Court File and Parties
COURT FILE NO.: CV-12-449350
DATE: 20131217
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jiya Mooljee, a minor under the age of 18 years by her litigation Guardian,, Kamal Mooljee, Plaintiff
AND:
McDonald's Restaurants of Canada Limited, Defendant
AND:
Kamal Mooljee and Jane Doe, Third Parties
BEFORE: Carole J. Brown J.
COUNSEL: Donna A. Polgar, for the Defendant
No one appearing for the plaintiff/responding party, although properly served
HEARD: November 29, 2013
ENDORSEMENT
[1] The defendant, McDonald's Restaurants of Canada Limited ("McDonald's"), brings this motion for summary judgment and, in the alternative, for dismissal of the claim for delay. The personal injury action arises from the alleged injuries and losses sustained by the plaintiff, Jiya Mooljee (“the plaintiff”) which allegedly occurred while she, her father and sister were in a McDonald's restaurant, where another customer spilled hot liquid on her neck. The plaintiff seeks $1 million in damages.
[2] The plaintiff alleges in the statement of claim that she was injured on March 21, 2010 at the McDonald's Restaurant at 150 Rimrock Road, Toronto. She claims that she was suddenly and violently hit by hot liquid while waiting for her food order.
[3] McDonald's has a closed-circuit surveillance system in place in the said restaurant. One of the cameras, which is focused on the service counter, captured the entire incident, including the actions of the plaintiff, her father, the McDonald's staff and the other customers in the area at the time.
[4] The video evidence, which I reviewed on three occasions, captures the incident and shows a female customer who tried to reach around the plaintiff to get her food order, failed to balance her tray, and spilled her hot drink which appears to splash the young plaintiff. No McDonald's staff members were involved in the incident. The video surveillance system captured the entire incident, the relevant portions of which I summarize as follows, with reference to the timeline indicated in the video:
The plaintiff and her father, and sometimes her older sister who comes in and out of view, stand behind the service counter, beside a busy cash register (12:56:56-12:58:45, 12:59:01);
A McDonald's employee fills the order of an unknown female customer ("Jane Doe"), which includes a hot drink which is placed by the McDonald's employee on her tray (13:00:16-13:03:44);
Jane Doe reaches around the plaintiff, who is next to her and picks up the tray with one hand. The tray, which is unbalanced, tips and the hot drink falls onto the counter, with the lid still on, and rolls to the edge of the counter, toward the plaintiff (13:03:46-13:03:47);
Jane Doe retrieves the cup and places it upright on the counter (13:03:47);
The lid affixed to the top of the hot drink does not, at any time, come off (13:03:47).
[5] The statement of claim, issued on March 20, 2012, alleges negligence on the part of McDonald's, including a failure to supervise the service/order counter, a failure to maintain the premises and keep it in a reasonable state of repair, carelessness in the food service permitting a situation of unusual danger to exist, failing to warn the patrons of unusual danger and failure to take any reasonable care to prevent injury or damage arising from hidden or unusual dangers.
[6] The statement of defence, denying liability, was served on August 3, 2012, with no Reply served by the plaintiff. A third party claim against the father, Kamal Mooljee, was issued on August 13, 2012 and served one week later. The father was served personally on August 19, 2012. The plaintiffs failed to serve a defence to the third party claim. In the third party claim, the defendant alleges that that the plaintiff's father was negligent in preventing his child, the plaintiff, from getting close to the service counter. Indeed, the video indicates that she had her chin on the counter for the majority of the time. The claim further alleges negligence on the part of Jane Doe in failing to properly balance and move her tray with the hot drink on it.
[7] The defendant has attempted to communicate by correspondence, telephone and voicemail with counsel for the plaintiff, but has received no response from the time of service of the statement of defence and third party claim to the present. No documentation in support of the plaintiff’s alleged injuries or losses has been produced to date. No examinations for discovery have occurred and none have been scheduled. The third parties were noted in default on May 24, 2013. Jane Doe has never been able to be identified.
[8] Ms. Polgar advised the Court at today's hearing that after the notice of motion was served on counsel for the plaintiff, as well as served personally on the plaintiff, her office was able to reach counsel for the plaintiff in October of 2012, who confirmed that he continued to act for the plaintiff and had received the motion materials. He did not indicate whether the plaintiff intended to respond to the motion or to appear in court on the return date. There was no one in attendance today on behalf of the plaintiff.
Rule 20: Summary Judgment
[9] Rule 20 of the Rules of Civil Procedure (“the Rules”) serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial, and removes unmeritorious claims from the court system as such claims, which have no chance of success, impose a "heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial.": Canada (A. G.) v Lameman, 2008 SCC 14.
[10] Pursuant to Rule 20.04 of the Rules of Civil Procedure, the court shall grant summary judgment where it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[11] When hearing a motion for summary judgment, the judge may weigh the evidence, evaluate credibility and draw any reasonable inferences from the evidence.
[12] Where the moving party has established that there is no genuine issue requiring a trial, the onus shifts to the responding party to demonstrate that there is a genuine issue requiring a trial. The responding party cannot simply rely on the pleadings.
[13] Both parties must "put their best foot forward" and "lead trump or risk losing". The court is entitled to assume that all evidence to be relied on by both parties at trial has been brought before the motion judge. The judge must ask whether a full appreciation of the facts and issues required to make dispositive findings can be achieved by way of summary judgment, or whether a full appreciation can only be achieved by way of trial. In the case of Combined Air Mechanical Services Inc. v Flesch, 2011 ONCA 764, 2011 ONCA764, the court stated as follows:
“… in document driven cases with limited testimonial evidence, a motion judge would be able to achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Similarly, the full appreciation test may be met in cases with limited contentious factual issues.”
[14] The court further observed as follows
“We wish to emphasize a very important distinction between "full appreciation" in the sense we intend here, and achieving familiarity with the total body of evidence in the motion record. Simply being knowledgeable about the entire content of the motion record is not the same as fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute. 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.”
[15] It is the position of the defendant that this is an appropriate case for summary judgment and that there are no material facts in dispute. Indeed, the defendant submits that the plaintiff has failed to provide any evidence to either substantiate her claim for damages or her allegations of negligence against McDonald's. Nor has she done anything to establish that there is a genuine issue requiring a trial. The defendant submits that, in light of the video evidence, it is clear that McDonald’s was not negligent. The defendant submits that the video establishes that McDonald's took care in dealing with the potential risk of hot drinks being spilled by securely affixing the lid to the cup such that even when Jane Doe spilled the drink, and it rolled over the counter toward the plaintiff, the lid did not come off. It further shows that the McDonald's staff had completed Jane Doe's order and had moved on to another order, that of the plaintiff. The defendant further submits that the plaintiff has failed to establish that there is any genuine issue requiring a trial. The plaintiff submits that based on the surveillance video and the lack of any evidence on the part of the plaintiff, the motion for summary judgment should be granted.
[16] Having reviewed the video myself, I am satisfied that there is no indication of any negligence on the part of the McDonald’s staff as regards service of the food and drink. There is no evidence of any disrepair, nor of any unusual dangers in the restaurant. As regards supervision of the service counter, the Manager is shown behind the counter. If the claim refers to “supervision” as regards the child, that is the responsibility of the father and not of the staff behind the service counter. The hot liquid was in the hands of Jane Doe when the spill occurred. The video clearly indicates that Ms. Doe picked up the tray with one hand, that it was unbalanced, that the drink on the tray tipped over onto the counter where it rolled, given the momentum of the tipped tray, toward the edge of the counter where it struck the infant plaintiff's chin. The lid remained intact. Given the time of year, the infant plaintiff was wearing a parka with a hood. The cup was retrieved by Ms. Doe and placed upright on her tray, which she had put back on the service counter. The infant plaintiff did react, which would suggest that some water may have spilled through the drinking spout onto her. The video shows that her father unzipped her parka and Ms. Doe obtained a towel from the McDonald's employees which was placed on the child's neck. It appears that the father did not obtain the name or coordinates of Ms. Doe.
[17] I am satisfied based on the pleadings, the surveillance video, and the lack of any response or evidence from the plaintiff, that a full appreciation of this matter can be had on the defendant's evidence for me. I am satisfied that there is no merit to this claim and no reasonable chance of success as against McDonald's. Accordingly, I grant the defendant’s motion for summary judgment and dismiss the plaintiff's action in court file number CV-12-449350, without costs.
Carole J. Brown J.
Date: December 17, 2013