Alessandra V. Nosko

Following a trial to determine the Gross Rentable Area of a leased premises, both parties claimed success and sought partial indemnity costs.

The court found the defendant to be the successful party, as the determined area was significantly higher than the plaintiff's position, resulting in substantial additional rent over the lease term.

The court awarded the defendant costs but reduced the claimed amount due to excessive photocopying disbursements and time spent on an unsuccessful argument regarding BOMA standards.

In a commercial lease dispute concerning a hospital building developed through a public-private partnership, the court determined the gross rentable area used to calculate annual basic rent.

The lease projected a gross rentable area of 135,000 square feet but failed to properly define that term, and the landlord's architect never issued the certificate contemplated by the lease.

Applying modern contractual interpretation principles and limiting surrounding-circumstances evidence to objective facts known at the time of contracting, the court held that the parties intended gross rentable area to correspond to the architect's gross floor area concept rather than the entire building area urged by the defendant.

The court fixed the gross rentable area at 142,907.5 square feet and left the parties to calculate rent payable from October 1, 2013 onward.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal agreed with the reasons of the motion judge and dismissed the appeal.

The appellant did not pursue his costs appeal, so leave to appeal costs was denied.

The respondent was awarded costs of the appeal fixed at $8,000.