COURT FILE NO.: 443/07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, PITT and MOLLOY JJ.
B E T W E E N:
AUGUSTINA ANSAH, ROBERT FORDJOUR, ANDREA FORDJOUR and TEDDY FORDJOUR by his litigation guardian Augustina Ansah
Plaintiffs
- and -
H&R PROPERTY MANAGEMENT LTD./ GESTION IMOBILIERE H&r LTEE, THE CITY OF TORONTO, METROPOLITAN TORONTO AND REGION CONSERVATION AUTHORITY, TORONTO AND REGION CONSERVATION AUTHORITY, EUGENE KOHN CONSTRUCTION LIMITED carrying on business as FIELDGATE DEVELOPMENT AND CONSTRUCTION LTD., BETOVAN CONSTRUCTION LIMITED carrying on business as FIELDGATE DEVELOPMENT AND CONSTRUCTION LTD., 534078 ONTARIO LIMITED carrying on business as FIELDGATE DEVELOPMENT AND CONSTRUCTION LTD. and FIELDGATE DEVELOPMENT AND CONSTRUCTION LTD.
Defendants
Brian Brock and Joy Stothers for the plaintiffs
Frank Csathy for Metropolitan Toronto and Region Conservation Authority and Toronto and Region Conservation Authority
HEARD: May 22, 2008
FERRIER J.:
1The defendants Metropolitan Toronto and Region Conservation Authority and Toronto and Region Conservation Authority (collectively "TRCA") moved before Forestell J. to have the claim against them dismissed, on a motion for judgment under rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg.194.
2Forestell J. dismissed the motion. Kiteley J. granted leave to appeal.
3The claim arises from the drowning death of Robert Fordjour Jr., age 7, when it is alleged he slipped down the concrete banks of the Mimico Creek in Etobicoke.
4The statement of claim alleges that Robert Jr. got through a hole in the fencing of adjacent apartment properties.
5It is alleged that TRCA was responsible for the maintenance of the Mimico Creek and was an occupier of it within the provisions of the Occupiers' Liability Act, R.S.O. 1990, c.O.2.
6The statement of claim further alleges that TRCA had a duty to keep in good repair the fence separating the adjacent apartment properties from the creek to prevent children from accessing the creek and that it was negligent in failing to do so.
7The statement of claim further alleges that TRCA was negligent in that it:
allowed the attractive nuisance of the Mimico Creek to continue unsecured;
designed the concrete banks of the Mimico Creek to slope downwards in a manner that caused Robert Jr. to fall into the creek; and
designed the concrete banks of the creek in a manner that did not prevent access to the creek.
8In support of its motion for judgment, TRCA filed an affidavit of Ron Dewell, Senior Manager of Conservation Lands and Property Services for TRCA.
9In his affidavit Dewell speaks of "the property" which he defines as the two apartment buildings at 10 and 22 Willowridge Road, being the adjacent properties referred to above.
10He swears, in effect, that upon an extensive and thorough search and investigation, he has been unable to locate any application for alterations to "the property" or any permits issued in reference thereto.
11Dewell says the TRCA has never had an ownership interest in "the property"; nor has it ever occupied "the property"; in effect, that TRCA has never had anything to do with "the property".
12While such evidence may have some relevance concerning the fencing of the adjacent apartments, it does not address the allegations in the pleadings noted in paras.[5] and [7] above.
13His affidavit also states:
At no time has TRCA had any involvement whatsoever with respect to the erection of fencing or other construction at or near the perimeter of the property.
14Once again, this statement misses the point. It does not address the design or continued existence of the concrete banks of the creek and the alleged attractive nuisance created thereby.
15The effect of ss.20 and 21 of the Conservation Authorities Act, R.S.O. 1990, c.C.27, appears to be that TRCA may well have responsibility for the conservation, restoration development and management of the creek, and that it has the power to control the water in the creek and alter the creek and its course.
16The TRCA may well be an occupier within the meaning of the Occupiers' Liability Act.
17On a motion for judgment under rule 20.01(3), the moving party "may … move with supporting material or other evidence for summary judgment."
18Because the Dewell affidavit is limited in its scope to "the property" as above defined, there is no evidence tendered by TRCA that it had no responsibility for or involvement in the design of the creek bank nor in permitting it to be constructed or to continue in existence.
19Put another way, in the context of the material filed by TRCA on the motion, it can be said that TRCA simply came to the Court saying the plaintiffs have no case.
20That is not sufficient to shift the onus to the responding party to establish that there is a genuine issue for trial (per rule 20.01(1)).
21Rule 20.04(1), in stating "In response to affidavit material or other evidence supporting a motion for summary judgment…", makes it clear that the moving party must present its evidence supporting its case that there is no genuine issue for trial. Then, and only then, may the onus shift to the respondent.
22Here, the TRCA has not filed evidence in reference to some key allegations of fact made against it.
23It was thus not incumbent on the responding party to put forward evidence concerning those issues.
24Accordingly, there remain genuine issues for trial and the appeal is dismissed.
25In so deciding, I note respectfully that this result should not be interpreted as sustaining the reasons of the learned motions judge in para.[18] of her endorsement. Although not pleaded, the respondent on the motion argued that TRCA committed misfeasance in the execution of its statutory authority. The learned motions judge allowed that the tort could be implied within the claim. With respect, on a motion for judgment, I am of the view that such an allegation should be specifically pleaded before a party need respond to it. To this extent, I disagree with the reasons below.
26Costs of the leave application were fixed at $3,000 by Kiteley J., to be awarded in the discretion of the panel. Those costs are awarded to the respondents.
27Costs of the appeal are fixed at $5,000.
Ferrier J.
Pitt J.
Molloy J.
Released: June 25, 2008
COURT FILE NO.: 443/07
DATE: 20080625
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, PITT and MOLLOY JJ.
B E T W E E N:
AUGUSTINA ANSAH, ROBERT FORDJOUR, ANDREA FORDJOUR and TEDDY FORDJOUR by his litigation guardian Augustina Ansah
Plaintiffs
- and -
H&R PROPERTY MANAGEMENT LTD./ GESTION IMOBILIERE H&r LTEE, THE CITY OF TORONTO, METROPOLITAN TORONTO AND REGION CONSERVATION AUTHORITY, TORONTO AND REGION CONSERVATION AUTHORITY, EUGENE KOHN CONSTRUCTION LIMITED carrying on business as FIELDGATE DEVELOPMENT AND CONSTRUCTION LTD., BETOVAN CONSTRUCTION LIMITED carrying on business as FIELDGATE DEVELOPMENT AND CONSTRUCTION LTD., 534078 ONTARIO LIMITED carrying on business as FIELDGATE DEVELOPMENT AND CONSTRUCTION LTD. and FIELDGATE DEVELOPMENT AND CONSTRUCTION LTD.
Defendants
REASONS FOR JUDGMENT
FERRIER J.
Released: June 25, 2008