Njai v. Njai et al., 2016 ONSC 1474

CITATION: Njai v. Njai et al., 2016 ONSC 1474

COURT FILE NO.: CV-13-511-00

DATE: 2016 03 01

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Kebba Njai, a Minor under the Age of 18 Years by His Litigation Guardian Kebba Malik Fofana

v.

Momodou Njai, Mercedes-Benz Canada Inc., Continental Tire Canada Inc., Lloyd Ronald Seecharran, Pamela Bulkan, The Corporation of the City of Brampton and Mississauga Motors Mart Inc.

BEFORE: Bloom, J.

COUNSEL: Richard Roth for the Moving Party, Mississauga Motors Mart Inc.,

Linda Matthews for the Responding Party, Momodou Njai

HEARD: February 24 and 25, 2016

E N D O R S E M E N T

I INTRODUCTION

1The Moving Party brings the motion at bar for summary judgment, seeking a dismissal of both the main action against it and the crossclaim of the Responding Party against it. Because there was some confusion in the record as to whether the motion sought dismissal of the main action, I asked for clarification of that issue. I was told that the Moving and Responding Parties as well as the Plaintiff agreed that if the motion were successful, then the main action and crossclaim would be dismissed; if unsuccessful, they would proceed. I will comment further on the issue of the disposition of the main action later in these reasons.

II FACTS

2The Plaintiff was severely injured in a single-car motor vehicle accident which occurred on May 15, 2012 at the Responding Party’s property in Brampton. The Responding Party was backing his vehicle down his residential driveway when it mounted the concrete block wall between his driveway and the neighbouring property. He had his two sons, one of whom was the Plaintiff, push the vehicle while he accelerated. The left rear tire exploded causing serious injury to the Plaintiff.

3The vehicle was a 2005 Mercedes ML350 SUV which the Responding Party had purchased from the Moving Party as a used car on June 1, 2008.

4The Plaintiff’s action against the Moving Party alleges negligence and breach of contract, and relies specifically on the Sale of Goods Act. On this motion the Responding Party relies upon the implied condition of merchantability in s. 15(2) of the Sale of Goods Act to sustain his crossclaim.

III APPLICABLE LEGAL PRINCIPLES

5In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at paras. 66, 49, 50, and 60 Justice Karakatsanis set out the following principles which govern the disposition of summary judgement motions:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.

IV APPLICATION OF THE PRINCIPLES IN THE CASE AT BAR

6A document accepted by both parties as important evidence was the Investigation Report prepared by Andreas Koschate of Transport Canada and dated November 18, 2013. It found that the electronic traction control system of the automobile was not functional at the time of the incident; that had it been functional, the tire subject of the failure in question would probably not have been subjected to damaging speeds during the incident; that the damaging speeds probably caused the explosive failure of the tire; that the deactivation of the electronic traction control system was shown by the illumination of a dashboard light; and that this light had been illuminated and the traction control problem had existed since at least the time when the vehicle had mileage (expressed in kilometres) of 50,000 km. Moreover, an additional fact of importance is that the vehicle was sold to the Responding Party by the Moving Party with mileage (expressed in kilometres) of 80,450 km.

7There is dispute in the evidence as to whether the dashboard light in question was, indeed, illuminated at the time of sale.

8I am satisfied that there is a genuine issue requiring a trial on whether the Moving Party is liable under s. 15(2) of the Sale of Goods Act for breach of the condition regarding merchantability in respect of the operability of the electronic traction control system. Deciding that issue will require the hearing of viva voce evidence from multiple witnesses, including potentially experts.

9In addition, my determining this issue on the motion before me would risk findings of fact inconsistent with those made when the question of the liability of the Responding Party to the Plaintiff is later determined at trial.

10I, therefore, dismiss the motion at bar. Moreover, had I been of the view that the motion should be granted in relation to the crossclaim, I would not have without further evidence and submissions granted it in relation to the main action. In my view, dismissing the main action as against the Moving Party based on the agreement of counsel to which reference was made, would not have fulfilled the court’s responsibility in relation to the approval of a settlement of a claim by an infant.

V. COSTS

11If the parties are unable to agree on costs I will receive written submissions of no more than 3 pages, excluding a bill of costs. The Responding Party is to serve and file his submissions within two weeks of the release of these reasons. The Moving Party is to serve and file its submissions within two weeks of service of those of the Responding Party.

Bloom, J.