Court File and Parties
Court File No.: CV-19-00619552-0000 Date: 2022-03-08 Ontario Superior Court of Justice
Between: Monique M. Chambers, Plaintiff And: Remnant Tabernacle Church of God Seventh Day, Defendant
Counsel: Michael Giordano, for the Plaintiff Michael Best, for the Defendant
Heard: September 24, 2021
Before: Vella J.
Reasons for Decision
[1] The Defendant, Remnant Tabernacle Church of God Seventh Day (the “Church”) brings this motion for summary judgment under r. 20 seeking dismissal of the claims of the plaintiff, Monique Chambers (“Chambers”).
[2] For the following reasons, the motion is dismissed.
[3] Chambers claims damages arising from a slip and fall she suffered in the morning of February 9, 2019 in the parking lot and pathway owned by the Church. At the time of the fall, the parking lot was ice-covered.
[4] Chambers’ claim is based in occupier’s liability under the Occupiers’ Liability Act, R.S.O. 1990 c. O.2 (the “Act”).
[5] By way of preliminary issues, the Church sought an order striking the responding motion record, on the basis that Chambers attached a copy of her examination for discovery as an exhibit. I struck the transcript only on the basis that Chambers advised that she was not relying on the transcript in any way. Accordingly, it did not have any probative value. Chambers swore an affidavit setting out her evidence in detail separate and apart from what may have been contained in her examination for discovery transcript. This was not a situation in which a deponent was hiding behind her discovery evidence to shield herself from cross-examination. In any event, there was no basis upon which the balance of the responding motion record should be struck.
[6] The Church also challenged the supplementary affidavit and addendum report of Alexandre Nolet (“Nolet”) who was tendered as an expert witness by Chambers on the issue of standard of care. Nolet’s supplementary affidavit and addendum report dated June 30, 2021 (the “Addendum”) was tendered after cross-examinations were completed. However, his Addendum was produced to the Church in advance of his cross-examination. Through oversight, it was not delivered by way of an exhibit to a further affidavit which was eventually sworn July 21, 2021.
[7] Nolet was cross examined on his original affidavit and report on July 21, 2021. Chambers’ lawyer provided the Church with the Addendum in advance of the cross examination and the Church had the opportunity to cross-examine Nolet on his Addendum, but the Church did not.
[8] The lateness of the Addendum was owing to the lateness of the Church’s answers to undertakings and in particular key video surveillance of the Church parking lot and environs from the morning of Chambers’ slip and fall which were produced on June 25, 2021.
[9] I denied the Church’s motion to strike Nolet’s supplementary affidavit and Addendum. Rule 39.02(2) provides that a party must seek consent or leave of the court to deliver any further affidavits after that party has conducted their cross-examinations. The rule further provides that the court shall give leave on such terms as are just where satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with affidavit or transcript evidence.
[10] While the supplementary affidavit and Addendum did not strictly arise from the cross-examinations, it did arise from late answered undertakings from the Church. The Addendum was prepared and delivered within five days after receipt of the key video surveillance footage and the Church could have cross-examined on the contents of the Addendum at the original cross-examination or demanded a further cross-examination once the supplementary affidavit was sworn. It did neither. I found it would be against the interests of justice to disallow this supplementary affidavit and Addendum within the context of this motion for summary judgment. The Church did not seek an adjournment to conduct a cross-examination or to prepare a responding expert report. The Church did not tender any expert evidence notwithstanding the fact that Chambers had already produced an initial affidavit and report from Nolet which contained the essence of his opinion. The Addendum did not alter Nolet’s opinion. Rather it supported his opinion by reference to the images of the parking lot and the fall.
[11] Significant evidence was adduced by each party at this motion. Chambers tendered affidavits from herself, her spouse (Anthony Watson), and another parishioner who was in attendance at the time of the slip and fall, Ivan Millwood. In addition, Chambers tendered Nolet as an expert witness on the issue of the standard of care.
[12] The Church countered with affidavits from the Pastor, Lloydel (aka Lloyd) Hutchinson (the “Pastor”), his spouse and Church Board member, Cynthia Hutchinson (“Cynthia”), the staff custodian, Veich Jarrett (“Jarrett”), Deacon Radcliffe Hackett (“Deacon Hackett”), and parishioners Norma Hackett and Lester Campbell.
[13] The witnesses, apart from Nolet, are all fact witnesses, and some of them were present at the time of the slip and fall.
[14] Cross examinations were conducted of Jarrett, Deacon Hackett, Nolet, Cynthia, the Pastor, Watson, Millwood and Chambers.
[15] By way of procedural history, examinations for discovery have been completed, mediation has been conducted, and a trial record was filed on October 8, 2020. On May 25, 2021 the Church filed this motion for summary judgment.
Issues
[16] The issues before me are:
a) Is there a genuine issue requiring a trial as to whether or not the Church breached its duty of care under the Act in relation to Chambers?
b) Is there a genuine issue requiring a trial as to whether or not Chambers willingly assumed a risk when she entered the icy parking lot such that it negates the duty of care owed by the Church under the Act?
Overview
[17] On the morning of February 9, 2019, Chambers entered the Church’s parking lot with her husband, Watson. They drove their car onto the Church property. They came to attend the regular Sabbath service.
[18] When they arrived, the Church parking lot and the pathways surrounding the Church building were ice-covered as a result of an ice storm.
[19] Chambers, Watson and a few other parishioners, started salting the parking lot and area as it was apparent to them that it was slippery and dangerous. Chambers and Watson intentionally parked their car at the entrance to the parking lot in order to prevent other cars from entering.
[20] When the Pastor arrived, he asked that Chambers and Watson’s car be removed as it was blocking the entrance to the parking lot.
[21] Chambers ventured across the icy parking lot and moved the car. However, upon returning to assist in the parishioners’ efforts, she slipped and fell. As a result, it appears she fractured her ankle and was taken to hospital.
[22] The parties agree that the parking lot and pedestrian walkways on the Church property were treacherously dangerous due to the ice that had accumulated over its entire surface. Under cross-examination, one of the Church’s witnesses described the parking lot as akin to a skating rink.
[23] The parties also agree that due to the extreme seasonal conditions in Toronto in and around this time the Church had run out of salt and was only able to acquire the last three bags of salt from a local store the day before the incident.
[24] The parties disagree as to when the icy conditions manifested. The Church led evidence to the effect that the ice buildup occurred overnight before the slip and fall incident of February 9, 2019. Chambers led evidence that the ice buildup was from an ice storm that occurred on February 6 and 7, 2019, followed by snow on February 8, 2019. Her evidence suggests that on February 9, 2019 it was no longer snowing nor was there any new precipitation. However, regardless of the exact timing of the ice buildup, the Church acknowledges that it had actual knowledge of the dangerous icy conditions at its parking lot and its walkways by the morning of February 9, 2019 before Chambers’ slip and fall occurred.
[25] The Church’s defence rests on its contention that it had a reasonable system for winter maintenance, that included icy conditions, and took steps to make the property reasonably safe for its visitors on the morning of February 9, 2019. It submits this is sufficient to discharge its duty of care in the circumstances of this case.
[26] In the alternative, the Church relies on s. 4(1) of the Occupiers’ Liability Act and states that it was known to Chambers when she ventured across the parking lot that she was taking a risk that she would fall and injure herself. Therefore, the Church says, Chambers willingly took the risk and, under s. 4(1), the Church is absolved of liability in any event.
[27] The onus is on the moving party to prove that there is no genuine issue requiring a trial with respect to liability under s. 3(1) of the Occupiers’ Liability Act, and also with respect to whether it is absolved of liability under s. 4(1) of the Act.
Is there a genuine issue requiring a trial on the issue of the alleged breach of the duty of care under s. 3(1) of the Occupiers’ Liability Act?
[28] The Church urges that the assessment of the appropriate standard of care in this case can be reached based on common sense. This is Canada, it argues, and it is not uncommon for pedestrians to know that they have to exercise care in walking on ice covered surfaces. As long as the Church had a reasonably competent system in place to deal with these types of weather conditions, that is sufficient in the circumstances of this case.
[29] Section 3(1) of the Act states:
An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
[30] I acknowledge that the Occupiers’ Liability Act does not transform occupiers into insurers for any injury that may occur to visitors on their property. The Act does not impose a strict liability scheme (Dogan v. Pakulski, at para. 21, citing Waldick v. Malcolm (1989), , 70 O.R. (2d) 717 (C.A.), per Blair J.A., aff’d , [1991] 2 S.C.R. 456). I also acknowledge that the Act did away with the common law distinctions between invitees and licensees and applies the same standard to all such visitors (Sauve v. Provost (1990), 66 D.L.R. (4th) 338 (Ont. H.C.), at pp. 342-3., citing the Court of Appeal’s decision in Waldick at p. 723). The duty of care established by s. 3(1) applies to all visitors.
[31] The Supreme Court of Canada’s decision in Waldick v. Malcolm (affirming the Ontario Court of Appeal’s decision and analysis) is instructive in this matter.
[32] In that case, like the one at bar, the occupiers (the “Malcolms”) were sued for breaching their duty of care under s. 3(1) of the Act for damages arising from a slip and fall on their icy parking area of their house. The Malcolms had shoveled and salted their stairs and walkway to the house, but not the parking area. At issue was whether the Malcolms breached their duty of care owed under s. 3(1) of the Act or alternatively whether the visitor (Waldick) willingly assumed the risk of a slip and fall when he entered the property, thereby absolving the Malcolms of liability pursuant to s. 4(1) of the Act. Of note, the Malcolms were found to have taken no steps to make their parking area safe notwithstanding their knowledge that this area would be used by visitors like Waldick.
[33] The Court in Waldick carefully outlined the framework for assessing whether an occupier has breached its statutory duty of care under s. 3(1) of the Act.
[34] First, the Court, at pp. 471-2, emphasized that the assessment of whether an occupier met its standard of care under s. 3(1) of the Act is highly fact-driven as the reasonableness of the steps taken (or not) by the occupier to render the premises reasonably safe will be assessed in the all the circumstances of the case (see also Kerr v. Loblaws Inc., 2007 ONCA 371, 224 O.A.C. 56, at para. 28).
[35] Second, in considering all of the circumstances of the case, the Court referenced the fact that in these types of slip and fall cases relevant factors include the weather, the time of year, the size of the parking area, the cost of preventive measures, the quality of the footwear worn by the visitor, the length of the pathway and the nature of the property (in Waldick, the property was rural and residential in nature).
[36] On the issue of whether it is relevant to consider local custom in terms of assessing the reasonableness of the steps taken by an occupier, the Court was circumspect in determining when, if ever, local custom was relevant. In particular, the Court emphasized, at p. 473, that if the steps otherwise fell below the reasonableness standard (derived from negligence) then the fact that others took those steps would not absolve the occupier. The Court warned about the limitations of reliance on local custom, absent evidence, at p. 472:
Only in the rarest and most patently obvious of cases will the Courts take judicial notice of a custom, and even this, as Linden warns [at p. 167], is a “dangerous practice”:
It would be preferable for courts to demand evidence of the general practice or not to rely on custom at all. Counsel who wish to rely on custom would be most unwise to attempt to do so without adducing expert evidence of general practice.
[37] The analysis of whether or not there is a genuine issue requiring a trial on the issue of s. 3(1) of the Act in the case before me requires an examination of the standard of care that was implemented by the Church to respond to the effects of the ice storm on its property.
[38] While it is not always necessary to have expert evidence on the issue of standards, Chambers has produced expert evidence that, if ultimately accepted, shows that the system in place: namely relying on a custodian and others to salt the property on an as needed basis, did not meet the standard of rendering the parking lot and walkways reasonably safe on the morning of the slip and fall. Nolet opines that other cost-effective measures were available to the Church in these circumstances where there was an admitted shortage of salt supplies in the city, such as applying sand, breaking the ice, and carving grooves into the ice to assist with traction.
[39] It appears that the Church did not turn its mind to purchasing sand in lieu of its already depleted salt supply. Its habit was to purchase salt once a year from its supplier. It had already run out of salt before this ice/snowstorm occurred and had attempted to replenish its supplies but was told that the supplier was also out of salt. According to the Pastor, the Church had tried to secure an alternative supply of salt from other suppliers. Yet, there is no evidence to suggest that the Church either sought out salt from stores or an alternative form of adherent such as sand. Rather, the Church relied on its custodian who was able to buy, at the last minute, an albeit inadequate supply of salt from a local store. According to Cynthia and Jarrett, there were very few stores in Toronto that had any salt left.
[40] Second, Nolet opines that the Church had the option of restricting access to the parking lot on the day of the slip and fall. The Church’s evidence is that it did not turn its mind to either closing the parking lot or cancelling the service either. To the contrary, the evidence clearly demonstrates that the Pastor instructed that the Chambers’ car blocking the entrance be removed so that other parishioners could use the parking lot that morning.
[41] Deacon Hackett testified that he was aware that an Ontario-wide ice storm was forecasted and that he was aware of that forecast before February 8, 2019. The Pastor also testified that he was aware that there had been an ice storm. Cynthia, the Pastor’s spouse, is a member of the Board of the Church and its secretary and is in charge of overseeing winter maintenance of the property. She testified that she had a conversation with Jarrett on the night before the incident and was informed that freezing rain had been forecasted overnight.
[42] The cross-examination of Jarrett exposed frailties in his memory concerning the steps he took to make the property safe in the wake of the ice storm. It is the Church’s contention that he attended at the property the night before the incident and plowed the snow with the Church’s plow and did some salting. Jarrett testified that because he only had three 10-kilogram bags he used the salt “sparingly” that night. He left some salt for the next morning, though he cannot recall how much was left.
[43] There is a dispute in the record as to when the ice storm actually occurred. The Church’s evidence is that it occurred overnight between February 8 and 9, 2019 while other witnesses (including Nolet who relied on weather reports from Pearson Airport) deposed that the ice storm occurred on February 6 and 7, 2019, with snow on February 8, 2019 and no precipitation on February 9, 2019. This is a key fact and will inform the relevant circumstances of the case for an assessment of the adequacy of the Church’s steps to render the parking lot reasonably safe.
[44] There is also no expert evidence to counter Nolet’s opinion as to the options that were available to the Church in lieu of an adequate supply of salt, including closing the parking lot. Furthermore, there is no evidence in the record that speaks to what the industry standard or local custom was in and around 2019 for other churches and similarly situated not for profit organizations when faced with known icy conditions rendering parking lots and/or pedestrian walkways dangerous. Nolet’s evidence (and particularly his main report) raises a genuine issue in assessing the reasonableness of the steps the Church took and what other options it had.
[45] Furthermore, the Church did not reduce its winter maintenance program and protocols to writing. Rather, it relied upon untrained volunteers to exercise their discretion as to how to carry out this work. The custodian, Jarrett, and Deacon Hackett, both admitted that they lack training in this type of work and assessment. Cynthia testified under cross-examination that it was her job to direct Jarrett and Hackett and that her instructions were to salt the areas as needed. She agreed that there were no detailed procedures in place, much less written ones, and that ultimately it was left to the discretion of Jarrett and Hackett as to how they salted the parking lot and pathways. The instruction was to ensure these areas were appropriately salted.
[46] While, according to Cynthia, parishioners were expected to volunteer, again there was no training or instruction given to them as to how to carry out measures to render the parking area reasonably safe when ice covered. Rather they were expected to pitch in and help when needed and to exercise common sense.
[47] The components of the Church’s winter maintenance system and whether they were adhered to on this occasion are material facts in dispute based on the existing evidentiary record.
[48] On the morning of the slip and fall, Deacon Hackett admitted under cross-examination that he did not attend at the Church until after the slip and fall, but when he arrived he observed a “thick layer of ice” on the parking lot surface. Jarrett could not remember whether he attended before the slip and fall occurred.
[49] In addition, the Church knew that parishioners, such as Chambers, would be arriving that morning to attend at the Sabbath service. Therefore, the Church had actual knowledge of the unsafe condition of the parking lot, and of the fact that parishioners such as Chambers would be arriving that morning to attend at the Church.
[50] Finally, the evidence is clear that whatever the system was, it was not followed on this occasion insofar, at least, as there having been an insufficient supply of salt. Jarrett admitted that he had used some of the three bags of salt he purchased to scatter on the Church premises the night before the slip and fall. This means that there were less than three bags of salt. Deacon Hackett admitted that in order to fully salt the parking lot and walkways eight 10-kilogram bags of salt were required. Therefore, there was not enough salt to adequately cover the parking lot and walkways on the morning of the slip and fall. Furthermore, the Church admits that it was aware not only of the fact that its supplies had already been depleted, but that Jarrett had not been able to secure an adequate supply of salt for the morning in question. Yet, the Church did not appear to take any measures to compensate for that inadequacy except to rely on its parishioners who showed up for the Sabbath service to assist in some manner.
[51] The Church placed emphasis on the decision in Nandlal v. Toronto Transit Commission, 2015 ONCA 166, for the proposition that as long as it had a reasonable system of maintenance in place, this is sufficient to discharge its duty of care. In Nandlal, the Court of Appeal upheld the motion judge’s granting of the defendant’s summary judgment motion arising out of a slip and fall on stairs in the public transit system. However, in that case, the plaintiff produced no direct evidence that she had in fact slipped on debris. She was unable to say that she saw any such debris. Rather she formed the belief that she must have slipped on debris because, first, she slipped, and second, there was debris elsewhere in the station. This was contrasted by the direct evidence of the defendant that there was no debris in the location in which the plaintiff slipped and that it had taken reasonable steps to keep the premises safe which was sufficient in those circumstances to discharge its duty as evidenced by its maintenance system. The plaintiff’s speculative evidence was not sufficient to raise a genuine issue requiring a trial in the face of the defendant’s unchallenged direct evidence that there was no debris in the first place. In the case before me, I have direct evidence that the whole parking lot was very icy, and that Chambers slipped on that ice. Indeed, the evidence is uncontroverted in that respect.
[52] Accordingly, there are genuine issues requiring a trial raised in the evidentiary record before me.
[53] In Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 66, the Supreme Court of Canada instructs that once a motions judge concludes that the evidence raises a genuine issue requiring a trial, the motions judge must consider whether resort to the fact-finding powers under r. 20.04(2) would result in a fair, expeditious and proportionate disposition or whether it would be in the interests of justice for those powers to be exercised only at a trial.
[54] There is evidence which puts into dispute material facts and which will require an assessment of credibility of the witnesses that cannot be properly done on the basis of a paper record. As repeated by this court and appellate courts time and again, a determination as to whether the steps taken, or omitted, by an occupier to ensure that its premises were reasonably safe for visitors is a fact-driven exercise.
[55] Here the evidentiary record is unclear in some areas and in conflict in other key areas such as what the system ostensibly in place for this type of winter maintenance and severe weather incident was, what role the parishioners were expected to play and the basis of the alleged common understanding of that role, who was directed by the Pastor to move the Chambers’ car away, the details of the conversations between Cynthia and Jarrett regarding the state of the parking lot and the precise steps to be taken to render it reasonably safe, and the understanding between the Church and each of Jarrett and Deacon Hackett to deal with extreme weather events such as the ice storm of February 2019. There is also a key conflict in the evidence regarding whether the Church had other reasonable alternatives short of permitting visitors onto its property without it having been adequately salted.
[56] There is no doubt that there is evidence in the record adduced by Chambers that is credible and raises a genuine issue requiring a trial concerning whether the Church took such care as was reasonable in the circumstances to render the parking lot reasonably safe on the morning of the slip and fall, assuming it was not relieved of the statutory duty of care by operation of s. 4(1) of the Occupiers’ Liability Act to which I will turn next.
Does the issue of whether Chambers willingly assumed the risk of a slip and fall raise a genuine issue requiring a trial?
[57] The Church submits that in any event it was apparent to everyone at the parking lot that it was icy and unsafe posing a risk of injury to all those who traversed it. Chambers knew of this risk and she willingly accepted it when she crossed the icy parking lot returning from having moved her car. Therefore, irrespective of whether or not it discharged its duty of care under s. 3(1) of the Act, it is absolved from legal liability by operation of s. 4(1) of the Act which states:
4(1) The duty of care provided for in subsection 3(1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.
[58] The decision in Waldick is also instructive to my analysis of this defence. The Supreme Court of Canada, at pp. 474-5, rejected the proposition that the defence under s. 4(1) of the Act is available once the occupier demonstrates that the injured visitor had knowledge of the risk and carried on notwithstanding:
…there are two quite distinct and conflicting trends in the jurisprudence as to the proper interpretation of this term. In essence, they reflect two standards of what assuming a risk means: the first involves merely knowing of the risk that one is running, whereas the second involves not only knowledge of the risk, but also a consent to the legal risk, or, in other words, a waiver of legal rights that may arise from the harm or loss that is being risked. The latter standard is captured by the maxim volenti non fit injuria (the volenti doctrine), whereas the former is sometimes referred to as “sciens,” or, in other words, mere “knowing” as opposed to actually “willing”.
[59] The Supreme Court clearly adopted the “volenti doctrine” as defining the scope of s. 4(1), at pp. 475 and 478 of Waldick. This interpretation reflected the goals of the Act, that:
are to promote, and indeed, require where circumstances warrant, positive action on the part of occupiers to make their premises reasonably safe. The occupier may, however, wish to put part of his property “off limits” rather than to make it safe, and in certain circumstances that might be considered reasonable.
[60] The Court concluded at p. 479:
In my view, the Legislature’s intention in enacting s. 4(1) of the Act was to carve out a very narrow exception to the class of visitors to whom the occupier’s statutory duty of care is owed. This exception shares the same logical basis as the premise that underlies volenti, i.e., “that no wrong is done to one who consents. By agreeing to assume the risk the plaintiff absolves the defendant of all responsibility for it”: per Wilson J. in Crocker [v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186], at p. 1201. Rare may be the case where a visitor who enters on premises will fully know of and accept the risks resulting from the occupier’s non-compliance with the statute. To my mind, such an interpretation of s. 4(1) accords best with general principles of statutory interpretation, is more fully consonant with the legislative aims of the Act, and is consistent with tort theory generally.
[61] I am not persuaded that the Church’s reliance on s. 4(1) of the Act and its allegation that Chambers willfully assumed the risk that its alleged negligence could result in harm to her will absolve it of liability. At minimum, whether this is one of those “rare” cases raises a genuine issue that requires a trial. For example, the fact that the Church expected parishioners like Chambers to pitch in and what the “common” expectation was is a relevant consideration, as is the disputed fact as to whom the Pastor instructed to move Chambers’ car. Chambers has not admitted that she wilfully assumed the risk that materialized in the sense of having waived her legal rights. This matter deserves to be heard with the benefit of a full evidentiary record and an assessment of credibility of the various witnesses that cannot feasibly be done on the basis of a paper record.
[62] I take the Church’s point that the court must use common sense in interpreting this statute and that the mere presence of ice in a parking lot on a cold February day does not in and of itself always lead to the conclusion that the occupier has breached its statutory duty of care if anyone should come onto it and slip (Canada (Attorney General) v. Ranger, 2011 ONSC 3196 at paras. 31-32, 34). However, in Ranger the court also observed that the statute nonetheless imposes an affirmative duty on occupiers “to ensure that those who come onto their properties are reasonably safe” (para. 32).
[63] I reject the Church’s plea that should it be held liable in these circumstances it will create a “flood” of cases against religious entities which will cause such entities to close down every time there is a snow or ice storm. If anything, the articulation of the “circumstances” that will inform when occupiers will be held liable under s. 3(1) of the Act, and not absolved by s. 4(1) of the Act, in the context of a snow or ice storm causing treacherous conditions on their properties may assist in helping occupiers to understand their options and take appropriate steps, including if cost is prohibitive, the possibility of temporarily closing down of the dangerous area to would-be visitors. Indeed, it would be open to a court on the existing evidentiary record to draw the inference that by instructing the removal of the Chambers’ car (which was parked to block entrance to the icy parking lot) the Pastor was signaling that the parking lot was not unduly dangerous for the expected parishioners who would be arriving for the Sabbath service. However, I am not making this finding of fact and leave it to the trier of fact with the benefit of viva voce evidence.
[64] Chambers has demonstrated that there are genuine issues requiring a trial. Based on the foregoing reasons, the summary judgment process does not provide me with the tools required to fairly and justly adjudicate the dispute. Having considered the fact-finding powers found in r. 20.04, I decline to resort to these powers since it is in the interest of justice for them to be exercised only at trial. In short, the fact-finding process provide in r. 20.04(2.1) and (2.2) will not lead to a fair and just result that will serve the goals of expediency, cost efficiency and proportionality in light of the litigation as a whole (see, MacFayden (Litigation Guardian of) v. MacFadyen, 2014 ONSC 6589 at paras. 21, 36-40).
[65] Accordingly, the motion for summary judgment is dismissed.
[66] In the course of argument, the plaintiff suggested that it would be appropriate for this court to make a finding of liability in her favour. However, as acknowledged by the plaintiff, that would amount to a partial summary judgment. The factors outlined by the Court of Appeal in Malik v. Attia, 2020 ONCA 787, 29 R.P.R. (6th) 215 concerning the suitability of a partial summary judgment process were not argued. In any event, it is likely that there would be overlapping issues of fact and law with respect to an assessment of damages and the possibility that an argument based in contributory negligence might be advanced. Accordingly, I decline to exercise my discretion to grant partial judgment on liability in favour of the plaintiff.
[67] The Church urged this court to consider the prohibitive costs associated with a trial. I have done so. I am prepared to consider submissions regarding the appropriateness of directing that this matter proceed by way of a summary trial. Affidavits have already been prepared that could be used as trial affidavits, subject to further or supplementary trial affidavits. Examinations for discovery have been completed and cross examinations conducted. A summary procedure trial would still provide the trier of fact with the benefit of observing the witnesses under cross-examination.
[68] However, the Church has delivered a jury notice which would pose a barrier to ordering a summary procedure trial (which would have to be presided over by judge alone).
[69] In the event that either of the parties are in favour of this matter being converted into a summary procedure trial, recognizing the challenge posed by the jury notice, they may request a r. 50.13 case conference before me at which time I will hear submissions from each party.
[70] In the event costs cannot be agreed upon, the plaintiff shall provide her cost outline and written submissions within 10 days from the release of these reasons. The defendant will have 10 days thereafter to provide its cost outline and written responding submissions. The written submissions shall not exceed three pages double spaced from each party. These documents are to be provided to my judicial assistant.
Vella J. Released: March 08, 2022