BARRIE

COURT FILE NO.: CV-10-0693

DATE: 20150824

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

AARON CHAMBERS
Plaintiff

– and –

KEN COBB, FRANK COBB and LOIS MARGERY STANTON
Defendants

J. Ralston and C. Simmons, for the Plaintiff

R. Boucher, for the Defendant Frank Cobb
E. Schatzker, for the Defendant Lois Margery Stanton

HEARD: July 9, 2015

REASONS FOR DECISION

DiTOMASO J.

THE MOTIONS

[1] The Defendants Frank Cobb and Lois Margery Stanton each bring a motion pursuant to Rule 20 of the Rules of Civil Procedure for summary judgment to dismiss the action and all cross-claims as against them on the basis that there is no genuine issue requiring a trial with respect to their liability in this action.

BACKGROUND

[2] This action arises as a result of an incident involving a tractor rollover on July 7, 2008 at a cottage property owned by Ms. Stanton in Huntsville, Ontario.

[3] At the time of the incident, Mr. Chambers was operating the tractor on a steep embankment. As a result of the rollover, Mr. Chambers claims he suffered serious injuries and impairments, and in particular, an injury to his ankle. At the time of the incident, Mr. Chambers was working for Ken Cobb who provided landscaping services to Ms. Stanton at the cottage. Further, Mr. Chambers was moving rocks from one location at the cottage to another when the tractor flipped over and crushed his left ankle.

THE ACTION

[4] On June 25, 2010, Mr. Chambers commenced the action by way of Statement of Claim.

[5] On November 12, 2010, Ms. Stanton served her Statement of Defence and Cross-claim.

[6] On July 20, 2011 Frank Cobb served his Statement of Defence and Cross-claim.

[7] The Defendant Ken Cobb has not delivered a Statement of Defence and has been noted in default.

[8] On August 23, 2012, October 29, 2012 and July 17, 2013, the Examinations for Discovery of all parties were completed.

[9] This matter is currently scheduled for trial at the Fall 2015 trial sittings, commencing November 16, 2015. Regardless of the outcome of these summary judgment motions, the matter will proceed to trial as against Ken Cobb, all of the parties will be required to attend trial to give evidence and a variety of issues will be determined including contributory negligence of Mr. Chambers, his alleged voluntary assumption of risk and damages.

[10] In his Statement of Claim, Mr. Chambers pleads that he was told by Ken Cobb to remove rocks on Ms. Stanton’s property. Mr. Chambers was told to move some rocks from one location to another on her property. Mr. Chambers allegedly advised Ken Cobb and Frank Cobb that he had not operated a tractor before and required instructions. It is alleged that both Defendants provided Mr. Chambers with some basic instructions and told him to proceed with his work. Mr. Chambers was in the process of operating the tractor when it flipped over on its side crushing his left ankle in the process.

[11] This is an action involving multiple Defendants, against whom varied claims are made, cross-claims and allegations of contributory negligence.

[12] In the Statement of Claim it is alleged that Frank Cobb and Ken Cobb operated a business together and in the operation of that business, Ken Cobb hired Aaron Chambers. Mr. Chambers was responsible to help with various aspects of the landscaping business and also to drive Ken Cobb around because Ken Cobb had lost his licence as a result of an impaired driving conviction.

[13] In the Statement of Claim it is also alleged that both Ken Cobb and Frank Cobb were responsible for supervising and overseeing Mr. Chambers’ work and that they were negligent in their supervision and instruction.[^1]

[14] Further, in the Statement of Claim it is alleged against Ms. Stanton that she was the owner and occupier of the cottage property pursuant to the Occupiers’ Liability Act R.S.O., 1990, c. O.2. Essentially, Mr. Chambers alleges that Ms. Stanton failed to meet her duty to take such care as in all the circumstances of the case was reasonable to see that he was reasonably safe while rocks were being transported downhill to the waterfront on Ms. Stanton’s property; and, her negligence caused Mr. Chambers’ loss.[^2]

[15] Frank Cobb denies any liability in respect of the injuries sustained by Mr. Chambers. Ms. Stanton also pleads that she is not liable for Mr. Chambers’ injuries. She did not owe Mr. Chambers any duty of care. She adopted as her own those allegations of negligence as pleaded against the Cobbs at para. 7 of the Statement of Claim and she further pleads contributory negligence as against Mr. Chambers.[^3]

ISSUE

[16] The issue is the same in respect of each motion for summary judgment, namely, is there a genuine issue requiring a trial regarding Ms. Stanton’s liability and regarding Frank Cobb’s liability for the incident.

POSITIONS OF THE PARTIES

Position of the Defendant Lois Margery Stanton

[17] Ms. Stanton submits that there is no genuine issue requiring a trial as to her liability as there are no material facts to be determined in this regard.

[18] She submits that there are no material facts in dispute with respect to the issue of her alleged breach of the Occupiers’ Liability Act. She maintained her property and contracted with an experienced contractor for general maintenance and betterment work on her cottage property. She had no reason to expect the work to be unusually dangerous for Ken Cobb’s employees and had no reason to expect that Ken Cobb would fail to supervise Mr. Chambers on the tractor.

[19] She submits that Mr. Chambers has provided no evidence that Ms. Stanton was, in the circumstances, required to make further inquiries of Ken Cobb as to his employment practices or as to who would be operating the tractor. Mr. Chambers has provided no evidence that the presence of the tractor on the property (brought on by Ken Cobb or Frank Cobb) was so inherently dangerous to Mr. Chambers that Ms. Stanton was not entitled to rely on Ken Cobb’s expertise regarding the work and the supervision of his employees.

[20] Further, even if Mr. Chambers proves that she failed to meet the standard of care in relation to the Plaintiff, Ms. Stanton submits that Mr. Chambers must also prove on a balance of probabilities that a failing of Ms. Stanton caused the accident.

[21] Ms. Stanton submits there is insufficient evidence to prove on a balance of probabilities that she had breached the duty and standard of care, or that she caused Mr. Chambers’ damages.

... (continues verbatim in the same structure through paragraph [161] and all footnotes exactly as in the source decision)