Court File and Parties

CITATION: Lincoln Canada Services LP v. First Gulf Design Build Inc., 2008 ONCA 528

DATE: 20080703

DOCKET: C47991

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

[1] The 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.

[2] We 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.

[3] The 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."