ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-1016
DATE: 20120831
BETWEEN:
WANDA STOJANOVIC, ZORA MCGLADDERY and PHILIP MCGLADDERY
Plaintiff
– and –
ZELLERS INC., HUDSON’S BAY COMPANY and RIOCAN HOLDING (COLLINGWOOD) INC.
Defendants
- and –
CINTAS CANADA LIMITED
Third Party
M. Lemieux, for the Plaintiff
N. Razack, for the Defendants Zellers Inc. and the Hudson’s Bay Company
S. L. Pottle for the Third Party
HEARD: July 25, 2012
QUINLAN J.:
INTRODUCTION
[ 1 ] On April 16, 2008, the plaintiff allegedly tripped and fell at the entrance to the Zellers store in Collingwood, Ontario. She issued a statement of claim against Zellers Inc. and Hudson's Bay Company (Zellers).
[ 2 ] The defendant, Zellers, had an agreement with Cintas Canada Limited (Cintas) to supply and install floor mats. Zellers issued a third party claim against Cintas.
[ 3 ] Cintas has brought a motion for summary judgment seeking to summarily dismiss the third party claim pursuant to Rule 20 of the Rules of Civil Procedure.
[ 4 ] The issue in this motion is whether the third party claim against Cintas has been shown to have no chance of success, and be without merit.
BACKGROUND
[ 5 ] The plaintiff alleges that on April 16, 2008, as she entered the Zellers store, she “caught her toe in a bunched-up mat prior to falling." The plaintiff further alleges that, "the subject mat was well-worn, extensively rumpled, untapped [sic] and/or untacked”. The allegation is that there were no slip guards in place on the subject rug, posing a safety hazard to customers.
[ 6 ] At her examination for discovery, the plaintiff testified that as she entered the Zellers store, she felt something grab her leg. She later confirmed that it was the mat. She further testified that she tripped on the mat and that she did not know where she was on the mat when she tripped.
[ 7 ] There was a customer incident report prepared by Zellers’ store manager. It included a report by a Zellers’ employee who saw the plaintiff enter the store. The employee described that the plaintiff’s "cane seemed to get caught in the mat and she fell down forwards hitting the floor".
[ 8 ] At her examination for discovery, the Zellers’ employee testified that when the plaintiff entered the store she placed her cane down heavily on the mat. The mat seemed to bunch up a bit in the middle of the rug and the plaintiff fell down.
[ 9 ] Zellers had a Facilities Services Rental Agreement (agreement) with Cintas to supply and install floor mats to the Zellers store on a weekly basis. In the agreement, Zellers was the "Customer" and Cintas was the "Company". The agreement between Zellers and Cintas included the following clause: "Customer [Zellers] hereby agrees to defend, indemnify and hold harmless Company [Cintas] from any claims and damages arising out of or associated with this agreement, including any claims arising from defective products."
[ 10 ] Following the examination for discovery of the Zellers’ employee, Zellers provided answers to a number of undertakings. Those answers disclosed that Zellers decided on the size, type and placement of the mat. Zellers’ employees were responsible for monitoring the mat, making sure it laid flat and vacuuming the mat.
[ 11 ] The mat had been cleaned and delivered to Zellers three days before the incident. No complaints were made to Cintas regarding the mat and no defects were reported before the incident took place.
[ 12 ] In order to preserve their right to contribution and indemnity arising from a finding of liability in the main action, Zellers brought a third party claim again Cintas. The third party claim against Cintas is in response to the allegation in the main action that the mat Cintas supplied to Zellers "posed a safety hazard" and was "well-worn, extensively rumpled, untapped [sic] and/or untacked" and did not have "slip guards".
[ 13 ] In its factum, Zellers stated that it has not third-partied Cintas on the basis that it failed to maintain and install the mat in a safe and proper condition.
[ 14 ] Cintas has not been examined for discovery.
POSITIONS OF THE PARTIES
[ 15 ] Cintas takes the position that the third party claim against it has no chance of success, and is without merit, in that:
(a) Zellers employees were responsible for monitoring the mat, making sure it lay flat;
(b) Zellers employees were responsible for vacuuming and maintaining the mat;
(c) The mat had been cleaned and delivered to Zellers three days before the incident. No complaints were made to Cintas regarding the mat and no defects were reported before the incident took place;
(d) Zellers has failed to provide evidence to show that the mat was worn or defective; and
(e) The clause in the agreement purporting to limit liability includes liability for negligence and claims arising from worn or defective products.
[ 16 ] The position of Zellers is that:
(a) The description set out in the customer incident report may implicate the condition and design of Cintas’ mat;
(b) Zellers cannot discontinue the third party claim again Cintas unless the allegation citing that the design and condition of the Cintas mat was defective and caused or contributed to the incident is struck from the main claim; and
(c) The clause in the agreement between Zellers and Cintas that purports to limit liability does not address Cintas' own negligence and breach of contract.
[ 17 ] The plaintiff takes no position on the summary judgment motion.
ANALYSIS
Rule 20 principles
[ 18 ] Rule 20.04 states that summary judgment shall be granted if the court is satisfied that there is “no genuine issue requiring a trial” with respect to a claim or defence. In determining that, the court shall consider the evidence submitted by the parties and the judge may exercise any of the following powers for that purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
(i) Weighing the evidence;
(ii) Evaluating the credibility of a deponent; and
(iii) Drawing any reasonable inference from the evidence. [^1]
[ 19 ] In Combined Air Mechanical Services Inc. v. Flesch, the Ontario Court of Appeal developed the approach to be taken in interpreting the amended Rule 20. The Court of Appeal concluded there are three types of cases amenable to summary judgment:
(i) Where the parties agree that it is appropriate to determine an action by way of a motion for summary judgment;
(ii) Where the claims or defences are shown to be without merit;
(iii) Where the trial process is not required in the “interest of justice”.
[ 20 ] Where the basis for the summary judgment motion is the second class of case, as is argued here, a judge may use the powers provided by rules 20.04(2.1) and (2.2) to be satisfied that the claim or defence has no chance of success. This will "permit more actions to be weeded out through the mechanism of summary judgment". However, as noted in Combined Air, "before the motion judge decides to weigh evidence, evaluate credibility, or draw reasonable inferences from the evidence, the motion judge must apply the full appreciation test." [^3]
[ 21 ] The “full appreciation test” has been described as follows:
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? [^4]
[ 22 ] In document-driven cases, where there is limited testimonial evidence, a motions judge will be able to achieve "the full appreciation of the evidence and issues" and can make dispositive findings. [^5]
[ 23 ] In cases where there are limited contentious factual issues, the full appreciation test may also be met. [^6]
[ 24 ] However, in cases that require multiple findings of fact on the basis of conflicting evidence from a number of witnesses and a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. [^7]
[ 25 ] In deciding whether to grant summary judgment, the motion judge must consider if this is a case where “meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand.” [^8]
[ 26 ] The new Rule 20 does not change the evidentiary obligations on a summary judgment motion. Each side must put its “best foot forward”.
[ 27 ] In response to evidence supporting a motion for summary judgment, Rule 20.02 provides that a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, through admissible evidence, specific facts showing why there is a genuine issue regarding a trial.
Has it been shown that the third party claim against Cintas has no chance of success and is without merit?
1. Limitation of liability clause
[ 28 ] The clause purporting to limit the liability of Cintas obliges Zellers to indemnify and hold Cintas harmless from "any claims and damages arising out of or associated with this agreement, including any claims arising from defective products."
[ 29 ] Under Combined Air, a motion judge has jurisdiction and is obliged to interpret the exclusionary clause in determining whether summary judgment should be granted. In doing so, I make the following findings:
(a) Zellers selected the type of mat used and it was Zellers’ decision whether a mat had slip guards.
(b) Regardless of whether this was Zellers’ decision, a mat without slip guards is a defective product within the meaning of this agreement.
(c) An extensively rumpled mat is either a mat that has been installed or maintained in an unsafe or improper condition, or a defective product within the meaning of this agreement.
(d) A well-worn mat is a defective product within the meaning of this agreement.
[ 30 ] Accordingly, a claim that a mat is without slip guards, well-worn or extensively rumpled is the situation envisaged in the clause limiting liability. I find that the claim in this case is a claim arising out of or associated with this agreement, including a claim arising from defective products, and that the exclusion clause applies to the circumstances before me. [^9]
[ 31 ] There is no support for the proposition that the exclusion provision was unconscionable at the time the contract was made, or that this court should nevertheless refuse to enforce the valid exclusion clause because of the existence of an overriding public policy. [^10]
[ 32 ] The clause does not specifically state that Zellers waives the right to claim against Cintas for Cintas' own negligence. However, as noted in Shelanu Inc. v. Print Three Franchising Corporation, “[i]n construing an exclusion clause, the issue to be addressed is whether, as a matter of construction, the exclusion clause covers the alleged occurrence or breach in question”. I find that it does.
[ 33 ] I find that the exclusion clause applies. Zellers agreed to defend, indemnify and hold harmless Cintas from the claims and damages arising out of the main action.
2. Evidence to support the third party claim
[ 34 ] Zellers stated in its factum that it has not third-partied Cintas on the basis that Cintas failed to install and maintain the mat in a safe and proper condition, so the fact that the mat is alleged to have been un-taped, un-tacked or extensively rumpled is not caught by Zellers’ third party claim.
[ 35 ] Zellers has put forward no evidence to establish that the mat supplied by Cintas was defective or unsafe. The mat was cleaned and delivered to Zellers three days prior to the alleged fall. At her examination for discovery, the Zellers’ employee advised that there were no complaints with respect to any rippling or bunching in the mat prior to the incident. In addition, no defect in relation to the mat was reported to Cintas. The Zellers’ employee saw the mat bunch up in the middle after the plaintiff placed her cane down heavily on the mat.
[ 36 ] There is no evidence from the plaintiff to establish that the mat was defective or unsafe. The plaintiff did not observe the mat before her fall and she did not observe its condition following her fall.
[ 37 ] I find that there is no evidence to support the third party claim against Cintas.
CONCLUSION
[ 38 ] The position of Zellers is that "because there is the possibility that the plaintiffs might submit evidence that supports a finding that the mat supplied by Cintas was defective in its design or condition, a third party claim against Cintas is proper and justified". Without the assurance from the plaintiff that there is no evidence to suggest that the mat provided by Cintas was defective in any way, Zellers argues that the "full appreciation test" cannot be met and the issue of any liability of Cintas is not amenable to a motions judge making a dispositive finding. I do not agree.
[ 39 ] As noted in Combined Air, “[o]n a motion for summary judgment, a party is not "entitled to sit back and rely on the possibility that more favourable facts may develop at trial"”. [^12] Each side must put its "best foot forward".
[ 40 ] I am satisfied that the third party claim is a "document-driven case with limited testimonial evidence". It is also a case with "limited contentious factual issues".
[ 41 ] I accept the position of Cintas that the trial process is not required for a fair and just resolution of the third party claim. A full appreciation of the evidence and the issues can be achieved and dispositive findings can be made on the basis of the record before me. This is an appropriate case for summary judgment.
[ 42 ] I find that Zellers’ third party claim against Cintas has been shown to have no chance of success, and be without merit.
[ 43 ] Accordingly, the motion for summary judgment brought by the third party, Cintas, seeking to summarily dismiss the third party claim, is hereby granted.
COSTS
[ 44 ] The plaintiff did not intend to and did not participate in this motion. Two days before the scheduled motion date, Zellers advised the plaintiff of its intention to submit that costs of the motion should be payable by the plaintiff in view of the plaintiff’s allegation that her fall was caused by a design or condition flaw in the mat that Cintas supplied to Zellers. As a result, the plaintiff attended. At the commencement of the motion, the plaintiff advised that no position was being taken on the summary judgment motion. Zellers took the position that the plaintiff's presence was necessary. Cintas took the position that the participation of the plaintiff might be helpful.
[ 45 ] The plaintiff seeks her costs of the motion in view of the fact that significant amounts of time were required to review, respond and prepare for the return of the motion, given the position taken by Zellers with respect to costs.
[ 46 ] The plaintiff seeks substantial indemnity costs in the amount of $5254.50 inclusive of HST or, in the alternative, partial indemnity costs in the amount of $4181.00.
[ 47 ] Both Zellers and Cintas take the position that, if a costs award in favour of the plaintiff is made, the costs sought by the plaintiff are excessive.
[ 48 ] In view of the position taken by Zellers that it would seek costs from the plaintiff, the plaintiff was required to attend the motion. I am satisfied that it is appropriate that Zellers should pay the plaintiff her costs for what was a wholly unnecessary attendance. I find, however, that the quantum of time with respect to the review of materials, preparation for the motion and attendance at the motion is excessive. A reasonable amount of costs for the preparation for and attendance at the motion is $2000.00.
[ 49 ] Accordingly, Zellers is ordered to pay to the plaintiff her costs of the motion in the amount of $2000.00.
[ 50 ] Cintas has been successful on this motion. It seeks costs on a partial indemnity basis of $7265.63, inclusive of HST and disbursements. Zellers does not take issue with the quantum of costs sought by the third party. I accept that the quantum sought by Cintas is reasonable, having regard to the factors set out in Rule 57.
[ 51 ] Accordingly, Zellers is ordered to pay to Cintas its costs of the motion in the amount of $7265.63.
QUINLAN J.
Released: August 31, 2012
[^1]: Rule 20.04(2) and (2.1), Rules of Civil Procedure
[^2]: 2011 ONCA 764 at paras. 40-44
[^3]: Supra, at para. 73
[^4]: Supra, at para. 50
[^5]: Supra, at para. 52
[^6]: Supra, at para. 52
[^7]: Supra, at para. 51
[^8]: Supra, at para. 55
[^9]: Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] SCJ No.4 paras.121-123
[^10]: Tercon Contractors Ltd. v. British Columbia, Supra at paras.121-123
[^11]: 2003 52151 (ONCA) at para. 32
[^12]: Supra, at para.56