Parker v. Casalese, 2010 ONSC 5636
SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT
RE: Marie Parker, Katherine Stiles and Siamak Khalajabadi v. Eric Casalese, Gerarda Dina Bianco Casalese, Pino Scarfo, Antonietta Di Lauro and Mauro Di Lauro
BEFORE: Kruzick, Swinton, and Harvison Young JJ.
COUNSEL: Faren Bogach, for the Plaintiffs/Appellants Mark A. Klaiman, for the Defendant/Respondent, Pino Scarfo Charles Wagman, for the Defendants/Respondents, Eric Casalese, Gerarda Dina Bianco Casalese, Antonietta Di Lauro and Mauro Di Lauro
HEARD AT TORONTO: October 12, 2010
ENDORSEMENT
1The plaintiffs, Marie Parker, Katherine Stiles and Siamak Khalajabadi (“the appellants”), appeal, with leave, from the dismissal of a summary judgment motion which they brought. They had commenced this Simplified Rules action after their properties were damaged during the construction of two new houses built on lots between their properties.
2The motions judge dismissed the motion on the basis that there were conflicts in the evidence requiring a trial. He wrote, in full,
This motion is dismissed. Submissions regarding costs may be exchanged and delivered to me within one month.
There are numerous conflicts in the evidence and I am satisfied that they can be justly resolved only after a trial.
3The claim asserts that the homes were negligently constructed by the respondent Pino Scarfo, who allegedly failed to take appropriate precautionary steps when constructing the new houses which resulted in damage such as sinking land, cement splatter on the appellants’ homes and problems caused by faulty grading. The appellants also claim against the two couples who own the new houses, although it seems that one home is registered in the name of Antonietta Di Lauro only (not her husband, the named defendant Mauro Di Lauro) and the other home is registered in the name of Eric Casalese only (not his wife, the named defendant Gerarda Dina Bianco Casalese). In these reasons, Antonietta, Mauro, Gerarda and Eric will be referred to collectively as “the owners.”
Positions of the Parties on the Appeal
4The appellants base their appeal on a few related points. First, they take the position that the expert engineering report in the record is uncontested and that there was therefore no genuine issue as to damages.
5Second, they argue that with respect to the other evidence, the motions judge failed to consider and apply the new and more flexible Rule 20, in particular Rule 20.01(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194, which came into force on January 1, 2010, after the motion was initiated but prior to the motion being heard. The new Rule 20 grants a motions judge the discretion to weigh evidence, evaluate the credibility of a deponent, and to draw a reasonable inference from the evidence. In light of this new expanded grant of power pursuant to Rule 20, they argue, the motions judge should have concluded that there was no genuine issue requiring a trial.
6Third, they also submit that the motions judge’s reasons dismissing their motion are inadequate.
7The respondents acknowledge that the reasons could have been more detailed, but submit that there are indeed numerous issues which require a trial. They point to a number of serious conflicts in the evidence that affect both issues of liability and damages.
The New Rule 20.04(2)
8The new Rule 20.04(2) provides:
20.04(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial
Weighing the evidence,
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
9Rule 20.05 now grants a motions judge additional powers, in the event that a summary judgment motion is unsuccessful or partially successful, to give directions specifying what material facts are not in dispute and what issues remain to be tried, and to impose terms on the parties in relation to, inter alia, time limits for the exchange of evidence and examinations at trial.
Analysis
10We are of the view that the reasons given by the motions judge were inadequate. In particular, he made no reference to the test for summary judgment as set out in Rule 20, and there is nothing to indicate whether he appreciated the fact that the standard is different and more flexible under the new Rules.
11The sparseness of the reasons given by the motions judge in dismissing the motion makes appellate review difficult. In the circumstances of this case, however, we understand why he dismissed the motion. As in Diamond Auto Collision Inc. v. Economical Insurance Group, 2007 ONCA 487 at para. 43, a review of the record discloses a number of reasons that support his conclusion.
12First, there is conflicting evidence as to whether Pino Scarfo is personally liable, given the fact that some, if not all, of the accounts for the demolition and construction project went through a corporation. A number of subcontractors deposed that they were hired by the corporation. It is also noteworthy that most of the agreements with the sub-trades appear to have been verbal, as was the agreement with the owners of the new homes. These are factors that would appear to put a premium on viva voce evidence and the ability to be cross-examined in order to determine this issue.
13Second, the owners’ liability is not self evident on the record before us, considering that Scarfo was an independent contractor, and that the appellants must establish that the work undertaken involved unusual and inherently dangerous risk: Savage v. Wilby, 1954 52 (SCC), [1954] S.C.R. 376 at para. 21. An independent contractor’s hirer is not responsible for the acts of the contractor merely because the work involved may present a danger to others if carried out negligently: Canadian National Railway v. Saskatchewan Wheat Pool, 1986 2901 (SK QB), [1986] 4 W.W.R. 371 (Sask. Q.B.) at para. 24; Di Domenicantonio v. Finnigan (1988), 1988 5738 (NB CA), 49 D.L.R. (4th) 342 (N.B.C.A.) at para. 92; and Sun-Canadian Pipeline Co. v. Lockwood, 1993 CarswellOnt 2509 (Gen. Div.) at para. 37. The record before us and before the motions judge did not differentiate between damages caused by activities that might be found to be inherently dangerous, such as excavating, for example, and other activities related to construction that might not be, such as the construction of the walkway.
14Third, while the appellants argue that the expert report quantifying the damages remains uncontested, the damage amounts are not broken down in any way. It is therefore impossible to know what amounts represent, for example, the cost to repair damage to the Parker patio, as opposed to the cost to repair the walkways. In addition, a closer look at the report indicates that there may be causation issues in relation to some of the damage claimed that have yet to be resolved, as Scarfo alleges that some of the damage pre-existed the construction.
15We also consider the fact that, as the respondents noted, there was no cross-examination prior to the hearing of this motion. In all the circumstances as outlined above, it is reasonable to think that, despite the new rules, this is a case that is more appropriately dealt with by a trial, though perhaps one that is summary in nature.
16In short, while we agree that the reasons of the motions judge were inadequate, we find that he did not err in dismissing the motion for summary judgment, given the conflicting evidence on key issues that require a trial for resolution. Therefore, the appeal is dismissed.
17The costs of the appeal and motion for leave to appeal are payable by the appellants to the respondents in the amount of $5,000.00 to Pino Scarfo, and $5,000.00 to the owners.
KRUZICK J.
SWINTON J.
HARVISON YOUNG J.
Date: October 21, 2010