is satisfied that
out of the room without any notice to the landlord.
His impecuniosity is unfortunate, but cannot justify
his action,
nor are we
satisfied that he
any justification in the condition of the premises.
In
the
circumstances,
the
to
have
Mr.
Cabrera
moved
room.
Mr.
Wisniowski
certainly
need
of it.
A lease is also
damages
accruing
for
the
same,
whether
or
not
the
his tenants.
The
Board
is satisfied,
the landlord's restriction to students only amounts
in
these
circumstances
to
mitigate
his
damages.
The
understandable
business
restricting
the
building
is
not
satisfied,
however,
under the Act to select from
especially in
Spring
and
the
tenant
to
be
held
liable.
a
duty
under the
Act to mitigate his damages
this must prevail over a business decision.
The
Board
therefore
recommends
the
landlord's
claim
be
half month's rent in the amount of $997.
is
to
be
credited
with
interest
in the
amount
of
owing of $832.
The
Board
recommends to the Court that the tenant,
Leo
Wisniowski
be
ordered to
Vinland Holdings Limited, the sum of $832.
By
notice
of
objection
the appellant applied to the County Court to vary the report
of
the
Board.
The
respondent
and counter-application dated March 30, 1989.
of
the
Act
the
Board is
with
the
County
Court.
The
Board's
report
dated
January
Mr.
Wisniowski
moved
can find
landlord
was
entitled
into
Mr.
Wisniowski's
had
no
further
a
contract and
the
vacant
room
remain
the
landlord
has
shuffled
on
the
other
hand,
that
a
failure
to
properly
landlord
has
made
an
decision
and
[sic]
to
students.
The
Board
that
he
is
entitled
a
very narrow market,
Summer
and still expect
The
landlord
has
and
to the
Court
that
limited
to
three
and
a
The tenant
the
security
deposit
and
$155
leaving
a
balance
pay to the
landlord,
dated
February
2,
1989,
filed
a
notice
of
objection
-
3
Judge Cacchione said in concluding his decision:
I
have
read
the
arguments that
in written
form.
I
have listened to the arguments
of
counsel
this
afternoon.
the
Board
did err
in
two
did
not
consider
the
question
the
surrender,
that
is,
tenant in the unit occupied by the abandoning tenant.
As
well,
it
erred
in
considering
the landlord had
made
a
business decision and this
was a failure to mitigate, it only failed to mitigate
for half of the amount.
I
am satisfied on the whole that once a
was
placed
into
Mr.
Wisniowski's
landlord
had
mitigated
his
to
the
premises
rented
by
and
as
such
I
find
that
for the rent for the month of February in the amount
of $285.00 minus the security deposit of $155.00.
I
am varying the order of the Board to read that
the
tenant,
Mr.
Wisniowski,
landlord, Vinland Holdings, the sum of $130.00.
The
appellant
argued,
about
the
"business decision", that the trial
in his decision made contradictory statements, firstly:
Wi th respect to the issue of whether or not the
Board erred in finding that the landlord
an
understandable
business decision
the
building
to
students,
was no error.
And later:
Gentlemen,
as
I
have indicated,
wi th
two things in this particular decision.
the
Board's
conclusion
that
understandable
business
decision
his
building to
persons
I
have difficulty with that because it goes directly
to the question of mitigation of damages, mitigation
in terms of a class of persons.
have
been filed
I
am
satisfied
that
fashions:
one,
that it
of
the
effect
of
the
placing
of
the
new
that
although
new tenant
room
that
the
damages
with
respect
the
abandoning
tenant:
Mr.
Wisniowski is liable
shall
pay
to
the
in
respect
to
the
comment
judge earlier
had
made
and
restricted
I
am
satisfied
there
I
have difficulty
One,
the
landlord
made
an
in
not
renting
other
than
students,
and
-
4
Be that as it may,
in my opinion, the trial judge's
conclusions,
as
I
have
quoted,
those conclusions are on appeal before us.
The
landlord's
duty
the
tenant's
corresponding
obligation
abandonment
of
a
lease are,
to
the
provisions
of
the
Act,
and
Laskin,
J. ,
in
Highway
Properties
& Co. Ltd. (1971), 17 D.L.R.
(3d) 710, said at p. 715:
In
the
various
common
contractual terms
(reflected, for example, in Short
Forms of Leases Act)
and, to a
have
superseded
the
common
tenant; ...
There is a
clear duty upon the landlord to mitigate
in these circumstances as set out in the lease between the
parties:
Abandonment
and
Termination
abandons
the
premises
or
otherwise than in the manner permitted, the landlord
shall mitigate
any
damages
the
abandonment or termination to the extent that
a party to a contract is required by law to mitigate
damages.
That
the appellant would attempt to rent the
upon
the
respondent
vacating
is envisioned in the provisions of the lease respecting the
tenant's
responsibility.
Section
the standard form of lease signed by the parties sets out:
are
those
which
stand,
and
to
mitigate its
damages
and
on
termination
or
a
large extent,
governed
by
as
set out
in
the
lease.
Ltd.
v.
Kelly,
Douglas
law
Provinces,
standard
degree, legislation,
law
of
landlord
and
If
the
tenant
terminates
the
tenancy
that
may
be
caused
by
room
his
room
during
the
tenancy
8:16
of
Schedule
"B"
to
-
5
The Tenant agrees that in the event of the Tenant
vacating
the
Tenant's
apartment
expiration
of
the
Lease
the
Tenant
shall
reimburse
expenses
incurred
in
the
Tenant
to
occupy
the
Tenant's
duration
of
the
Lease
term
shall reimburse the Landlord for any loss of rental
income
sustained
as
a
apartment
remaining
vacant
being obtained.
The
common
law rule respecting mitigation has
summarized
in
McGregor
on
Damages
168:
The
first
and
most
important
plaintiff must take all reasonable steps to mitigate
the
loss
to
him
consequent
wrong and
cannot recover damages for any such loss
which
he
could
thus
have
through unreasonable action or inaction,
Put
shortly,
the
plaintiff
avoidable loss.
The
facts
of
this
substantially differ
from
those
by counsel including Windmill Place v.
(1976),16 N.S.R.
(2d)
565
(N.S.C.A.),
Supreme
Court
of
Canada,
[1978]
the landlord agreed to rent to the tenant
in
a
warehouse
containing
62,500
thereafter the tenant repudiated that agreement.
had
rented
none
of
the rest of
Some
four
months
later
the
landlord
feet,
including
the
space
originally
The landlord experienced difficulty renting any of the premises
prior
to
the
term, it is
agreed
that
the
Landlord
for
any
course
of
obtaining
a
apartment
for
the
and
that
the
Tenant
result
of
the
Tenant's
while
a
new
tenant is
been
(15th
ed.,
1988)
at
p.
rule
is
that
the
upon
the
defendant's
avoided
but
has failed,
to avoid.
cannot
recover
for
case
are
unique.
They
of
any
of
the
cases
cited
Apeco of Canada,
Ltd.
and on appeal to the
2
S.C.R.
385.
In Windmill
2,526 square feet
square
feet.
Shortly
The landlord
the
building at that time.
rented
17,000
square
rented to the tenant.
-
because
the
market
for
warehouse
was
depressed.
In
essence,
this
in
the
headnote,
"that in
a
is largely vacant and is likely to remain
does not recoup or mitigate his loss by renting a
to another tenant".
Further there was evidence of the "costly"
advertising
techniques
taken
premises,
largely without
success.
the premises in question were not
and
were
"merely
a
hardly
distinguishable part
project",
and
further that the multiple-tenant building was
materially
vacant
and
likely
the
decision
of
this
Court,
Supreme Court of Canada, at p.
387 wrote:
It is significant that at the date of repudiation
the
respondent
landlord
of
the
new
70,000
square foot
62,500
square
feet
were
rental) •...
And also at pp. 388-9:
It is
apparent
from
the
vacancy
created
by
the
appellant I s
have
any
bearing
on
the
rent
17,000
square
feet
new
building.
If
the
premises
for Apeco had been the only available space suitable
to the new tenant's needs, different considerations
would have applied,
but the building was more than
half
empty
and the
Goodboy' s
not
interested in
renting
and it was
only after
some
of the respondent that it was induced to do so.
6
space in the Halifax area
Court decided,
as set out
multiple-tenant
building
which
so,
the landlord
small unit
by
the
landlord
to
rent
the
The
Court
accepted that
"distinctive or singular"
of
a
large
to
remain
so.
In
upholding
Ritchie,
J.,
speaking
f or the
had
rented
no
other part
building
(of
which
apparently
available
for
above
account that the
breach did not
new
tenant's decision to
of
accommodation
in
the
formerly
reserved
company
was at first
the
Apeco
space at all
persuasion on the part
-
7
It follows,
in
my
view,
transaction
could
have
been
appellant
had
not
breached
and
that it
was
an
independent
in
no
way
arose
out
of
breach by the appellant.
He spoke of the duty to mitigate damages at p. 389:
The
case
of
British
Westinghouse
Manufacturing
Co.
v.
Underground
[[1912] A.C.
673] is generally accepted as a leading
authority
on
the
extent
in
breach
of
contract
cases
general principle that
a
for any part of its loss which it has successfully
avoided
by
its
subsequent
principle is,
however,
subject to the qualification
expressed
by
Viscount
Haldane
language which
was
adopted
v.
Rowlett
[[1944]
S.C.R.
he then was, said at p. 18:
'In breach of contract cases the rule was stated
in British Westinghouse Electric and Manufacturing
Co.
v.
Underground Electric Railways
Haldane
with
the
concurrence
present
that
lithe
subsequent
to
be
taken
into
account,
out
of
the
consequences
the ordinary course of business."
The
affidavit
of
Mr.
the trial judge, sets out the events in respect to the tenancy
in issue, room 25:
1.
THAT
I
am the occupant of the premises located
at
Room
25,
5963
College
Scotia,
and
have personal knowledge of the matters
hereinafter deposed to except where otherwise stated.
2.
THAT
on
or
about
September
Room
A2,
located at
5963
Nova
Scotia
from
Vinland
period
of
one
year,
at
and Five Dollars ($305.00) per month.
that the February
1976
concluded
even if the
the
original
agreement
transaction
which
the
consequences
of
the
Electric
and
Electric
Railways
and
nature
of
mitigation
and
establishes
the
plaintiff
cannot
recover
action.
This
general
in
the
following
by this Court in Karas
1]
where
Kerwin J.,
as
by Viscount
of all
the
Lords
transaction,
if
must
be
one
arising
of
the
breach
and
in
1
Cabrera,
in
evidence
before
Street,
Halifax,
Nova
1,
1987
I
leased
College Street,
Halifax,
Holdings
Limited
for
a
a
rent
of
Three
Hundred
-
8
3.
THAT
on
or
about
February
forced
to
move
out of this
became
flooded
with
approximately
water covering the entire floor.
4.
THAT
on
or
about
February
told by Mr. Greg Byrne, an agent for Vinland Holdings
Limited, to move into Room No.
5.
THAT
approximately
one
I
was
told
by
Mr.
Greg
to stay in
Room
No.
11
I
Hundred and Thirty Five Dollars
otherwise,
I
would
have
the
second
floor
at
a
rent
Eighty-five Dollars ($285.00).
6.
THAT
after
numerous
Byrne
about
avoiding
another
told
by
him that
I
had
no
Room No.
25 at a rent of Two Hundred and Eighty-five
Dollars per month ($285.00).
7 .
THAT
on
February
27,
No.
25
and paid Two
Hundred and Eighty-five Dollars
($285.00) per month until August 30, 1988.
9.
THAT
in September,
1988
for
Room
No.
25
for
an
year,
ending
August
30,
1989,
occupying such premises.
Mr.
Cabrera
gave
viva
Board.
There is no evidence before us as to what effort,
if any,
the appellant
made
to rent any of these
11
or 25),
except the rather bald statement in the
report that Mr.
Byrne,
on behalf of the appellant, testified
"no
one
came
forward"
to
rent
20,
1988,
I
was
room
because the
room
six
inches
of
20,
1988,
I
was
11 temporarily.
week
after
the
flood
Byrne
that, if
I
wi shed
would
have to pay Three
($335.00) per month,
to
move
into
Room
25
on
of
Two
Hundred
and
confrontations
with
Greg
move,
I
was
clearly
choice but to move
to
1988,
I
moved
into
Room
I
signed
a
new
Lease
additional
period
of
one
and
I
am
presently
voce
evidence
before
the
rooms
(A2,
Board IS
any
of
the
vacant
rooms.
-
9
However,
on
January
25,
1988,
respondent, set out the provisions of s. 8:16, and then said:
This
means
upon
vacating
suitable tenant to occupy
to
pay
the
rent
until
then
your
lease.
Also,
you
must
incurred
while
doing
so,
an ad in the paper.
It is noteworthy that the appellant has not demanded payment
for
any
such
ad.
It is logical to
attempt to lease the room was made.
with respect,
the
remark that
to
rent
any
of
the
vacant
rooms
Mr.
Cabrera
did.
He
evidently did
room
A2
after it was
made habitable, at least that was
an option given to him by Mr.
Byrne.
of
the
Board,
Mr.
Cabrera
unhabitable for six weeks
but that Mr.
the
appellant
"stuck
to
his
Board did not see fit to make any finding in respect to that
conflict
of
evidence.
Apparently
evidence,
as
previously
quoted,
Judge Cacchione.
Mr.
Cabrera did not wish to move
11;
had
"numerous
confrontations"
tlc1ear1y told
by
him that
I
had
room
25
at
a
rent
of
Two
Hundred
per month ($285.00)".
He
then moved into room 25.
Mr.
Byrne
wrote
to
the
if
you
do
not
have
a
your
room,
you will have
or until
the
end
of
pay for all
expenses
e.g.
paying
the bill of
conclude that
no
such
no
one
came forward
is
not
entirely correct.
not
wish
to
return
to
not
According to the report
testified
that
room
A2
was
Byrne,
on
behalf
of
testimony
of
ten
days".
The
Mr.
Cabrera's
affidavit
was
not
challenged
before
from room
with
Mr.
Byrne;
and
was
no
choice
but to move
to
and
Eighty-five Dollars
The rooms
-
10
then vacant were A2,
which was recently flooded and obviously
not desirable to Mr.
Cabrera,
that he was "clearly told" by Mr.
but to move
[out of
room
11]
understandable that
no
one
"came
Mr.
Cabrera
had
been
moved
there
and 11 were not similar to room 25; witness the reasons given
by
Mr.
Cabrera.
Here, in my view, the rental to Mr. Cabrera
could
not
have
been
concluded if
breached the original agreement.
arose out of the consequence of the breach by the respondent.
Contrary to the facts
in Windmill,
the respondent's breach did not
was
instrumental in the decision
Mr.
Cabrera
in
the
rental
of
demonstrate that,
in the words
premises formerly reserved for the respondent were "the only
available space suitable" for
he
was told by Mr.
Byrne that he
there.
Considering
the
actions
respect to the tenancy in issue,
reached
by the trial judge.
In the circumstances it is not
necessary
to
deal
with
the
and
room 11.
It is important
Byrne that "I had no choice
to
room
No.
25".
It is thus
forward"
to rent
room
25;
by
Mr.
Byrne.
Rooms
2A
the
respondent
had
not
It was
a
transaction which
the
vacancy
created
by
only
have
a
bearing on
but
of
both
the
landlord
and
room
25.
The
facts
here
of
Mr.
Justice Ritchie,
the
Mr.
Cabrera's needs and indeed
had no choice but to move
take
by
the appellant
in
I
agree with the conclusion
other
issues
raised
by
the
-
11
appellant.
The
respondent
shall
sum of $130.00.
I
would
dismiss
the
respondent.
Concurred in -
Jones, J.A.~,_./1
Pace, J.A. ~
pay
to
the
appellant
the
appeal
with
costs
to
the
C.H. 64332 R
1989
IN
THE
COUNTY
COURT OF
DISTRICT
NUMBER
ONE
IN THE
MATTER OF:
An Objection to a Report of
the Halifax and County West
Residential Tenancies Board
relating to a Tenancy Agreement
with respect to Residential
Premises:
BETWEEN:
VINLAND
HOLDINGS
LIMITED
-
and
LEO
WISNOWSKI
HEARD
BEFORE:
The Honourable Judge Cacchione
at Halifax, N.S.
June 8,
1989
DECISION: June 8, 1989, orally at conclusion of
hearing.
COUNSEL:
D.
Kevin Latimer for the Applicant
Alex M.
Cameron for the Respondent.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.