CITATION: Lorence v. 115836 Ontario Limited, 2016 ONSC 2880
COURT FILE NO.: 53761/12
DATE: 2016/04/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Barbara Lorence and John Lorence
S. Sullivan, for the Plaintiffs/Responding Parties
Plaintiffs/Responding Parties
- and -
115836 Ontario Limited o/a The Keg Steakhouse & Bar St. Catharines, Keg Restaurants Ltd., 344 Glendale Avenue GP Inc., Salvatore De Mita and Pasquale Bagnulo
J. Goodman, for 115836 Ontario Limited o/a The Keg Steakhouse & Bar St. Catharines, and Keg Restaurants Ltd., the Defendants/Moving Parties
Defendants/Moving Parties
The Honourable Mr. Justice J.R. Henderson
ENDORSEMENT ON MOTION FOR LEAVE TO APPEAL
[1] This is a motion brought by the defendants, 115836 Ontario Limited o/a The Keg Steakhouse & Bar St. Catharines, and The Keg Restaurants Inc. (hereinafter collectively called "The Keg"), for leave to appeal to the Divisional Court from the order of Justice Lococo, dated December 23, 2015, whereby Justice Lococo (hereafter called “the motions judge”) dismissed the plaintiffs’ motion for partial summary judgment on the issue of the liability of The Keg.
[2] On this motion for leave to appeal, counsel for The Keg agrees that the motions judge properly dismissed the plaintiffs’ motion, but contends that the motions judge erred by declining, in the context of the plaintiffs’ motion for summary judgment, to summarily dismiss the plaintiffs’ action against The Keg.
[3] In contesting The Keg’s request for leave to appeal, the plaintiffs submit that the motions judge did not make any material errors in his decision, but rather exercised his discretion in a well-reasoned manner in finding that the plaintiffs were unable to prove that there was no genuine issue for trial.
ANALYSIS
[4] There is no dispute that the plaintiff, Barbara Lorence (hereinafter called "Barbara"), was a patron of The Keg restaurant on a busy Saturday evening when she slipped and fell in the hallway while waiting for a table.
[5] Shortly before Barbara fell, a glass of wine had spilled onto the floor of the hallway. Immediately after the spill, two Keg employees commenced following The Keg protocol for dealing with liquid spills. At the time of Barbara's fall, the two employees were in the area of the spill, one employee was mopping the nearby landing, and a "wet floor" sign marked the wet area in the hallway.
[6] The plaintiffs brought their motion for partial summary judgment on the issue of liability only. If the plaintiffs’ motion had been granted, it was anticipated that the action would proceed to trial on the issue of damages. The Keg did not bring a formal motion for summary dismissal of the plaintiffs’ action, but made submissions to that effect in written and oral argument.
[7] In his reasons, the motions judge reviewed the facts in some detail, noting that there was no substantial dispute as to the facts surrounding the slip and fall incident. Further, the motions judge accurately and meticulously reviewed the law with respect to summary judgment motions as discussed in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.
[8] The motions judge found that The Keg had complied with their own procedure to clean the spill; that The Keg took prompt steps to clean the spill; and that Keg staff guarded the area until the "wet floor" signs were in place. However, the motions judge found that questions remained as to whether The Keg staff should have taken additional steps, such as appointing a staff person to monitor the area after the “wet floor” signs were in place, and/or mandating that Keg employees verbally warn patrons who approached the area of the potential hazard.
[9] On that basis, the motions judge found that the plaintiffs could not prove that there was no genuine issue for trial, and dismissed the plaintiffs’ motion for summary judgment. Further, the motions judge went on to find that there was also a genuine triable issue with respect to Barbara's contributory negligence.
[10] Regarding the oral submissions of The Keg’s counsel for a summary dismissal of the action, the motions judge found that The Keg should have delivered a formal motion for summary dismissal in the circumstances. Because The Keg had not done so, the motions judge would not consider The Keg’s request for summary dismissal.
[11] Counsel for The Keg, in essence, raises two broad grounds on this motion for leave to appeal. First, counsel for The Keg submits that, having found that the plaintiffs were not able to prove that there was no genuine issue for trial, and given that there were no substantial facts in dispute, the motions judge should have considered and granted summary dismissal in accordance with the Hryniak process. Counsel for The Keg submits that the failure to consider and grant summary dismissal in these circumstances constitutes an error in law.
[12] Second, counsel for The Keg submits that the motions judge erred by requiring The Keg to bring a formal motion for summary dismissal as a prerequisite to The Keg’s request for summary dismissal within the context of the plaintiffs’ motion for summary judgment.
[13] In my view, this motion for leave to appeal cannot succeed on either ground.
[14] Regarding the first ground, the Hryniak process does not require a motions judge to resolve all issues that may be before him/her on a motion for summary judgment. The process remains discretionary.
[15] The issue before the motions judge in this case was whether the plaintiffs could establish, on the evidence before the court, that there was no genuine issue for trial. The motions judge went through a detailed analysis of the evidence and found that the plaintiffs could not do so. This finding does not mean, as is suggested by counsel for The Keg, that the motions judge found that the plaintiffs would not be able to prove liability against The Keg at a full trial. It simply means that the motions judge was convinced, after considering his powers as set out in Rule 20, that the plaintiffs could not show that the plaintiffs were entitled to summary judgment. Logically, it cannot be inferred that the motions judge found, or should have found, that there was no liability on the part of The Keg.
[16] Given the discretionary nature of the Hryniak process, in my view the motions judge's decision is not in conflict with a decision of another judge or court in Ontario or elsewhere, and there is not a good reason to doubt of the correctness of this decision. Therefore, this ground fails on both branches of Rule 62.02 (4).
[17] Regarding the second ground, I accept that there is some conflict in the law as to whether a formal defence cross-motion for summary dismissal is required in these circumstances. However, in his reasons, the motions judge stated that a cross-motion by the defendants was a matter of fairness to the plaintiffs. That is, a defence cross-motion would have permitted the plaintiffs a chance to provide a considered response to the request of the defendants. On that basis, the motions judge determined that a cross-motion was necessary in this particular case. As a corollary, in his reasons the motions judge directed that he would be seized of the matter if and when The Keg brought a formal motion for summary dismissal. This was an acceptable way to deal with The Keg’s request.
[18] Again, given the discretionary nature of this determination, I find that the motions judge's decision is not in conflict with a decision of another judge or court in Ontario or elsewhere, and there is not a good reason to doubt of the correctness of this decision. Accordingly, this ground also fails on both branches of Rule 62.02 (4).
[19] For all these reasons, the motion by The Keg for leave to appeal the decision of Justice Lococo dated December 23, 2015 is hereby dismissed.
[20] If there are any other issues, including costs, that cannot be resolved, I direct that the party seeking relief shall deliver written submissions to the trial co-ordinator at St. Catharines within 20 days of the release of this decision with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled all of the remaining issues as between themselves.
Henderson J.
Released: April 28, 2016
CITATION: Lorence v. 115836 Ontario Limited, 2016 ONSC 2880
COURT FILE NO.: 53761/12
DATE: 2016/04/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Barbara Lorence and John Lorence
Plaintiffs/Responding Parties
- and -
115836 Ontario Limited o/a The Keg Steakhouse & Bar St. Catharines, Keg Restaurants Ltd., 344 Glendale Avenue GP Inc., Salvatore De Mita and Pasquale Bagnulo.
Defendants/Moving Parties
ENDORSEMENT ON MOTION FOR LEAVE TO APPEAL
Henderson J.
Released: April 28, 2016