Court of Appeal for Ontario
Citation: 2019 ONCA 447 Date: May 30, 2019 Docket: C65825
Judges: Doherty, Rouleau and Brown JJ.A.
Parties
Between
Stephen Drummond Plaintiff (Respondent)
and
The Cadillac Fairview Corporation Limited Defendant (Appellant)
Counsel
For the Appellant: Larry P. Reimer
For the Respondent: Shane Katz and Dilenthi Warakaulle
Hearing
Heard: May 2, 2019
On appeal from: The judgment of Justice Paul M. Perell of the Superior Court of Justice, dated July 26, 2018, with reasons reported at 2018 ONSC 4509.
Decision
Brown J.A.:
I. OVERVIEW
[1] This appeal raises three issues: (i) the fairness of granting summary judgment against the moving party when the responding party has not brought a cross-motion for such relief; (ii) the use of hearsay evidence on summary judgment motions; and (iii) the liability of a retail mall manager under s. 3(1) of the Occupiers' Liability Act, R.S.O. 1990, c. O.2.
[2] On August 23, 2015, the respondent, Stephen Drummond, visited the Fairview Mall in Toronto with his fiancé and two daughters. The appellant, The Cadillac Fairview Corporation Limited ("Cadillac Fairview"), is the property manager for the Mall.
[3] While in the Mall's food court, Mr. Drummond tripped over a skateboard, which a 12-year old boy had brought into the Mall. He suffered injuries.
[4] In September 2016, Mr. Drummond started this occupier's liability action against Cadillac Fairview for general and special damages in the amount of $1 million. Cadillac Fairview defended, denying that it was negligent and asserting a defence of contributory negligence.
[5] Following the examination for discovery of Mr. Drummond, Cadillac Fairview moved for summary judgment dismissing the action, in part on the ground that "there is no genuine issue for trial with respect to the liability of Cadillac Fairview." Mr. Drummond did not bring a cross-motion for judgment in his favour.
[6] Nevertheless, the motion judge granted judgment to Mr. Drummond and directed a trial of the assessment of damages in the event the parties could not settle that issue (the "Judgment").
[7] Cadillac Fairview appeals. It advances three grounds of appeal.
II. FIRST GROUND OF APPEAL: THE JUDGMENT WAS THE PRODUCT OF AN UNFAIR PROCESS
[8] The motion judge described the positions of the parties regarding the possible dispositions of the motion at para. 49 of his reasons:
In resisting Cadillac Fairview's summary judgment motion, Mr. Drummond submitted that there were genuine issues for trial and that the case at bar was inappropriate for a summary judgment. I disagree, but happily for Mr. Drummond, my decision is that he is entitled to a summary judgment on liability to be followed by an assessment of damages.
[9] Cadillac Fairview submits that by granting a judgment not requested by the plaintiff by way of a cross-motion – colloquially known as a "boomerang summary judgment" – the motion judge acted unfairly in two ways. First, he did not give Cadillac Fairview notice of its potential litigation risk on the motion and a fair opportunity to meet that risk: Rodaro v. Royal Bank (2002), 59 O.R. (3d) 74 (Ont. C.A.), at para. 61. Second, to grant judgment in favour of the plaintiff, the motion judge was required to deal with Cadillac Fairview's pleaded contributory negligence defence. The motion judge's reasons are devoid of any treatment of that defence or any explanation about why judgment was granted to the plaintiff in the face of that defence.
[10] In response, Mr. Drummond submits that cases exist in which the court has granted judgment in favour of the party responding to a summary judgment motion in the absence of a cross-motion by the responding party, starting with the Supreme Court of Canada decision in Manulife Bank of Canada v. Conlin, [1996] 3 S.C.R. 415, at paras. 70-71. Consequently, the motion judge did not err in granting the Judgment in favour of the plaintiff.
[11] To dispose of this appeal, it is not necessary to explore the scope of the principle that flows from the Manulife case or the specific circumstances in which it might fairly be applied. Suffice it to say, that whenever a court grants summary judgment – whether in response to a notice of motion, cross-motion or otherwise – it must firmly keep in mind that summary judgment motions are designed to do more than make efficient use of court resources. They are intended to achieve fair and just results. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court emphasized that granting summary judgment under r. 20 of the Rules of Civil Procedure requires that the result be a fair and just one: "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" (emphasis added): at paras. 49 and 66.
[12] The motion judge's grant of judgment in favour of Mr. Drummond was not a fair and just determination on the merits on the motion, based on the following combination of factors:
(i) Mr. Drummond did not bring a cross-motion for judgment. To the contrary, his main position before the motion judge – and the position with which Cadillac Fairview engaged – was that this was not an appropriate case to be determined by summary judgment. In his factum filed on the motion, Mr. Drummond submitted that "a trial is required to determine whether Fairview Mall breached its duty to [Mr. Drummond] by failing to take reasonable care to ensure that [he] was reasonably safe while on the premises";
(ii) Significantly, one of the reasons advanced by Mr. Drummond in support of his position that the case would be more fairly and justly decided by way of a trial was the need for further evidence from additional witnesses, including the cleaners who had been working in the food court area on the day of the incident;
(iii) Although at the end of his factum on the summary judgment motion Mr. Drummond advanced a three-line alternative request that judgment be granted in his favour, the motion judge granted Mr. Drummond judgment without considering the material defence of contributory negligence raised by Cadillac Fairview. While it would have been possible for the motion judge to grant Cadillac Fairview summary judgment dismissing the action without considering the issue of contributory negligence, it was not possible for him to grant judgment to the plaintiff without considering and rejecting that defence; and
(iv) The motion judge failed to put Cadillac Fairview on notice that he might grant judgment against it and then afford Cadillac Fairview an opportunity to address that litigation risk.
[13] The lack of procedural fairness on the motion is a sufficient basis to allow the appeal and set aside the Judgment in favour of Mr. Drummond.
[14] Apart from the fairness concerns, the outcome in this case demonstrates the practical problems and inefficiencies that can arise when a judge chooses to go beyond the issues raised by the parties and make orders that no one requested or had an opportunity to speak to in the course of their submissions. Given the absence of any reference to the contributory negligence defence in the materials filed on the motion (apart from in the statement of defence) or in the motion judge's reasons, it seems likely that the motion judge was either unaware of or had forgotten about the contributory negligence defence. Had the motion judge raised with counsel the possibility of granting judgment on liability in favour of the plaintiff, counsel would no doubt have brought to the motion judge's attention the contributory negligence defence and its impact on the motion judge's ability to grant judgment in favour of the plaintiff on the summary judgment motion. Because counsel did not have an opportunity to address the issue on the motion, an appeal, with its inevitable delay and added cost, became necessary regardless of the merits of the rest of the motion judge's analysis.
III. SECOND GROUND OF APPEAL: THE MOTION JUDGE IMPERMISSIBLY RELIED ON HEARSAY EVIDENCE
The issue stated
[15] As noted by the motion judge, the possession of skateboards at the Mall was not prohibited as some of the Mall's commercial tenants sold and repaired skateboards. What was prohibited was the use of skateboards in the Mall: at para. 16. The central issue in Mr. Drummond's claim against Cadillac Fairview was whether the company had breached its statutory duty by failing to take reasonable care to see that patrons visiting the Mall were reasonably protected against the hazard of others using skateboards in the Mall: at paras. 50 and 51.
[16] In his responding affidavit, Mr. Drummond deposed that prior to the incident he had not seen the owner of the skateboard or the skateboard. However, he deposed that his daughter had informed him that she had seen the owner of the skateboard playing with the skateboard on the floor with his feet, moving it from side to side in the food court area.
[17] In addition, Mr. Drummond deposed that his fiancé had informed him of conversations she had had with two unidentified members of the cleaning staff at the Mall. (Cadillac Fairview had contracted the housekeeping services for the Mall to a third party, GDI Services (Canada) LP, who employed the cleaners). The first unidentified cleaner told her that: about an hour before the incident with Mr. Drummond a skateboard had struck her; its owner had been seated in the same location in the food court where the incident involving Mr. Drummond took place; the cleaner had sustained a small cut on the back of her foot; and she had told the skateboard owner to stop playing with the skateboard.
[18] The second unidentified cleaner had told the fiancé that she had seen the skateboard owner playing with the skateboard with his feet on the floor of the food court.
[19] Mr. Drummond also tendered an affidavit from Steven Summerville, a security coordinator. Mr. Summerville appended an expert report to his affidavit. The motion judge excluded the report. However, the affidavit was otherwise admitted. Mr. Summerville attached to his affidavit unsworn, handwritten statements given by Mr. Drummond's daughter and fiancé, almost two years after the incident, which contained the information about the cleaners that Mr. Drummond included in his affidavit.
[20] The motion judge admitted the hearsay evidence from Mr. Drummond's daughter and fiancé for the truth of its contents, relying on r. 20.02(1) of the Rules of Civil Procedure, the business records exception, and the reliability and necessity exception to the rule against hearsay: at paras. 19 to 21. Cadillac Fairview submits that the motion judge erred in so doing.
Analysis
[21] The principles governing the admissibility of evidence on a summary judgment motion are the same as those that apply at trial, save for the limited exception of permitting an affidavit made on information and belief found in r. 20.02(1): Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, leave to appeal refused, [2016] S.C.C.A. No. 443, at para. 15. Rule 20.02(1) provides, in part, that "[a]n affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01(4)" which, in turn, requires that the affidavit specify "the source of the information and the fact of the belief". However, r. 20.02(1) continues: "[B]ut, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts."
[22] In Armstrong v. McCall (2006), 213 O.A.C. 29 (C.A.), at para. 33, this court expressed strong reservations about using r. 20.02(1) to admit affidavits that assert contested facts on information and belief. That caution regarding the use of hearsay evidence on summary judgment motions in respect of contested facts was repeated recently by this court in Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, at para. 80:
The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
[23] Although that caution was made in the context of a summary judgment motion in a child protection proceeding, the caution applies equally to the treatment of hearsay evidence that goes to fundamental issues in dispute on a summary judgment motion under the Rules of Civil Procedure. As Edwards J. stated in Mitusev v. General Motors Corp., 2014 ONSC 2342, at para. 20: "If the hearsay evidence is on a fundamental aspect of the motion, it is unlikely that the motion judge will decide the motion favourably to the party adducing the hearsay evidence."
[24] If the evidence on information and belief in an affidavit goes to a fundamental contested aspect of the summary judgment motion, the motion judge should first determine whether the evidence would be admissible under the rules governing admissibility at trial. If the evidence meets those criteria, it is admissible on the motion. If the evidence does not meet the criteria for admissibility at trial, the onus should fall on the party proffering the evidence to justify some expansion of the rules governing admissibility in the context of the motion. For example, there may be cases in which an affidavit complies with r. 20.02(1) and it can be said that the opposing party had a fair chance to challenge the hearsay evidence, even though the evidence might not qualify as admissible hearsay.
[25] The information that Mr. Drummond relayed from his daughter and fiancé went to the heart of the plaintiff's negligence claim against Cadillac Fairview. While the information in Mr. Drummond's affidavit provided by his daughter met the technical requirement of disclosing the source of the information, that from his fiancé did not. The material information from the fiancé was information provided to her by two unnamed members of the cleaning staff about what they had seen the skateboard owner do some time before the incident with Mr. Drummond. In his factum on the summary judgment motion, Mr. Drummond described the two unnamed cleaners as "essential witnesses". The absence of an actual identification of such essential witnesses is a significant consideration in determining whether the evidence is sufficiently reliable to warrant its admissibility under r. 20.02(1). [1]
[26] In his affidavit tendering the hearsay and double-hearsay statements from his daughter and fiancé, Mr. Drummond offered no explanation about why they could not provide their own affidavits on the motion, especially in light of the materiality of the information he attributed to them. Nor did Mr. Drummond explain why he did not tender direct evidence from the members of the cleaning staff, whom he described as "essential witnesses". In his reasons, the motion judge failed address those evidentiary frailties or explain how, given those frailties, any weight could be given to the hearsay statements, even under r. 20.02(1).
[27] Instead, the motion judge concluded, without analysis, that the hearsay evidence would have been admissible pursuant to the business records exception and the reliability and necessity exception to the rule against hearsay: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. In admitting the hearsay evidence on those bases, the motion judge committed legal error.
[28] Mr. Summerville's affidavit did not attempt to lay any foundation to admit the unsworn, handwritten statements of the daughter and fiancé under the business records exception. Their handwritten statements patently were not business records.
[29] Nor were the statements by, or the information from, the daughter or fiancé recounted in Mr. Drummond's affidavit admissible under the principled exception to the hearsay rule because there was no evidence about the need to admit that evidence or its reliability.
[30] The motion judge erred in law by admitting that hearsay evidence for the truth of its contents.
[31] The hearsay evidence from the daughter and fiancé played a central role in the motion judge's finding of liability against Cadillac Fairview. The motion judge accepted the information contained in the hearsay evidence as the truth of what the skateboard owner had done before the incident with Mr. Drummond, as can be seen from paras. 52 and 53 of his reasons:
Cadillac Fairview admitted that the use of skateboards inside the mall was a known hazard. It posted signs prohibiting skateboard use inside the mall, and it admitted that if a person entered the mall with a skateboard, the person was to be told by a security guard to secure the skateboard during the person's visit to the mall. Cadillac Fairview admitted that it required its security guards to patrol the mall to alert themselves whether skateboards were being used in the mall.
However, in the immediate case, the security guard's patrols and their documentation of the patrols were ineffective. The security guards patrolled, but they did not notice that SS had entered the mall with a skateboard. The security guards did not notice that SS with his skateboard was moving through the mall. When the security guards patrolled the food court, they did not notice that SS had not secured his skateboard. They did not notice that SS was playing with the skateboard under his chair in the food court. Although the security guards were not alerted by the cleaning staff that there had already had been an incident in the food court with the skateboard causing minor harm to a cleaning lady, the security guards did not as part of their patrol make proactive inquiries of anyone in the food court, but rather they waited for incidents to be reported to them. (emphasis added)
[32] I accept the submission of Cadillac Fairview that the motion judge's finding of liability against it was grounded in his erroneous admission of hearsay evidence on key, contested issues. That error by the motion judge constitutes an additional reason to set aside the Judgment against Cadillac Fairview.
[33] For those reasons, I would allow the appeal and set aside the Judgment granted in favour of Mr. Drummond against Cadillac Fairview.
IV. CADILLAC FAIRVIEW'S SUMMARY JUDGMENT MOTION
[34] Cadillac Fairview submits that in the event this court sets aside the Judgment, it should grant summary judgment to Cadillac Fairview dismissing the action pursuant to s. 134(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[35] I accept that submission. I am persuaded that the record does not disclose any genuine issue requiring a trial in respect of Cadillac Fairview's liability to Mr. Drummond.
[36] As framed by the motion judge, the central issue in Mr. Drummond's claim against Cadillac Fairview was whether the company had breached its statutory duty by failing to take reasonable care to see that patrons visiting the Mall were reasonably protected against the hazard of others using skateboards in the Mall: at paras. 51. The motion judge recognized that Cadillac Fairview's Security & Life Safety Standard Operating Procedures manual implemented a reasonable standard of care and the company had a reasonable system in place to guard against the hazards of skateboard use in the Mall: at paras. 51 and 54. He also found as a fact that the Mall, including the food court, was routinely being patrolled on the day of the incident: at para. 38. The motion judge's conclusion that Cadillac Fairview had failed to meet the reasonable standard it had set for itself in its Standard Operating Procedures was based on two findings.
[37] The first was that prior to the incident with Mr. Drummond, the skateboard owner had been playing with the skateboard under his seat in the food court, had allowed his skateboard to hit and injure a cleaner, had been told to stop using his skateboard yet, according to the information Mr. Drummond attributed to his daughter, the skateboard owner continued to play with his board. As explained, those findings were based on inadmissible hearsay.
[38] So, too, was the motion judge's further finding that the security guards had not been alerted to the earlier incident involving the member of the cleaning staff and had not made proactive inquiries in that regard. That finding was predicated on the tainted findings that the earlier incident in fact had occurred.
[39] One of Cadillac Fairview's security guards, Mr. Karvan Afsar, prepared two Incident Reports regarding the incident involving Mr. Drummond. In his reasons, the motion judge observed that the security guard did not record the incident with the detail required by the Standard Operating Procedures manual. As well, two of the five memorandum books of the security guards had been lost. However, as the motion judge noted, none of those acts or omissions would have prevented the incident from occurring.
[40] Once the inadmissible hearsay evidence is removed from the negligence analysis, the remaining material evidence on whether the standard of care was met is that filed by Cadillac Fairview. It included the direct evidence of one security guard, Mr. Karvan Afsar, about the events of August 23, 2015. He was cross-examined at length. In his evidence, Mr. Afsar testified that: (i) the young skateboard owner was not known as a person who was a potential hazard; (ii) Mr. Afsar patrolled the food court as part of his shift that day, which included the time of day when the incident involving Mr. Drummond occurred; (iii) on a typical shift he would have patrolled the food court about 15 times; and (iv) he saw two other security guards patrolling that day.
[41] As well, Mr. Afsar attached to his affidavit the memorandum books of the other two guards. Based on his review of those books, he deposed that none of the books made any reference to the young skateboard owner or any potential hazard he might pose to patrons in the Mall.
[42] Section 3 of the OLA imposes a duty on an occupier of premises "to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises … are reasonably safe while on the premises." The statutory standard of care is one of reasonableness in the circumstances; it does not require perfection or unrealistic or impractical precautions against known risks: Kerr v. Loblaws Inc., 2007 ONCA 371, 224 O.A.C. 56, at para. 19. Accordingly, the standard of care did not require Cadillac Fairview to maintain a constant surveillance or lookout for potential danger; it required the company to take measures that were reasonable in the circumstances: Garofalo v. Canada Safeway Ltd., [1998] O.J. No. 302 (O.C.J., Gen. Div.), at para. 31; Saisho Estate v. Loblaw Cos., 2015 ONCA 172, at para. 17.
[43] I am satisfied on the admissible evidence before the court that Cadillac Fairview has demonstrated that there is no genuine issue requiring a trial regarding the elements that Mr. Drummond must establish to prove his claim that Cadillac Fairview breached its duty under s. 3 of the OLA: Tondat v. Hudson's Bay Company, 2018 ONCA 302, at paras. 6 and 7. The admissible evidence shows that: Cadillac Fairview had in place reasonable policies to ensure the safety of those entering into the Mall and eating in the food court; it implemented those policies in a routine and reasonable manner on the day of the incident through the patrols performed by the security guards; and it had no reason to foresee that the young skateboard owner's conduct might pose a risk to Mr. Drummond or other patrons using the food court. In those circumstances, I see no genuine issue requiring a trial regarding Cadillac Fairview's liability to Mr. Drummond for the injuries that he suffered.
V. DISPOSITION
[44] For the reasons set out above, I would allow the appeal, set aside the Judgment, and dismiss the action.
[45] Based on the agreement of the parties, I would award Cadillac Fairview its costs of the appeal in the amount of $15,000 and its costs of the action in the amount of $15,000, for a total of $30,000, inclusive of disbursements and H.S.T.
Released: May 30, 2019
"David Brown J.A."
"I agree. Doherty J.A."
"I agree. Paul Rouleau J.A."
Footnote
[1] The examination for discovery of Cadillac Fairview's representative, Mr. Paul Pannozzo, took place on April 5, 2017, well before Cadillac Fairview brought its summary judgment motion. On that examination, Cadillac Fairview advised that its insurance adjuster had taken an electronic recording of the statement of a cleaner, which it identified in Schedule B to its affidavit of documents. Cadillac Fairview undertook to provide the identity of and contact information for the cleaner. Mr. Drummond did not argue that Cadillac Fairview failed to fulfill that undertaking.
