Rebecca Moore

Following a successful appeal, the Court of Appeal determined the appellant's costs for the underlying action.

The court awarded the appellant costs of the underlying action, including summary judgment motions but excluding costs associated with a cross-claim, on a partial indemnity basis in the amount of $65,231.79.

The court declined to make an order regarding additional costs sought by the appellant's shareholders' counsel.

The tenant's business premises were destroyed by a fire caused by a contractor retained by the landlord.

The tenant's insurer paid the policy limits and brought a subrogated claim against the landlord for the remaining uninsured losses.

The commercial lease required the tenant to insure its property against fire and to name the landlord as an additional insured, but also contained a clause requiring the landlord to indemnify the tenant for damage caused by the landlord's negligence.

The Court of Appeal held that the tenant's covenant to insure constituted an assumption of the risk of fire damage, relieving the landlord of liability even for its own negligence.

The appeal was allowed and the tenant's action dismissed.