ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: C-764-10-SR
DATE: 20120416

BETWEEN:

NICHOLAS SENCHUK, and NICHOLAI SENCHUK, NATASHA SENCHUK, and SOPHIA SENCHUK, Minors under the age of 18, by their Litigation Guardian, NICHOLAS SENCHUK
Plaintiffs

– and –

GERRY ST. MARTIN, 1103241 ONTARIO INC. CARRYING ON BUSINESS AS TIM HORTON’S, TIM HORTON’S INC., SHOPPERS DRUGMART INC., PRIDE MOBILITY PRODUCTS CORP., SUDBURY REGIONAL HOSPITAL CORPORATION, SHOPPERS HOME HEALTH CARE (ONTARIO) INC.
Defendants

Serge F. Treherne, for the Plaintiffs

Gary J. Marcuccio, for the Defendant Pride Mobility Products Corp.

HEARD: April 13, 2012

gauthier, j.

Overview:

[ 1 ] The Defendant Pride Mobility Products Corp. (“Pride”) requests an Order that the Plaintiffs’ claim, as against it, be dismissed, pursuant to Rule 20.04.

Facts and History of the Case:

[ 2 ] On July 8, 2008, the Plaintiff Nicholas Senchuk (“Senchuk”), was struck and injured by the Defendant Gerry St. Martin (“St. Martin”) who was operating an electronic wheelchair manufactured by Pride.

[ 3 ] Senchuk and members of his family originally brought an action against St. Martin, 1103241 Ontario Inc. carrying on business as Tim Horton’s, Tim Horton’s Inc. and Shopper’s Drug Mart.

[ 4 ] Senchuk added Pride as a Defendant by way of Amended Statement of Claim on January 3, 2011, alleging that Pride:

a) Manufactured and supplied a wheelchair with a mechanical deficient;

b) Manufactured a wheelchair that could be easily modified to create a danger;

c) Manufactured a wheelchair that could exceed safe speeds;

d) Failed to provide adequate training in the use of the wheelchair; and

e) Failed to warn of known potential dangers with the wheelchair.

[ 5 ] The action is under Simplified Procedure.

[ 6 ] On November 11, 2011, Adam Kosnick, an associate with the solicitors for Pride, deposed that no evidence had been provided by Senchuk to prove that there was anything wrong with the electronic wheelchair, nor to sustain any of the allegations in the Statement of Claim.

[ 7 ] The Affidavit of Adam Kosnick attached a copy of the inspection documentation for the wheelchair, which bears the stamp “QC Passed”.

[ 8 ] In his responding Affidavit, Senchuk offered the following:

That the injuries that I sustained and the financial loss that I incurred were caused by the Defendant, Gerry St. Martin’s reckless operation of his motorized scooter, the operation of which was caused with either by Mr. St. Martin’s not being able to properly operate the scooter, a manufacturer’s defect in the scooter, a failure on the part of Mr. St. Martin to be properly instructed as to how to use the scooter....

That I very much want this action to be heard on its merits;

Pride’s Position:

[ 9 ] Pride’s position is that because Senchuk has not produced any evidence to support his allegations against it, he would have no chance of success at trial. Therefore there is no genuine issue requiring a trial, and summary judgment should be granted.

Senchuk’s Position:

[ 10 ] As I understand it, Senchuk’s position is that Pride cannot simply say that Senchuk has no case and request summary judgment. Pride must lead evidence that Senchuk has no case, by way of an Affidavit of Pride (and not from one of its lawyers), refuting the allegations made by Senchuk. As it has not done so, Senchuk is relieved of his obligation, under Rule 20.02 (2) to file an Affidavit, or other evidence of specific facts showing that there is a genuine issue requiring a trial.

Analysis:

[ 11 ] The issues to be decided by the trier of fact in this case relate to product liability and are outside the ordinary knowledge and experience of the trier. In such circumstances, a Plaintiff will not be able to succeed at trial in the absence of expert evidence. See Claus v. Wolfman (1999), 1999 14824 (ON SC) , 52 O.R. (3d) 673. (Ont. S.C.J.).

[ 12 ] Here, the issue of the applicable standard of care in the manufacture and supply of wheelchairs is not within the ordinary knowledge of the trier of fact. Likewise, the issue of causation would require the assistance of an expert.

[ 13 ] There is no evidence whatsoever to establish that Pride breached any standard of care owed to Senchuk, or that any such breach caused or contributed to the injuries Senchuk sustained. Without this, Senchuk could not succeed at trial. That being the case, there is no genuine issue requiring a trial in this case.

[ 14 ] On a summary judgment motion, each side must “put its best foot forward” on the question of whether or not there is a material issue requiring a trial. That does not mean, however, that, Pride was required to adduce any evidence to refute the allegations against it. Although the pleadings set out allegations against Pride, there was no evidence whatsoever of any specific facts that could attract liability on the part of Pride. In such circumstances, Pride could quite properly force Senchuk to either lead evidence or risk having his claim dismissed.

[ 15 ] Therefore the motion for summary judgment is granted.

Conclusion:

[ 16 ] The Plaintiffs’ Claim is dismissed against Pride Mobility Products Corp.

[ 17 ] If counsel cannot agree on costs, then they are to communicate with the Trial Coordinator, within twenty (20) days, to set a date and time to argue same, failing which I will make no order as to costs.

Madam Justice L. L. Gauthier

Released: April 16, 2012

COURT FILE NO.: C-764-10-SR
DATE: 20120416

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: NICHOLAS SENCHUK, and NICHOLAI SENCHUK, NATASHA SENCHUK, and SOPHIA SENCHUK, Minors under the age of 18, by their Litigation Guardian, NICHOLAS SENCHUK Plaintiffs – and – GERRY ST. MARTIN, 1103241 ONTARIO INC. CARRYING ON BUSINESS AS TIM HORTON’S, TIM HORTON’S INC., SHOPPERS DRUGMART INC., PRIDE MOBILITY PRODUCTS CORP., SUDBURY REGIONAL HOSPITAL CORPORATION, SHOPPERS HOME HEALTH CARE (ONTARIO) INC. Defendants

Ruling on motion

GAUTHIER, J.

Released: April 16, 2012