SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Claudette Roper, Plaintiff
AND:
Norma C. Stewart, Pauline Whitton, The Church of God of Prophecy, 358355 Canada Limited operating as The Church of God of Prophecy of Canada, 230358 Ontario Limited operating as The Church of God of Prophecy of Canada, Defendants
BEFORE: D. M. Brown J.
COUNSEL:
P. Woloshyn, for the Plaintiff
M. Barrett, for the Defendants, The Church of God of Prophecy and 358355 Canada Limited operating as The Church of God of Prophecy of Canada
HEARD: May 15, 2012
REASONS FOR DECISION ( corrected )
I. Motion for summary judgment by certain defendants
[ 1 ] On January 25, 2009, two middle-aged women, the defendant Norma Stewart and the plaintiff, Claudette Roper, engaged in a struggle or fight in the basement of the defendant, The Church of God of Prophecy, located at 3200 Dundas Street West, Toronto (the “Dundas Church”). A long-standing dispute between the plaintiff and Ms. Stewart over responsibility for the payment of a mortgage debt had prompted the altercation.
[ 2 ] Ms. Roper has commenced this action seeking damages for the injuries she alleges she suffered in the incident. In addition to suing Ms. Stewart, the plaintiff has sued the Dundas Church, alleging it is responsible vicariously for the conduct of its pastor, Eustace Levy, his wife, Avis Levy, and a parishioner, Pauline Whitton, as well as two corporations, 358355 Canada Limited (the “Canada Church”) and 230358 Ontario Limited (the “Ontario Church”).
[ 3 ] The defendants, the Dundas Church and the Canada Church, move for summary judgment dismissing the claims against them. This action was commenced on May 25, 2010. The moving party defendants filed a defence dated June 30, 2010. In November and December, 2010 examinations for discovery were held. On January 28, 2011, the moving party defendants obtained a hearing date for a summary judgment motion on November 1, 2011. All affiants were cross-examined, resulting in multiple examinations of the affiants who were examined also on discovery. As a result of a consent adjournment, the hearing date was re-scheduled to May 15, 2012 before me. I outline this procedural chronology simply to point out that a motion for summary judgment was heard two years after this action was commenced. A trial of this action could have been completed within that time. As of the date of the hearing the action still had not been set down for trial.
[ 4 ] For the reasons set out below, I grant the motion for summary judgment brought by the defendant, 358355 Canada Limited, and I dismiss the action as against it. I refuse to grant the motion for summary judgment brought by The Church of God of Prophecy.
II. Theory of the plaintiff’s case
[ 5 ] The plaintiff pleaded that for the past several years she had been involved in a disagreement with Ms. Stewart over a mortgage on a home in Brampton as a result of which Stewart had been seeking money from Ms. Roper. The plaintiff alleged that on January 25, 2009 she attended the Dundas Church for her regular church service and was asked by an usher to go downstairs to speak with someone. The plaintiff did so, and she alleged that the defendant, Ms. Pauline Whitton, followed her downstairs. Downstairs Roper encountered Stewart near the kitchen; her Statement of Claim continued:
After threatening Roper, Stewart immediately began an argument with Roper about the mortgage.
Suddenly and without warning the Defendant Stewart violently attacked the Plaintiff Roper. Stewart is a strongly built. Roper is five feet two inches with a smaller fine-boned build.
The Defendant Stewart attacked and assaulted the Plaintiff Roper with great violence and ferocity. The force and brutality of Stewart’s assault fractured Roper’s spine, caused a neck injury and other injuries including bruising, cuts and scrapes. Stewart pulled out a large amount of Roper’s hair. Roper was unable to protect herself from the violent assault. Stewart held Roper’s head and neck between her legs and violently struck her in the head and neck area with her hand with such force that Roper’s head bounced up and down.
[ 6 ] In her Statement of Defence Stewart admitted she went to the Dundas Church that day “to speak to Roper about monies that Roper owed Stewart”, but denied that she had attacked Roper. She pleaded:
Rather, Roper lashed out at Stewart and it is in fact Roper who struck Stewart and further during Roper’s assault on Stewart Roper bit Stewart in leg causing severe bruising and leaving a mark on Stewart’s leg.
Parishioners of The Church of God Prophecy who were in the basement moved quickly to separate Stewart and Roper. Stewart denies that she struck Roper’s head and neck area and further denies pulling out large amounts of Roper’s hair.
[ 7 ] As to her claims against the moving party defendants, the Dundas Church and the Canada Church, Roper alleged that Eustace Levy was the pastor of the Dundas Church, his wife, Avis Levy, was a minister, and Pauline Whitton was a Sunday School superintendent at the church. The Dundas Church, she pleaded, was responsible at law for their acts and omissions. Roper pleaded the following acts and omissions in respect of Eustace Levy, Avis Levy and Pauline Levy:
In December of 2008, and in January of 2009, Stewart spoke several times about the [mortgage] matter to Avis Levy, Eustace Levy, the Defendant Whitton, and to others at Dundas Church. Stewart spoke in increasingly threatening and hostile terms concerning her determination to collect money for the Plaintiff. Stewart told Avis Levy, Eustace Levy, Whitton and others at the Dundas Church in an increasingly threatening and hostile manner that she would get the money from the Plaintiff.
Eustace Levy, Avis Levy, the Defendant Whitton and other officials and representatives of the Defendant Dundas Church knew, or ought to have known, that Stewart posed a danger to the Plaintiff in December and January of 2009. Eustace Levy, Avis Levy, Whitton and others at the Defendant Dundas Church failed to warn the Plaintiff of the Defendant Stewart’s threat. In the alternative Eustace Levy, Avis Levy, Whitton and others at the Defendant Dundas Church failed to take any action to protect the Plaintiff from the Defendant Stewart at the material time.
In the alternative, Eustace Levy, Avis Levy, or both of them, assured the Plaintiff Roper, and the Plaintiff’s son Calton Roper, that Roper would be safe at Dundas Church and that no harm would come to her while she was at the Dundas Church. Eustace Levy, Avis Levy, or both of them told the Plaintiff Roper that they would protect her at the Dundas Church.
The Defendant Whitton, on behalf of the Defendant Stewart, has also attempted to collect money from the Plaintiff in connection with the mortgage. The Defendant Whitton also failed to warn the Plaintiff of the danger Stewart posed to the Plaintiff. Whitton knew, or ought to have known of the danger Stewart posed to the Plaintiff.
[ 8 ] Later in her Statement of Claim Roper pleaded that Whitton knew that:
(i) Stewart was likely to start a physical altercation with her on January 25, 2009;
(ii) since Stewart was not a parishioner of the Dundas Church, when she attended that day “a physical altercation was likely”; and,
(iii) Whitton aided in the assault by asking an usher to have Roper go to the basement and by following her downstairs “thereby giving the Plaintiff a false sense of security”.
Roper further pleaded:
Whitton deliberately participated in a plan to involve the Plaintiff Roper in a situation where it was likely she would be confronted and harmed by Stewart.
[ 9 ] The plaintiff pleaded that the Dundas Church breached a duty of care to her to ensure her safety and protection in her place of worship, and breached its duty under the Occupiers’ Liability Act , R.S.O. 1990, c. O.2. Roper continued:
The Plaintiff Roper pleads, and the fact is, that Eustace Levy, Avis Levy and the Defendant Whitton of Dundas Church, and others at the Dundas Church, knew or ought to have known of the danger Stewart posed to the Plaintiff Roper. None of the Dundas Church’s representatives took any action to warn or to protect the Plaintiff from the danger she faced from Stewart. No precautions were taken. At the material time, being December 2008, and January 2009, or earlier, it was reasonably foreseeable that Stewart would or might harm the Plaintiff. Stewart did harm the Plaintiff at Dundas Church. The Defendant Dundas Church is thus liable at law for the damages that flowed from the assault on Roper on January 25 th , 2009.
Dundas Church is vicariously liable to the Plaintiff for the actions, or inaction, of one or more of its agents Eustace Levy, Avis Levy, the Defendant Pauline Whitton, a Sunday School superintendant, and others at the Dundas Church, in failing to warn the Plaintiff of the danger presented by the Defendant Stewart, or in failing to otherwise protect Roper from Stewart. Dundas Church is responsible at law to the plaintiff for all of the psychological, physical and economic loses the Plaintiff has suffered as a result of the January 25 th , 2009 assault.
[ 10 ] Finally, as to the liability of the Canada Church, Roper alleged that that defendant owned the Dundas Church, was vicariously liable for the actions and omissions of employees, agents and staff of the Dundas Church, and breached duties of care and duties under the Occupier’s Liability Act it owed to the plaintiff.
III. Theory of the moving party defendants’ case
[ 11 ] The moving party defendants denied (i) the alleged assault, (ii) any involvement by Whitton, and (iii) any forseeability or fore-knowledge of the events which took place at the Dundas Church that day. They pleaded that Whitton was not an employee, but an unpaid volunteer at the Dundas Church, and therefore they were not vicariously liable for her conduct and, as well, that the conduct alleged by the plaintiff was not an “enterprise created risk” related to their activities and therefore not conduct for which they were liable. Canada Church denied that it was responsible for the activities of the Dundas Church. The moving party defendants cross-claimed against Stewart and Whitton for contribution and indemnity.
IV. Evidence
A. The mortgage dispute
[ 12 ] In 2004 Stewart co-signed a mortgage with Roper for a home the latter bought at 53 Morton Way, Brampton. Roper had difficulty making the payments and the bank ultimately foreclosed on the mortgage. The bank began to send Stewart notices regarding the late payments. In 2006 Stewart began to ask Roper to remove her from the mortgage. Roper did not.
[ 13 ] Roper deposed that Stewart had left the Dundas Church several years before the alleged assault.
B. Summer 2008 meeting with Whitton
[ 14 ] Whitton volunteered as the superintendent of the Dundas Church’s Sunday School; she did not receive any payment for her work. Whitton recruited and trained new teachers for the Sunday School and made sure the classes were running smoothly.
[ 15 ] Roper deposed that in the summer of 2008 Whitton arranged a meeting between her and Stewart in the community centre of the Dundas Church. According to Roper, Stewart “told me that she would hurt me or kill me if I did not pay her the money for the mortgage. These threats were made right in front of Whitton and I believe she clearly heard those threats.”
[ 16 ] On discovery Roper stated that she had gone to the church to help prepare for some sort of sale and when she arrived she discovered that Stewart was there. Stewart told her, in Whitton’s presence, “she’s going to hurt me if I don’t pay it”.
[ 17 ] On discovery Whitton recalled meeting Stewart and Roper in November, 2008. Stewart had asked for her help on the mortgage dispute. Whitton wanted to help them reach an agreement. Whitton stated that Stewart never made any threats towards Roper in any of the discussions or meetings she held with her.
[ 18 ] Roper deposed that in October, 2008 she handed Whitton a $500.00 bank draft to give to Stewart in respect of the mortgage.
C. Fall 2008 telephone conversation with Avis Levy
[ 19 ] Pastor Levy deposed that his wife, Avril, headed the church’s Family Ministry as a volunteer and preached twice a year at Sunday services. With respect to her contact with Avis Levy, Roper deposed:
In the fall of 2008 Pastor Levy’s wife Avis Levy telephoned my home. I took the call. Avis Levy asked me questions about the mortgage issue with Stewart. I started to explain what had happened. I told Avis Levy that I had given a draft to Stewart.
[ 20 ] Roper then asked her son, Calton Roper, to speak with Avis Levy.
[ 21 ] Roper gave additional evidence about this telephone call on her discovery: “[Avis] said Norma is calling and leaving threats on the phone.” Roper maintained this evidence on cross-examination.
[ 22 ] The plaintiff’s son, Calton Roper, filed an affidavit stating that he had not gone to the Dundas Church for many years, but he knew Pastor Levy and his wife.
[ 23 ] In respect of his involvement in the fall of 2008 phone call to his mother by Avis Levy, Calton Roper deposed:
After I had finished explaining the situation with 53 Morton Way to Avis Levy, she told me that Norma Stewart has been calling her home and the church. Avis Levy said that Norma Stewart was very angry and that she was leaving very rude messages and threatening to come to the church to beat up your mother. Avis Levy went on to say that Norma Stewart is very ungodly and needs help. The conversation ended by Avis Levy saying do not worry Norma can’t do your mother nothing at church. I responded by saying OK and I hung up the telephone.
On cross-examination Calton Roper further testified that Avis Levy made the following remarks to him:
Norma has been leaving threatening messages at the church and our house. She said that she was ungodly. She’s an ungodly woman and she said how she’s going to beat up – she’s going to come and beat up your mother, and she says, Don’t worry. She can’t do your mother nothing in that church.
[ 24 ] Avis Levy denied that any such telephone call had occurred. In her affidavit she deposed:
I did not at any time prior to January 25, 2009 speak to either Claudette Roper or to Norma Stewart in regard to the difficulties I now understand they were having relating to certain financial arrangements between them.
In particular, at no time was I ever made aware of any threats allegedly being made by Norma Stewart against Claudette Roper, if indeed any were in fact made.
On her cross-examination Avis Levy denied having spoken with Calton Roper.
[ 25 ] Pastor Levy deposed that to his knowledge his wife did not speak with Roper about the situation with the loan.
[ 26 ] Stewart denied talking to Avis Levy about the loan dispute.
D. Fall 2008 meeting with Pastor Eustace Levy
[ 27 ] As to her contact with Pastor Eustace Levy, Roper deposed:
In the fall of 2008, after the telephone conversation with Avis Levy, Pastor Levy called me into a meeting in his office at the church. Pastor Levy told me that Stewart had called him about the mortgage issue with Stewart. Pastor Levy said he did not want anything to happen in the Church. I told Pastor Levy that I had paid Stewart $500.00 in October.
[ 28 ] On her discovery Roper testified that Pastor Levy said to her: “I have to look about, because he don’t want anything to happen in the church.” That was the only conversation she had with Pastor Levy about Stewart and the mortgage. Roper relied on this conversation as evidence that Pastor Levy knew Stewart had threatened her.
[ 29 ] Pastor Levy deposed that he had met Roper briefly in his office in the fall of 2008:
I advised Ms. Roper that I understood that Norma Stewart had co-signed a loan for her, and that Ms. Roper was not paying the loan, such that the entities to whom the moneys were owed were pursuing Ms. Stewart for repayment. I informed Ms. Roper that Ms. Stewart had asked me to speak to her, and I advised Ms. Roper that my view as a Pastor, from a moral perspective, was that she should pay the loan.
The conversation lasted no more than approximately five minutes, at most.
[ 30 ] Pastor Levy deposed that during the month prior to his meeting with Roper, Stewart had phoned him twice about the difficulty she was encountering in respect of the mortgage:
On neither telephone call did Ms. Stewart utter any threats toward Claudette Roper.
Ms. Stewart did not threaten me or my wife. She also did not demand that either of us take any action, but simply made a request.
I did not know Ms. Stewart to have any propensity toward violence, and, so far as I am aware, she had no reputation whatsoever for violence among members of my Church at this time.
[ 31 ] On discovery Pastor Levy testified that Stewart was “always a verbal person, loud”, and that during one conversation she sounded like she was angry and upset; the tone of her voice was “very loud and sounds very angry”. However, during the calls Stewart did not threaten Roper or himself.
[ 32 ] Ms. Stewart testified on discovery that she had called Pastor Levy three times about the mortgage dispute and that the tone of the conversation was “normal, and I maybe was crying”. She denied making any threats against Roper during her calls with the pastor.
E. Events of January 25, 2009
[ 33 ] In her September 5, 2011 affidavit Roper did not describe any involvement by Whitton, Avis Levy or Pastor Levy during the events of January 25, 2009.
[ 34 ] Pastor Levy deposed that Stewart had ceased attending the church around 2003 and prior to her attendance on January 25, 2009 he had not seen her at the church since her departure. He had no notice that Stewart would be attending the church that day: “She arrived entirely unannounced, without warning or notice to anyone.”
[ 35 ] On discovery Roper testified that Stewart’s assault had been quite sudden and unexpected, and prior to that date she had not known whether Stewart had been in any fights.
[ 36 ] Roper testified that on January 25, 2009 an usher came up to her, apparently asking her to look over at Whitton, and Roper thought that Whitton wanted her to come down to the church’s basement kitchen to help prepare some food for a send-off reception they were having. Whitton accompanied her downstairs. When Roper reached the basement she saw Stewart there. She testified that Stewart then assaulted her.
[ 37 ] Stewart stated that she had not asked Whitton to call Roper down to the basement; she had asked someone else, an usher or deacon. Stewart testified that Whitton did not accompany Roper to the basement.
[ 38 ] Whitton stated that she did not see the beginning of the incident between Roper and Stewart, but she witnessed the end.
F. The disputed and undisputed facts
[ 39 ] From this review of the material evidence, certain facts are undisputed:
(i) Whitton and Avis Levy performed volunteer work at the Dundas Church; Pastor Levy was a paid employee of that church;
(ii) The dispute between Roper and Stewart concerned a private matter – the responsibility for payment of the mortgage debt – and was not related to the business or affairs of the Dundas Church;
(iii) Stewart’s appearance at the Dundas Church on January 25, 2009 was unexpected and unannounced.
[ 40 ] Certain material facts are in dispute:
(i) whereas Roper contended that at the summer, 2008 meeting in the church’s community centre Stewart, in the presence of Whitton, threatened to cause Roper physical harm if she did not pay the mortgage debt, Whitton and Stewart denied that any such threat was made;
(ii) whereas Roper and her son, Calton, testified in that in the fall of 2008 Avis Levy phoned Roper and told her that Stewart was calling and leaving threats on the phone and then told Calton that Stewart was going to beat up his mother, but “she can’t do your mother nothing in that church”, Avis Levy denied that any such telephone call had ever taken place; and,
(iii) whereas Roper testified that when she met Pastor Levy in the fall of 2008 he told her that Stewart had called him about the mortgage issue with Stewart and “he did not want anything to happen in the Church”, Pastor Levy testified that all he told Roper was that from a moral perspective, she should pay the loan. He stated that Stewart had never uttered any threats towards Roper, nor had Stewart threatened himself or his wife.
V. Analysis
A. The principles governing motions for summary judgment
[ 41 ] To succeed on their motion the moving party defendants must demonstrate that there is no genuine issue requiring a trial with respect to the plaintiff’s claims against them. Before using the powers contained in Rule 20.04(2.1), the motion judge must apply the full appreciation test in order to be satisfied that the interest of justice does not require that these powers be exercised only at a trial.[^1] The full appreciation test requires motion judges to do more than simply assess if they are capable of reading and interpreting all of the evidence that has been put before them; a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case. In making this determination, the motion judge is to consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability to hear the witnesses speak in their own words, and without the assistance of counsel as the judge examines the record in chambers.[^2] Unless the full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record – as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) – the judge cannot be “satisfied” that the issues are appropriately resolved on a motion for summary judgment.[^3]
B. Resolving the disputed facts
[ 42 ] The moving party defendants submitted that on the issue of whether Stewart made any threats against Roper to Whitton, Avis Levy or Pastor Levy, or whether any such threats were known by those three persons, “the plaintiff’s evidence is simply not credible”. In support of that assertion the moving party defendants simply pointed to the denials made by Whitton, Avis Levy and Pastor Levy.
[ 43 ] The resolution of these disputed facts requires making findings of credibility in respect of “he said/she said” statements. No documentary evidence was adduced which could act as benchmarks or yardsticks against which to resolve these disputed facts. The nature and quality of the record before me on this summary judgment motion does not enable me to gain the full appreciation of the evidence required to make dispositive findings of fact in respect of those disputed statements. A trial with viva voce evidence is necessary to determine (i) whether Stewart threatened Roper in the presence of Whitton during their meeting in the summary of 2008, (ii) whether Avis Levy engaged in the fall, 2008 telephone conversation alleged by Roper and her son, and (iii) whether Pastor Levy made statements to Roper during their fall, 2008 meeting which indicated that he was aware some altercation might take place between Stewart and Roper and he did not want it to happen on church property.
[ 44 ] Nor I am prepared to direct a “mini-trial” pursuant to Rule 20.04(2.2) to hear oral evidence on those points. The disputed facts engage the credibility of five witnesses. That number signals that a trial, not a mini-trial, is required.
[ 45 ] That said, the moving party defendants submitted that a resolution of the disputed facts is not necessary to grant their motion, so I turn to their arguments on those points.
C. Liability of the Dundas Church
[ 46 ] Roper’s claim against the Dundas Church rests on her assertion that the Dundas Church is vicariously liable to her “for the actions, or inaction, of one or more of its agents Eustace Levy, Avis Levy, the Defendant Pauline Whitton, a Sunday School superintendant, and others at the Dundas Church, in failing to warn the Plaintiff of the danger presented by the Defendant Stewart, or in failing to otherwise protect Roper from Stewart.” While Roper named Pauline Whitton as a defendant (and Whitton has not moved for summary judgment), the plaintiff did not assert personal claims against Eustace Levy or Avis Levy. Roper grounded her claims in negligence and breach of the Occupiers’ Liability Act.
[ 47 ] Section 3 of the Occupiers’ Liability Act provides as follows:
- (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.
(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty.
As put by this Court in Allison v. Rank City Wall Canada Ltd.:
The question which s-s. 3(1) directs the court to ask itself, "Did the defendant take reasonable care in all the circumstances to ensure that persons were reasonably safe while on the premises both in respect to their condition and regarding the activities carried on therein", is not at all different from the questions based upon M'Alister (or Donoghue) v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562, and the cases following it. Who is my neighbour? Foreseeability and causation remain with us as well.
The assault in my view was a reasonably foreseeable one and ought to have been guarded against in this case.
[ 48 ] The standard of care imposed on the occupier is a standard of reasonableness. It requires neither perfection nor unrealistic or impractical precautions against known risks.
[ 49 ] Representations made by an occupier concerning the safety of its premises place a higher burden on the owner.
[ 50 ] The Dundas Church submitted that irrespective of the disputes on the evidence between the plaintiff and her son, on the one hand, and Pastor Levy, his wife and Whitton, on the other, common ground existed amongst those witnesses that the assault by Stewart on January 25, 2009 “came as a complete surprise to all concerned”, so no liability against the Dundas Church existed either in negligence or under the Occupiers’ Liability Act.
[ 51 ] I do not accept that submission. At issue is whether those for whose conduct the Dundas Church was responsible at law could conclude, as reasonable persons, to have foreseen, even as a possibility, that Roper might be in danger of harm from the access that Stewart would have to the church or that any greater precautions were needed. If the evidence of Roper and her son is preferred over the evidence of Avis Levy and Whitton, then only a few months before the assault at the church threats to Roper’s security were communicated to the pastor’s wife and the superintendent of the church’s Sunday School and Avis Levy gave assurances to Roper about her safety from Stewart on church property. Further, if Roper’s evidence is preferred over that of Pastor Levy, then a few months before the assault he told her, in the context of conversations which he had had with Stewart about the mortgage dispute, that “he did not want anything to happen in the Church” and that “I have to look about, because he don’t want anything to happen in the church.” Accordingly, findings of fact in respect of these disputed conversations are central to any determination about the foreseeability of possible harm to Roper from Stewart on church property and whether the Dundas Church took reasonable steps, in the circumstances, to ensure Roper’s personal safety.
[ 52 ] There is no dispute that Pastor Levy was an employee of the Dundas Church, so the possibility of finding the Dundas Church vicariously liable for his acts or omissions exists. The Dundas Church submitted, however, that since Avis Levy and Whitton were volunteers, not employees, of the church, a sufficient degree of connection between their acts and omissions and the Dundas Church did not exist to establish vicarious liability. Even though Avis Levy and Whitton were volunteers, it would be open on the evidence to conclude that they performed tasks which involved some reporting to Pastor Levy and that one could reasonably expect, given closeness of their relationships to Pastor Levy, they would pass on to him any threats made against Roper by Stewart. If the evidence of Roper and her son is accepted about their telephone conversation with Avis Levy, that evidence would strongly support such a conclusion. Accordingly, the issue of the vicarious liability of the Dundas Church, in the particular circumstances of this case, is tied closely to the credibility determinations which must be made in respect of the witnesses for the plaintiff and defendants.
[ 53 ] Given my earlier conclusion that a full appreciation of the disputed material evidence requires the mechanisms afforded by a trial for the hearing of viva voce evidence, it follows that the Dundas Church has not established that no genuine issue for trial exists in respect of the claim against it. Consequently, I dismiss its motion for summary judgment.
D. Liability of the Canada Church
[ 54 ] Roper alleged that that the Canada Church owned the Dundas Church, was vicariously liable for the actions and omissions of employees, agents and staff of the Dundas Church, and breached duties of care and duties under the Occupier’s Liability Act it owed to the plaintiff.
[ 55 ] The Supreme Court of Canada has addressed the issue of vicarious liability in several cases over the past 15 years. In John Doe v. Bennett the Court summarized the key principles as follows:
In Bazley, the Court suggested that the imposition of vicarious liability may usefully be approached in two steps. First, a court should determine whether there are precedents which unambiguously determine whether the case should attract vicarious liability. "If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability": Bazley, at para. 15; Jacobi, at para. 31. Vicarious liability is based on the rationale that the person who puts a risky enterprise into the community may fairly be held responsible when those risks emerge and cause loss or injury to members of the public. Effective compensation is a goal. Deterrence is also a consideration. The hope is that holding the employer or principal liable will encourage such persons to take steps to reduce the risk of harm in the future. Plaintiffs must show that the rationale behind the imposition of vicarious liability will be met on the facts in two respects. First, the relationship between the tortfeasor and the person against whom liability is sought must be sufficiently close. Second, the wrongful act must be sufficiently connected to the conduct authorized by the employer. This is necessary to ensure that the goals of fair and effective compensation and deterrence of future harm are met: K.L.B., supra, at para. 20.
[ 56 ] No transcript of an examination for discovery of a representative of the Canada Church was placed in the record. In the affidavits filed in support of her action Roper did not adduce any evidence disclosing that the Canada Church had any knowledge of the dispute between her and Stewart nor any knowledge of threats which she alleges Stewart made to Eustace Levy, Avis Levy or Whitton.
[ 57 ] The only evidence concerning the Canada Church placed in evidence on this motion came from answers given by Pastor Levy on his examination for discovery. He testified that the Canada Church is the national office of The Church of God of Prophecy in Eastern Canada. Although it owned the property at 3200 Dundas Street West, the Canada Church did not hire staff who worked at the Dundas Church, save for the Pastor. However, the Dundas Church paid Pastor Levy who reported monthly to the Canada Church on financial and spiritual matters. Further, none of the activities complained of by Roper occurred on, or had any connection with, the premises owned by the Canada Church at 5145 Tomken Road, Toronto.
[ 58 ] I conclude that Roper adduced no evidence to support her claim that the Canada Church was liable vicariously for the actions of Pastor Levy, Avis Levy or Whitton or that as owner of the property at 3200 Dundas St. West it had been negligent or had breached any duty owed under the Occupiers’ Liability Act.
[ 59 ] Roper did not address the issue of the liability of the Canada Church in her factum.
[ 60 ] Accordingly, I conclude that no genuine issue requiring a trial exists in respect of Roper’s claim against the Canada Church, and I dismiss that part of her action.
VI. Summary and costs
[ 61 ] By way of summary, I grant the motion for summary judgment brought by the defendant, 358355 Canada Limited, and I dismiss the action as against it. I refuse to grant the motion for summary judgment brought by The Church of God of Prophecy.
[ 62 ] As to costs, I would encourage the parties to try to settle the costs of this motion. If they cannot, any party seeking costs may serve and file with my office (c/o Judges’ Administration, 361 University Avenue) written cost submissions, together with a Bill of Costs, by Monday, September 17, 2012. Any party against whom costs are sought may serve and file with my office responding written cost submissions by September 28, 2012. The costs submissions shall not exceed three pages in length, excluding the Bill of Costs.
D. M. Brown J.
Date : September 5, 2012
[^1]: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, para. 75.
[^2]: Ibid., paras. 53‑54.
[^3]: Ibid., para. 55.