Bruno Roti

The appellant, a minor injured when a barista poured scalding hot water on her hands at a Starbucks location, appealed the motion judge's decision striking the Statement of Claim against the individual defendants (the barista and store manager).

The motion judge had struck the claim on two grounds: that it did not disclose a reasonable cause of action and that suing the individuals constituted an abuse of process.

The Court of Appeal allowed the appeal, holding that employees can be personally liable for their own negligence while acting within the scope of employment, and that naming individual defendants for discovery purposes does not constitute an abuse of process when a proper cause of action has been pleaded against them.

The appellant appealed a trial judgment finding it liable as an occupier of a municipal sidewalk under the Occupiers' Liability Act.

The respondent slipped and fell on ice at the entrance to the appellant's patio, which opened onto the sidewalk.

The trial judge found the appellant was an occupier of the sidewalk portion at the patio threshold based on its exclusive use of the patio, maintenance of the entrance area, and direction of customer traffic.

The Court of Appeal upheld the finding on a narrower basis, confirming that the appellant was an occupier of only the threshold portion where the fall occurred, not the entire sidewalk area.

The court rejected arguments that the finding undermined the principle that mere snow and ice clearing does not create occupier status, and dismissed the appeal with costs.

The defendant retailer brought a motion under Rule 29.02 of the Rules of Civil Procedure seeking leave to issue a third party claim against a supplier approximately 15 months after delivering its defence and after the action had been set down for trial.

The court considered whether granting leave would prejudice the plaintiff, emphasizing that the rule requires leave to be granted unless the plaintiff would be prejudiced.

The court held that the relevant test is simple prejudice, not undue prejudice, and that delay may constitute prejudice, particularly where eyewitness testimony is involved and the trial is imminent.

Given the advanced stage of the proceeding, the absence of any explanation for the defendant’s delay, the weak merit of the proposed third party claim, and the likelihood that adding the third party would delay trial by at least eight months, the court found that the plaintiff would be prejudiced.

The motion was therefore dismissed.

The plaintiff slipped and fell on ice near a commercial coffee shop.

During the jury trial, the court was asked to rule on whether the coffee shop was an occupier of its outdoor patio and the adjacent municipal sidewalk.

The court held that the patio was not a common element under the lease and that the coffee shop was its sole occupier.

Furthermore, by constructing a fence that funnelled customers across a specific portion of the municipal sidewalk and by actively clearing and salting that area, the coffee shop assumed sufficient control over the sidewalk to be considered an occupier under the Occupiers' Liability Act.

The plaintiffs moved for partial summary judgment under Rule 20 of the Rules of Civil Procedure seeking to strike a paragraph of the defendant’s amended statement of defence pleading spoliation of evidence.

The motion arose from a product liability action alleging that a piece of plastic found in a sandwich bun caused injury, where the plastic specimen removed during surgery was later lost by the hospital.

The court held that Rule 20 summary judgment is not properly used merely to strike a defence pleading where doing so would not resolve the underlying claim or avoid a trial.

The court also found that the defence had previously been acknowledged as legally tenable and that factual issues concerning the loss of evidence and potential obligations to preserve evidence remained unresolved.

The motion was dismissed.