ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 10-0772
Date: 20120726

Between:

Tannis Pedwell, Jonathon Pedwell, Shaina Cassin, Jessica Crocker, Stacie Gallant, Victoria Jones, Kelly Kehl, Michael Lawrence, Brendon McMackin, David Penwarden, Brian Somerville, Christine O’Mara Plaintiffs – and – 1191827 Ontario Inc. o/a Bala Bay Inn Defendants

Kenneth Arenson, for the Plaintiff
Dan Rabinowitz, for the Defendants

Heard: July 3, 2012

REASONS FOR DECISION

Edwards j.

Overview

[ 1 ] The bride and groom have successfully completed the difficult part of their wedding day and can now enjoy the festivities that follow. Part of those festivities included the taking of pictures. Unfortunately what was to have been a joyous occasion turned out to be anything other than joyous.

The Facts

[ 2 ] On September 20, 2008 the plaintiffs were all part of a group celebrating the marriage of Tannis Pedwell and Jonathon Pedwell. Many of those involved in the wedding resided in the Muskoka Region of Ontario. In anticipation of the wedding one of the plaintiffs in this action Christine O’Mara had rented two rooms at the Bala Bay Inn “(The Inn”).

[ 3 ] The Inn advertises itself as a historic picturesque hotel having been built sometime in or about 1910. Part of its business involves the hosting of wedding parties which apparently represents a significant part of the Inn’s business.

[ 4 ] Christine O’Mara rented rooms 307 and 309 for September 20, 2008. Room 309 has a capacity for two people with one bed, while room 307 has the capacity for three people. The combined capacity for both rooms was therefore five people. The bridal party decided that after the wedding they would assemble for photographs at the Inn in part because it was close to where the wedding ceremony was to occur and also because it was a picturesque location.

[ 5 ] One of the two rooms rented by Christine O’Mara had a balcony attached to it. The balcony is made of wood construction and was attached to the brick wall of the Inn with wooden cleats and metal bolts. The balcony is described as being approximately ten feet in length and five feet from the wall of the Inn.

[ 6 ] The defendants allege that there was a sign posted at the base of the stairs in the lobby of the Inn which stated “only registered paying guests allowed upstairs.” There is nothing in the evidence that would suggest that the plaintiffs did in fact check in with the front desk although it is the evidence of Victoria Jones that she did not see the sign. Lisa Ward, who is the secretary treasurer of the Inn was cross examined on her affidavit filed in opposition to the Motion for Summary Judgment. Ms. Ward gave evidence that eleven people would never have been allowed into either of rooms 307 or 309 and that if eleven people had wished to use a room the Inn would have suggested a more appropriate room to accommodate that number of people.

[ 7 ] The plaintiffs allege that as they entered the Inn they were waived in by the desk clerk with no indication that anything other than the registered guest Christine O’Mara would be allowed up to rooms 307 and 309.

[ 8 ] Initially the bride and groom and a number of other male members of the party went out onto the balcony. Photographs were taken and a request was then made for the balance of the bridal party to come out onto the balcony for their pictures.

[ 9 ] The plaintiff Victoria Jones was one of the last, if not the last member of the bridal party, to come out to the balcony. As the bridal party arranged themselves along the length of the balcony for further photographs there was a loud cracking noise and the balcony broke away from the wall and collapsed.

The Issue

[ 10 ] The plaintiff in this matter moves pursuant to Rule 20 for an Order granting summary judgment on liability to the plaintiffs. In the plaintiffs factum it is noted on behalf of the moving plaintiff Victoria Jones that if she is successful the other plaintiffs would then seek an order striking from the Statement of Defence the denial of liability on the basis of issue estoppel, res judicata or abuse of process.

[ 11 ] The plaintiffs argue that the Inn is liable because the balcony broke away from its moorings on the brick wall falling one story under what is described as ordinary use. Counsel for the Inn suggests in his factum that the balcony was only designed to accommodate the number of people that were registered into room 307 i.e.: 3. The suggestion is that the balcony was never intended to accommodate 11 or 12 people as was the case with the plaintiffs wedding party.

[ 12 ] Very little argument was made by counsel for the Inn on the issue of liability. While the issue of liability is not admitted, the facts of this case could lead to a fairly simple conclusion that where a balcony collapses from the side of a building with registered guests on that balcony, the owner of the building is liable. The real issue, however, in this motion comes down to whether or not, assuming there was liability as against the Inn, this court can grant summary judgment where there is some evidence that the plaintiff may be found contributory negligent.

[ 13 ] The evidence with respect to contributory negligence is found in the transcript of the evidence of Victoria Jones. On at least three occasions during the course of her cross examination Ms. Jones gave evidence, with respect to concerns she had about the advisability of the number of individuals using the balcony. I have reproduced below those extracts:

Question…were you being serious to him when you said it? You had concerns whether the balcony would hold you.

Answer: Oh yes and he reassured me and said – his exact words were, “shit, yeah Vic Jones” with his arm around me.

…Yes I am sure that I was nervous about whether it was going to hold us all, and that is why I said something to him and he assured me that it would, and at that point, I just had to go with the flow, it’s a wedding.

Question: So when you – and you made this observation before you had gotten on the balcony.

Answer: Yes.

Question: You made it from the ground?

Answer: Yes.

Question: And your concern was you told me because the balcony was small and were you also concerned because there were going to be eleven of you getting on the balcony.

Answer: Yes large wedding party obviously.

[ 14 ] From the aforesaid extracts of the evidence of Ms. Jones there is at least some evidence before this court, that may ultimately lead the trier of fact to conclude that Ms. Jones bears some responsibility for going out onto the balcony where she had initial concerns about the size of the balcony and the number of individuals getting onto the balcony. In the face of that evidence, as I indicated to counsel during the course of argument, I have serious reservations as to whether or not it is appropriate to grant partial summary judgment on liability as requested by the plaintiff in her Notice of Motion.

[ 15 ] In order to determine issues relating to contributory negligence there is a high probability that the trier of fact will still have to hear, all of the evidence as it relates to the liability of the defendants so as to properly apportion responsibility (assuming there is a finding of contributory negligence) as between the plaintiffs and the defendants.

The Law

[ 16 ] The Court of Appeal of Ontario has recently provided guidance with respect to the relatively new provisions found in Rule 20. Rather than determining whether or not there is any “genuine issue for trial”, the new provisions of Rule 20.04(2)(a) require the court to be satisfied that there is “no genuine issue requiring a trial” with respect to a defence. Part of the defence in this case is a plea of contributory negligence.

[ 17 ] In Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 the Court of Appeal made clear that the purpose of the new rule is to “eliminate unnecessary trials, not to eliminate all trials.” If this court were to find liability as against the defendants it will not eliminate a trial. Furthermore such a finding will not eliminate much if any evidence as it relates to liability given the need to apportion liability between the plaintiffs and the defendant assuming a finding of contributory negligence.

[ 18 ] The governing principal laid down by the Court of Appeal in Combined Air is found in paragraph 50 and 51 where motion judges are given the following guidance:

“In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: 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 trial.” We think this full appreciation “test” provides a useful bench mark for deciding whether or not a trial is required in the interest of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, on those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. The court will need the full appreciation test is not met and the “interest of justice” requires a trial.”

[ 19 ] The plaintiff moving for summary judgment on the motion before this court, Victoria Jones, suggests that a finding of liability as against the Inn may be determinative of whether or not the parties may ultimately be able to settle this matter out of court. It is for that reason that plaintiff’s counsel in his factum makes clear that the strategy in seeking summary judgment on liability is to facilitate the other plaintiffs who did not join in the motion for summary judgment then pursuing a motion to strike out in the Statement of Defence the denial of liability on the basis of issue estoppel res judicata or abuse of process.

[ 20 ] This court, however, does not have before it, other than the aforementioned evidence of Ms. Jones that may or may not impact on her contributory negligence, any evidence with respect to the state of knowledge of the other plaintiffs concerning the safe use of the balcony, nor any other evidence that may potentially result in a finding of contributory negligence.

[ 21 ] In GreenHalgh v. Vaillancourt 2010 OJ. No. 459 E.M. Stewart J. on a summary judgment motion dealt with a situation where there was a high probability the defendant would be found liable given his plea of guilty to a Highway Traffic Act charge. The defendant raised issues with respect to contributory negligence as well as issues of causation and damages. Given these issues E.M. Stewart J. concluded:

“In my view, these issues are of such a nature that it is evident that a trial will be required to determine them. Their magnitude and significance are such that the outcome of the action cannot and should not be discerned, even in part on the paper record before me. Accordingly I consider that there are several genuine issues for trial in this action such that the granting of partial summary judgment at this stage would be appropriate.”

[ 22 ] While the motion before E.M. Stewart J. was argued under the old Rule 20 and well before the release of Combined Air, [supra], her comments apply equally to the facts before this court. Where there is evidence on a motion for summary judgment of a potential finding of contributory negligence as against the plaintiff it is not appropriate to grant partial summary judgment where the court will still have to hear evidence as it relates to the liability of the defendant so as to make an apportionment as between the parties. There simply is no economy of scale to be found by granting partial summary judgment where the court is going to have to go through precisely the same evidence in order to make a factual determination of contributory negligence and the appropriate apportionment.

[ 23 ] The plaintiff’s motion is dismissed.

Costs

[ 24 ] If the issue of costs cannot be resolved between the parties, counsel for the moving party is to make arrangements through the trial coordinator to make in person submissions with the court. In advance of the in person submissions, written submissions are to also be filed with the court limited to three pages in length.

Justice M. Edwards

Released: July 26, 2012