Court File and Parties

BARRIE COURT FILE NO.: CV-15-1120A1 DATE: 20190109

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Paul Hollingshead Plaintiff – and – Aerarium Development Corporation Limited and The Penalty Box Sports Pub & Restaurant Inc. Defendants – and – Huronia Landscaping Third Party/Moving Party

Counsel: No one appearing for the Plaintiff Rovena Hajderi, for the Defendant, Aerarium Development Corporation Limited Mark Vernon, for the Third Party/Moving Party

HEARD: December 14, 2018

REASONS FOR DECISION

CHARNEY J.:

Introduction

[1] This motion for summary judgment is brought by the third party, Huronia Landscaping (Huronia), to dismiss the third party claim brought against it by the defendant, Aerarium Development Corporation Limited (Aerarium).

[2] The main action relates to a personal injury claim for a slip and fall on the defendant’s stairs in September, 2013.

[3] The plaintiff, Paul Hollingshead, takes no position with respect to this motion and did not appear.

Facts

i) The date of the slip and fall

[4] The plaintiff alleges that as he was descending the concrete stairs in front of a restaurant located on premises owned by the defendant Aerarium, he slipped and fell and injured himself. The restaurant is called the Penalty Box Sports Pub & Restaurant (Penalty Box), and is the second defendant in this action.

[5] The plaintiff’s lawyer served the defendant Aerarium with a notice on October 30, 2013. The notice states that the alleged accident occurred “on or about September 27, 2013”.

[6] On December 6, 2013, the plaintiff was interviewed by an adjuster retained by the defendant’s property insurer. During the interview, the plaintiff confirmed that the date of the accident was September 27, 2013.

[7] The Statement of Claim, which was filed on September 18, 2015, also alleges that the accident occurred “on or about September 27, 2013”.

[8] The Statement of Claim alleges that the injury occurred when the plaintiff went to the restaurant to participate in the off track horse racing. When he exited the restaurant using the main door and began descending the concrete steps “the concrete stairs crumbled beneath his feet causing him to fall down the stairs”.

[9] At his discovery, the plaintiff confirmed that he fell because the step crumbled beneath his feet. He stated that he returned to the restaurant later that day and looked at the steps, and he could see part of the step was missing and part of the stone from the step had broken off.

[10] Aerarium filed a Statement of Defence on May 31, 2016, denying all liability to the plaintiff.

[11] On June 2, 2016, Aerarium filed a Third Party Claim against Huronia, alleging that Huronia was hired to repair the stairs and carried out the repairs from September 23 to 25, 2013, and was paid for its services. The defendant further states that it relied on the expertise of the third party to carry out the repair pursuant to industry standards, and that if the plaintiff sustained any injury it was caused by the third party’s failure to make proper repairs to the stairs.

[12] During the examinations for discovery on August 9, 2017, the plaintiff testified that the September 27, 2013 date in his Statement of Claim was an error, and he actually fell on the third Thursday of September, 2013, which was September 19, 2013. He recalled the precise date because he went to the restaurant to watch a special race held in the United States called the “Little Brown Jug”, and this race is held every year on the third Thursday of September. The September 19, 2013 date was confirmed by his counsel on the record.

[13] The plaintiff did not go to the hospital after the accident and there are no medical records to confirm the date of the injury. The defendants have no knowledge or evidence of when the accident happened, apart from the evidence of the plaintiff.

[14] After the plaintiff’s discovery, he brought a motion for leave to amend his Statement of Claim to change the date of his fall from September 27, 2013 to September 19, 2013. On February 13, 2018, the plaintiff’s motion was allowed and he was given leave to amend his Statement of Claim.

[15] Notwithstanding leave to amend being granted on February 13, 2018, the plaintiff has not yet served an Amended Statement of Claim. This delay is likely the result of his lawyer being suspended by the Law Society of Ontario.

[16] The date of the slip and fall is obviously significant to the third party claim. If the slip and fall happened on September 19, 2013, and Huronia carried out the repairs to the stairs between September 23 and 25, 2013, as alleged in the third party claim, Huronia cannot be liable for the injury.

ii) The date of the repairs

[17] There is some dispute regarding the precise date the repairs were carried out by Huronia. Aerarium argues that the repairs could have been made as early as September 20, 2013.

[18] Aerarium has filed an affidavit from Tammy Connolly, its construction manager, in which she attaches an email dated September 18, 2013. This is an email she sent to the receptionist at Aerarium to advise that she had contacted Huronia to repair the stairs. The email states:

Please call Katie at the Penalty Box & let her know that the steps will be repaired by the end of the week. I have contracted the work to Chris White of Huronia Landscaping.

[19] Ms. Connolly states in her affidavit that she received an invoice from Huronia on October 10, 2013, indicating that the steps had been repaired on September 23 – 25, 2013. Ms Connolly testified that other than that invoice she has no further information regarding the date the stairs were repaired.

[20] Chris White, the owner of Huronia, provided an affidavit for this motion for summary judgment. It is important to keep in mind that Huronia knew nothing of this lawsuit until it was put on notice of the third party claim on November 30, 2015, more than two years after the alleged accident. As such, Mr. White has no independent recollection of the date the work was done by his company, and must proceed on the basis of whatever records he kept.

[21] Mr. White states that his records (an entry in his day timer) indicate that his employee, Sean Keenan, was at the Penalty Box on Friday September 20, 2013 to repair the steps. On Tuesday, September 24, 2013 he created a list of jobs that needed to be invoiced, including “Tammy” (the Penalty Box’s construction manager) for $700. The invoice was mailed on October 7, 2013.

[22] Mr. White states that the work on the Penalty Box stairs was a small job that involved replacing the coping – that is the top (run) of the steps - with new coping stones. He attaches a copy of the invoice from Unilok, the manufacturer of the coping stones. The invoice is dated September 19, 2013 at 2:12 p.m. for a total of $96.50.

[23] The original invoice was mailed to the Penalty Box on October 7, 2013. It does not indicate the date on which the work was done.

[24] On November 19, 2013 – a month after Aerarium received the notice of claim from the plaintiff’s lawyer – Ms. Connolly emailed Huronia asking to confirm that the repair date was September 20, 2013. The email states:

I was speaking with Chris tonight and he said you found the information we need to confirm the install date for the stair repairs at the Penalty Box. I believe the date was Friday, September 20 th . Could you please email or fax…your document to confirm this date?

[25] Mr. White states in his affidavit that when Ms. Connolly emailed him on November 19, 2013, he could not recall the exact date of the repairs, but he revised the invoice to add the date range “September 23-25, 2013”. He did not know that the plaintiff had served a notice of claim on Aerarium or the significance of the repair date. He did not ask the employee who did the work if he could recall the exact date.

[26] The invoice was paid in full by Aerarium on December 15, 2013.

[27] The owner of the Penalty Box, Katie Hutz, was examined for discovery on July 11, 2017. While she did not recall the specific date of the plaintiff’s fall, she did recall that the stairs were repaired after the fall.

[28] The plaintiff also confirmed that he returned to the restaurant again after his fall and noticed that the steps had been repaired.

iii) Evidence of the Repair

[29] Based on the evidence provided on this motion for summary judgment, Huronia’s repair to the stairs likely occurred on September 20, 2013, although it might have occurred between September 23 and 25, 2013. As indicated above, if the slip and fall happened on September 19, 2013, and Huronia carried out the repairs on any of those dates, the accident predated the repairs, and Huronia cannot be liable for the injury.

[30] On the other hand, if the slip and fall happened on September 27, 2013, as first alleged, the accident post-dated the repairs and it is possible for Huronia to be liable, regardless of whether the repairs were made on September 20 or 23-25, 2013.

[31] This brings us to the next issue: is there evidence of the state of repair of the stairs before and after Huronia repaired them?

[32] Following receipt of the plaintiff’s notice letter on October 30, 2013, Aerarium’s property insurer, Aviva, commenced their investigation into the plaintiff’s claim on November 14, 2013. Aviva has provided four photographs of the stairs where the plaintiff allegedly fell. Two photographs are identified as “before” the Huronia repairs, and two are identified as “after” the repairs. The “before” photos clearly show where the concrete coping was broken and crumbled. The “after” photos show new coping; there is no evidence of any crumbling or broken concrete.

[33] At his examination for discovery, the representative of Aerarium was asked if the steps had crumbled or were broken in any way within 3 weeks after Huronia did the repair work. He indicated that there was no change to the condition of the steps within three weeks after the repairs were completed. He also agreed that his construction manager had signed off on the repair invoice, and that she would not have done so if the stairs had not been properly repaired.

[34] Huronia has also attached two photographs of the steps taken on July 10, 2018. In these photos the steps appear to be in similar condition to the “after” photos provided by Aviva. There is no evidence that any repair work was done on the steps following the September 2013 repairs by Huronia. Indeed, at discovery Aerarium refused to provide an answer to the question of whether any other work was done on the steps from 2013 to the present. I am entitled to draw an adverse inference from this refusal.

[35] Accordingly, the only evidence before me on this motion for summary judgment is that the photos of the steps taken by Huronia on July 10, 2018 show the steps in substantially the same condition as they would have appeared immediately after Huronia completed its repairs in September 2013. The coping replaced in September 2013 is in the same condition in the photos of July 10, 2018. There is no indication of any crumbling or broken stone following the repair. The evidence indicates that the crumbled and broken stone was in the photo taken before Huronia made the repair.

Motions for Summary Judgment

[36] Rule 20.04(2)(a) of the Rules of Civil Procedure provides: “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.”

[37] Rule 20.04(2.1) sets out the court’s powers on a motion for summary judgment:

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:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[38] These powers were extensively reviewed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, where it laid out a two-part roadmap for summary judgment motions at para. 66:

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 then 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.

[39] Even with these extended powers, a motion for summary judgment is appropriate only if the material provided on the motion “gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (Hryniak, at para. 50).

[40] In Hryniak, the Supreme Court held (at para. 49) that there will be no genuine issue for trial when the summary judgment 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.”

[41] To defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party may not rest on mere allegations or denials of the party’s pleadings, but must set out—in affidavit material or other evidence—specific facts establishing a genuine issue requiring a trial.

[42] The motion judge is entitled to assume that the record contains all of the evidence that would be introduced by both parties at trial. A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial.

[43] Pursuant to Rule 20.02(1), affidavits may be made on information and belief, but the court may, if appropriate, draw an adverse inference from a party’s failure to provide evidence of any person having personal knowledge of contested facts.

[44] Where summary judgment is refused or is granted only in part, Rule 20.05 provides that “the court may make an order specifying what material facts are not in dispute and defining the issues to be tried and order that the action proceed to trial expeditiously” and give directions or impose such terms as are just.

[45] It is now well settled that “both parties on a summary judgment motion have an obligation to put their best foot forward” (see Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9). Given the onus placed on the moving party to provide supporting affidavit or other evidence under Rule 20.01, “it is not just the responding party who has an obligation to ‘lead trump or risk losing’” (see Ipex Inc. v. Lubrizol Advanced Materials Canada, 2015 ONSC 6580, at para. 28).

[46] See also: Crawford v. Toronto (City), 2018 ONSC 1729, at para. 38:

Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment.

[47] A plaintiff or defendant bringing a motion for summary judgment does not thereby reverse the onus of proof. See for example, Sanzone v. Schechter, 2016 ONCA 566, at paras. 30-32, confirming the initial evidentiary obligation borne by the moving party (in that case the defendant) on a summary judgment motion.

[48] While Rule 20.04 provides the court hearing a summary judgment motion with “enhanced forensic tools” to deal with conflicting evidence on factual matters, the court should employ these tools and decide a motion for summary judgment only where it leads to “a fair process and just adjudication”: Mason v. Perras Mongenais, 2018 ONCA 978, at para. 44; Eastwood Square Kitchener Inc. v. Value Village Stores, Inc., 2017 ONSC 832, at paras. 3-6 (and cases cited therein).

Partial Summary Judgment

[49] The motion for summary judgment brought in this case will not dispose of all of the issues raised in the Statement of Claim. If successful, it will determine only the liability of the third party, and a trial will still be necessary with respect to the main action. In this respect, the motion is for partial summary judgment. On the other hand, the motion, if successful, will finally determine the liability of Huronia.

[50] In Butera v. Chown, Cairns LLP, 2017 ONCA 783, the Ontario Court of Appeal indicated that while partial summary judgment remains available in appropriate cases, specific consideration must be given to whether a partial summary judgment will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. In some cases partial summary judgment will not result in any efficiencies, and will only delay the trial and increase the time and expense. These concerns are particularly apparent when a motion for summary judgment deals with only some but not all issues between the same parties. If the facts and evidence relating to the issues are intertwined or closely related, there is little benefit, and potential detriment, to proceeding with a motion for summary judgment. The Court stated, at para. 31:

A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner.

[51] See also: Mason v. Perras Mongenais, 2018 ONCA 978, at para. 22.

Analysis

[52] In my view, the third party liability of Huronia can be readily bifurcated from the issues in the main action. Proceeding with partial summary judgment on the facts of this case will resolve a discreet issue that can be separated from the other claims or parties in the remaining case.

[53] The defendant takes the position that the motion for summary judgment should be dismissed on two grounds. The first is that there are three material factual disputes that should not be resolved on a motion for summary judgment. The second is that the defendants have served a jury notice, and should not be denied the right to have a jury decide all of the questions of fact.

[54] The first factual dispute is the date of the accident. While the plaintiff now takes the position that the accident was September 19, 2013, this recollection came to him in August of 2017, nearly four years after the accident. Before that he had consistently claimed that the accident occurred on September 27, 2013.

[55] While the plaintiff has confirmed the September 19, 2013 date on the record, and has obtained a court order granting leave to serve an amended Statement of Claim to correct that date, he has not yet formally made the amendment. Until the amendment is formally made, the defendant argues that it is entitled to rely on the date set out in the pleading, and therefore the date of the accident remains in dispute.

[56] The second factual dispute is the date that the repairs were made. For the reasons set out in paras. 29 and 30 above, this is not a factual dispute that I have to resolve on this motion for summary judgment. Whichever repair date is ultimately chosen – either September 20 or 23 – 25 – makes no difference to the analysis, because both choices post-date the September 19 accident date and pre-date the September 27 accident date.

[57] The third factual dispute, which arises only if the accident post-dates the repairs, is the condition of the steps on September 27, 2013.

[58] Aerarium argues that it would not result in “a fair process and just adjudication” if the court were to decide the date of the accident on a summary judgment motion because the plaintiff – the only party with knowledge of the accident date - did not participate in the motion, and Aerarium cannot be expected to obtain evidence from the plaintiff. Moreover, the plaintiff has not yet formally amended his Statement of Claim, so the summary judgment motion is premature.

[59] In my view, the Court does not have to decide the date of the accident in order to decide the motion for summary judgment because, whichever date is chosen, the motion for summary judgment should be granted.

[60] Based on the evidence filed on this motion for summary judgment, if the date of the accident was September 19, 2013, Huronia cannot be liable for any damages because the accident pre-dates the repairs. This conclusion is not in dispute.

[61] On the other hand, if the accident occurred on September 27, 2013, and therefore post-dates the repairs, Huronia cannot be liable for any damages because the evidence clearly demonstrates that the repairs were properly made. In making this finding, I do not have to use the enhanced forensic tools to deal with conflicting evidence under Rule 20.04, because the only evidence before me is that the steps were in good condition – with newly installed coping and no crumbling or broken pieces – after the repairs were made. This is not a question of evaluating credibility or weighing evidence. The only evidence before the court plainly demonstrates that the repairs were properly made in September 2013. It is now more than five years since the accident, and it is clear that there will be no more evidence regarding the repair of the steps in September 2013.

[62] The second point raised by Aerarium is that it has filed a jury notice and should not be denied the right to have a jury decide all of the facts in this case. Granting summary judgment in the face of a jury notice, the defendant argues, would permit the court to usurp the fact-finding role of the jury.

[63] There is nothing in the Rules of Civil Procedure to suggest that a jury notice can be used to dodge or escape a motion for summary judgment. The right to a civil jury is no different a right than is the right to a trial before a judge alone. In this regard, I agree with the decision of Spies J. in Alexander v. Doe et al., 2018 ONSC 5882, in which she held that the service of a jury notice is not relevant to the determination of a motion for summary judgment (para. 46):

I fail to see how service of a Jury Notice by either party can raise the bar for a motion for summary judgment beyond what is set out in Hryniak. As stated by Kristjanson J. in B. (R.) v. S. (E.) (Litigation guardian of), 2017 ONSC 7866 at paras. 16-18, summary judgment is a dispute resolution mechanism separate from a trial and Rule 20 requires this Court to grant summary judgment if there is no genuine issue requiring a trial in which case a party’s right to have a jury trial does not arise.

[64] In Anjum et al. v. Doe et al., 2015 ONSC 5501, Myers J. stated, at para. 12:

There is no “right” to a trial in civil matters: Baghbanbashi et al. v. Hassle Free Clinic et al., 2014 ONSC 5934 at para. 20. Parties’ entitlements to a trial or to a jury trial are subject to the terms of the statutes and rules under which these processes are created and governed. Hryniak determined that under Rule 20, where a judge is satisfied that it is in the interests of justice to proceed summarily for all or part of an action, proceeding in that manner better fulfills the goals of the civil justice system than does a slower and more expensive trial. It is interesting to observe that at para. 29 of Hryniak, Karakatsanis J. used an example involving a jury trial as an indication of a disproportionate process.

[65] In Broomfield v. Kernaghan Estate, 2012 ONSC 739, Perell J. rejected the argument that summary judgment should not be granted if a jury might be persuaded that the defendant was negligent. He stated, at para. 28:

The problem, however, with this submission is that it does not address the test for a summary judgment, which is whether there is an issue requiring a trial. The test is not whether the issue could be tried by a trial judge or trial jury. The test for granting a summary judgment focuses on whether as a matter of procedural fairness and substantive justice, the action should be tried by a trial judge or jury. That an issue could be decided by a jury does not mean that it needs to be tried by a jury.

[66] See also: Gurpersaud v. Safie, 2016 ONSC 7033, at para. 31; MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, at para. 33; Mehlenbacher v. Cooper, 2017 ONSC 3434, at para. 38.

[67] I note that the analysis might be different in a case where the motion judge is unable to make findings of fact from the evidence filed and is being asked to hear oral evidence and hold a “mini-trial” pursuant to Rule 20.04(2.2). In such cases the existence of a jury notice may be a factor militating against ordering a mini-trial: Mitusev v. General Motors, 2014 ONSC 2342, at para. 91; Abuajina v. Haval, 2015 ONSC 7938, at para. 46.

[68] The defendant in this case has failed to prove that there is a triable issue regarding the liability of the third party, regardless of the date of the accident. I find that summary judgment is the most fair, efficient and proportional process to determine the third party liability issue.

[69] In my view, there is no genuine issue requiring a trial in relation to the liability of the third party in this case. The slip and fall and the repairs to the stairs that are the central factual issues in this case all occurred more than five years ago. The parties have presented all of the relevant evidence, and no suggestion has been made as to what additional evidence might be presented or become available if a trial were held. The facts relevant to the alleged negligence are comparatively few, and permit a summary resolution of the third party’s liability. In these circumstances it would be unfair to require the third party to remain in this action while the plaintiff’s claim continues to languish.

Conclusion

[70] For these reasons the third party’s motion for summary judgment is allowed, and the defendants’ third party claim against Huronia is dismissed.

[71] If the parties are unable to agree on costs, the third party may file written costs submissions within 25 days of the release of this decision. The submissions are limited to 3 pages, plus costs outline and any offers to settle. The defendants may file responding submissions on the same terms within 15 days thereafter.

Justice R.E. Charney

Released: January 9, 2019