CITATION: Jassal v. Hilcox, 2016 ONSC 5523
COURT FILE NO.: CV-10-2468-00-SR
DATE: 2016 09 01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TARSEM JASSAL, GURDIAL JASSAL and SURJIT JASSAL
Hubert Leung, for the Plaintiffs
Plaintiffs
- and -
MICHAEL HILCOX and CITY OF GUELPH
Dawn Phillips-Brown, for City of Guelph
Defendants
HEARD: August 31, 2016
REASONS FOR JUDGMENT
Van Melle, J.
[1] The defendant City of Guelph (“Guelph”) moves for summary judgment dismissing the claim of the plaintiffs against it. For the reasons that follow, summary judgment in favour of Guelph is granted.
The Facts
[2] The claim against Guelph arises from an alleged trip and fall on March 11, 2012 at Deerpath Park in Guelph. On March 11, 2012, Tarsem Jassal went to Deerpath Park with his son. They were playing cricket on a tennis court in the park when Tarsem tripped and fell over a tennis post sleeve mounted on the surface of the court. As a result of the accident, Tarsem suffered a fractured right wrist.
Position of the Parties
[3] The plaintiffs allege that Guelph as an occupier of the premises within the meaning of the Occupiers Liability Act owed a duty of care toward Tarsem and that Guelph breached its duty of care thus causing Tarsem’s injuries.
[4] The plaintiffs submit that Guelph breached its duty of care in two ways. Firstly, Guelph knew of the inherent risk of permanent net posts but chose to install them anyway, and second that Guelph allowed unrestricted access to the tennis courts during the off-season. The plaintiff submits that Guelph did not employ reasonable safeguards to prevent Tarsem’s injuries.
[5] The defendant Guelph denies that it breached its duty under the act. The tennis court at Deerpath Park sits on top of a water reservoir. It was designed to have two tennis post sleeves mounted on the surface of the court to support removable net posts. The sleeves are surface mounted, rather than running under ground, due to mounting depth restrictions of the reservoir surface. The size and coating colour of the sleeves and the surface colour of the coat were intended to provide a high visual contrast for users of the tennis court.
[6] As well, on the date of the accident, there was a sign at the entrance to the tennis court which forbade certain activities including inline skating and ball hockey. There was also a sign beside the tennis court that stated the entire plaza area was unsupervised and should be used at the individual’s own risk. Guelph says that Tarsem was aware of the tennis posts and his injury is as a result of his own actions.
The Law
[7] Rule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides:
20.04 (1)
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[8] The case of Hryniak v. Mauldin, 2014 SCC 7, 2014 S.C.C. 7, makes it clear that Rule 20 was amended in 2010 to improve access to justice. Judges are allowed to adjudicate more cases through summary judgment motions and attenuate the risks when such motions do not resolve the entire case. Summary judgment motions must be granted whenever there is no genuine issue requiring a trial. 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:
Allows the judge to make the necessary findings of fact;
Allows the judge to apply the law to the facts; and
Is a proportionate, more expeditious and less expensive means to achieve a just result.
[9] As Justice Goodman said in Miltenberg v. Metro Inc., 2012 ONSC 1063, at paras. 21 – 25:
[21] It was well established under the previous incarnation of the summary judgment rule that in resisting a motion for summary judgment, a responding party must “lead trump or risk losing”. It is not enough to rest on allegations or denials. The responding party must put forth, a specific and organized set of facts which demonstrate the existence of a real issue requiring a trial.
[22] When considering a motion for summary judgment, a Court is entitled to assume that the record before it contains all of the evidence which the parties would present if the case were to proceed to trial. Since it is assumed that a complete evidentiary record is before the court, it is also assumed that each party will have put its best foot forward.
[23] Thus, as a judge determining a motion for summary judgment, I am obligated to take a hard look at the case to determine if a trial is required. In so doing, I am assuming that I have a full evidentiary record before me.
[24] In a motion for summary judgment, the legal burden rests on the moving party to show that there is no genuine issue for trial, and this burden never shifts.
[25] A party cannot simply rely on allegations in the pleadings or submissions to the Court. A responding party must establish, by affidavit, specific facts that show that there is a genuine issue for trial. If there is a genuine issue with respect to material facts, then no matter how weak or how strong appear the claim or the defence, the case must be sent to trial. It is not for the motions judge to resolve the issue. Matters of law which have not been fully settled should not be disposed of on a motion for summary judgment.
[10] Section 3(1) of the Occupiers Liability Act, R.S.O. , c.0.2 states:
- (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
Analysis
[11] Guelph has demonstrated that the evidence before this court supports its position that there is no genuine issue requiring a trial.
[12] Again, in Miltenberg, Justice Goodman at paragraph 32 says:
[32] [...] There is some inherent risk involved in everyday interactions between individuals in society. An occupier is not required to sanitize their environment to such a degree to negate all inherent risk. What is required is balancing of what may be a reasonable course of conduct against the potential for harm.
[33] The standard of care for occupiers is one of reasonableness. It requires neither perfection nor unrealistic or impractical precautions against known risks.
[13] In this case an important factor is that Tarsem knew that the pole mounts were on the tennis court. In his examination for discovery he said as follows:
Q. Did you ever see the court without a net?
A. Without a net yes I saw it.
Q. You did, before the accident?
A. Yes.
Q. I’m talking a year or two years before the accident or months before the accident...
A. Okay.
Q. ...so you seen the court prior to your accident without a net?
A. Yes.
Q. Is that right?
A. Yes.
Q. Did you see anything on the court in terms of structures or boulders or something on the court other than a net?
A. Yeah I saw there, without net, I saw there’s some poles.
Q. Some poles or structures that would hold the poles for the net, is that right?
A. Yes.
Q. And they’re quite large, is that fair to say or do you think that they were quite small?
A. They were small.
Q. Small okay...
A. The poles?
Q. ...yes. How high, how high would you say those structures are?
A. It’s about knee high.
Q. So before your accident you noticed that those things were there already?
A. Yes.
[14] And later in the same examination for discovery, question 333:
Q. So when you got there you just started hitting and you didn’t even think about or notice the poles?
A. Well we were playing before, but at that time we didn’t notice.
Q. You just forgot about it? ... But you forgot about the poles?
A. Yes I forgot, I didn’t even think about them, the poles, so I hit them and then I saw them and then I realized.
[15] Tarsem acknowledged that he knew that the pole sleeves were there and thought about them when they decided to play on the tennis court. He says he forgot about the post sleeves as they started to play, he ran backwards to catch a ball that his son hit, ran into the post sleeve, falling to the ground and injuring his wrist.
[16] The courts have held on several occasions that the imposition of a positive duty under the Occupiers Liability Act does not create strict liability: Waldick v. Malcolm, 1989 CanLii 4286 (Ont. C.A.) at pg. 9.
[17] On two occasions, liability was not found where a plaintiff tripped over a rock that had been placed at a campsite and where the plaintiff knew the rock was there but momentarily forgot: Tomczyk v. British Columbia (Ministry of Environment Lands and Parks), [1998] B.C.J. No. 1877, and Campbell v. Gyukovits,[1999] B.C.J. No. 2173. The plaintiffs, in the responding motion record, put forward an affidavit of Marya Mohammed. She works for the plaintiffs’ lawyer and deposes to having spoken with a representative of the City of Brampton to discuss access to the Brampton tennis courts. The plaintiffs argue that this shows the standard in Brampton and that Guelph should have put a locked gate on the tennis courts. I do not consider the evidence adduced in this way to be at all conclusive of either the standards in Brampton or what the standards in Guelph should be.
[18] In conclusion, all the evidence that forms part of the record in support of this motion leads me to conclude that Guelph’s motion for summary judgment must be granted.
[19] At the end of the argument on the motion, I asked each side for a costs outline. Guelph having been successful on the motion is entitled to its costs. Given that the motion is entirely dispositive of the action against Guelph, it seeks its costs of the entire action in the total amount of $20,347.91. I have reviewed the costs outline and find that it is appropriate to award costs on a partial indemnity basis. The amount claimed is $15,724.94, all inclusive and I award this amount.
Van Melle, J.
Released: September 1, 2016
CITATION: Jassal v. Hilcox, 2016 ONSC 5523
COURT FILE NO.: CV-10-2468-00-SR
DATE: 2016 09 01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TARSEM JASSAL, GURDIAL JASSAL and SURJIT JASSAL
– and –
MICHAEL HILCOX and CITY OF GUELPH
REASONS FOR JUDGMENT
Van Melle, J.
Released: September 1, 2016