CITATION: Marsh Canada Limited v. Centennial Plumbing and Heating Limited, 2017 ONSC 6853 COURT FILE NO.: CV DATE:

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1 CITATION: Marsh Canada Limited v. Centennial Plumbing and Heating Limited, 2017 ONSC 6853 COURT FILE NO.: CV DATE: SUPERIOR COURT OF JUSTICE - ONTARIO RE: Marsh Canada Limited and Mercer (Canada) Limited, Plaintiffs AND: Centennial Plumbing and Heating Limited Carrying On Business as Century Plumbing and Heating, Defendant AND: Brookfield Properties Limited, Third Party BEFORE: P.J. Monahan J. COUNSEL: Brett Rideout and Myle Nguyen for the Moving Third Party, Brookfield Properties Limited Joel Cormier, for the Responding Party, Centennial Plumbing and Heating Limited HEARD: June 9 and October 18, 2017 REASONS FOR JUDGMENT [1] The moving party Brookfield Properties Limited ( Brookfield ) seeks an order granting summary judgment, dismissing two of the three related actions brought against it by Centennial Plumbing and Heating Limited ( Century Plumbing ). Century Plumbing is a defendant in those actions. It has settled the claims of the plaintiffs and seeks contribution and indemnity against Brookfield with respect to the settlement amounts. [2] For the reasons that follow, I would grant Brookfield s motion for summary judgment, with costs on a partial indemnity basis. Background Facts [3] There are three related court actions involving the parties, as follows: (i) Marsh Canada Limited and Mercer (Canada) Limited (Plaintiffs) v. Centennial Plumbing and Heating Limited Carrying on Business as Century Plumbing and Heating

2 - Page 2 - (Defendant) v. Brookfield Properties Limited (Third Party) (Court file CV ) (the Marsh/Mercer Action ); (ii) Conundrum Capital Corporation (Plaintiff) v. Century Plumbing and Brookfield Properties (Defendants) (Court file CV ) (the Conundrum Action ); and (iii) Oxford Properties Group. Inc. (Plaintiff) v. Century Plumbing (Defendant) v. Brookfield Properties (Third Party) (Court File CV ) (the Oxford Action ). [4] Brookfield is a third party brought in by Century Plumbing in the Marsh/Mercer Action and the Oxford Action, and a co-defendant in the Conundrum Action. In 2016, Conundrum dismissed its claim against Brookfield, but Century Plumbing maintains its crossclaim against Brookfield in the Conundrum Action. On this motion, Brookfield seeks dismissal of the third party claim in the Marsh/Mercer action, and the cross-claim by the defendant Century Plumbing in the Conundrum Action. [5] The plaintiffs in these three actions were tenants in the TD Canada Trust Tower located at 161 Bay Street in Toronto. In the early morning hours of February 12, 2009 their premises were flooded (the Flooding Incident ) as a result of a leak from a pipe located on the 22 nd floor of the building. Century Plumbing had recently performed plumbing repairs on the 22 nd floor and the plaintiffs claimed that the leak had been caused by the negligent manner in which the work had been carried out. The plaintiffs claims against Century Plumbing having been settled, 1 the issue raised on this motion is whether Century Plumbing is entitled to maintain its claims for contribution and indemnity against Brookfield. [6] Brookfield Place is a complex consisting of two office towers located at 161 Bay Street and 181 Bay Street in downtown Toronto. As noted above, the flood loss at issue occurred at 161 Bay Street, known as the TD Canada Trust Tower. [7] Although the office tower located at 181 Bay Street (known as the Bay Wellington Tower) is owned by affiliates of Brookfield, Brookfield does not own the TD Canada Trust Tower. Brookfield performs a number of property management services in the complex, including acting as the after hours property manager for the landlord of the TD Canada Trust Tower between the hours of 6:00 pm and 6:00 am. Brookfield also acts as the operator of a building automation system ( BAS ) which monitors the HVAC, piping, electrical, fire and other building systems for both towers in the complex. Brookfield responded to the Flooding Incident in its capacity as after-hours property manager. 1 On July 10, 2016 Century Plumbing agreed to pay the plaintiffs the following amounts: Marsh/Mercer - $1,361,500; Conundrum Capital - $90,000; Oxford Properties - $38,500.

3 - Page 3 - [8] Century Plumbing claims that Brookfield s monitoring and/or operation of the BAS was carried out in a negligent manner, which contributed to the loss suffered by the Plaintiffs. It has therefore sought contribution and indemnity from Brookfield for the settlement amounts it paid to the plaintiffs. [9] Brookfield seeks a dismissal of the Century Plumbing claims against it in the Marsh/Mercer and Conundrum Actions on the basis that the lease agreements between the plaintiffs/tenants and the owners of the buildings preclude the plaintiffs from claiming against Brookfield. Therefore, says Brookfield, since the plaintiffs have no claim against Brookfield, Century Plumbing has no right to claim contribution or indemnity from Brookfield in an action commenced by the plaintiffs. [10] Century Plumbing says that Brookfield s pleadings failed to raise any affirmative defence based on a contractual bar to its claims and that Brookfield should not be permitted to amend its statement of defence to raise such a defence at this stage of the litigation. Alternatively, Century Plumbing maintains that Brookfield is not entitled to claim the benefit of the contractual bar against liability included in the plaintiffs leases with the landlords and, therefore, the claims against Brookfield should proceed to trial. [11] Two primary issues arise for determination on this motion: (i) Should Brookfield be permitted to amend its pleadings to affirmatively claim the benefit of the limitation of liability clause contained in the relevant leases?; and (ii) In the event that such a pleadings amendment is permitted, is Brookfield entitled to claim the benefit of the limitation of liability clause in the relevant leases, with the result that Century Plumbing s claims against it in the Marsh/Mercer Action and the Conundrum Action should be dismissed? Brookfield s Proposed Amendment to its Statements of Defence [12] Brookfield seeks an order granting it leave to amend its pleadings in the three related actions in accordance with Rule of the Rules of Civil Procedure, to permit it to plead and rely upon contractual waivers contained in the relevant leases. Rule provides as follows: On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. [13] The Rule is mandatory and requires the court to grant leave to amend a pleading, except where the proposed amendment results in prejudice that cannot be compensated for by costs or

4 - Page 4 - an adjournment. Where prejudice is alleged by a responding party, it must be actual prejudice, 2 which must amount to more than prejudice resulting from the potential success of the plea. 3 Moreover, counsel should not be estopped from relying on a defence because of a shared assumption that a particular defence was not previously available to a party. 4 [14] In this case, the only evidence of prejudice provided by Century Plumbing is set out in an affidavit from counsel with principle carriage of the matter. 5 The affidavit advises that Century Plumbing settled the claims from the plaintiffs in these proceedings with the intention that Century Plumbing would then pursue contribution and indemnity from Brookfield by way of its crossclaim and third party claims. It is further stated that Century Plumbing completed these settlements relying on the fact that Brookfield s pleadings did not raise a contractual bar to Century Plumbing s claims against it. Had Century Plumbing been aware of Brookfield s intention to raise a contractual bar, it would have approached the settlement negotiations in a substantially different manner, such that Century Plumbing would have sought a settlement that represents its proportionate (several) liability, rather than settling with the plaintiffs and pursuing Brookfield. 6 [15] As counsel for Brookfield points out, Century Plumbing has no such claim for several liability on the part of Brookfield; Brookfield was not named as a defendant in the Marsh/Mercer or Oxford Actions and, although named as a defendant in the Conundrum Action, Conundrum s claim against Brookfield was dismissed in July Thus the prejudice alleged by Century Plumbing has no real substance, since there is no basis upon which Century Plumbing could settle these claims based on its proportionate or several liability. [16] Parties elect to settle claims for a wide variety of reasons. There is very little on the record, apart from the very general statements in the affidavit from counsel, indicating what considerations led Century Plumbing to settle these particular claims. There is no affidavit from Century Plumbing itself explaining how or why it chose to settle with the plaintiffs, and whether the pleadings from Brookfield were a meaningful consideration in that process. In any event, Century Plumbing would necessarily have understood that it had no guarantee of success in its third party claims against Brookfield. Further, Century Plumbing would or should have understood that Brookfield might well seek to raise new arguments or defences in responding to Century Plumbing s claims. Century Plumbing nevertheless voluntarily elected to settle the actions by the plaintiffs. [17] Thus allowing the pleadings amendments will not fundamentally alter Century Plumbing s position, other than requiring it to overcome a new Brookfield defence. But, as noted 2 Kings Gate Developments Inc. v. Colangelo, (1994) 17 O.R. (3d) 841 (C.A.) at para Hanlan v. Sernesky, [1996] O.J. No. 4909, (Ont. C.A.) 4 Godoy v Ontario Ltd., [2007] O.J. No (S.C.J.) at para. 27; affirmed 2008 ONCA Affidavit of Peter Boeckle sworn September 5, Ibid, para. 7.

5 - Page 5 - above, the potential success of the plea cannot constitute prejudice for purposes of Rule I therefore find that Century Plumbing has failed to demonstrate actual prejudice flowing from the proposed pleadings amendments sought by Brookfield, and I would allow the amendments. Relevant Contractual Provisions [18] The lease agreements involving Marsh/Mercer and Conundrum Capital contain the following identical limitation of liability clause (the Limitation of Liability Clause ): s Limitation of Liability of Landlord The Landlord, its agents, directors, officers, employees, and other persons for whom the landlord is legally responsible shall not be liable for: (a) damage to or destruction or loss of (i) any property of the Tenant entrusted to the care or control of the landlord, or any of them, or (ii) the premises (including Leasehold Improvements) or any property in or upon the premises; whether or not caused by (i) the negligence of the landlord, its agents, officers, employees, or other persons for whom the landlord is legally responsible, (ii) the operation, faulty operation, interruption, or breakdown of any of the Building Systems or services to be provided by the landlord under Article 6 including, without limitation, electricity interruption, "brown outs" or surges, or (iii) any act or omission of any other tenant or occupant of space in the development. (emphasis added) [19] Brookfield takes the position that it is entitled to the benefit of the Limitation of Liability clause, either because it is an agent of the landlord, or because it is a person for whom the landlord is legally responsible. On this basis, Brookfield says it is immune from suit by the plaintiffs/tenants, Marsh/Mercer and Conundrum Capital. Brookfield argues that it necessarily follows that it must also be immune from liability on a contribution and indemnity basis to third parties such as Century Plumbing, since it is a precondition of the right to resort to contribution that Brookfield be liable to the plaintiffs. [20] Century Plumbing does not dispute the fact that if, indeed, Brookfield is immune from liability to the plaintiffs for the Flooding Incident, the claim for contribution and indemnity against Brookfield cannot succeed. But Century Plumbing maintains that Brookfield does not fall within the category of persons who are entitled to shelter under the protection of the Limitation of Liability Clause. [21] First, Century Plumbing argues that Brookfield is not agent of the landlord, by virtue of s.2.08 of the operating agreement between Brookfield and the building owners (the Project

6 - Page 6 - Operator Agreement ), pursuant to which Brookfield operated and managed the common elements of the facility as an independent contractor. Section 2.08 of the Project Operator Agreement provides as follows: 2.08 Independent Contractor: Nothing in this agreement shall be construed as or shall constitute a partnership between the Operator and the BCE Place Owners or any of them. The duties to be performed and the obligations assumed by the Operator shall be performed and assumed by the Operator as an independent contractor and not as agent or in any other way as representative of the BCE Place Owners or any of them. (emphasis added) [22] Century Plumbing also argues that Brookfield is not a person for whom the landlord is legally responsible under the lease by virtue of s of the Project Operator Agreement, pursuant to which Brookfield agreed to indemnify the owners for any claims arising from Brookfield s actions. Section 2.09 provides as follows: 2.09 Indemnity by Operator: The Operator shall indemnify and save the BCE Owners harmless in respect of any action, cause of action, suit, debt, cost, expense, claim or demand whatsoever, at law or in equity, arising by way of any breach during the term of this Agreement by the Operator, its employees, servants, agents, subcontractors or persons for whom it is responsible, of any of the provisions of this Agreement, or by reason of any negligence or wrongful act of the Operator, its employees, servants, agents, subcontractors, or persons for whom it is responsible. [23] Century Plumbing argues that section 2.09 of the Project Operator Agreement indicates an intention on the part of the landlord to divest itself of legal responsibility for Brookfield. This, it says, is inconsistent with any intent that Brookfield is a person for whom the landlord is legally responsible under the leases. Motion for Summary Judgment [24] As a threshold matter, in my view this matter is ripe for summary judgment in accordance with the test articulated by the Supreme Court of Canada in Hryniak v. Mauldin. 7 There are no meaningful factual issues in dispute and the determination of the motion turns on the interpretation of contractual provisions in the leases and the Project Operator Agreement. In my view, I am in a position to make the findings of fact and law necessary to come to a fair and just determination on the merits. 7 [2014] 1 S.C.R. 87.

7 - Page 7 - [25] A similar conclusion was reached by Morgan J. in earlier litigation between these parties arising out of the Flooding Incident. 8 One of the issues before Morgan J. was whether Century Plumbing and various other defendants/third parties could maintain claims for contribution and indemnity against Oxford Management, 9 the business hours property manager of the leased premises. Morgan J. noted that under the terms of the leases between the plaintiffs/tenants and the building owners, tenants could not bring property damage or related claims against the Landlord, its agents, officers, employees and other Persons for whom the Landlord is legally responsible [26] Morgan J. held that the business hours property manager was an agent of the Landlord and therefore fell within the class of persons intended to benefit from the exclusion clause. Since Oxford Management could not be sued by the Plaintiffs directly, any claims for contribution and indemnity by Defendants or Third Parties against Oxford Management must also fail: 10 Oxford Management, as business-hours property manager of the leased premises, falls into the category of agent of the Landlord. It is therefore immune from liability under the lease. As a matter of law, it is also immune from liability on a contribution and indemnity basis to third parties such as Century and ADT. The Supreme Court of Canada made it clear in Giffles Associates Ltd. v Eastern Construction, [1978] 2 SCR 1346, at para. 12, that it is a precondition of the right to resort to contribution that there be liability to the plaintiff. [27] Morgan J. therefore granted summary judgment in favour of Oxford Management dismissing the claims against it. [28] As noted above, Morgan J. was of the view that Oxford Management, as the business hours property manager of the leased premises, was the agent of the landlord. However, in light of the intention expressed in 2.09 of the Project Operator Agreement that Brookfield was acting as an independent contractor rather than as agent of the landlord, I will proceed on the assumption that Brookfield was an independent contractor. The issue that arises is whether, on this assumption, Brookfield is entitled to shelter under the Limitation of Liability Clause as a person for whom the Landlord is legally responsible. Persons for Whom the Landlord is Legally Responsible 8 See Marsh Canada Ltd. v. Centennial Plumbing and Heating Ltd. (c.o.b. Century Plumbing and Heating), 2014 ONSC 1154 ( Marsh Canada 2014 ). 9 Oxford Management was the term used by Morgan J. to encompass various Oxford-related business entities and will be utilized here for ease of reference. 10 Marsh Canada 2014 at para. 21.

8 - Page 8 - [29] As the Supreme Court of Canada has observed on a number of occasions, the modern approach to contractual interpretation has evolved towards a practical, common-sense approach not dominated by technical rules of construction. 11 The overriding concern is to determine the intent of the parties and the scope of their understanding. 12 Courts should 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. Moreover, courts should strive to avoid results that are unrealistic or that the parties would not have contemplated in the commercial atmosphere in which the contract was negotiated. 13 [30] Having regard to these interpretive principles, what meaning is to be given to the category persons for whom the Landlord in legally responsible in the leases? In particular, does Brookfield fall within this category, with the result that it is immune from claims brought by tenants for damage to their premises or property resulting from the Flooding Incident? Answering these questions requires a consideration of the purpose underlying the inclusion of the Limitation of Liability Clause, within the context of the overall scheme of the leases. [31] Each lease requires both the landlord and the tenant to obtain comprehensive property and liability insurance and to mutually waive claims against the other based on these insurance requirements. The tenant is required to obtain property insurance covering leasehold improvements, along with all property, furniture, fixtures and equipment in the leased premises, on a full replacement cost basis. 14 Conversely, the landlord is required to obtain comprehensive liability insurance covering claims for personal injury and property damage arising out of all operations in connection with the management and operation of the complex, including the common facilities and the building systems. 15 Coupled with these insurance requirements, the Limitation of Liability Clause relieves the landlord of responsibility for damage to the tenant s premises or property on the basis that the tenant must look to its own insurer in order to recover any such losses. In return, the landlord waives any claim it may have against the tenant for damage to property that the landlord has covenanted to insure against under the lease, on the basis that the landlord will look its own insurer to recover such losses. 16 [32] The lease further requires the landlord to operate the building, including the common areas and facilities, in a first class and reputable manner as would a prudent owner of a comparable development. 17 The landlord s responsibilities include the proper operation of the BAS. The landlord has the right to retain contractors and other personnel to carry out these duties 11 Sattva Capital Corp. v. Creston Moly Corp SCC 53 at para Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, [2006] 1 S.C.R. 744, at para Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23 at para See, i.e., section 9.01 of the Marsh Canada lease. 15 See, i.e., section 9.03 of the Marsh Canada lease. 16 See section 9.06 of the Marsh Canada lease. 17 Section 5.01 of the Marsh Canada lease.

9 - Page 9 - on its behalf and, on this basis, had contracted with Brookfield under the Project Operator Agreement to manage the common elements and building systems. [33] Suppose that, instead of contracting with Brookfield, the landlord had elected to operate the common elements and building systems itself? On this scenario it is clear that the tenants could not have maintained a claim against the landlord for the Flooding Incident. Losses arising out of the negligent operation of the building systems by the landlord, including the BAS, are risks that the tenant was required to insure against. The Limitation of Liability Clause expressly bars tenants from pursuing any such claim against the landlord directly. [34] The question that arises is whether a different result should obtain as a result of the fact that the landlord contracted with Brookfield to operate the building systems on its behalf. The existence of the relationship between the landlord and Brookfield does not affect the respective rights and responsibilities as between the landlord and tenants under the lease. The landlord was responsible under the lease for the efficient operation of the building in a first class and reputable manner, and it could not contract out of this responsibility to tenants through an agreement with a third party such as Brookfield. Thus the landlord remained accountable to the tenants for the actions of such a third party, since the third party is merely fulfilling the landlord s duties under the lease. Moreover, the negligent or inadequate performance of these duties by the third party could well give rise to liability on the part of the landlord to the tenants. In this sense, a third party carrying out the landlord s duties to tenants under the lease is a person for whom the landlord is legally responsible. [35] The wording of the Limitation of Liability Clause indicates that the parties turned their minds to this possibility and included, not just the landlord or the landlord s agents, but also persons for whom the landlord is legally responsible within the category of persons entitled to shelter under this Clause. This is consistent with the overall allocation of risk under the lease, which requires the tenant to look to its own insurer for losses to its premises or property resulting from the landlord s performance under the lease. The Limitation of Liability Clause indicates that, regardless of whether the landlord chose to fulfill its responsibilities to tenants under the lease directly, or retained a third party to perform these duties on its behalf, the parties agreed that tenants cannot maintain an action against the landlord or persons acting on the landlord s behalf. [36] Contrary to the submissions of Century Plumbing, this interpretation of the Limitation of Liability Clause is reinforced, rather than contradicted, by section 2.09 of the Project Operator Agreement. Section 2.09 indicates that the landlord and Brookfield expressly contemplated that Brookfield s performance under the Project Operator Agreement could give rise to claims against the landlord. In this sense, the parties recognized that Brookfield was a person for whom the landlord could be held to be legally responsible. It is precisely for this reason that they found it necessary to include section 2.09, to specify that Brookfield would be required to indemnify the landlord in all such cases. [37] This interpretation of the Limitation of Liability Clause avoids arbitrary, commercially unreasonable results that could not have been contemplated by the parties at the time of entering

10 - Page 10 - into the lease. If persons for whom the landlord is legally responsible does not include persons fulfilling the landlord s responsibilities under the lease, then the tenant s right to claim for losses to its premises or property will vary, depending upon how the landlord chooses to perform its lease obligations. If the landlord elects to perform its obligations directly, or through the use of agents, 18 then the tenants will be required to look to their own insurer for any losses suffered. If, however, the landlord retains an independent contractor, then the tenant s right to pursue a liability claim will depend upon whether that third party does, or does not, fall within the category persons for whom the landlord is legally responsible. But this is a distinction, and an inquiry, entirely without a difference, since the lease does not restrict the right of the landlord to choose how to perform its duties under the lease. As a matter of principle it should not matter, for purposes of the allocation of risk between the parties, how the landlord chooses to fulfill its responsibilities under the lease. [38] I note that this interpretation is consistent with the interpretation of a similarly worded clause by the Court of Appeal in Williams-Sonoma Inc. v. Oxford Properties Group Inc. 19 In Williams-Sonoma, the landlord shopping centre had contracted with Ellis-Don Corporation ( Ellis-Don ), as independent contractor, to perform certain construction work at the shopping centre. Early one morning, a vandal opened a fire hose located in the vacant, third floor area occupied by Ellis-Don and, as a result, a tenant s premises suffered water damage. Under the relevant lease, the tenant had agreed to waive all claims against the landlord and those for whom the [Landlord] is in law responsible, with respect to occurrences required to be insured against by the tenant. Hoy J.A. found that the landlord was in law responsible for Ellis-Don, in part because of another provision in the lease which provided a partial indemnity to the tenant for negligent action by Ellis-Don. Hoy J.A. also found that such an interpretation was consistent with the overall allocation of risk under the lease, whereby the tenant was required to insure against water damage to the leased premises and to its property. [39] To the same effect is Harlon Canada Inc. v. Lang Investment Corp., a decision of Master MacLeod (as he then was). 20 In Harlon, a tenant claimed that it had suffered damage due to leakage from the roof, caused by allegedly negligent repairs carried out by a roofing contractor. The tenant was required to obtain all risks insurance, including insurance for water damage. The lease also required the tenant to waive claims against the landlord and those for whom the landlord is in law responsible. Master MacLeod held that, even though the roofing contractor was an independent contractor and not an employee or agent, it fell within the class of persons for whom the landlord is in law responsible. The landlord had the obligation to keep the roof in good repair and could not escape its obligation by hiring a contractor and delegating the work. The roofing contractor was therefore a person for whom the landlord was in law responsible and was immune from suit by the tenant. Master MacLeod reasoned that this result was consistent 18 See Marsh Canada [2013] O.J. No. 2980, 2013 ONCA 441 (C.A.) ( Williams-Sonoma ). 20 [2008] O.J. No ( Harlon ); affirmed Harlon Canada Inc. v. Lang Investment Corp., [2010] O.J. No (Div. Crt.)

11 - Page 11 - with the allocation of risk between the parties, since the tenant was required to look to its own insurer for these losses. [40] Century Plumbing argues that this interpretation of the Limitation of Liability Clause is inconsistent with the principle that, as a general rule, a contracting party is not vicariously liable for the negligence of an independent contractor. 21 But these statements have been made in a quite different context, where there was no contractual relationship between the contracting party and the plaintiff, and courts were considering general principles of vicarious liability. That is not this case. Here a landlord has contracted directly with tenants to perform certain duties under a lease and the parties have agreed that, where the tenant suffers losses from the performance of those duties, it cannot look to the landlord or those acting on behalf of the landlord. The cases cited by Century Plumbing are concerned with general principles of vicarious liability and are of limited assistance or relevance. [41] I further find that including Brookfield within the category of persons for whom the landlord is legally responsible is consistent with the two part test in Fraser River, 22 for determining whether a third party beneficiary should be permitted to enforce contractual provisions made for its benefit. Fraser River holds that (i) the parties to the contract must have intended to extend the benefit in question to the third party seeking to rely on the contractual provision: and (ii) the activities performed by the third party be the very activities contemplated as coming within the scope of the contract or the particular provision at issue. [42] With respect to the first prong of this test, I have already found that the parties intended under the lease to include Brookfield as falling within the Limitation of Liability Clause. With respect to the second prong of Fraser River, the activities being performed by Brookfield, specifically the proper operation of the BAS, were services that the landlord was responsible for providing to the tenants. In fact, the Limitation of Liability Clause makes specific reference to the operation, faulty operation, interruption, or breakdown of any of the Building Systems I therefore find that the activities undertaken by Brookfield were contemplated by the lease in general, as well as by the Limitation of Liability Clause in particular. Conclusion [43] The Limitation of Liability Clause bars tenants from pursuing liability claims against the landlord or persons for whom the landlord is legally responsible. I find that this category includes persons acting on the landlord s behalf under the lease, which includes Brookfield. Therefore the plaintiff/tenants cannot claim against Brookfield for loses resulting from the Flooding Incident. It is a precondition of the right to claim contribution and indemnity that there be liability to a plaintiff. It necessarily follows that Century Plumbing is barred from pursuing a 21 See, for example, Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 at para Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108.

12 - Page 12 - claim against Brookfield, because Brookfield has no liability to the plaintiffs in the relevant actions. [44] I therefore grant summary judgment in favour of Brookfield and dismiss Century Plumbing s claims for contribution and indemnity in the Marsh/Mercer and Conundrum Actions. I also award Brookfield its costs on a partial indemnity basis, including in respect of the motions for summary judgment and for the amendment of its pleadings, as well as its costs in defending the Actions. If the parties cannot agree as to quantum, they may make written costs submissions of up to 3 pages, not including bills of costs or offers to settle, with Brookfield s submissions due 21 days from today, and Century Plumbing s submissions due 21 days following the date for Brookfield s submission. P.J. Monahan J. Date: November 21, 2017