Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231221 DOCKET: C70352

Gillese, Trotter and Coroza JJ.A.

BETWEEN

Terri-Jo Thompson Plaintiff (Appellant)

and

Herschel Rescue and Training Systems, Terry Harrison, The Corporation of the Town of Hanover* and John Doe Defendants (Respondent*)

Terri-Jo Thompson, acting in person Patrick Murphy and Nicholas Van Allen, for the respondent

Heard: September 18, 2023

On appeal from the order of Justice John R. McCarthy of the Superior Court of Justice, dated April 8, 2022. [1]

Reasons for Decision

[1] The Corporation of the Town of Hanover (the “Town”) successfully brought a partial summary judgment motion (the “Motion”) in this proceeding. The plaintiff, Terri-Jo Thompson, appeals the order (the “Order”) [2], granting partial summary judgment and dismissing her action as against the Town.

[2] For the reasons that follow, the appeal is allowed.

Background

[3] On February 8, 2015, Ms. Thompson participated in an ice water rescue training course during which she witnessed the drowning death of Adam Brunt, a fellow participant in the course. The course was offered by Herschel Rescue and Training Systems (“Herschel”), an unincorporated business, owned and operated by Terry Harrison. Mr. Harrison led the training program.

[4] Later it was learned that, in 2010, Mr. Harrison offered a similar program in which one of the participants had also drowned.

[5] Ms. Thompson sued Herschel, Mr. Harrison, and the Town for damages for bodily harm and psychological injury she alleges she has suffered as a result of her attempts to rescue Mr. Brunt from where he was trapped under water before he drowned and from witnessing his death. She alleges, among other things, the Town was negligent in the role it played in endorsing, enabling, facilitating, and/or supervising Harrison’s offering of the course.

[6] Ms. Thompson led evidence on the motion about the use of the Town’s fire department facilities and equipment during the course, its relationship with Mr. Harrison and Herschel, and the presence of one or more members of the Town’s fire department during parts of the course. On the record before the motion judge, there was conflicting evidence on these matters.

[7] The motion judge concluded that he was able to reach a fair and just determination on the merits, based on the materials before him. He said that there was “almost nothing that is controversial or would require closer scrutiny or weighing at trial” and that he was as well placed as a trial judge to determine the case on the merits.

[8] On the Motion, the Town also sought an order compelling Ms. Thompson to remove certain information about this proceeding from her social media sites. That relief was ordered. Ms. Thompson did not appeal that aspect of the Order.

[9] Costs of the Motion were ordered against Ms. Thompson in the amount of $43, 447.34 (the “Costs Order”). [3]

Analysis

[10] The motion judge quoted para. 34 of Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, in which this court stated that partial summary judgment is a “rare procedure”, reserved for 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. However, he did not advert to the warning in Cook v. Joyce, 2017 ONCA 49, a summary judgment case, where at para. 92, this court stated: the more important credibility disputes are to determining key issues, the harder it will be to fairly adjudicate those issues solely on a paper record. See also Truscott v. Co-operators General Insurance Company, 2023 ONCA 267, 482 D.L.R. (4th) 113, at paras. 58-59.

[11] Credibility disputes are key to determining the issues in this case and the motion judge erred in principle by failing to recognize that. The conflicting evidence about the Town’s involvement in the training course could not be resolved without credibility determinations being made on matters that include the following: whether the Town provided facilities at no cost to Mr. Harrison to run the course; which parts of the course, if any, were held in the fire hall part of the Town facility; was Town fire hall equipment used in the training; were one or more Town fire officials present at some parts of the training; and, whether the Town was aware that a participant in an earlier similar training course offered by Mr. Harrison had died when it agreed to allow him to offer the program in Town facilities.

[12] These issues overlap with those left for trial relating to Herschel and Mr. Harrison. Because the issues are inextricably intertwined, deciding those relating to the Town’s involvement on the Motion leads to the possibility of inconsistent findings and substantive injustice. The factual findings must be left to the trial judge who, with the benefit of hearing all the trial testimony and any further productions, will have a fuller appreciation of what transpired and the relationships among the parties. That appreciation is crucial to fairly decide the allegations against all the defendants.

The Fresh Evidence Motion

[13] Ms. Thompson moved to have fresh evidence admitted on this appeal. The fresh evidence is a letter dated November 13, 2017, in which counsel for the Town provided answers to undertakings on the Examination for Discovery of the Town’s representative, Jeff Dettinger.

[14] This appeal can be fairly decided without recourse to the proposed fresh evidence. Accordingly, the fresh evidence motion is dismissed.

Disposition

[15] The fresh evidence motion is dismissed, the appeal is allowed, and para. 1 of the Order is set aside. In light of the result on appeal, success on the Motion was divided. Thus, the Costs Order must also be set aside. Costs of the Motion and this appeal are reserved to the trial judge.

“E.E. Gillese J.A.” “Gary Trotter J.A.” “S. Coroza J.A.”

Footnotes

[1] Neither party provided this court with a signed and entered copy of the order. The appellant’s materials included an unsigned order dated April 8, 2022.

[2] In her Notice of Appeal, Ms. Thompson refers to a January 27, 2022, order of McCarthy J. However, as noted in footnote 1 above, the unsigned order she provided is dated April 8, 2022.

[3] Neither party provided a formal costs order. The quantum of costs has been taken from the costs decision, reported at 2022 ONSC 4415.