James W. Kitts

The appellants, a landlord and its beneficial owner, appealed a motion judge's decision that a subrogated action by the landlord's insurer against the tenant for fire damage was barred by the commercial lease.

The motion judge had found that the tenant's contribution to the landlord's fire insurance precluded such an action, despite an indemnity provision, as the lease did not explicitly state otherwise.

The Court of Appeal dismissed the appeal, finding no errors in the motion judge's interpretation of the lease, his holistic reading of its terms, or his consideration of relevant case law.

This endorsement addresses prejudgment interest, post-judgment interest, and costs following a trial where the Plaintiffs were awarded US$25,000,000.00.

The court determined the appropriate prejudgment interest rate based on the Plaintiffs' actual borrowing costs, the date for currency conversion from USD to CAD, and rejected the Insurer's arguments for tax adjustments.

The Plaintiffs were awarded partial indemnity costs and disbursements.

The Plaintiffs brought a motion to exclude the report and viva voce evidence of the defence expert, Dr. Revie, or alternatively, to limit his evidence to the four corners of his report.

The Plaintiffs argued that Dr. Revie's report constituted oath helping, was merely a critique, failed to comply with Rule 53.03(2.1), and did not meet the common law test for expert evidence admissibility.

The court dismissed the motion, finding that the report, despite some unfortunate wording, did not amount to oath helping in this context, went beyond mere critique, and met the common law admissibility requirements under *Mohan* and *White Burgess*.

The request to limit Dr. Revie's evidence was declined for a pre-trial ruling.