COURT OF APPEAL FOR ONTARIO

CITATION: Haley v. Stepan Canada Inc., 2020 ONCA 737

DATE: 20201118

DOCKET: C67737

Fairburn A.C.J.O., Pepall and Roberts JJ.A.

BETWEEN

Patrick J. Haley

Appellant/Plaintiff

and

Stepan Canada Inc. and Chemical Developments of Canada Limited

Respondents/Defendants

Adam Moras, for the appellant

Amanda Potasky, for the respondents

Heard and delivered orally: November 12, 2020 by videoconference

On appeal from the judgment of Justice Clyde Smith of the Superior Court of Justice dated October 25, 2019.

REASONS FOR DECISION

[1] The appellant appeals from the dismissal of his action following the respondents’ motion for summary judgment.

[2] The appellant was a truck driver. He alleges that on June 19, 2013, he fell on uneven ground and suffered serious injuries at the respondents’ premises when he attended to pick up a load. It is common ground that he did not tell the respondents about the fall until he served his statement of claim. There were no witnesses to the fall and no photographs of the scene. On June 18, 2015, he commenced his action against the respondents. He was examined for discovery on April 4, 2017. In response to the respondents’ motion for summary judgment, he filed his expert’s opinion dated January 17, 2019 that there was an unsafe elevation that caused the appellant’s fall.

[3] The motion judge determined there was no genuine issue requiring a trial and dismissed the appellant’s action.

[4] The appellant submits that the motion judge erred by reversing the onus on the summary judgment motion, and by assuming that the respondents’ premises were safe in the face of his expert’s opinion about the unsafe condition of the respondents’ premises.

[5] We do not accept these submissions.

[6] The motion judge did not reverse the onus. Rather, he determined, correctly in our view, that the respondents had established that there was no genuine issue requiring a trial. He did not merely assume the premises were reasonably safe. As he was entitled to do, the motion judge accepted the evidence of the respondents’ production supervisor, Bill Pewar, that was unchallenged by cross-examination. Mr. Pewar deposed that at the relevant time in 2013, in fulfilment of their supervisory duties, he and another employee had daily and regularly inspected the area in question for hazards and discovered no issues, nor were any deficiencies ever reported.

[7] Further, the motion judge was not obliged to rely on the appellant’s expert opinion. The appellant’s discovery evidence about the area where he said he fell was inconsistent with the information provided to his expert. The expert acknowledged that inconsistency in his cross-examination. The expert’s report depended on what the appellant had told him, in contrast to his discovery evidence.

[8] It was open to the motion judge to conclude on the basis of the evidence before him that the respondents had discharged their burden as occupiers to take reasonable steps to ensure that the premises were reasonably safe, and that the appellant had failed to raise a genuine issue requiring a trial that the respondents had not done so and that the premises were not reasonably safe.

[9] We see no error that would warrant appellate intervention.

[10] Accordingly, the appeal is dismissed.

[11] The respondents are entitled to their partial indemnity costs in the amount of $6,000, inclusive of disbursements and applicable taxes.

“Fairburn A.C.J.O.”

“S.E. Pepall J.A.”

“L.B. Roberts J.A.”