D.H. Rogers

A tenant obtained summary judgment against a landlord for recovery of losses arising from a fire at leased premises under a commercial lease.

The landlord appealed, and the Court of Appeal allowed the appeal, finding that the motion judge erred in interpreting the lease by failing to apply binding appellate authority regarding contractual allocation of risk, failing to assign meaning to all contested lease terms, and ruling that the tenant's breach of its insurance covenant did not bar its subrogated claim.

The Supreme Court of Canada remanded the matter for reconsideration in light of Ledcor Construction.

On remand, the Court of Appeal affirmed its original decision, holding that the correctness standard of review applied to extricable questions of law within the motion judge's interpretation of the negotiated lease.

The plaintiff sought costs after the defendant abandoned a previously commenced motion seeking production of privileged Schedule B documents.

The court applied Rule 37.09(3) of the Rules of Civil Procedure, which presumptively entitles the responding party to costs when a motion is abandoned unless the court orders otherwise.

The court accepted that the underlying motion raised complex issues involving solicitor-client privilege and waiver but found portions of the plaintiff’s claimed time and hourly rate excessive.

Applying proportionality and the governing costs principles, the court reduced the hours claimed and adjusted counsel’s hourly rate.

Partial indemnity costs were fixed and ordered payable by the defendant.