Court File and Parties

Court File No.: CV-20-0128-00 Date: 2023-10-25

Superior Court of Justice - Ontario

74 Woolwich Street, Guelph, Ontario, N1H 3T9

Re: Noah Pastink and Michele Schroeder, Plaintiffs And: 1190393 Ontario Limited o/a Phil’s Grandsons Place and John Doe and Jack Doe and Bailey MacGarvie, Defendants

Before: Fowler Byrne J.

Counsel: L. Foster, for the Plaintiffs M. Miller and R. Smith, for the Defendant 1190393 Ontario Limited

Heard: July 17, 2023, by videoconference

Endorsement

[1] The Defendant, 1190393 Ontario Limited o/a Phil’s Grandson’s Place (“PGP”), has brought a motion for summary judgment, requesting that the Plaintiffs’ claim against it be dismissed with costs.

A. Background

[2] This action arises out of an altercation that took place outside of PGP on October 24, 2019. On that day, it is alleged that the co-Defendant Bailey MacGarvie (“MacGarvie”) and the Plaintiff Noah Pastink (“Pastink”) were patrons at PGP, a local bar and club. The gentlemen had words inside of PGP and MacGarvie was ejected. Some time later outside of PGP in an adjacent parking lot, Pastink alleges that MacGarvie assaulted him from behind, causing a serious head injury. Pastink alleges that PGP was also liable as a result of serving MacGarvie an excessive amount of alcohol.

[3] In its Statement of Defence and Crossclaim, PGP brought a crossclaim against the co-Defendant MacGarvie for contribution and indemnity. Likewise, MacGarvie crossclaimed as against PGP for contribution and indemnity. PGP did not seek the dismissal of MacGarvie’s crossclaim in this motion. Accordingly, if summary judgment is granted and the Plaintiff’s action is dismissed against PGP, the crossclaim of MacGarvie against PGP will survive. Although served, MacGarvie did not respond to the motion and did not attend.

[4] For the reasons that follow, I dismiss this motion.

B. The Law

[5] The court may grant summary judgment if it is satisfied that there are no genuine issues requiring a trial with respect to the claim or defence. In this determination, I may weigh the evidence, evaluate the credibility of a deponent, or draw any reasonable inference from the evidence. I should consider summary judgment unless it is in the interests of justice for such powers to be exercised only at trial: Rules of Civil Procedure, R.R.O, 1990, Reg. 194, r.20.04(2)(a), r.20.04(2.1).

[6] The law of summary judgment has been well developed since Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, and there is no need for a broad discussion for the purposes of this motion. That being said, a few principles should be highlighted:

a. There will not be a genuine issue requiring a trial if I am able to reach a fair and just determination on the merits of the motion. This will be the case when I can make the necessary findings of fact, apply the law to those facts, and this is a proportionate and more expeditious means to achieve a just result: Hryniak, at para. 49;

b. I should first determine if there is a genuine issue requiring a trial based only on the evidence before me, without resorting to my enhanced fact-finding powers as set out in r.20.04(2.1). If, after this step, it appears that there is a genuine issue requiring a trial, I should then determine if a trial can be avoided utilizing my powers under r.20.04(2.1) and (2.2). Again, this is as long as their use is not against the interests of justice. Their use will not be contrary to the interests of justice if they lead to a fair and just result, and serve the goals of timeliness, affordability, and proportionality, in light of the litigation as a whole: Hryniak, at para. 66;

c. The moving party bears the onus of showing that there is no genuine issue requiring a trial. It cannot rely on mere allegations or pleadings. When it has satisfied the court that there is no genuine issue requiring a trial, the burden shifts to the responding party to prove that their defence has a real chance of success. The responding party cannot rely on allegations or denial. They must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial: New Solutions Extrusion Corporation v. Gauthier, 2010 ONSC 1037, at para.12, aff’d 2010 ONCA 348;

d. A party must put their best foot forward on a motion for summary judgment with respect to the existence or non-existence of material issues to be tried: Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438, at para. 7; New Solutions, at para. 12; Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32, affirmed 2014 ONCA 878, leave to appeal refused; and

e. The court is entitled to assume that the record contains all the evidence which the parties will present if there was a trial: New Solutions, at para. 12; Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11; Broadgrain at para. 7.

[7] In this case, if I grant summary judgment as requested, it will only partially dispose of the action as against PGP. There is also MacGarvie’s claim against PGP, in which he claims contribution and indemnity. In doing so, he is relying on the facts alleged by the Plaintiffs against PGP, as well as his own allegations. Both sets of allegations involve PGP’s alleged inappropriate and/or illegal continued service of alcohol to MacGarvie.

[8] The impact of a partial summary judgment was addressed in Hryniak. The consideration of a partial summary judgment was reviewed as part of the analysis of determining whether granting partial summary judgment was “in the interests of justice”. Writing for the court, Karakatsanis J. stated at paragraph 60:

The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.

[9] It would be an error in principle for me if I fail to assess the advisability of the summary judgment process in the context of the litigation as a whole: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 33.

[10] When determining whether to grant partial summary judgment, I should consider not only the risk of duplicative or inconsistent findings, but also the delay of the main action, the expense to the parties, and the time that must be taken by the judiciary to write a decision that will not dispose of the action. These factors should be assessed in the context of the litigation as a whole. 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: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, paras. 29-34.

C. Analysis

[11] This is clearly a case of partial summary judgment. PGP argues that the liability of PGP can be readily bifurcated from the liability of MacGarvie and that this motion is an expeditious and cost-effective way in which to dispose of this particular claim. In support of this argument, PGP relies on Jonas v. Elliott, 2021 ONCA 124, wherein the motion judge dismissed a claim as against the hosts of a party but left the claim of the actual aggressor to proceed to trial. The Court of Appeal agreed that partial summary judgment was appropriate; it found that the claim for assault and battery could proceed and that the risk of inconsistent findings was immaterial.

[12] This case is clearly distinguishable from the situation now before the court. A careful review of the motion judge’s decision below shows that the motion for summary judgment sought to dismiss the claim against the hosts, as well as the crossclaims against the hosts. Accordingly, if summary judgment was granted, all claims against the hosts, with respect to their liability as a host, their obligations under the Liquor License Act and the Occupier’s Liability Act and their general negligence, would be finally adjudicated. The tort of assault and battery was the sole issue remaining. That is readily severable.

[13] That is not the case here. As indicated, the MacGarvie’s crossclaim will continue and he will seek a determination of these very issues again, at trial. This is not in the interests of trial. This does not result in trial efficiency and is not an effective use of judicial resources. It could lead to inconsistent findings of fact.

[14] PGP argues that MacGarvie was served with this motion and chose not to respond or appear. It argues that if MacGarvie was concerned about his crossclaim, he would have appeared.

[15] This argument disregards a basic principle in the Rules of Civil Procedure – the principle of notice. The Notice of Motion does not seek the dismissal of the crossclaim. MacGarvie had no notice that his crossclaim would be challenged – directly or indirectly. Accordingly, the failure of MacGarvie to respond to this motion can have no impact on my decision.

D. Preliminary Evidentiary Issues

[16] Prior to deciding this motion, PGP has raised two evidentiary issues. First, PGP claims that the expert report of Mr. Steve Summerville, filed by the Plaintiffs in support of its claim, should not be admitted. Second, PGP states that part of the affidavit evidence of Brennan Kahler and an exhibit thereto are inadmissible as double hearsay.

[17] Based on my decision, it is not necessary for me to make a ruling on these evidentiary issues. That is best left to the trial judge.

E. Conclusion

[18] Accordingly, for the foregoing reasons, I make the following orders:

a. PGP’s motion for summary judgment is dismissed; and

b. The parties are encouraged to resolve the issue of costs themselves. If they are not able, the Plaintiffs shall serve and file their Costs Outline, and their written costs submissions (limited to 3 pages, double spaced), on or before November 13, 2023; PGP shall serve and file its Costs Outline and written costs submissions (limited to 3 pages, double spaced) on or before November 27, 2023; and any reply written submissions must be served and filed by December 11, 2023, (limited to 1 page, double spaced).

Released: October 25, 2023 Fowler Byrne J.