COURT FILE NO.: 789/16-A1

DATE: 2021-01-04

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Amberley Teresa Ruetz, Plaintiff

AND

Metro Canada Inc., Metro Inc. and Riocan Holdings Inc., Defendants

AND

TTKA Inc. operating as Clintar Landscape Management, Third Party

BEFORE: Justice S. Nicholson

COUNSEL: No one appearing for the Plaintiffs

M. Kennedy, for the Defendant, Riocan Holdings Inc.

D. Lambe, for the Third Party, Clintar Landscape Management

HEARD: November 9, 2020

REASONS ON MOTION FOR SUMMARY JUDGMENT

[1] Both the third party, Clintar Landscape Management (“Clintar”) and the defendant, Riocan Holdings Inc. (“Riocan”) have brought motions for summary judgment under rule 20.04 of the Rules of Civil Procedure.

[2] This action arises out of a February 28, 2015 incident in which the plaintiff, Amberley Ruetz, suffered injuries when ice fell onto her from a canopy above the exit of a grocery store in London.

[3] Riocan was the owner/property manager of the grocery store. They had a written contract for winter maintenance with the third party, Clintar. At issue, is which of the two were responsible for the removal of ice and snow from the canopy.

[4] In the within motions:

(a) Clintar seeks summary judgment dismissing all claims against it on the basis that there is no genuine issue that Clintar had met all its obligations under the contract;

(b) Riocan seeks summary judgment against Clintar pursuant to a hold harmless clause contained in the winter maintenance agreement (“Agreement”).

[5] The plaintiff took no position on the motions. The two Metro defendants have been released from the action.

Summary Judgment Motions:

[6] Rule 20 permits a party to move with supporting affidavit material or other evidence for summary judgment on all or part of a claim. Pursuant to rule 20.09, the rule is available with necessary modifications to third party claims.

[7] Rule 20.04, provides, in part, as follows:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(2.1) in determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[8] The seminal case on the operation of rule 20.04 is Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87 (SCC). Therein, the Supreme Court of Canada encouraged judges hearing summary judgment motions to use the rule expansively to assist parties in resolving disputes in a timely and less expensive manner, where a fair and just adjudication can be achieved without trial. The motion judge is to first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the fact-finding powers under rule 20.04(2.1). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under rules 20.04 (2.1) and (2.2). She may, at her discretion, use those powers provided that their use is not against the interests of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[9] The legal burden of establishing that there is no genuine issue requiring a trial with respect to a claim or defence rests on the moving party, and it never shifts.

[10] Furthermore, the court is entitled to assume that the parties have presented all the evidence that will be available for trial. A party responding to a summary judgment motion may not rest on allegations contained in pleadings and must provide admissible evidence of specific facts showing that there is a genuine issue requiring a trial. The frequent refrain on such motions is that the parties “must put their best foot forward” and “lead trump or risk losing”.

[11] Importantly, a judge on a summary judgment motion can grant summary judgment against the moving party if he or she determines that the evidence warrants it.

[12] Each party urged me to conclude that the issues before me could be determined in its favour pursuant to rule 20.04. The Supreme Court has invited judges to use rule 20.04 whenever a fair and just adjudication can be achieved absent a trial. I have concluded that the issues in this case can be fairly and justly resolved using rule 20.04, saving both parties further expense and time. It is not against the interest of justice to do so.

[13] Having said that, I find that it is necessary to rely upon the enhanced fact-finding powers provided under rule 20.04(2.1) in order to determine that there is no genuine issue requiring a trial. Accordingly, I have attempted to draw reasonable inferences from the evidence before me.

Evidence on the motions:

[14] On October 1, 2014, Clintar and Riocan entered into a contract for winter maintenance at the grocery store. Riocan drafted and solicited tenders for the contract. Clintar was the successful bidder. In fact, there were multiple contracts between the two parties covering many properties.

[15] According to his affidavit, Mike Malleck has been the president of Clintar since its inception 25 years ago. Clintar provides winter and summer maintenance services to commercial businesses throughout London and surrounding areas. In terms of winter maintenance, Clintar provides their clients with snow and ice control for parking lots, roadways, sidewalks, and walkways on their properties. However, Mr. Malleck stated that Clintar does not service any buildings. They do not provide and have never provided window cleaning, interior breezeway maintenance, or canopy cleaning at properties they service. They do not own any equipment that would enable their employees to access the roofs or canopies of a building. In Mr. Malleck’s words, “Clintar’s employees are trained to look down, not up, when assessing snow and ice-related hazards at a given property”. Their employees have never been trained to remove snow and ice from overhead building features such as canopies, awnings or roofs.

[16] The October 1, 2014 Agreement was drafted by Riocan. It is described as a “two-year snow removal services contract. The preamble provides as follows:

WHEREAS the Contractor has inspected the site(s) 1030 Adelaide Street North, London, Ontario where the work is to be performed known as Adelaide Centre (the “Shopping Centre”) and has examined the performance requirements (“Basic Performance”) attached hereto as Schedule “A”, and has agreed to furnish all materials and labour necessary for the proper performance of the work for the price and subject to the terms and conditions hereinafter set forth.

[17] I note the following clauses of the contract, which are germane to the motions:

1. THE WORK AND THE CONSIDERATION

The Contractor agrees to perform the Work and to furnish all materials and labour necessary for the proper performance thereof payable in accordance with the terms of Schedule “B” in lawful money of Canada (the “Contract Price”).

The Contractor shall provide at its expense all necessary equipment, materials, personnel and other incidental items for the proper execution of the Work.

3. STANDARDS OF PERFORMANCE

The contractor will perform and complete the work:

(a) in a good and workmanlike manner, in accordance with the requirements of this Contract, with due diligence and efficiency and in a first-class manner;

4. INSURANCE AND INDEMNITY AGREEMENT

(b) The Contractor, at its expense, shall keep in force until the Work as outlined in Schedule “A” (“Basic Performance”) is completed a First Loss Comprehensive Liability Insurance Policy, (First Loss Policy is defined as an insurance policy which is called upon to pay a loss before others covering the same risk), comprehensive general liability insurance in respect of the Work (including insurance for personal injury and property damage in respect of all equipment and all motor vehicles used or to be used in connection with the Work and contractual liabilities) with minimum inclusive limits of $5,000,000.00, all with such insurers and in such form as may be reviewed by the Owner.

(d) The Contractor releases the following (individually and collectively referred to as “Released Persons”):

(i) the owner;

(ii) RMI;

(iii) any Mortgagee of an interest in the Site(s);

(iv) any registered or beneficial owner of an interest in the Site(s); and

(v) the respective officers, directors, employees, agents and contractors to each of the foregoing;

from and in respect of every claim, loss, cost, expense, injury (personal or otherwise) and all other damages which the Contractor suffers in connection with the performance of the Work regardless whether the Released Persons, in each case, are negligent.

(e) The Contractor indemnifies and saves harmless each of the Released Persons in respect of every loss, cost or expense which all or any of them suffers as the result of the breach by the Contractor of any term or condition of this Contract, or as the result of anything arising from or related to the Work. This indemnity applies whether the Released Persons or any of them, in each case, is negligent or not.

5. TERM AND PERFORMANCE OF THE WORK

(a) Term of Contract: The Term of this contract will commence on the 1^st day of November, 2014 and will end on the 30^th day of April, 2015 and the 1^st day of November, 2015 and will end on the 30^th day of April, 2016 (the “Term” or “Season”), or from the first to the last snow fall.

See Schedule “A”

(b) the Contractor shall provide proper, effective and efficient supervision of the Work;

(c) if the Contractor should neglect to execute the Work properly or fail to perform any provision of this Contract, the Owner after two (2) days’ written notice to the Contractor may without prejudice to any other remedy it may have, make good any deficiencies and remedy any failure to perform by the Contractor and may deduct the cost thereof from any payment then or thereafter due to the Contractor;

10. CHANGES IN WORK

(a) No variations or additions are to be made to the Work without a written change order from the Owner.

(b) The Owner may make changes or additions to or deductions from the Work, the Contract Price being reasonably adjusted accordingly.

21. ENTIRE CONTRACT

There are no representations, warranties, inducements, collateral understandings, agreements or other understandings related to this Contract except as expressly set out or provided for in this Contract and no amendment, waiver or other modification of this Contract or any provision or requirement of this Contract is binding unless it is in writing signed by the party against whom the waiver, amendment or other modification is sought to be enforced.

[18] Schedule “A” of the contract contains the “Description of the Snow Removal Services” to be provided by the Contractor, as follows:

General Services Specifications and Requirements:

1. The Contractor shall provide snow removal services for a period of six months, from November 1^st, 2014 to April 30^th, 2015, to be paid in (6) instalments from November 30^th to April 30^th. The Contractor shall provide snow removal services for a period of six months, from November 1, 2015 to April 30^th, 2016 to be paid in (6) instalments from November 30^th to April 15^th.

2. The Contractor shall at all times keep himself aware of weather conditions in relations to the location of the property. The property as outlined on the site plan attached to this contract as Schedule “D” will be cleared after each and every 3 centimetres of snow has fallen.

3. Unless weather conditions dictate otherwise, this work shall be performed between the hours of 7:00 p.m. and 7:00 a.m., seven (7) days per week (holidays included). This service is to be performed as necessary on a twenty-four (24) hour basis. Care is to be taken to ensure minimal disturbance to the residential neighbourhoods surrounding the property taking into consideration city noise-by-laws.

4. All parking areas, entrances, exits, canopies, roadways, shipping areas, garbage enclosure areas, sidewalks, walkways, islands, cart corral and mailbox, telephone and bank machine areas will be cleared as described above.

5. In the event that the Manager is not satisfied with manner in which the Contractor performs these Services, or in the event of any emergency (such as the snowfall exceeding 3 centimetres and not having been removed by the Contractor within the period set out herein, the Manager shall be entitled to retain other parties to complete such Services and to set off against any monies otherwise owing to the Contractor hereunder, the cost thereby incurred by the Manager.

[19] Schedule “B” sets out the contract price. The preamble to Schedule “B” states as follows:

The Contract price is payable during the terms as follows:

A. SNOW CLEARANCE FROM ALL PARKING AREAS, ENTRANCES, EXITS, ROADWAYS, PARKING LOTS, SHIPPING AREAS, GARBAGE ENCLOSURES AREAS, WALKWAYS, SIDEWALKS, ISLANDS, CART CORRALS AND MAILBOX, TELEPHONE AND BANK MACHINE AREAS AND CANOPIES.

[20] Counsel for Riocan, in his factum, described that “Clintar’s winter maintenance services included clearing snow and ice from “entrances, exits, canopies,” among other things. However, the contract is conspicuously silent with respect to “ice”. In fact, the word “ice” does not appear anywhere within the Agreement or in any of the schedules. The Agreement does require the Contractor to salt or sand, which undoubtedly must relate to dealing with ice formation, but this only relates to paved areas, sidewalks and all islands. While the treatment of ice is clearly contemplated as being the responsibility of the Contractor in those areas, the task of removing ice and icicles from the canopy is not specifically assigned within the Agreement.

[21] According to Mr. Malleck, it was Riocan’s employees who would clear snow and ice from the canopy above the grocery store exit. However, they would not clear the snow and ice from the walkways once it had been removed from the canopy. Instead, they would contact Clintar to attend at the premises in order to remove that ice and snow from the sidewalks.

[22] Riocan staff were also removing ice and snow from a canopy at another property for which Clintar had been retained to provide winter maintenance services during the 2014/2015 winter season. Mr. Malleck produced an email from a sales associate at Clintar in respect of a telephone call he received from Riocan’s manager, Debra Farrell in March of 2015 (after the incident in question). That email states “Debra called re: ice/snow that was removed from the canopy at the entrance to the offices (to the right of Cora’s). She has asked we send somebody there to clear this from the walks/roadway”.

[23] Mr. Malleck has also provided weather records for January and February of 2015, as well as periodic emails that he sent to Ms. Farrell in which he describes the weather. It is clear there was heavy snowfall throughout February 2015. It was very cold from February 9 through to at least March 1^st. Of note, it snowed February 23-26 following a week in which there had been periodic snow showers. February 27^th and 28^th are described as “mainly clear all day”. In his email reporting for the week ending March 1, 2015, Mr. Malleck described “continuing to battle this latest storm”. It is a reasonable inference from these weather records that there would have been more than 3 cm of snow on the canopy in the days leading up to the incident in which Ms. Ruetz was injured.

[24] Importantly, there is an email chain for the period starting February 26, 2015, at 7:38 am. One of Clintar’s employees emailed Mr. Malleck and stated as follows:

“The exit doors at Metro are continually icing up due to snow melt and ice dams on the awning above. Fallen icicles were removed from walk and ice melt applied to patches of ice and surrounding areas. This will be an ongoing concern that will require attention.”

Mr. Malleck forwarded this email at 5:10 pm to Ms. Farrell at Riocan, stating:

“Hey there: I hate to add to your to-do list, but please see below from one of our supervisors. This area appears to be a bit of a safety issue—especially as we get into thaw/freeze season.

Just wanted you to be aware of the potential hazard present.

If you need any further information please let me know anytime!”

Ms. Farrell responded to Mr. Malleck on February 27 at 9:59 am, as follows:

“I assume he is talking about the glass canopy above the doors which we know is an issue…and of course there is no easy fix to it.

Mr. Malleck responded at 3:29 pm, with:

“That is what I figured, but I have asked the guys to point out any potential hazards so we can make people aware.

Have a great weekend!”

[25] Unfortunately, despite this email exchange, neither Clintar or Riocan appears to have taken any steps to remedy the situation.

[26] Ms. Farrell was examined for discovery and Clintar relied upon that transcript on the motion. Having done so, Ms. Farrell’s evidence is before the court, despite the fact she did not swear an affidavit. She testified that she and Mr. Malleck continued to disagree as to Clintar’s obligation under the Agreement. She was of the view that the canopy was Clintar’s responsibility while Mr. Malleck maintained that Clintar “looks down, not up”. Ms. Farrell was asked about the March 11, 2015 email. The relevant portion from the examination for discovery is produced as follows:

Q.61. …Okay, now my understanding from the evidence of Mr. Malleck is that the normal course would have been in 2015 that your employees would clean the canopies and leave the snow and ice wherever it fell, which would sometimes be on the sidewalks, and then your company would contact Mr. Malleck or someone at his company to have someone go out and clear the sidewalks of what had been removed from the canopies. Is that your understanding of how it was done?

A. We did do that, yes.

Q.62. Okay, and that is my understanding that that’s what this email’s referring to…

A. Un hmm.

Q.63. …is that correct? But how often would your company do that?

A. We had, especially in ’15, not so much now, we had maintenance people at every property so they would see hazards not just above, below, and look after that. So they would knock down the icicles, rake the roofs and if that happened after the plows had gone by, we would call them to come back.

Q.64. Okay, and when you would do that, because I see in this situation it’s you calling, would you not say, “Riocan, you’re supposed to be knocking the snow down. Why are we doing it?” Did you not…

Ms. LAMBE: Clintar, I’m sorry, Clintar.

Q.65. MS. EDGAR: Clintar, sorry, my—I just came back from New Zealand, I’m still there in my mind. Okay, sorry, would you not complain to them that they weren’t doing that work, that your people were doing it instead?

A. If it got done in the morning there wasn’t a complaint. I mean my guys are first on the property or at least back then they were.

Q.66. Okay, the reason why I’m asking is you’re saying it’s – it’s Clintar’s job to do this, it’s their liability but it’s your people that are doing the job in 2015. From your evidence and also from this e-mail. I’m just asking did you, in 2015, complain to Clintar and say, “you’re not doing your job, you’re not cleaning the canopies”?

A. I don’t recall if I did.

Q.67. If you did an e-mail or letter would you have kept note of that?

A. I would do most of my complaints—like this is unusual for me to have e-mailed, normally it’s verbal.

Q.68. Well no, it just says, “Debra called”, it’s not your e-mail, okay?

A. No, but I’m just saying that’s usually what I do is call.

Q.69. Do you keep a record of any calls that are complaints?

A. Not extensive records, no.

Q. 70. Okay, and you don’t think you actually made a complaint in 2015?

A. I don’t recall.

Q. 71. You do recall complaining in 2017 that they weren’t doing it?

A. And ’18.

Q. 72. And ’18. Would (sic) about in 2016?

A. I’m not sure.

Q.73. In any event, your people were on the property every day, is that correct?

A. Correct.

Q. 74. And they would be there in the mornings?

A. Correct.

Q. 75. About what time would they arrive at this property?

A. At Adelaide? First thing, about somewhere around 6:30.

Q. 76. And you would expect that they would look at the canopies on a daily basis?

A. Yes, they did.

Q. 77. And you would expect that they would clean the snow and ice from that on a daily basis?

A. It didn’t need to be cleaned on a daily basis.

Q. 78. Okay.

A. But they would do it if it required it, yes.

Q. 141. Did—was it your belief in February 2015 that Clintar was doing maintenance to the canopy at this property on Adelaide, if needed?

A. If needed, yes.

Q. 142. And was it your understanding then that they had the appropriate equipment to do that?

A. I would assume that, yes.

Q. 143. So if Mr. Malleck’s evidence today, well Mr. Malleck’s evidence today was they never had the equipment to clear off the canopies or roof hang ever. Is that a surprise to you?

A. No.

Q. 144. So you didn’t understand them to have the equipment to do it back in 2015?

A. Back in 2015 is a different answer.

Q. 145. I don’t understand.

A. I understand now is what I’m saying. We’ve had the conversations in 2018 about equipment.

Q. 146. And that was the first time you understood that Clintar was not – had never touched the canopies?

A. Correct.

[27] Mr. Malleck was cross-examined on his affidavit in support of this motion. He agreed that the structure from which the ice fell would be considered a canopy. He testified that Clintar never took any steps to clear snow or ice from that canopy. He reiterated that Clintar does not have the equipment necessary to clear snow or ice from the canopy. Mr. Malleck conceded that there are no formal contract amendments, or test messages or anything else setting out any agreement between he and Ms. Farrell that Clintar would not be responsible for the canopy. He was unable to point to any specific conversation he had with Ms. Farrell by which Riocan relieved Clintar of that duty. Nonetheless, he maintained that there was an “understanding” between the parties that Clintar did not do canopies. Mr. Malleck was referred to his evidence on his examination for discovery where he indicated that he was probably aware at the time that the Agreement was entered into that canopies were included.

[28] At the time that this motion was prepared, Ms. Farrell was no longer employed by Riocan. Accordingly, Riocan relied upon an affidavit of Nancy Bechard, another property manager. Ms. Bechard does not have first-hand knowledge of the relevant facts in this matter. Her affidavit was, accordingly, of no assistance to the court with respect to this particular Agreement or whether Ms. Farrell waived or amended the Agreement through her conduct. However, Ms. Bechard does depose that she has dealt with Mr. Malleck with respect to clearing snow and ice from other canopies of other properties pursuant to Agreements containing the exact same language. These conversations occurred in 2016 or 2017. Mr. Malleck has refused to remove snow from other canopies as well.

[29] Photographs of the premises were included in the motion record. The canopy is very large and runs across much of the front of the building, over both a prominently marked “Entrance” and a separate “Exit”. It is a considerable height from the ground and very high at its peak. It is sloped such that run-off from melting snow would run down towards the front of the building, where the sidewalk is located. The canopy is very large. It would not be possible to “rake” snow from anywhere but the very front overhang of the canopy. The canopy also has a series of horizontal bars across its width, which are located about halfway up the canopy. Ms. Farrell testified that these bars allow snow to accumulate on the canopy. I draw a reasonable inference that a person could not clear snow from those bars by using a regular length rake and standing on the ground. At most a person standing on the ground and using a rake could only scrape ice and snow from the front edge of the canopy.

Issue I: What did the parties agree to?

[30] The primary goal of contractual interpretation is to determine the objective intent of the parties to the contract and the scope of their understanding. In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, at para. 47, the Supreme Court of Canada stated as follows:

Regarding the first development, the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding”…To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning:

No contracts are made in a vacuum: there is always a setting in which they have to be placed…In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating…

[31] While the surrounding circumstances, often referred to as the “factual matrix”, will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of the agreement. Courts cannot use the surrounding circumstances to deviate from the text of a contract such that the court effectively creates a new agreement. The parol evidence rule, however, does not apply to preclude evidence of the surrounding circumstances. (see Sattva., supra at paras. 57 and 60).

[32] Clintar asks this court to consider that this was a “contract of adhesion”. They argue the contract was drafted by Riocan and any ambiguity in the contract should be resolved in favour of Clintar. Counsel for Clintar notes many drafting deficiencies in the Agreement. For example, in the Preamble, “Basic Performance” is a defined term and is supposed to be set out in Schedule “A”. Schedule “A” does not refer to Basic Performance, but instead contains a “Description of the Snow Removal Services”. The word “Work” appears throughout the Agreement, sometimes capitalized, sometimes not capitalized, and is not clearly defined.

[33] Clintar further argues that given the ambiguity, the court can rely upon the surrounding circumstances, including the parties’ conduct post-contract, to discern their intention. Thus, counsel argues that since Riocan’s employees were clearing the snow and ice from the canopy, the contract ought to be interpreted such that the canopy was not intended to be Clintar’s responsibility under the Agreement.

[34] Clintar relies upon Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, in support of the proposition that the conduct of the parties subsequent to the formation of the contract can be considered in interpreting the contract. In Shewchuk, the trial judge had determined that there was an ambiguity in the contract in question. He then considered the parties’ subsequent conduct to assess their evidence about the intended scope of their conduct. The Court of Appeal upheld the decision, and in doing so, distinguished subsequent conduct from the factual matrix, stating as follows, at para 41:

In my view, subsequent conduct must be distinguished from the factual matrix. In Sattva, the Supreme Court of Canada stated at para. 58 that the factual matrix “consist[s] only of objective evidence of the background facts at the time of the execution of the contract, that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting” (citation omitted and emphasis added). Thus, the scope of the factual matrix is temporally limited to evidence of facts known to the contracting parties contemporaneously with the execution of the contract. It follows that subsequent conduct, or evidence of the behaviour of the parties after the execution of the contract, is not part of the factual matrix: see Eco-Zone Engineering Ltd. v. Grand Falls—Windsor (Town), 2000 NFCA 21, 5. C.L.R. (3d) 55, at para. 11; and King v. Operating Engineers Training Institute of Manitoba, 2011 MBCA 80, 270 Man. R. (2d) 63, at para. 72.

[35] Accordingly, the Court of Appeal held that evidence of subsequent conduct should be admitted only if the contract remains ambiguous after considering its text and its factual matrix.

[36] With those principles in mind, I turn now to interpret the Agreement.

[37] Firstly, this is not a well drafted contract. The services to be provided are variously described as “Basic Performance”, “Work”, “Snow Removal Services” seemingly interchangeably. The word “ice” never appears at all in the contract, although the inclusion of directions relating to sanding and salting indicate that treating ice in certain areas was contemplated.

[38] Nevertheless, using the practical common-sense approach espoused in Sattva, and allowing for these drafting deficiencies, I find that the Agreement is more than capable of being interpreted. The “factual matrix” in this case is that Riocan was requesting tenders for certain snow removal services. The fact that they describe those services by using various words and phrases interchangeably does not, in my view, alter what it was they wanted. The services sought are quite clearly listed in paragraph 4 of Schedule “A”, howsoever they are described. They are repeated in Schedule “B” in setting out the contract price. Those services, quite unequivocally, include snow clearance from, inter alia, “canopies”.

[39] In the present case, the “factual matrix” includes an understanding of the specific premises where the winter maintenance services were to be provided. It is commercially reasonable to surmise that Riocan was seeking a contractor to perform all the necessary winter services at the premises. The canopy is a prominent feature of the property. The Preamble contained an acknowledgment that Clintar had inspected the site and examined the performance requirements of the services it was being asked to provide. Mr. Malleck ought to have been fully aware of the existence of the canopy in question when he tendered Clintar’s bid to Riocan and that removing snow from the canopy was part of the contract.

[40] Whether Mr. Malleck is of the view that Clintar “only looks down, not up”, he submitted the successful tender on a contract that unquestionably included snow removal from canopies. He testified that he was “probably” aware of the inclusion of canopies in the Agreement when he signed it. It was clearly in the Agreement. The Agreement also stipulated in paragraph 1 that the Contractor agreed “to perform the Work and to furnish all materials and labour necessary”. Additionally, the Agreement provided that “[t]he Contractor shall provide at its expense all necessary equipment, materials, personnel and other incidental items for the proper execution of the Work”. Accordingly, if Clintar did not have the equipment necessary to do the work, they committed themselves to obtaining it.

[41] The only part of the “factual matrix” that would lead to a possible interpretation that somehow canopies were not to be included in the Agreement would be that Clintar says that they never do canopies. However, that is a fact that would have been solely in the knowledge of Clintar and does not alter the fact that Clintar bid on a contract that explicitly required them to remove snow from canopies. It does not allow this court to simply strike the word “canopies” from the contract.

[42] Despite drafting deficiencies within the Agreement, there is no ambiguity in the scope of the work to be completed by the Contractor with respect to snow removal and that work unambiguously included snow removal from canopies. Thus, following the legal principles in Shewchuk, in the absence of ambiguity, I am not to consider the subsequent conduct of the parties with respect to snow removal from the canopies in interpreting the contract. Nor should I apply the principle of contra proferentem.

[43] However, the contract is conspicuously silent with respect to “ice” and icicles. Counsel for Riocan, in his factum, described that “Clintar’s winter maintenance services included clearing snow and ice from “entrances, exits, canopies,” among other things. However, the word “ice” does not appear anywhere within the Agreement or in any of the schedules. The Agreement does require the Contractor to salt or sand, which clearly must relate to ice formation. This only relates to paved areas, sidewalks and all islands. Thus, the treatment of ice is clearly contemplated as being the responsibility of the Contractor in those areas. In fact, Clintar’s logbooks show that they did treat ice on the paved areas. Additionally, Mr. Malleck’s affidavit acknowledges that Clintar provides snow and ice control for their clients. Unfortunately, the Agreement is ambiguous with respect to the removal of ice and icicles that form over the awning.

[44] Given the ambiguity with respect to the formation of ice from the canopy, it is permissible to have regard to the subsequent conduct of the parties. The evidence of Mr. Malleck is that his employees did not knock down icicles from buildings. The evidence of Ms. Farrell is Riocan’s employees did knock down icicles from the canopy, and “raked the roofs”. When the material from the canopy fell onto the sidewalk, they would call Clintar’s employees back to clear it off the sidewalk.

[45] Counsel for Clintar placed emphasis on the fact that this was a contract of “adhesion”, drafted by Riocan. However, one must not forget that the Agreement was formed through a tender process. Riocan sought a contractor that would remove snow from various places including canopies. By outbidding any competitors for the contract, Clintar held themselves out as being capable and willing to do the work, which included clearing snow from canopies. If they had not been prepared to do the work requested, they should not have bid on the contract. Alternatively, they should have advised Riocan that they required canopies to be removed from the Agreement. Their successful bid deprived Riocan of a contractor that, presumably, would have provided all the services that Riocan wanted.

[46] However, given the ambiguity in the contract with respect to ice, the doctrine of contra proferentem may be applied. It would have been easy for Riocan to specify in some fashion whether the Contractor was responsible for the removal of ice. They failed to do so. Clintar never thought that they were responsible for the removal of icicles from the canopy. Thus, considering the subsequent conduct of the parties and the poorly drafted contract, should Clintar still be responsible for the removal of ice from the canopy?

[47] I conclude that if interpreted in this fashion, this poorly drafted Agreement would lead to an absurd result. On that interpretation of the Agreement, Clintar, while unambiguously responsible for snow removal from the canopy, would not be responsible for the removal of ice forming from that snow. The words of a contract must be given their plain, literal and ordinary meaning unless to do so would result in an absurdity.

[48] Although “ice” is not mentioned, the requirement that Clintar use salt and sand makes it obvious that the removal of ice from the paved areas of the premise was envisioned from the paved areas of the premises. Given that the explicit terms of the contract required Clintar to remove snow from the canopy, it makes commercial sense in the context of a tendered contractual process that the removal of ice from the canopy also be included in the Contractor’s duties.

[49] The converse is not true. It would not be a reasonable interpretation of this contract to conclude that the omission of “ice” in describing the “work” would change the unambiguous requirement of the Contractor to remove snow from canopies. Ice forms from melting snow. The icicles on the edge of the canopy formed from the snow that accumulated on top of the canopy.

[50] Clintar points to Schedule “A” paragraph 2, and the requirement that the property be cleared after each and every 3 centimetres of snow has fallen. They argue that even if the canopy was part of the “Work”, Clintar cannot be found in breach of the contract because it cannot be proven that 3 centimetres of snow had fallen on the canopy in the days immediately prior to the incident, which are described as “mainly clear all day”.

[51] I find this argument unpersuasive. A reasonable inference can be drawn from the snowfall records that well over 3 cm had fallen on the canopy during the month of February, even if there was no snowfall in the two days prior to the incident with Ms. Ruetz. Clintar’s obligation to clear the canopy was triggered once there was 3 cm of snow on the canopy. I can also infer that the formation of the ice related to the melting of the accumulated snow from earlier in the week running down the sloped canopy towards the front of the store. In my view, Clintar cannot successfully argue that since they never removed snow from the canopy they could not be in breach of their obligation to do so.

[52] This argument may have been meritorious if Clintar could show that snow had been removed from the canopy since the last snowfall, and then less than 3 cm had accumulated from that time forward. It is their onus to do so.

Issue II: What is the effect of the Entire Contract clause?

[53] Clintar argues that if the contract did require Clintar to clear snow from the canopy, Riocan’s conduct resulted in an amendment of the contract. Riocan, in response, relies upon the Entire Contract clause at Clause 21 of the Agreement. For sake of ease, I produce Clause 21 again:

21. ENTIRE CONTRACT

There are no representations, warranties, inducements, collateral understandings, agreements or other understandings related to this Contract except as expressly set out or provided for in this Contract and no amendment, waiver or other modification of this Contract or any provision or requirement of this Contract is binding unless it is in writing signed by the party against whom the waiver, amendment or other modification is sought to be enforced.

[54] Unsurprisingly, the parties disagree with what role, if any, the “Entire Contract” clause should play in the determination of this matter. Riocan argues that since there are no specific written amendments from any of its agents to Clintar wherein Riocan takes responsibility for the canopy, Clause 21 prevents Clintar from relying on any “understanding” or waiver. Clintar takes the position that a strict requirement in a contract that any changes to its terms be in writing can be varied by the conduct of the parties. Clintar relies upon Colautti Construction Ltd. v. Ottawa (City) (1984), 1984 1969 (ON CA), 46 O.R. (2d) 236 (Ont.C.A.) a case in which the Court of Appeal relieved the plaintiff from an entire contract clause due to the pattern of the parties orally varying the contract and the City paying for the new items.

[55] Entire agreement clauses were addressed by the Ontario Court of Appeal in Shelanu Inc. v. Print Three Franchising Corp. (2003), 2003 52151 (ON CA), 64 O.R. (3d) 533, [2003] O.J. No. 1919. The Court of Appeal identified that the first step is to determine whether the clause applies to the subsequent oral agreement or waiver. Once a determination has been made that the exclusion clause does apply, the court can then consider whether the clause should be enforced. The Court stated at paras. 32-35:

The approach that I am adopting here is consistent with the approach to construing and enforcing exclusion or limitation clauses relating to damages as stated in Hunter Engineering Co. v. Syncrude Canada Ltd., 1989 129 (S.C.C.), [1989] 1 S.C.R. 426, 57 D.L.R. (4^th) 321. Dickson C.J., with whom LaForest J. concurred, held that exclusion clauses are not inherently unreasonable. In construing an entire agreement clause, the issue to be addressed is whether, as a matter of construction, the exclusion clause covers the alleged occurrence or breach in question. Exclusion clauses are to be approached with the aid of the cardinal rules of contractual construction: they must be read contra proferentem and clear words are necessary for the exclusion clause to apply. See Photo Production Ltd. v. Securicor Transport Ltd., [1980] A.C. 827, [1980] All E.R. 556 (H.L.) per Lord Wilberforce at p. 846 A.C., cited by Dickson C.J. at p. 458 S.C.R. of his judgment.

When the exclusion clause covers the alleged occurrence or breach, the question is whether to enforce the exclusion clause. Where the court is of the opinion extreme unfairness would result from the enforcement of an exclusion clause, such as, for example, where there was inequality of bargaining power, this concern should be addressed directly through the doctrine of unconscionability. Dickson C.J. held that courts should no longer use the term fundamental breach to avoid the operation of an exclusion clause as the term is confusing. The approach of directly addressing the concerns respecting enforcement of the exclusion clause would allow the courts to focus expressly on the real grounds for refusing to enforce a contractual term agreed to by the parties.

The other major opinion in Hunter Engineering, supra, is that of Wilson J. with whom L’Heureux-Dube J. concurred. Wilson J. held that the court’s responsibility did not end with construing the contract to ascertain the bargain that the parties had made. She was of the opinion that the court had a responsibility to assess the reasonableness of enforcing the exclusion clause in the contract in light of subsequent events. The doctrine of unconscionability did not suffice to relieve a party from the effect of an exclusion clause that operated unfairly because it was traditionally restricted to inequality of bargaining power and the circumstances existing at the time the contract was made: see Hunter Engineering, supra, at pp. 511-18 S.C.R. See also N. Rafferty, “Developments in Contract and Tort Law: The 1999-2000 Term” (2000) 13 S.C.L.R. (2d) 125 at pp. 141-43.

In Guarantee Co. of North America v. Gordon Capital Corp., 1999 664 (SCC), [1999] 3 S.C.R. 423, 178 D.L.R. (4^th) 1, the Supreme Court of Canada “…interpreted Hunter Engineering in such a way as to indicate that there was little distinction between the approaches of Dickson C.J. and Wilson J.” respecting the enforceability of exclusion clauses: Rafferty, supra, at p. 143. I agree. At para. 52 of the reasons on Gordon Capital, supra, Iacobucci and Bastarache JJ. stated:

The only limitation placed upon enforcing the contract as written…would be to refuse to enforce an exclusion of liability in circumstances where to do so would be unconscionable, according to Dickson CJ., or unfair, unreasonable or otherwise contrary to public policy, according to Wilson J.

[56] In conclusion, the Court of Appeal in Shelanu stated, at para. 54, “[w]here the parties have, by their subsequent course of conduct, amended the written agreement so that it no longer represents the intention of the parties, the court will refuse to enforce the written agreement. This is so even in the face of a clause requiring changes to the agreement to be in writing. See Colautti Construction Ltd. v. City of Ottawa (1984), 1984 1969 (ONCA), 46 O.R. (2d) 236, 9 D.L.R. (4^th) 265 (C.A.), per Cory J.A.”

[57] In this case, there is more than one clause of the Agreement that is problematic to Clintar’s position. In addition to Clause 21, Clause 10 of the Agreement provides that no variations or additions are to be made to the Work without a written change order from the Owner. The clear intention of the parties was that any alterations to the description of the winter maintenance services was to be set out in writing.

[58] I find that Clause 21 does apply in this case. Many of the cases cited discuss entire contract clauses that only refer to pre-contract representations (see, for example, Soboczynski v. Beauchamp, 2015 ONCA 282). Clause 21 contains two parts. The first part is “[t]here are no representations, warranties, inducements, collateral understandings, agreements or other understandings related to this Contract except as expressly set out or provided for in this Contract…”. In my view, that phrase would relate to any representations made prior to the formation of the contract. This is consistent with the caselaw.

[59] However, the next part of Clause 21 provides that “ and no amendment, waiver or other modifications of this Contract or any provision or requirement of this Contract is binding unless it is in writing signed by the party against whom the waiver, amendment or other modification is sought to be enforced”. In my opinion, this latter phrase refers to any changes made to the Agreement after the contract has been formed. The words “amendment” or “other modifications” connote a change to the existing contract. “Waiver” refers to a party foregoing strict reliance on an existing term of a contract.

[60] This is markedly different than the entire contract clause in Soboczynski, which simply read as follows:

[The APS] including any Schedule attached hereto, shall constitute the entire Agreement between Buyer and Seller. There is no representation, warranty, collateral agreement or condition, which affects [the APS] other than as expressed herein.”

[61] The Soboczynski clause was found to only deal with representations, warranties, collateral agreements and conditions made prior to or during the negotiations leading up to the signing of the APS. The wording of Clause 21 in the Agreement before me is broader than that in Soboczynski, and explicitly excludes post-contractual amendments, etc, unless they are made in writing. The analysis done in Soboczynski only applies to the first part of Clause 21 and not the second part.

[62] In Shelanu, the clause in question contained the words “no waiver, amendment or change of any of the terms or covenants of this Agreement or non-compliance therewith, shall be binding or effective unless effected by a notice signed by any and all parties hereto”, making it very similar to the second part of Clause 21. However, the Court of Appeal held that the surrender of the franchise in that case was not a waiver or amendment to the franchise agreement but was in effect a termination of the tri-partite agreement. Thus, the clause in Shelanu did not apply to the situation before the Court. Thus, the Shelanu case is distinguishable from this case where Clintar is directly attempting to make an amendment to its work under the Agreement.

[63] Counsel for Clintar referred to two articles about entire agreement clauses: Paul M. Perrell, “A Riddle Inside an Enigma: The Entire Agreement Clause” (1998) 20 Adv. Q. 287 and M.H. Ogilvie, “Entire Agreement Clauses: Neither Riddle Nor Enigma” (2009) 87:3 Canadian Bar Review 625. On my reading of those essays, both authors are addressing entire agreement clauses in the context of pre-contractual representations, or collateral contracts. That is not the situation before me and not how Riocan attempts to rely upon Clause 21. This is not a case where Clintar seeks to rely upon a representation made prior to the formation of the contract. In this case, Clintar seeks to vary the contract, long after the contract was in force, based upon an “understanding” that was never reduced to writing.

[64] In my opinion, Clause 21 is clear and unambiguous such that no amendment is binding on either party unless it is in writing and signed by the party against whom the amendment is sought to be enforced.

[65] The February 26 and 27 emails do not support the finding that Clintar seeks. There is no unequivocal acceptance in the emails by Ms. Farrell that the canopy became Riocan’s concern and not Clintar’s. In reading her responses on February 26 and 27^th, it is unclear whose responsibility it was to remove the snow. While I accept that Mr. Malleck was trying to place this responsibility on Riocan, there is no clear acceptance by Ms. Farrell evinced by these emails. Importantly, in the face of the notification of the risk posed by the ice on the canopy in the February 26-27^th email conversation, Riocan did not remove the icicles from the canopy. I infer from this that Riocan had not assumed the responsibility for doing so nor relieved Clintar from its contractual commitment. I do not accept the argument that Riocan was required to advise Clintar during those emails of Clintar’s obligation to do that work. Riocan was entitled to presume, as per the Preamble, that Clintar was familiar with its contractual obligations.

[66] In his examination for discovery, Mr. Malleck was unable to expand on the “understanding” between he and Ms. Farrell. He could not point to any specific conversation, text message or written document verifying this understanding. He relied solely on the emails, which I find insufficient to prove that both parties intended to vary the Agreement, and the fact that Riocan had previously removed ice and snow from the canopy.

[67] Having concluded that the entire contract clause applies to the within fact situation, I must determine if the clause should nevertheless not have effect. As noted above, the fact that this is an adhesion contract does not make its provisions unconscionable. The nature of the tendering process, in my view, made it incumbent upon Clintar to meets its obligations, as Riocan accepted its bid from a number of quotes on the understanding that they would. Clauses 10 and 21 make good commercial sense, in that they provided a mechanism for the parties to vary the Agreement, so long as they did so in writing. These are not unsophisticated parties. Mr. Malleck has been running Clintar for 25 years and Ms. Farrell had been property manager at Riocan for 14 years. The importance of reducing any changes to writing should not have been lost upon either of them.

[68] Is it unfair in this case to allow Riocan to hold Clintar to its commitment in light of the fact that Riocan, on the evidence, had maintained the canopy to some extent in the past? In my view it is not. Clintar, even to this day, has failed to acknowledge that it was contractually obligated to clear the canopy. Clintar simply abdicated their responsibility under the Agreement from the outset. Clintar made no effort to amend the terms of the Agreement, but simply continued to maintain their position despite the inclusion of the word “canopies” as part of the premises to be serviced multiple times in the Agreement. Riocan had specifically solicited tenders on a contract that covered canopies, and in my view, it would be unfair to Riocan to fail to enforce the entire contract clause in this case.

[69] An entire agreement clause does not prevent the parties from amending the terms of their agreement, and in fact, this Agreement provided a clear mechanism to do so. I accept that an oral agreement can, if proven, amend a written agreement even in the face of a strict requirement that any amendments be in writing, as per Colautti. However, that oral agreement must be proven. In my opinion, failing to adhere to the terms of a written contract does not overcome the Agreement’s terms unless there is satisfactory evidence that both parties had mutually agreed upon an alternative arrangement. In this case, there is insufficient evidence to demonstrate that both parties intended to vary the Agreement.

[70] Accordingly, I find that Clintar was in breach of its contractual obligation to remove snow from the canopy. The accumulation of snow on the canopy in the days leading up to and including February 26^th, 2015 would have contributed to the formation of ice. Importantly, whether or not Clintar was also responsible for removing the ice from the canopy, their breach of its snow removal obligations contributed to the formation of the ice.

Issue III: Is Riocan estopped by its conduct of clearing the canopy?

[71] Clintar argues that Riocan, by having removed ice and snow from the canopies, led Clintar to believe that Riocan was assuming responsibility for that task and is estopped from now holding Clintar to the terms of the Agreement with respect to the canopy.

[72] The equitable doctrine of promissory estoppel has three criteria that must be met:

(1) there must be an unequivocal promise or representation, by words or conduct, that the promisor would not insist on the strict performance of her legal rights;

(2) the promisee must have acted on that promise reasonably; and

(3) It must be inequitable for the promisor to go back on her promise.

[73] I reiterate that Mr. Malleck is unable to point to any specific conversation with Ms. Farrell where she acknowledged that Clintar would not be responsible for removing snow from the canopy. As noted above, the emails do not establish an unequivocal promise or representation that Riocan would not insist on the strict performance of its legal rights.

[74] Clintar, accordingly, relies upon Riocan’s conduct. There is an acknowledgement by Ms. Farrell within her examination for discovery that Riocan’s employees did clear snow and ice from the canopy. On the record before me, it is not clear how many times that this, in fact, occurred. It is also not clear from Ms. Farrell’s examination whether she was always speaking about clearing that occurred prior to February 28, 2015. However, I infer from the snowfall record, and the fact that Clintar never removed snow from the canopy, that Riocan must have done so from time to time. Finally, I am not confident that Ms. Farrell, on her discovery evidence, was talking about Riocan’s employees simply reaching up and knocking off icicles and snow with a “rake” or clearing the entire canopy of snow, which would likely require someone to climb up onto it. On my interpretation of the Agreement, Clintar was required to do the latter.

[75] Despite counsel for Clintar characterizing Ms. Farrell’s evidence as acknowledging that Riocan had taken this task over, Ms. Farrell also testified that she thought Clintar was doing it and it was not until this lawsuit was commenced that she learned that they were not.

[76] Importantly, in the face of the February 26 and 27 emails, Riocan did not remove the ice from the canopy. A reasonable inference can be drawn that Riocan had not assumed the responsibility for doing so nor relieved Clintar from its contractual commitment.

[77] Riocan argues that the Agreement had only been in place since November, a period of approximately 4 months. In their submission, there would not have been enough time to demonstrate a pattern on the part of Riocan in removing snow from the canopy to establish estoppel by conduct. There is not satisfactory evidence in the record to determine if Riocan had done it enough times to establish a pattern that Clintar could rely upon.

[78] Paragraph 12 of Schedule “A” specifically permitted Riocan to take action itself if it was not satisfied with the manner in which the Contractor performed the services. Doing so, in my view, cannot then amount to estoppel by conduct because it was a contractual remedy available to Riocan. The Agreement allowed Riocan to take such remedial action and, accordingly, this would necessarily be without prejudice to its rights to insist that Clintar fulfill its obligations in the future.

[79] Furthermore, I find that there is no detrimental reliance on the part of Clintar with respect to Riocan’s conduct. Detrimental reliance is the hallmark of estoppel. It requires that the party seeking to establish estoppel changed its course by acting or refraining from acting in reliance on the representation. This is not a case in which Clintar had been removing snow from the canopy and then Riocan’s conduct led Clintar to believe that they were relieved from that responsibility. On the contrary, Mr. Malleck, wrongly, never believed that Clintar was required to remove snow from the canopy under the Agreement. Clintar has maintained its position throughout the term of the contract, and even afterwards, that it was not going to do any work in respect of the canopy. Accordingly, Clintar did not change its position as a result of Riocan’s conduct. They simply took and maintained an untenable interpretation of the Agreement throughout the course of the relationship.

[80] With respect, I do not consider it to be unconscionable for Riocan to hold Clintar to its contractual commitment. In fact, it is more objectionable that Clintar never acknowledged that commitment. They either bid for this contract without a full appreciation of the nature of the services being demanded, or simply never intended to perform all its contractual duties. I am not inclined to invoke the equitable doctrine of promissory estoppel in Clintar’s favour.

[81] In my opinion, the necessary elements of promissory estoppel are not made out.

Issue IV: Is Clintar obligated to indemnify Riocan pursuant to the hold harmless clause?

[82] In interpreting the Agreement as a whole, as per Sattva, its purpose was to shift all the risks associated with the performance of the winter services onto the Contractor. Thus, the Contractor was required to obtain a first loss comprehensive liability insurance policy, including insurance for personal injury and property damage, with minimum limits of $5,000,000.00.

[83] Accordingly, it included an Indemnity Clause, which I will set out again:

The Contractor indemnifies and saves harmless each of the Released Persons in respect of every loss, cost or expense which all or any of them suffers as the result of the breach by the Contractor of any term or condition of this Contract, or as the result of anything arising from or related to the Work. This indemnity applies whether the Released Persons or any of them, in each case, is negligent or not.

[84] The hold harmless clause does not depend on a finding that Clintar breached the contract. While a ‘breach by the Contractor of any term or condition” of the contract, would trigger the hold harmless provision, it is also triggered “in respect of every loss, cost or expense which all or any of them suffers…or as the result of anything arising from or related to the Work.” Furthermore, the indemnity applies whether any of the Released Persons were negligent themselves.

[85] Accordingly, the Agreement effectively shields the Released Persons from any liability imposed upon them from the performance of, or failure to perform, the winter maintenance services. I have found that Clintar was in breach of its obligation to remove snow from the canopy. However, pursuant to the language of the Agreement, Clintar is liable to hold Riocan harmless so long as the loss, cost or expense is the result of anything arising from or related to the Work. The loss in this case, is founded on the failure of these parties to prevent ice from forming on the canopy. Whether that failure was due to Clintar’s failure to remove the snow from the canopy, leading to the formation of ice, or due to their failure to remove the ice once formed, is of no consequence given the specific wording of this clause. Furthermore, it is inconsequential if Riocan was also negligent with respect to allowing the ice to remain on the canopy once notified of it. This is the Agreement that Clintar accepted by submitting the successful bid.

[86] Counsel for Riocan refers to Stewart Title Guarantee Company v. Zeppieri, 2009 2329 (ONSC), para. 17, where Brown J., stated as follows:

This language imposes two obligations on Stewart Title with respect to a member of the LSUC – to “indemnify” that member and to “save harmless” that member from claims arising under a title insurance policy. The contractual obligation to save harmless, in my view, is broader than that of indemnification. I accept the respondents’ submission that the obligation to “save harmless” means that a LSUC member should never have to put his hand in his pocket in respect of a claim covered by the terms of the 2005 Indemnity Agreement. Accordingly, the 2005 Indemnity Agreement requires Stewart Indemnity to pay for the member’s ongoing costs of defending a claim that falls within the coverage of agreement. This interpretation not only is consistent with the plain meaning of the phrase “indemnify and save harmless”, it also is consistent with the case law, the business sense underpinning the 2005 Indemnity Agreement and the reasonable expectation of the parties.

[87] I agree that the effect of the hold harmless provision is to relieve Riocan from any and all of the financial consequences of the within action, in addition to covering the plaintiff’s damages, if any.

Disposition:

[88] As noted above, I have relied upon the enhanced fact-finding powers provided by rule 20.04 (2.1) to conclude that there is not a genuine issue requiring a trial with respect to:

(a) Whether all claims ought to be dismissed as against Clintar; and

(b) The applicability of the hold harmless clause.

[89] I have concluded that not only should the claims not be dismissed as against Clintar, but that Clintar was contractually obligated to remove snow from the canopy at the premises. The contract is unambiguous in its inclusion of canopies to the areas from which snow is to be removed. It is of no consequence if Clintar says they “do not look up”. They agreed to do so in this case. It is also of no consequence if Clintar did not have the equipment to clear the canopy of snow. They contractually agreed to acquire the equipment.

[90] If Clintar could not deliver all the services provided for in the Agreement, they should not have bid upon it. By making the successful bid, they held themselves out as willing and capable of fulfilling all the terms of the Agreement.

[91] On its own admission, Clintar never removed snow from the canopy in question, despite the very significant amount of snow that fell throughout February, which I infer from the winter records far exceeded 3 cm. Clintar was accordingly in breach of the Agreement. I also draw the reasonable inference that it was melting from the snow that accumulated on the roof that led to the formation of ice over top of the store’s exit.

[92] Clintar cannot rely upon Riocan’s conduct to relieve them of their responsibility under the Agreement. There were no amendments or waivers in writing that altered the Agreement to relieve Clintar from its contractual duties which expressly included snow removal from the canopy. In fact, there was no agreement of any kind to do so. Furthermore, I find that Riocan’s conduct did not unequivocally promise or signify that Riocan would assume Clintar’s obligation for snow removal from the canopy. Importantly, Clintar did not rely upon Riocan’s conduct to its detriment. Nor was Riocan required to remind Clintar of its contractual undertaking to remove snow from the canopy.

[93] Whether or not Riocan is also negligent in failing to remove ice from above the exit, Riocan can rely upon the hold harmless clause in the Agreement, which was triggered by Clintar’s breach. Thus, Clintar is liable to reimburse Riocan for its defense costs and is liable to pay any damages awarded to the plaintiff against Riocan.

[94] The parties advised me following their oral arguments that if I were to find that Riocan was entitled to be held harmless by Clintar that they would likely be able to resolve the quantum of Riocan’s legal expenses. Should that not be the case, I may be contacted through the trial coordinator to resolve that issue for them.

[95] If the parties are unable to resolve the issue of costs of this motion, Riocan may make written submissions with respect to costs within 30 days of the release of this decision, to be no longer than three pages double spaced. They should include a draft bill of costs and any pertinent offers. Clintar would then have 10 days from receipt of Riocan’s submissions to respond in writing, no more than three pages double spaced.

Justice Spencer Nicholson

Date: January 4, 2021