Dilenthi S. Warakaulle

On appeal from a summary judgment decision, the Court of Appeal considered whether a motion judge properly granted judgment to the plaintiff in the absence of a cross-motion, whether hearsay evidence was improperly admitted on the summary judgment motion, and whether the defendant occupier breached its statutory duty under the Occupiers' Liability Act.

The plaintiff was injured when he tripped over a skateboard in a shopping mall food court.

The motion judge granted summary judgment in favour of the plaintiff on liability, directing a trial only on damages assessment.

The Court of Appeal allowed the appeal, finding the motion judge acted unfairly by granting judgment not requested by the plaintiff, improperly admitted hearsay evidence on contested issues, and erred in finding liability.

The Court granted summary judgment dismissing the action.

The defendant, Cadillac Fairview, moved for summary judgment to dismiss an occupier's liability action brought by the plaintiff, Stephen Drummond, who was injured after tripping over a skateboard in the mall's food court.

The court dismissed Cadillac Fairview's motion and instead granted summary judgment on liability to the plaintiff, finding that Cadillac Fairview breached its statutory duty under the Occupiers' Liability Act by failing to adequately implement its own safety policies regarding skateboard use, despite having a reasonable system in place.

Damages are to be assessed at a later trial if not settled.