ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-168/10
DATE: 2012-07-04
BETWEEN:
Barry Howell Plaintiff/ Respondent – and – Donald Wamboldt, D. Wamboldt Enterprises Ltd. and Mid-Valley Hardware Ltd. Defendants
Douglas P. O’Toole, for the Plaintiff/Respondent
Hugh Browns, for the Defendant, Mid-Valley Hardware Ltd.
- and – Derek Wamboldt Third Party
HEARD: June 28, 2012
REASONS FOR JUDGMENT
the honourable Mr. JUSTICE P.B. HAMBLY
[ 1 ] This is a summary judgment motion brought by a defendant for dismissal of a statement of claim.
TheFacts
[ 2 ] D. Wamboldt Enterprises Ltd. (“Wamboldt Ltd.”) owned a building at 65 Commercial Street in Middleton, Nova Scotia. Wamboldt Ltd. is owned and controlled by Donald Wamboldt (“Wamboldt”). Wamboldt Ltd. sold its building on Commercial Street to Mid-Valley Hardware Ltd. (“Mid-Valley”). Mid-Valley is owned and controlled by Donald Marshall and Bruce Elliott.
[ 3 ] The transaction closed on May 1, 2008. Mid-Valley granted Wamboldt Ltd. two weeks to remove its possessions from the building, after the closing date. Barry Howell (“Howell”) alleges that on May 13, 2008, he was assisting Wamboldt in removing a sign from the exterior of the building. While he was on a ladder with its base on the sidewalk adjacent to the building, with the ladder mounted against the building, the sign fell and knocked him off the ladder onto the sidewalk. He suffered serious injuries which have rendered him a quadriplegic.
[ 4 ] Howell caused to be issued a statement of claim on February 18, 2010 in Kitchener, Ontario, in which he named as defendants, Wamboldt, Wamboldt Ltd. and Mid-Valley. He alleges that the defendants failed to comply with their duty under the Nova Scotia Occupiers Liability Act to ensure that he was reasonably safe on their premises. The defendants Wamboldt and Wamboldt Ltd. are bankrupt. The action is stayed against them by reason of their bankruptcy. They have not filed a statement of defence. The defendant Mid-Valley has filed a statement defence, has made a cross-claim against Wamboldt and Wamboldt Ltd. and has issued a third-party claim against Wamboldt and Wamboldt Ltd.
[ 5 ] Mid-Valley has brought a motion in which it seeks summary judgment dismissing the action against it. It filed an affidavit of Donald Marshall, sworn November 19, 2010. In his affidavit he deposes to the following:
That Bruce Elliott verbally allowed Wamboldt to remove the contents and equipment from his variety store within the first 2 weeks of May, 2008.
That he believes there remained one sign outside of the premises to be removed.
That he had no input into the method of taking down the sign.
That he did not hold or provide the ladder used by Howell.
That the ladder which the plaintiff used was located on the city sidewalk and not on Mid-Valley’s building.
[ 6 ] In his cross-examination on his affidavit on April 23, 2012, Donald Marshall states that there may have been a conversation between Bruce Elliott and Wamboldt about the removal of a sign from the building. By implication this conversation may have resulted in Mid-Valley giving Wamboldt permission to remove the sign which fell and knocked Howell to the ground.
The Law
[ 7 ] The amended rule which governs motions for summary judgment reads as follows:
20.04(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[ 8 ] In Combined Air Mechanical Services Inc. v. Flesch 2011 ONCA 764 , 2011 CarswellOnt. 13515 the Court of Appeal held that motions for summary judgment may be appropriate in three types of cases as follows:
When the parties agree that it is appropriate to determine an action by way of a motion for summary judgment.
When the claim or the defence are shown to be without merit.
Cases where the issue is the following:
“…can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?” (para. 50)
In answering that question the court stated the following:
57 However, we add an important caveat to the "best foot forward" principle in cases where a motion for summary judgment is brought early in the litigation process. It will not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross-examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.
58 Moreover, the record built through affidavits and cross-examinations at an early stage may offer a less complete picture of the case than the responding party could present at trial. … A party faced with a premature or inappropriate summary judgment motion should have the option of moving to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery. This option is available by way of a motion for directions pursuant to rules 1.04(1), (1.1), (2) and 1.05.
Discussion
[ 9 ] It seems clear that there was a sign outside of the building purchased by Mid-Valley and that Mid-Valley required the same to be removed by Wamboldt Ltd. Mid-Valley gave Wamboldt and Wamboldt Ltd. two weeks to remove items from the building including the sign. If the sign was heavy and it was hanging loosely from the building it may well have been a hazard to anyone attempting to remove it. This could result in liability to Mid-Valley under the Nova Scotia Occupiers Liability Act in that it failed to ensure that persons coming onto its premises for the purpose of removing the sign were reasonably safe.
[ 10 ] The defendant points out that the plaintiff has filed no material on the motion. He has failed to comply with the well known and still applicable case law which requires that he “put his best foot forward” ( Cuthbert v. TD Canada Trust 2010 ONSC 830 , [2010] O.J. No. 630 at para. 12 ) and that he must “lead trump or risk losing” ( 1061590 Ontario Ltd. V. Ontario Jockey Club 1995 1686 (ON CA) , [1995] O.J. No. 132 para. 35 . However, I am of the view that the “caveat to the ‘best foot forward principle’” in Combined Air set out above applies. A court can best achieve “full appreciation” of whether the plaintiff could be successful under the Nova Scotia Occupiers Liability Act by permitting the production and discovery process to proceed. The motion is premature.
Disposition
[ 11 ] The motion is dismissed without prejudice to its being renewed after full production and discovery have been completed. Howell may make written submissions on costs within 10 days and Mid Valley may have 10 days to respond.
P.B. Hambly J.
Released: July 4, 2012
COURT FILE NO.: C-168/10
DATE: 2012-07-04
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Barry Howell - and – Donald Wamboldt, D. Wamboldt Enterprises Ltd. and Mid-Valley Hardware Ltd. - and – Derek Wamboldt REASONS FOR JUDGMENT P. B. Hambly J.
Released: July 4, 2012