CITATION: Toronto (City) v. Maple-Crete Inc., 2014 ONSC 2371
Divisional Court File No.: 66-14
DATE: 20140415
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
DAVID BIRT
Plaintiff
– and –
THE CITY OF TORONTO
Defendant
– and –
MAPLE-CRETE INC.
Third Party
Daron L. Earthy, for the Defendant
Matthew MacIsaac, for the Third Party
HEARD: April 14, 2014
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] The Third Party, Maple-Crete Inc., brought a summary judgment motion to have the Third Party Claim of the Defendant, The City of Toronto, dismissed. Justice Morgan dismissed the summary judgment motion. See Toronto (City) v. Maple-Crete Inc.[^1] Maple-Crete now seeks leave to appeal to the Divisional Court. For the reasons that follow, I dismiss the motion.
B. FACTUAL AND PROCEDURAL BACKGROUND
[2] On February 23, 2008, the Plaintiff, Walter Birt, slipped and fell at the corner of Front Street and Blue Jay Way in the City of Toronto, Ontario.
[3] On June 2, 2009, Mr. Birt sued the City for negligence in failing to clear the sidewalks of ice and snow.
[4] On June 19, 2009, the City commenced a Third Party Claim against Maple-Crete Inc., with which it contracted for winter maintenance of its sidewalks at Front Street and Blue Jay Way.
[5] Maple-Crete defended the Third Party Claim and it also delivered a defence in the main action between Mr. Birt and the City.
[6] On March 7, 2010, Mr. Birt was examined for discovery. Portions of his transcript were attached to Maple-Crete’s summary judgment motion. Mr. Birt testified that he was walking with a group of people in the early afternoon. A person was in front of him and someone was beside him. He noticed snowbanks on the side of the road but he did not see ice. He crossed the street, took several steps on the sidewalk, and fell, landing on his back. He assumed that he slipped on the ice. He did not see anyone else fall.
[7] On January 17, 2014, Maple-Crete Inc. brought a summary judgment motion to dismiss the City’s Third Party Claim. No motion was brought in the main action to dismiss Mr. Birt’s action. Mr. Birt’s discovery evidence was included in the motion record and it was referred to in the factums and in the oral argument of the summary judgment motion.
[8] Justice Morgan dismissed the motion. For present purposes, the pertinent part of his Reasons for Decision are set out in paragraphs 3 to 5 and 9 and 10 where he stated:
The question of whether or not the Plaintiff's injury was a result of negligent clearing of ice from the sidewalk will have to be determined at trial of the main action. It cannot be determined on this motion, as the Plaintiff's evidence is not in the record. It would be unfair to make a finding on this issue - which will inevitably be central to the result in the main action - in the context of a motion in which the Plaintiff did not respond as no relief was sought against him.
The courts have on previous occasions determined that it is generally not appropriate to require a Defendant to prove or disprove an element of the Plaintiff's claim in responding to a summary judgment motion brought by a Third Party. Cuillerier v. Andre's Furnace Sales & Service Ltd., [2011] O.J. No. 4029, 2011 CarswellOnt 9215, at para. 16 (Master). Since a Third Party Claim is often contingent upon the results of the main claim, motions under Rule 20 rarely succeed where they seek to dispose of a Third Party Claim. See Tate Andale Canada Ltd. v. DiClemente, [2001] O.J. No. 2185, 2001 CarswellOnt 1997, at para. 28 (SCJ).
It would impose an excessive burden on Toronto as Defendant if summary judgment could be granted to Maple just because Toronto cannot prove the question of Maple's negligence without evidence from the Plaintiff. Bongiardina v. York (Regional Municipality), [2000] O.J. No. 2751, 2000 CarswellOnt 2622, at para. 15 (Ont. CA). Accordingly, summary judgment is only available to a Third Party in Maple's position if it is impossible for the Third Party Claim to succeed regardless of the outcome of the main action. Eftimonski v. Faris, 2013 CarswellOnt 15268, at paras. 60-62 (SCJ).
The Toronto-Maple contract required Maple to clear the sidewalks until they are free of snow. Further, Maple's representative at discovery acknowledged that this included clearing and de-icing the sidewalk. It will be for the trial court, after considering all of the evidence (including that of the Plaintiff), to determine whether or not the clearing done by Maple on the day of the Plaintiff's fall met the requisite standard of care.
Without the Plaintiff's participation in this motion, there inevitably will remain a genuine issue requiring a trial. The test for summary judgment in Rule 20.04(2)(a) has therefore not been met. The Third Party Claim must remain intact, to be tried together with the main action. Maple's motion is dismissed.
C. POSITION OF THE MOVING PARTY
[9] Maple-Crete Inc. submits that pursuant to rule 62.02(4) of the Rules of Civil Procedure leave to appeal to the Divisional Court should be granted. It submits that Justice Morgan erred in stating that Mr. Birt’s evidence about the circumstances of his fall was not in the record. It submits that Justice Morgan did not properly use the discretionary powers available to him under rule 20.04 and was incorrect in holding that there was a genuine issue requiring a trial as between the City and Maple-Crete.
[10] Maple-Crete submits that in light of the imperatives of the Supreme Court of Canada’s judgment in Hryniak v. Mauldin,[^2] if Justice Morgan was unsatisfied with the evidentiary record before him, he was obliged to call evidence or he was obliged to explain why the case was inappropriate for using the court’s discretion to call evidence on a summary judgment motion.
[11] Maple-Crete submits that the third party proceedings are a separate proceeding from the main action and that it was entitled to compel the City to put its best foot forward in its claim for contribution and indemnity and the City has simply failed to show that there is a genuine issue for trial in the Third Party Proceeding.
D. THE TEST FOR LEAVE TO APPEAL
[12] The test for leave to appeal from the interlocutory orders of a motions judge to the Divisional Court is set out in rule 62.02(4) of the Rules of Civil Procedure,[^3] which reads:
62.02(4) Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[13] In the case at bar, leave to appeal is sought under rule 62.02(4)(b).
[14] In order for leave to be granted under rule 62.02(4)(b), the moving party must show both: (a) good reason to doubt the correctness of the order; and also (b) a matter of general importance. In order to show that that there is good reason to doubt the correctness of the order, the moving party need not show that the order is wrong or probably wrong, but rather, that the soundness of the order is open to very serious debate.[^4]
[15] In order to show that a matter is of general importance, the moving party must show that the matter is of importance to the public or to the development of the law or to the administration of justice and that the importance of the order transcends the importance of the matter to the particular parties.[^5]
E. DISCUSSION AND ANALYSIS
1. The Absence of the Plaintiff’s Evidence
[16] Maple-Crete submits that there is good reason to doubt the correctness of Justice Morgan’s conclusion that the question of whether Mr. Birt’s injury was a result of negligent clearing of ice from the sidewalk could not be determined on a summary judgment motion as the Plaintiff's evidence was not on the record. Maple-Crete submits that since the Mr. Birt’s discovery evidence was on the record, there is good reason to doubt Justice Morgan’s conclusion.
[17] Maple-Crete submits that the appeal involves matters of importance because the appeal deals with the contractual obligations of a contractor to a municipality, the resulting obligations to members of the public and the availability of summary judgment in these circumstances.
[18] In my opinion, Maple-Crete has not satisfied the test for leave under rule 62.02(4)(b) with respect to Justice Morgan’s conclusion that there was a genuine issue for trial about Maple-Crete’s negligence because the Plaintiff’s evidence was not on the record.
[19] In making its submission that there is good reason to doubt the correctness of Justice Morgan’s decision, Maple-Crete mischaracterizes or misunderstands Justice Morgan’s reasons and ignores that the essential reason that he dismissed the summary judgment motion in the Third Party Proceeding was that it would be unfair to decide the summary judgment motion.
[20] Justice Morgan might have added that deciding the Third Party Proceeding before a binding decision in the main action could be embarrassing to the administration of justice, because, at trial, Mr. Birt might prove that there was ice on the sidewalk and that the City was liable for Maple-Crete’s failure to remove the ice.
[21] The main point is that it would be unfair and potentially embarrassing to decide a third party proceeding for contribution and indemnity without deciding the main action.
[22] There is no good reason to doubt Justice Morgan’s conclusion, which was supported by the case law he cited.
[23] In Bongiardina v. York (Regional Municipality),[^6] Mr. Bongiardina slipped and fell on a sidewalk and he sued the municipality, which, in turn, like the City of Toronto in the case at bar, brought a third party claim against the Mangiapanes for contribution and indemnity for contravention of a snow clearing by-law. The Mangiapanes brought a successful summary judgment motion on the basis that as a matter of law they were not liable for contribution and indemnity. The Court of Appeal affirmed the summary judgment but Justice MacPherson noted that where the dispute was factual and dependent on the outcome of the main action, a summary judgment motion would not be appropriate. He stated at paragraphs 15 and 16:
There might well be cases in which it would be inappropriate to bring a motion for summary judgment in respect of a third party claim. For example, if the third party claim could not be re-solved without detailed knowledge of the factual circumstances that gave rise to the main action, a motion for summary judgment would be premature.
However, that is not this case. The third parties in this case, the Mangiapanes, have examined the City of Vaughan's pleadings and concluded that, as a matter of law, they disclose no cause of action against them. In my view, they are entitled to have this matter resolved at the outset of the proceedings. If they are right, they deserve to be let out of the action now, before they devote ener-gies and money to defending it.
[24] In Cuillerier v. André's Furnace Sales & Service Ltd.,[^7] on a summary judgment motion brought by third parties, Master MacLeod stated at paragraphs 16 and 18:
More importantly, summary judgment is not available on this point because the allegation that the elbow was improper, illegal or unsuitable is an allegation made by the plaintiff and not by the defendant. It is not generally open to a third party to force the defendant to prove an aspect of the plaintiff's case in order to resist a summary judgment motion in the third party proceeding.
Other cases including a decision of the Court of Appeal have confirmed that it will generally be unfair to a defendant to grant summary judgment on the third party claim just because the defendant cannot prove an element of the plaintiff's claim. Indeed it would be bizarre for the defendant to be put in that position because that is the very claim the defendant is resisting in the main action. A third party proceeding is a contingent claim which claims contribution or indemnity for some or all of the plaintiff's claim if it is successful. It ought not to readily be open to a third party who has not defended the main action to obtain summary judgment against the defendant on this basis.
[25] In Tate Andale Canada Ltd. v. DiClemente,[^8] Justice E.M. Macdonald stated at paragraph 28:
Finally, there is one other reason why the claim should not be struck. Third and Fourth party claims are always contingent upon the success of the plaintiff. For this reason, a motion under Rule 20 to dismiss such a claim rarely succeeds. See Ese Sports Co. v. Continental Insurance Co. (1995), 41 C.P.C. (3d) 59 (Ont. Gen. Div.).
[26] Justice Morgan was not ignoring Mr. Birt’s discovery evidence when he said that the Plaintiff’s evidence is not in the record. What Justice Morgan was saying that it was not fair and not appropriate to force a defendant to make the absent plaintiff’s case in order to justify the defendant’s own claim for contribution and indemnity on a third party’s motion for summary judgment. I repeat what Justice Morgan stated at paragraph 3 of his decision:
It cannot be determined on this motion, as the Plaintiff's evidence is not in the record. It would be unfair to make a finding on this issue - which will inevitably be central to the result in the main action - in the context of a motion in which the Plaintiff did not respond as no relief was sought against him.
[27] Putting aside for the moment the matter of the importance of the availability of summary judgment, which I will discuss in the next section of these reasons, in my opinion, an appeal in this case does not involve matters of importance beyond the interests of the parties.
2. The Approach to Summary Judgment
[28] Relying on the recent decision of the Supreme Court of Canada in Hryniak v. Mauldin,[^9] Maple-Crete submits that there is good reason to doubt the correctness of Justice Morgan’s decision because he failed to use the approach that he was obliged to use in order to determine whether there were genuine issues for trial in the City’s claim against Maple-Crete.
[29] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.”
[30] Rules 20.04(2.1) and (2.2), which were introduced in 2010, provide the court with the power to weigh the evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence. The 2010 amendments to the summary judgment rule were introduced to statutorily overrule a line of cases associated with Aguonie v. Galion Solid Waste Material Inc.,[^10] which had held that a judge on a summary judgment motion cannot find facts and assess credibility and weigh evidence.
[31] In Hryniak v. Mauldin, a unanimous Supreme Court of Canada introduced a more robust approach to granting summary judgment. In paragraphs 49 and 66 the Court stated:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[32] Thus, in Hryniak v. Mauldin, the Supreme Court of Canada held that on a motion for summary judgment under rule 20.04, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the new fact-finding powers. Thus, the Supreme Court directs for the first step on a summary judgment motion, the approach that existed before Rule 20 was amended and in the case at bar, the court should first determine, based on the evidentiary record, whether there is a genuine issue requiring a trial. This analysis should be done without using the enhanced fact-finding powers available under rules 20.04(2.1) and (2.2) by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.
[33] If the first step does not lead to a summary judgment, then the court should move to the second step mandated by Hryniak v. Mauldin. Under the second step, if there appears to be a genuine issue requiring a trial, then the court should determine whether the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2).
[34] As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[35] Maple-Crete submits that a judge on a summary judgment motion is obliged to exercise his or her powers under rule 20.04 in every legitimate motion for a summary judgment and that Justice Morgan’s approach was contrary to the directions of the Supreme Court of Canada.
[36] In my opinion, there is no good reason to doubt the correctness of Justice Morgan’s approach and, once again, Maple-Crete mischaracterizes or misunderstands Justice Morgan’s reasons.
[37] As I read and understand Justice Morgan’s reasons, he did turn his mind to whether a summary procedure would be in the interest of justice and he provided an explanation for sending the action on to a trial.
[38] Because of the unfairness of proceeding in the fashion proposed by Maple-Crete, Justice Morgan decided that it would not lead to a fair and just result to decide the Third Party Proceedings without deciding the main action and that it would not serve the goals of timeliness, affordability and proportionality to decide the Third Party Proceeding in light of the litigation as a whole.
[39] What Maple-Crete is proposing is not in the interests of justice. It is an approach that would compel the City to prove the claim it is defending in the main action with the prospect that the result of the Third Party Claim may be inconsistent with the outcome of the main action when it is tried. Justice Morgan saw the fundamental unfairness of such an approach and he put an end to it. He exercised his discretion consistently with the directives of the Supreme Court in Hryniak v. Mauldin.
[40] I conclude again that Maple-Crete has not satisfied the test for leave to appeal.
[41] While the court’s approach to summary judgment is a matter of importance, there is no good reason to doubt the correctness of the order in question and, upon analysis, Justice Morgan’s decision does not depart from the approach to summary judgment mandated by the Supreme Court.
F. CONCLUSION
[42] For the above reasons, the motion for leave to appeal is dismissed with costs on a partial indemnity scale fixed at $6,619.57, all inclusive, payable to the City forthwith.
Perell, J.
Released: April 15, 2014
CITATION: Toronto (City) v. Maple-Crete Inc., 2014 ONSC 2371
DIVISIONAL COURT FILE NO.: 66-14
DATE: 20140415
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
DAVID BIRT
Plaintiff
– and –
THE CITY OF TORONTO
Defendant
– and –
MAPLE-CRETE INC.
Third Party
REASONS FOR DECISION
PERELL J.
Released: April 15, 2014
[^1]: 2014 ONSC 528. [^2]: 2014 SCC 7. [^3]: R.R.O. 1990, Reg. 194. [^4]: Ash v. Lloyd's Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.) at pp. 284-5; Oberlander v. Canada (Attorney General), [2004] O.J. No. 1574 (S.C.J.) at paras. 8-9; Brownhall v. Canada (Ministry of Defence) (2006), 80 O.R. (3d) 91 (S.C.J.) at para. 30; Walker v. Woodstock District Chamber of Commerce, [2000] O.J. No. 1994 (S.C.J.); Judson v. Mitchele, 2011 ONSC 6004. [^5]: Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.) at p. 112; Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 57 O.R. (2d) 569 (H.C.J.) at p. 575; Brownhall v. Canada (Ministry of Defence) (2006), 80 O.R. (3d) 91 (S.C.J.) at para. 29. [^6]: (2000), 49 O.R. (3d) 641 (C.A.). [^7]: 2011 ONSC 5310 (Master). [^8]: [2001] O.J. No. 2185 (S.C.J.). [^9]: 2014 SCC 7. [^10]: (1998), 38 O.R. (3d) 161 (C.A).