DATE: 20020529 DOCKET: C37452

COURT OF APPEAL FOR ONTARIO

RE:

CLIFTON LAWRENCE DICKINSON, DEBBIE IRENE DICKINSON, ERIN CHERYL DICKINSON, a minor under the age of eighteen years, and KELLY LYNN DICKINSON, a minor under the age of eighteen years, by their Litigation Guardian, DEBBIE IRENE DICKINSON (Plaintiffs (Appellants)) – and – UNICORN VALLEY INVESTMENTS LTD., JOHN A HOLMES, RALPH LAKE AND JOHN G. CHRISTENSEN (Defendants (Respondents))

BEFORE:

WEILER, ABELLA AND GOUDGE JJ.A.

COUNSEL:

Christopher J. Haber and Kathy Chittley-Young

For the appellant Dickinson

Bruce S. Dawe

For the respondent Unicorn

Andrew K. Lee

For the respondent Holmes

HEARD:

May 10, 2002

On appeal from the judgment of Justice Kenneth A. Langdon dated February 16, 2001.

E N D O R S E M E N T

Weiler and Goudge JJ.A.

[1] [1] The appellants say that the motions judge was wrong to find no genuine issue for trial and argue that there are two issues which they are pursuing and which require a trial:

(a) as against the occupiers of the farm, whether the appellant Clifton Dickinson intentionally held on to the lead shank because of the condition of the premises and thus sustained injury.

and

(b) as against the owners of the horse, whether they had prior knowledge that it was dangerous so as to create a duty of care which they failed to discharge.

[2] [2] We agree.

[3] [3] As to the first issue, the trial judge erred in finding that there was no evidence that the appellant intentionally held on to the lead shank. The appellant said so in his affidavit. While there are answers in his discovery which permit an opposite inference and which may well provide a basis for successful cross-examination of his assertion, that is for the trial not a summary judgment motion.

[4] [4] As to the second issue, again the trial judge erred. He did not address the owners’ prior knowledge but concluded that there was no evidence that the horse was more dangerous than normal. That conclusion was clearly wrong. The evidence of the accident alone is enough to demonstrate this.

[5] [5] As to prior knowledge, the owners offer a complete denial. There is, however, evidence from which the opposite inference could be drawn, namely the breed of the horse and the general reputation of that breed, the prior incident with the sulky, the evidence to be offered by the witness McCoy, the post-accident castration of the horse and the post‑accident incident with the respondent Moore. While on paper this evidence appears thin, the weight to be attached to it and the resolution of the conflict between this evidence and the respondents’ denial is for the trial judge.

[6] [6] The appeal is allowed and the summary judgment motion dismissed. The appellants are entitled to their costs here and below fixed in the amount of $7,000 for the motion and $5,000 for the appeal inclusive of disbursements and G.S.T. and payable jointly and severally by the respondents.

“Karen M. Weiler J.A.”

“S.T. Goudge J.A.”

ABELLA J.A. (Dissenting)

[7] [7] I have read the reasons of my colleagues and, with respect, cannot agree. The purpose of Rule 20 is intended to remove from the trial system those cases in which there is no genuine issue of material fact for trial. In my view, this is palpably one of those cases.

[8] [8] A judge hearing a Rule 20 motion is required to take a hard look at the evidence to determine if there are real matters in conflict. The only evidence that the appellant intentionally hung on to the lead shank was in his own affidavit. As stated in Guarantee Co. of North America v. Gordon Capital, [1999] 3 S.C.R. 423, at pp. 436-437, “a self-serving affidavit is not sufficient in itself to create a triable issue in the absence of detailed facts and supporting evidence”. The appellant presented no detailed facts, or supporting evidence to back up his claim. In fact, during examination for discovery he stated: “I really don’t know if I was intentionally hanging on to it.” The trial judge referred to this statement in his reasons and therefore concluded, properly in my view, that a hard look at the evidence revealed no real matter in conflict regarding the lead shank. Moreover, it is highly questionable whether the matter involving the lead shank is even a material fact, or demonstrates negligence on the part of the owners of Unicorn Valley.

[9] [9] As to the primary issue of whether the owners of the horse had prior knowledge that it was dangerous so as to create a duty of care which they failed to discharge, the trial judge found that “the record disclosed no evidence that the horse was extremely temperamental and frisky or more dangerous that any other horse of the same age and type”. In my view he was right to do so. The evidence disclosed that the appellant was familiar with this particular animal and believed it to be ‘normal’. Furthermore, the appellant was an experienced horseman. The only evidence as to the possibility, and it was only a possibility, that there could be a problem with this horse came in the form of double hearsay by way of the appellant’s lawyer reading in, at the discovery, the results of his conversation with Jon Wade McCoy, a trainer who indicated that the horse had once reared when attached to a training cart, injuring a trainer. This information was not given by way of affidavit, although the appellant indicated it was his intention to call McCoy at trial and gave no explanation for not providing the information in sworn form at the motion for summary judgment.

[10] [10] On a motion for summary judgment, the parties must put their best foot forward and "lead trump" to show that there is a genuine issue for trial. It undermines both Rule 20’s purpose and jurisprudence to allow a party to succeed based not on actual evidence, but on the submission that more and better evidence will or may be available at trial. The motions judge is entitled to make his or her call based on the existing not the potential record. Allegations and speculation cannot buttress the absence of evidence.

[11] [11] The trial judge found that an examination of the record before him disclosed no evidence that this was an especially dangerous horse and thus “there was no need to warn Cliff how to avoid injury”. Based on the actual evidence before him, this is the only conclusion he could have reached.

[12] [12] I therefore agree with the motions judge that there was no genuine issue for trial, nor any dispute regarding material facts that required resolution at trial and would, therefore, dismiss the appeal.

“R.S. Abella J.A.”