The phrase “and those for whom the landlord/tenant are in law responsible” is often used in commercial leases. One would think that this responsibility includes employees, guests, invitees and agents. Does it include a third party contractor? A recent decision of the Ontario Divisional Court in Harlon Canada Inc. v. Lang Investment Corp. held that the landlord’s roofing contractor fell within the group of people “for whom the landlord is in law responsible.” In this case, the tenant’s insurer, under its subrogation rights, sued the landlord and the roofing contractor for damage caused to the tenant’s equipment by a leaking roof. The lease provided for a waiver of subrogation by the tenant’s insurer with respect to any claims against the landlord or those “for whom the landlord is in law responsible.” The tenant’s insurer consented to an order dismissing its claim against the landlord but continued its claim against the roofing contractor arguing that the words “in law responsible” should not extend to third parties who are not parties to the lease. The Court held that the waiver of subrogation clause protected not only the landlord but also its contractor.
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