Excelsior Properties Ltd. v. Cosentino Developments Inc., 2012 ABQB 482

Court of Queen ’ s Bench of Alberta Citation: Excelsior Properties Ltd. v. Cosentino Developments Inc., 2012 ABQB 482 Date: 20120724 Docket: 0803 06362 Registry: Edmonton Between: Excelsior Properties Ltd. Plaintiff/Respondent - and - Cosentino Developments Inc. Defendant/Respondent - and - 1089920 Alberta Ltd., Sandeep Athwal, Baljot Athwal and Jarnail Randhawa Defendants/Applicants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.H. Goss _______________________________________________________

I. Introduction [ 1 ] The Applicants were subtenants of premises in Edmonton where they ran a restaurant and bar called “ The Grinder Restaurant ” . The Respondent, Cosentino Developments Inc. (Cosentino), was the tenant and the Respondent, Excelsior Properties Ltd. (Excelsior) was the registered owner of the leasehold title. [ 2 ] On May 8, 2006, a fire at the premises caused substantial damage and destruction to the building and its contents. [ 3 ] The issues on this

summary trial are: - whether the Applicants had a duty to insure Excelsior ’ s property interests in the leasehold improvements and trade fixtures against fire damage pursuant to the lease agreements, and - whether the Applicants had an obligation under the lease agreements to indemnify Excelsior against claims in respect of fire damage to leasehold improvements and trade fixtures. II. Facts [ 4 ] On September 1, 1987, TIHC Share Holding Ltd. and Sunshine Company Saloons Ltd. entered into a lease (Initial Lease) . This Initial Lease was extended and assigned a number of times involving new lessors and lessees.

In 2001, the Initial Lease was assigned to Cosentino as tenant and extended with the agreement of Excelsior (Final Lease). The interests of Cosentino in the Final Lease were then assigned to the Applicants on March 1, 2004 (Sublease). [ 5 ] The relevant provisions of the Initial Lease are: 1. WITNESSETH that in consideration of the rents, covenants and agreements ....the Lessor hereby grants, demises and leases unto the Lessee the lands, premises and rights more particularly described in

Schedule “ A ” and outlined in red on

Schedule “ B ” hereto attached (hereinafter called the “ demised premises ” ). 5. THE LESSOR and Lessee acknowledge and agree that the within Lease is intended to be a “ Gross Lease ” and that upon the Lessee paying to the Lessor the Minimum Rent and/or the Percentage Rent calculated..., the Lessor shall remain responsible for all structural and non-structural building maintenance and repairs as more specifically set forth in paragraphs 6 and 8 of the within Lease. 6. THE LESSEE and Lessor acknowledge and agree that the Lessor shall pay and/or be responsible for the following: (

a) Fire and extended perils insurance premiums; (

b) Glass breakage; ... (

d) Structural and non-structural building maintenance and repair; ...

THE LESSEE and Lessor acknowledge and agree that the Lessee will pay and/or be responsible for the following: (

i) All business and licence fees assessed; (ii) All telephone, electricity, water, gas and other utility charges used in the demised premises. 7. The Lessee Covenants and Agrees with the Lessor: ... (b) ... To leave the demised premises in a condition at least equivalent to the state of the demised premises at the commencement of the term ... save and except for damage by fire, lightning, and tempest and reasonable wear and tear; ... (

h) To keep the Lessor indemnified against all claims and demands whatsoever by any person, and whether in respect of damage to person or property arising out of or occasioned by the use or occupancy of the demised premises, or the sub-letting or assignment of the same ... save and expect such claims ... as may or shall arise ... out of any neglect of the Lessor... ... (

q) The Lessee shall maintain in force during the term hereof property damage and public liability insurance... 8. The Lessor Hereby Covenants with the Lessee: ... (

b) That the Lessor shall insure the building of which the demised premises forms part against loss by fire... ... (

f) That if the Lessee duly and regularly pays the said rents and performs each and every of the covenants,...the Lessor will, at the expiration of the said term upon the request in writing by the Lessee, delivered ...at least six (6) months... prior to the expiration of the said term grant...a renewal lease... 9. Provided Always and it is Hereby Agreed that: ... (

d) All fixtures and appurtenances (hereinafter called "tenant improvements") attached to or built into the premises at the commencement or during the term, whether by the Lessor at its own expense, or at the expense of the Lessee or by the Lessee, shall be and remain part of the premises and shall not be removed by the Lessee at the end of the term unless otherwise expressly provided in this Lease.

PROVIDED HOWEVER, upon expiration of the term hereby granted, if all rents hereunder have been paid and the Lessee has not defaulted under any of its covenants...the Lessee shall be at liberty to remove its tenants fixtures and improvements and shall make good, at its own expense, any damage to the demised premises which may be occasioned by such removal...

(

e) The Lessee at its expense may erect, place and maintain on the outside of the building of which the demised premises form a part... ... (

g) If during the said term hereby demised, or any renewal thereof, the said building or the demised premises shall be destroyed or damaged by fire or the elements, or act of God, or by impact of aircraft, explosion, riot, insurrection, or acts of the Queen ’ s enemies, then the following provisions shall have effect: ... (iv) And the Lessee covenants with the Lessor that if during the term hereby created the demised premises are destroyed or damaged by fire, lightning, tempest or other casualty so as to render the same wholly unfit for occupancy and this Lease shall be determined in accordance with the preceding paragraph, it shall forthwith remove from the demised premises all good merchandise machinery, fittings and other chattels or the ruins or remains thereof or pay the Lessor the cost of such removal.... ... (i) ...In the event that the access and egress to the Lessee ’ s demised premises is affected during the period that ... changes ... are being made to the building of which the demised premises form a part...

SCHEDULE “ A ” - [legal description (3 lots)]

SCHEDULE “ B ” - Surveyor ’ s Certificate for Building Located on Lots ... [with lines outlining part of the building.] [ 6 ] The relevant provisions of the Final Lease are: ...will lease your company space...under the following terms and conditions: ... 8) Insurance - The tenant has to carry 2 million dollars liability and property damages insurance including Break-in, Vandalism, & Store- front plate glass breakage. ... 10) Others - Same as your existing lease. [ 7 ] The relevant terms of the Sublease are: ...

The Subtenants agree to all of the terms of the Lease ... and the Subtenants shall be responsible for all tenant obligations and duties under the Lease as though they were a party to the Lease. The Subtenants agree that they stand in the place of the Tenant with respect to all of the obligations under the Lease.... [ 8 ] Rent was paid for May 2006. Excelsior returned the portion for the period after the date of the fire.

[ 9 ] The corporate Applicant had insurance over the relevant period for the following, as described in the Declarations: Direct Damage, Business Interruption, Commercial General Liability, Non-Owned Automobile Liability, Innkeepers Liability, Medical Payments and Crime. [ 10 ] On May 7, 2008, Excelsior commenced this action against the Applicants and Cosentino claiming damages for breach of obligations under the Lease to restore or compensate Excelsior for loss of tenant ’ s improvements contained in the premises at the time of the fire. [ 11 ] A

summary judgment application was brought by the Applicants in October 2011 seeking dismissal of Excelsior ’ s claim on the ground that the Applicants did not owe a contractual duty under the lease to reimburse or indemnify Excelsior for any interest it had in the damaged improvements on the premises. [ 12 ] Ross J. found the indemnity clause in the Initial Lease to be ambiguous, requiring

interpretation with reference to the intention of the parties: Excelsior Properties Ltd v Cosentino Developments Inc , 2011 ABQB 666 . She found the questions of law and fact intertwined and the law sufficiently unsettled that a trial was warranted under the test in Tottrup v Clearwater No 99 (Municipal District) , 2006 ABCA 380 , 401 AR 88 . Accordingly, the application for

summary judgment against Excelsior was dismissed. The application for

summary judgment against Cosentino was similarly dismissed. [ 13 ] This application for

summary trial was then brought by the Applicants against Excelsior. [ 14 ] The parties agreed that viva voce evidence would not be heard on this

Summary Trial and instead relied upon affidavit evidence and a transcript from cross examination on those affidavits. III. Argument [ 15 ] The Applicants argue that the wording of the three agreements is clear, unambiguous and no extraneous evidence is required to determine the meaning of the agreements. The

interpretation is to be objective, not subjective, in terms of what the parties did say, not necessarily what they intended to say. The Applicants also argue that Excelsior did not plead a duty to indemnify in its statement of claim. [ 16 ] The Applicants further argue that the Initial Lease is imported into the Final Lease, and the two must be read together for the purpose of ascertaining the intention of the parties. The provisions of the Initial Lease clearly show that there was no duty or liability on the Lessee to indemnify or insure for fire loss; that responsibility clearly lay with the Lessor under paragraph 6(

a) and the benefit of that insurance enures to the Lessee. Clause 8(

b) of the Initial Lease specifically includes the demised premises as part of the building . Clause 7(

q) specifies that the Lessee is responsible to maintain property damage and public liability insurance. This responsibility of the Lessee is also included in Clause 8 of the Final Lease. [ 17 ] The Applicants submit that property damage insurance is separate and distinct from fire loss insurance. The Initial Lease first specifies fire loss insurance and then property damage and public liability insurance, and it allocates responsibility for each separately. This does not support an

interpretation whereby one type of insurance includes the other. As the terms of the Initial Lease are imported into the Final Lease, the separation between the distinct types of insurance remains, particularly because the Final Lease uses exactly the same words as are used in the Initial Lease: “ property damage and public liability insurance ” . [ 18 ] Further, Clause 7(

b) of the Initial Lease, which outlines what the Lessee covenants and agrees with the Lessor, specifically excludes damage by fire, lightning, and tempest under the requirement to leave the demised premises in a condition at least equivalent to the state of the demised premises at the commencement of the term. The language of Clause 7(

h) does not contemplate a claim by the Lessor seeking indemnity, but contemplates a claim by a third party. To interpret Clause 7(

h) any other way is contrary to Clause 7(

b) which specifically excludes damage by fire, lightning, and tempest. Furthermore, Clause 8 of the Final Lease does not specify that the Lessee is to insure the Lessor ’ s interests.

[19] Neither lease contains any

definitions.

The Applicant refers to s. 1(1) of the Classes of Insurance Regulation (121/2001)under the Insurance Act which defines the following terms: 1(1)(n) “fire insurance” means insurance, not being insurance incidental to some other class of insurance under the Act, against loss ofor damage to property through fire, lightning or explosion due to ignition; (dd) “property damage insurance” means insurance against loss or of damage to property that is not included in or incidental to someother class of insurance under this Act; (ff) “public liability insurance” means insurance against liability for loss of or damage to the property of others or injury to or death ofpersons that is not included in or incidental to some other class of insurance defined by or under this Act. [20] The Applicants argue that the fact that the Initial Lease was a Gross Lease is instructive, although not determinative.

Undersuch an arrangement a lessee pays Minimum Rent and/or the Percentage Rent, a flat amount, to the lessor and the lessor pays thespecified expenses from that amount. The Applicants argue that if the Lessor in this case wished to except out items covered, it wouldhave had to specifically do so.

In fact, the Lessor did except out property damage and public liability insurance, but not fire lossinsurance. [21] Finally, the Applicants argue that if this Court finds that there is an ambiguity in the wording of the agreements, anyambiguous provisions should be construed against the Plaintiff who selected that language, according to the contra proferentem rule. [22] The Applicants cite: Northwestern Mechanical Installations Ltd v Yukon Construction Co Ltd (1982), 1982 ABCA 133, 37 AR 132, 1982 CarswellAlta 95 (CA); Atlantic Shopping Centres Ltd v Canadian National Railway (1985), (NB CA), 60 NBR (2d) 9, 1985 CarswellNB 50 (CA); Canada Deposit Insurance Corp v Canadian Commercial Bank (1991),1991 ABCA 76 , 113 AR 371, 1991 CarswellAlta 308 (CA); Smith v T Eaton Co, (SCC), [1978] 2 SCR 749;and Seig v Alberta (Public Trustee) (1990), 1990 ABCA 28 , 71 Alta LR (2d) 394, [1990] AJ No 3 (CA). [23] The Respondent Plaintiff, Excelsior, argues that various elements, including the documents, affidavit evidence on thissummary trial and transcripts from cross examination on affidavit must be considered in order to ascertain the agreement between theparties. [24] The Final Lease was the starting point for the Applicants’ involvement with these premises.

The terms of the Initial Leasewere brought into the Final Lease unless inconsistent with the provisions of the Final Lease. The Final Lease clearly states in Clause 8that “[t]he tenant has to carry 2 million dollars liability and property damages insurance including Break-in, Vandalism, & Store-frontplate glass breakage”.

According to Excelsior, this was an amendment intended to override and replace the insurance terms of the formerLease, and Excelsior was not under an obligation to insure under the Final Lease. [25] Further, the Initial Lease provides that the Lessee is obligated to obtain property damage and public liability insurance, andthat the Lessor is to insure the building - meaning the perimeter only - against damage by fire. Excelsior argues that this

interpretation isclear when one reads Clause 6(

a) of the Initial Lease: “...the Lessor shall pay and/or be responsible for the following: (

a) Fire andextended perils insurance premiums;” together with paragraph 8(b) “the Lessor hereby covenants with the Lessee...(

b) That the Lessorshall insure the building of which the demised premises forms part against loss by fire...” in conjunction with the description of “demisedpremises”. The “demised premises” is defined in Clause 1 of the Initial Lease, which references Schedules A and B, showing an outlineof part of the building perimeter, and does not include or refer to leasehold improvements or contents. [26] Excelsior submits that it is clear from the evidence of Mr.

Mok, a director of Excelsior, that he understood that the Applicantswere responsible for carrying public liability and property damage insurance on operations (including improvements) in the demisedpremises. Mr. Mok understood that insurance inside the building was to be covered by the Applicant tenants. Exelsior argues that there isno evidence before the Court contradicting his understanding. The Lessor clearly was required to insure the building or structure againstdamage by fire, and the tenant was to insure the internal contents.

[27] Excelsior further argues that the provision requiring the Lessee to obtain property damage and public liability insurance doesnot refer to the cause of the damage and does not limit it to exclude damage by fire. As stated by Ross J. at para. 41 of her decision on thesummary judgment application: “...the term ‘property damage insurance’ is sufficiently broad that it may include damage by fire...” Thisinterpretation is consistent with the wording of the documents and the intention expressed and understood by Mr.

Mok in his evidencebefore the Court. [28] Finally, Excelsior submits that a requirement on the part of the Lessee to maintain insurance on the inside of the building isconsistent with the Lessee’s obligation to indemnify the Lessor against damage to property. Clause 7(

h) of the Initial Lease provides that“the Lessee covenants and agrees with the Lessor: ... [t]o keep the Lessor indemnified against all claims and demands whatsoever byany person, and whether in respect of damage to person or property arising out of or occasioned by the use or occupancy of the demisedpremises, or the sub-letting or assignment of the same ... save and expect such claims ... as may or shall arise ... out of any neglect of theLessor...” [29] Excelsior asserts that the property damage and public liability insurance which the Lessee is required to obtain is to cover theleasehold improvements and contents of the demised premises, whether or not the damage by fire originates in the tenants’ premises orotherwise.

As provided in Clause 9(d), all tenant improvements “...attached to or built into the premises at the commencement or duringthe term, ..., shall be and remain part of the premises and shall not be removed by the Lessee at the end of the term unless...” UnderClause 9(g)(iv), the Lessee covenants “that if during the term hereby created the demised premises are destroyed or damaged by fire,lightning, tempest or other casualty..., it shall forthwith remove from the demised premises all good merchandise machinery, fittings andother chattels or the ruins or remains thereof or pay the Lessor the cost of such removal...” Thus, those tenant improvements that cannotbe removed by the tenant, are left by the tenant at the end of the lease with certain exceptions, and therefore logically should be insuredby the tenant.

Furthermore, the indemnity clause can include liability for direct loss, as opposed to being limited to third party claims,given the proper wording, as noted by Ross J. in para. 45 of her decision on the

summary judgment application, citing fromTransCanada Pipelines Ltd v Potter Station Power Ltd. Partnership, , [2002] OJ No 429 (Sup Ct J): ...there is no reason why, given the proper words, it may not also in another context include liability for direct loss.

The principleexemplified by every case cited is that the obligation is governed by the words chosen, when placed and read in their context. [30] Excelsior argues that if the leasehold improvements belonging to the landlord are insured under a property damage insurancepolicy carried by the tenant, or the tenant is required to indemnify the landlord against loss, the proceeds therefrom should flow to thelandlord, not the tenant. [31] Counsel for Cosentino also appeared and made arguments at the

summary trial. No relief was requested against Cosentino inthis

summary trial. IV. Case Law [32] Pursuant to the parole evidence rule, a writing intended by parties to reflect their agreement cannot be modified by oralevidence.

The Court of Appeal in Northwestern Mechanical at para. 18 cited with approval the following statement of Denman C.J. inGoss v Nugent (1833), 5 B & Ad 58, 110 ER 713 at 716: By the general rules of the common law, if there be a contract which has been reduced into writing, verbal evidence is not allowed to begiven of what passed between the two parties, either before the written instrument was made, or during the time that it was in a state ofpreparation, so as to add to or subtract from, or in any manner to vary or qualify the written contract ... [33] The Court of Appeal also cited Blackburn J. in Grant v Grant, LR 5 CP 727 at 728, for the proposition that such facts as onlytend to show that the writer intended to use words bearing a particular sense are not admissible. [34] As stated in Gainers Inc v Pocklington Financial Corp, 2000 ABCA 151, 255 AR 373:

... the intent of the parties is to be determined from the words which they put in their written contract; their subjective intent is irrelevant.Subjective intent cannot even be used to interpret the written words, if they are clear. [35] This is most clearly stated by our Court of Appeal in Canada Deposit Insurance Corp v Canadian Commercial Bank atpara. 11: This is surely a classic case of the court being asked to interpret a contract. I am faced with the simple question - what does the contractmean?

The significance of this question is succinctly explained in Odgers' Construction of Deeds and Statutes (5d), in the followingpassage: "... the court is faced with the question - what does the deed mean? It must be noticed that this is not necessarily the same as what did theparties intend when they executed the document? They are presumed to have intended to say that which they have in fact said, so theirwords as they stand must be construed. The question is, not what did the parties intend to say? - that is precluded by the presumption thatthey have said what they intended to say.

The question to be solved is, what have they said? What meaning is to be attached to theexpressions they have used?" [36] The law is clear that the intent of the leases must be determined from the words actually used in the written documents, andcannot be supplemented by the parties’ evidence of what they intended or understood the leases to mean unless there is a true ambiguity. [37] As Ross J. at para. 50 of the

summary judgment decision, the contra proferentem rule applies only where all rules ofconstruction have failed: 50 The Applicants submit, however, that the leases can be interpreted without trial by invoking the contra proferentem rule. I disagree.The Supreme Court of Canada has held that the cardinal rule for the

interpretation of a contract is that the intention of the parties mustprevail, and that it is only where all the rules of construction have failed in assisting in the discovery of the true intention of the parties,that the court is entitled to resort to the contra proferentem rule: Metropolitan Life Insurance Co. v. Frenette, (SCC),[1992] 1 S.C.R. 647 at 667-68, 89 D.L.R. (4th) 653; see also McDonald Crawford v. Morrow, 2004 ABCA 150 at para. 64, 348 A.R.118, where Côté J.A. held that the contra proferenetem rule should be applied last, if at all. V.

Analysis [38] The Initial Lease states that the Lessor shall pay and/or be responsible for fire and extended perils insurance premiums andagrees that it shall insure the building, of which the demised premises forms part, against loss by fire.

All fixtures and appurtenancesreferred to as tenant improvements attached to or built into the premises at the commencement or during the term, whether by the Lessorat its own expense, or at the expense of the Lessee or by the Lessee, are to remain part of the premises until expiration of the term whenthe Lessee is at liberty to remove its tenants fixtures and improvements if all rents have been paid and the Lessee has not defaulted underany of its covenants.

The Lessee bears the cost of repairing any damage which may be occasioned by such removal. [39] I find that the Lessor clearly agreed in the Initial Lease to be responsible for insuring the building, including the demisedpremises, against loss by fire. The Initial Lease in several clauses includes the demised premises as part of the “building”.

The InitialLease further specifies that all fixtures and appurtenances, referred to as tenant improvements, attached to or built into the premises at thecommencement or during the term of the lease “remain part of the premises” unless the Lessee chooses to remove them and incur thecost of repair of damage due to removal.

The Lessee did not remove them, and therefore they remained part of the premises. [40] The Initial Lease also states that the Lessee shall maintain property damage and public liability insurance in force during theterm of the Lease, and agrees to keep the Lessor indemnified against all claims and demands whatsoever by any person, and whether inrespect of damage to person or property arising out of or occasioned by the use or occupancy of the demised premises, or the sub-lettingor assignment thereof, save and except such claims as may or shall arise out of any neglect of the Lessor.

The Lessee also agrees to leavethe demised premises in a condition at least equivalent to the state of the demised premises at the commencement of the term, save andexcept for damage by fire, lightning and tempest, and reasonable wear and tear.

[41] I find that a damage to property claim cannot be made by the Lessor against the Lessee for damage by fire, lightning, andtempest and reasonable wear and tear under the terms of this lease. This conclusion on a plain reading is also consistent with the aboveinterpretation whereby it is the Lessor who undertakes to insure against fire damage.

It would be illogical to conclude that the Lessorcould pursue the Lessee under the indemnity clause where the Lessee, in the case of damage by fire, is excepted from its obligation tomaintain the demised premises as they were at the start of the term. [42] Excelsior argues that the term “property damage insurance” or “property damages insurance” includes damage by fire. Ross J.held at para. 41 of the

summary judgment decision: ...the

definitions set out in the Classes of Insurance Regulation have no bearing on the

interpretation of both leases. The Supreme Courtof Canada has held that covenant modifications of the relations between landlord and tenant must be determined on the basis of the leaseand not by reference to insurance policy considerations: Ross Southward Tire v. Pyrotech Products, [1976] 2 S.C.R. 35 at 41, . This is consistent with the general principle that the rights and obligations as between landlord and tenant are to bedetermined on the basis of their intentions as expressed in the lease: Matthews v. Andrew, (B.C.S.C.) at para. 26. [43] I agree that the Classes of Insurance Regulation is not determinative of the

interpretation of the Leases. However, the partiesused contractual language which tracks the distinct types of insurance as named in that Regulation, specifically property damage andpublic liability insurance, and fire and extended perils insurance.

Having specified a requirement for the Lessor to obtain “fire”insurance, if the parties’ intent was to impose an obligation on the Lessee to obtain fire insurance for the leasehold improvements in thepremises, it would have been logical to describe the coverage in the same way. [44] The Final Lease states that the tenant must carry 2 million dollars liability and property damages insurance including Break-in, Vandalism, & Store-front plate glass breakage. Excelsior argues that this provision overrides the insurance provisions in the InitialLease.

The terms of the Final Lease are the same as the existing or Initial Lease except insofar as they are inconsistent. [45] When a single transaction is carried into effect by several instruments, the whole are treated as one instrument, and they mustbe read together for the purpose of ascertaining the intention of the parties: Wardle v Manitoba Farm Loans Association, (MB CA), [1954] 4 DLR 572 at 578 citing Halsbury; Atlantic Shopping Centres Ltd v Canadian National Railway at 34. [46] The Initial Lease required the Lessee to maintain property damage and public liability insurance.

The Lessor undertook underthe Initial Lease to cover glass breakage and fire insurance. The Final Lease specifies an amount and certain perils which must becovered under property damage insurance, including store-front plate glass breakage.

I find that the Final Lease varies the Initial Leaseonly insofar as it imposes a monetary coverage limit, and varies (or possibly clarifies) that glass breakage is to be covered by the Lessee’sproperty damage insurance. [47] I further find that the wording of the Final Lease does not shift the responsibility from the Lessor to the Lessee for insuringthe building, including the demised premises, against loss by fire. As stated above, the Final Lease clearly manifests the intention of theparties that property damage insurance would include glass breakage coverage.

Had the parties intended that the Lessee maintaininsurance against fire, which type of insurance is addressed as “fire” insurance in the Initial Lease, they could easily have done so in thesame way as they specified glass breakage coverage. Again, under the Initial Lease the demised premises also includes all fixtures andappurtenances, referred to as tenant improvements, attached to or built into the premises at the commencement or during the term of theLease.

Therefore, I conclude that the Lessor at all times maintained the obligation to insure the building of which the demised premisesformed a part, and all attached or built in tenant improvements, against fire. The Lessor’s obligation as expressed in Clause 6(

a) is notqualified in any way. I find that it extended to all leasehold improvements and trade fixtures. VI. Decision [48] The Applicant did not have a duty to insure Excelsior’s property interests in the leasehold improvements and trade fixturesagainst fire damage pursuant to the lease agreements, nor did the Applicant have an obligation under the lease agreements to indemnifyExcelsior against claims in respect of fire damage to leasehold improvements and trade fixtures.

VII. Costs [ 49 ] The parties may speak to costs within 90 days of this decision. Heard on the 28 th day of June, 2012. Dated at the City of Edmonton, Alberta this 24 th day of July, 2012. J.H. Goss J.C.Q.B.A. Appearances: Richard G. Ferguson for the Plaintiff/Respondent Christopher J. Skrobot for the Defendant/Respondent Robert S. Joseph for the Defendants/Applicants