SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-417735
DATE: 2013/08/23

RE: Derek Dabor and Sharon Dabor

Plaintiffs

v.

Southbram Holdings Limited, Time Holdings Limited, I.L. Rosen Limited

and Tanak Group Ltd.

Defendants

BEFORE: Moore J.

COUNSEL:
Peter Cho, for the Plaintiffs/Respondents

Asher Honickman, for the Defendants/Applicants

ENDORSEMENT

[1] The applicants move for summary judgment in the form of an order dismissing this action on the assertion that there is no genuine issue requiring a trial. The applicants submit that there is no evidence upon which this court can make dispositive findings of negligence on the part of the defendants and no evidence to establish that the defendants breached a statutory duty to the plaintiffs to maintain the subject premises in a reasonably safe condition pursuant to the Occupiers Liability Act.[^1]

[2] The action arises from a fall and resulting serious injuries suffered by the plaintiff, Derek Dabor (“Dabor”) while he was working at premises owned, occupied, managed, maintained or supervised by the defendants. For purposes of this motion, the roles of the various defendants are not an issue. The parties are proceeding on the basis that the fall happened at the defendants’ premises and that Randall Boccia (“Boccia”) was the defendants’ agent who hired Dabor to replace a water tank.

[3] In order to ready the water system for the removal of the existing tank Dabor had to turn off the main valve and drain all water in the old tank. Then upon installing the new tank, he had to re-open the control valve. This two part process was done on two days in July of 2009.

[4] The valve was located over ten feet above the floor of the premises and above a portion of warehouse space that had been built out to accommodate offices under a suspended tile ceiling. The valve was not visible from within the office space but was from the adjacent open warehouse space and from a ladder leaned against an exterior office wall.

[5] Dabor accessed the valve by climbing a ladder to the top of the wall and walking from there along the studs or frames supporting the office walls and ceiling. The evidence establishes that the route Dabor walked to and from the valve location was narrow and that there were electrical or telephone wires and pieces of protruding drywall in the area.

[6] Dabor accomplished the walk successfully on July 9, 2009 but fell from a metal stud when he re-attended on July 16th to re-open the valve. He fell at a spot about eight feet away from the top of his ladder and about ten feet above ground, through the suspended ceiling and down to the floor below.

[7] In his discovery evidence, Dabor admitted that he does not know what caused him to lose his footing and fall. He testified that he did not black out but he didn’t know exactly why he fell. He added that there were all kinds of wires up there and a piece of drywall that shouldn’t have been sticking up, though he did not think he tripped over it, but he might have tripped on wires.

The Positions of the Parties

[8] The applicants submit that Dabor was an independent contractor with many years of experience and with considerable expertise in doing work of the kind he was hired to do in this matter. He neither needed nor did Boccia provide him with supervision on this job.

[9] The applicants insist that Dabor was entirely the author of his own misfortune. They submit that he alone determined the way by which he would access the valve. He could have come at it from below by removing a ceiling panel and placing a step ladder under it and the valve above. In this way, he would not have needed to walk on wall studs at all.

[10] The applicants point to Dabor’s evidence and submit that it is insufficient to warrant a finding of a causal connection between the condition of the premises and the cause of his fall. They emphasize that the standard of care is reasonableness and submit that the defendants were not required to maintain the attic-like space above the ceiling in a pristine state and say that by its very nature, the area was cramped and cluttered but it was an entirely normal space for its intended use and there is no evidence that the defendants acted unreasonably in maintaining that space.

[11] For these reasons, the applicants submit that there is no genuine issue requiring a trial.

[12] The respondents disagree. They insist that Dabor believed that he was hired as an employee to do what he was told to do, in this case, to go up above the ceiling, find the water valve and turn it off and, later, back on. He believed if he did not find and climb a ladder to walk the beams to do that, he would be fired.

[13] The respondents argue that Dabor was working for and under the direction and control of Boccia at all times on this job. Specifically, Boccia instructed him to access the valve and told him where to find it, above the ceiling.

[14] To the extent that Boccia did not supervise, Dabor insists that the defendants owed him a duty to maintain the premises in a safe condition and to supervise Dabor to ensure that the job would be completed in a safe way.

[15] Dabor insists that his route to the valve was the only way he was aware of to access the valve and it was a way that Boccia had shown him when Dabor worked at the location years before. There is no evidence that he was told of an alternative, safer way to find and manage the valve.

[16] The applicants therefore submit that they can establish liability by proving that Boccia directed and instructed Dabor on how and where to work or on the basis that the area where the fall occurred was in an unsafe condition due to the failure of the defendants to perform adequate maintenance to remove the wires, drywall and other debris from his path.

[17] As well, the respondents point to the differences in the recollections and evidence of Boccia and Dabor and submit that conflicts regarding whether Boccia instructed Dabor on the route to follow to access the valve raise credibility concerns that will need to be assessed at trial by a jury.

The Law

[18] The applicants rely on the provisions of rule 20 that mandate summary judgment shall issue where the court is satisfied that there is no genuine issue requiring a trial and empowering judges hearing summary judgment motions to weigh evidence, draw inferences and to assess the credibility of witnesses.

[19] They add that the Court of Appeal has held[^2] that summary judgment should be granted where a full appreciation of the evidence and issues necessary to dispose of the claim can be achieved without a trial. Cases with limited documentary evidence and witnesses, limited factual disputes and accepted legal principles will generally be amenable to summary judgment.

[20] The applicants assert that it is trite law that on motions like this one, both sides must put best foot forward and that the respondent must produce some evidence to show that there is a genuine issue requiring a trial.[^3]

[21] As for the potential exposure under the Occupiers Liability Act, the applicants say that there is no expert or other evidence of a breach of the act. In addition, they seek to distinguish cases in which a plaintiff has succeeded despite being unable to point to a precise cause for a fall. In Kamin[^4] the court found considerable, uncontradicted evidence that the entire parking lot was in a very poor condition, for example.

[22] The respondents submit that it is essential to justice that claims disclosing real issues that may be successful proceed to trial and that for this reason, the bar on a motion for summary judgment is high.[^5]

[23] The respondents accept the applicability of the approach outlined by the court in Combined Air but insist that this case is an exception to those in which summary judgment should issue for the conflicting evidence on important credibility and evidentiary issues requires the application of the forensic machinery of a trial. They assert that the resolution of credibility issues is enhanced by the trial judge’s observation of witnesses.[^6]

[24] The respondents examined Boccia for discovery in this matter, although it was made clear that they took the position that Boccia was not an appropriate representative on behalf of the defendants for discovery purposes. They asked for and obtained an undertaking that the defendants would produce an appropriate representative, if asked to. They asked for a representative of the property occupier, Southbram Holdings Limited, but to date that representative has not been produced for examination. To the extent therefore that the applicants assert that the respondents have not produced all evidence upon this motion, the respondents assert that the motion is premature; I agree.

Analysis

[25] There is a genuine issue involving whether Boccia specifically told Dabor to go up above the office ceiling and look to find the valve and to turn it off and on as needed in order to replace the tank; Dabor testified to that, Boccia testified that he did not instruct Dabor to shut off the water, nor did he provide instructions on how this was to be done.

[26] There is a genuine issue of whether the defendants are liable under the provisions of the Occupiers Liability Act. There is clear and compelling evidence of the condition of the area above the ceiling and no explanation from the building owner and/or occupier explaining why it was left in that condition with the water control valve located directly above and in need of service on the day of Dabor’s accident.

[27] As far back as 1991, the court of appeal struggled with defining the term “genuine issue” for purposes of the then prevailing summary judgment requirements. The term carries the same meaning still.

It would be convenient if the term “genuine issue” could be expressed in a precise formula for the ease of its application. Having regard, however, to the varied and unpredictable ways in which issues under Rule 20 may arise, it cannot…

It is safe to say that “genuine” means not spurious and, more specifically, that the words “for trial”[^7] assist in showing the meaning of the term. If the evidence on the motion for summary judgment satisfies the court that there is no issue of fact which requires a trial for its resolution, the requirements of the rule have been met. It must be clear that a trial is unnecessary. The burden is on the moving party to satisfy the court that the requirements of the rule have been met. Further, it is important to keep in mind that the court’s function is not to resolve an issue of fact but to determine whether a genuine issue of fact exists.[^8]

[28] Here, the applicants have raised strong arguments as to why the respondents should lose their case at trial. They may be prescient in saying that Dabor was the author of his own misfortune or that there was no negligence on Boccia’s part that led to the accident or even that there was no breach of the statutory duty to maintain the premises but the applicants have not persuaded me that these are inevitable outcomes.

[29] I am not prepared to resolve the issues that this case presents on this motion but am content that there are genuine issues requiring a trial. They involve the statutory duty under the Occupiers Liability Act and the issue of negligence in what Boccia and the defendants did or failed to do in retaining /directing Dabor on the job in question.

[30] It is open to a properly instructed jury to find that the cramped and cluttered space above the ceiling presented a very poor and unsafe working environment for Dabor and he should not have been counseled or allowed to work within it.

[31] The jury will be in a far better position than am I to resolve the credibility issues between Dabor and Boccia. I have transcripts and affidavits but the jury will have the significantly enhanced “opportunity to observe the demeanor of these witnesses”.[^9] In my view the trial process and the trial dynamic, as each are described in Combined Air[^10] in contrast to the analysis that a summary judgment judge brings to bear on a paper record can, and in this case does, favour the resolution of the issues identified in this matter as genuine issues requiring a trial.

[32] Whether it is wise of Dabor to engage the forensic machinery of a trial on these issues, given the relative strengths and weaknesses of the positions espoused by counsel, is not the point on this motion. The applicants having failed to meet the onus upon them of demonstrating that there is no issue requiring a trial, the motion is dismissed with costs to the respondents.

[33] Having been directed to exchange costs demands before I heard submissions on the motion, the parties conferred and agreed to maximum amounts. The applicants then submitted that if the respondents recover costs, that recovery should be reduced to reflect the fact that the respondents had raised a claim for relief in the action that they maintained until this motion was launched, thereby adding to the applicants’ time and effort needed to address that claim on this motion.

[34] The respondents submit that the issue was dropped before the applicants prepared and delivered their factum and authorities and the reduction, if any, should reflect that fact.

[35] Having considered the submissions on costs and the overall fairness of the matter, including that the costs each side agreed to, but for the issue noted above, was $7,000.00, the respondents’ costs are fixed and awarded in the sum of $6,000.

Moore J.

DATE: August 23, 2013

[^1]: R.S.O. 1990, Chapter O.2, ss 3(1)(2)

[^2]: Combined Air Mechanical Services Inc. v. Flesh, 2011 ONCA 64, at paras. 50-52 & 219

[^3]: Supra, at para 56; and Hatzitrifonos v. Marzan, 2012 ONSC 3566, [2012] O.J. No. 3253, at paras. 22-23.

[^4]: Kamin v. Kawartha Dairy Ltd., 2006 3259 (ON CA) at para 8

[^5]: Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 SCR 372 at paras 10-11

[^6]: Irving Ungerman Ltd. v. Galanis (1991), 1991 7275 (ON CA), 4 O.R. (3d) 545, 83 D.L.R. (4th) 734 (CA)

[^7]: Now “requiring a trial”

[^8]: Irving Ungerman,, supra, at p 5/8

[^9]: Irving Ungerman, supra, at p7/8

[^10]: Supra, at paras 46-49