Court File and Parties
COURT OF APPEAL FOR ONTARIO
JURIANSZ, WATT and EPSTEIN JJ.A.
BETWEEN:
LINCOLN CANADA SERVICES LP
Plaintiff (appellant)
and
FIRST GULF DESIGN BUILD INC.
Defendant (Respondent)
and
CUSTOM SAFETY (1989) INC., LINCOLN CANADA INTERNATIONAL HOLDINGS LP, LINCOLN ELECTRIC COMPANY OF CANADA GP LIMITED and LINCOLN CANADA HOLDINGS ULC
Third parties
Counsel: James J. VanWiechen for the plaintiff (appellant) John L. Davis and Nazanin Aleyaseen for the defendant (respondent)
Heard & released orally: June 26, 2008
On appeal from the order of Justice Barbara Conway of the Superior Court of Justice dated October 31, 2007.
ENDORSEMENT
1The construction of the lease was a question of law and the motion was correctly brought under rule 21.01(1)(a). There were no facts in dispute material to the interpretation of the lease and the lease excluded the resort to extrinsic evidence in any event. The motion judge was as well positioned to interpret the lease as would be a trial judge.
2We are of the view the motion judge correctly interpreted the lease as providing that the tenant could look only to its insurer for loss due to sprinkler leakages notwithstanding that loss was less than its deductible under the insurance policy.
3The appeal is dismissed. Costs in favour of the respondent are fixed on a partial indemnity scale in the amount of $15,000 including disbursements and GST.
"R.G. Juriansz J.A."
"David Watt J.A."
"G. Epstein J.A."
