CITATION: Sauve v. Canada’s Wonderland et al., 2016 ONSC 881
COURT FILE NO.: CV-14-117953-00
DATE: 20160203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TRAVIS SAUVE
Plaintiff
– and –
CANADA’S WONDERLAND AND CEDAR FAIR L.P. acting under the name of CEDAR FAIR ENTERTAINMENT COMPANY
Defendants
Self-Represented
Richard J. Campbell, for the Defendants
HEARD: January 26, 2016
RULING ON MOTION FOR SUMMARY JUDGMENT
EDWARDS J:
Overview
[1] On July 3, 2012, the plaintiff was riding on a roller coaster known as the Leviathan at Canada’s Wonderland. Anyone who has ridden on a roller coaster can attest to the thrills and chills attendant with such a ride. What one does not expect is to be struck in the face by some object while riding on a roller coaster. Those are the unfortunate facts that underlie this action.
The Facts
[2] The plaintiff was a passenger on the Leviathan on July 3, 2012, when by all accounts he appears to have been struck in the facial area by some unknown object. The plaintiff was not the only individual who was struck by some foreign object, as another passenger was also struck very close in time to when the plaintiff was struck.
[3] The Leviathan is a roller coaster that consists of three train cars which proceed along a track and around various dips, bends and slopes. There was nothing in the evidence to suggest that the Leviathan was in any way defective on the day in question.
[4] Prior to being put into service on July 3, 2012, the Leviathan was inspected by a licenced ride mechanic and it was noted to be in good working order. The Leviathan was then put through a test ride and subject to the defendants’ daily opening checklist. The ride was noted to be in good working order.
[5] At approximately 5:50 p.m., the first passenger on the Leviathan reported that she had been struck by an object. Within a few minutes, the plaintiff also reported that he had been struck.
[6] The ride was then cycled through each of the train cars so that all passengers could unload, and the ride was then suspended and fully inspected.
[7] Security officers and the York Regional Police Services ultimately investigated what occurred on July 3, 2012, and the resulting investigation suggests that the police concluded some unknown individual may have thrown an unknown object causing the injury to the plaintiff.
The Issue
[8] The defendants bring a motion for summary judgment to dismiss the plaintiff’s action, as establishing on the aforementioned facts, no genuine issue which would require a trial with respect to the issue of liability. The motion materials were served on the plaintiff’s former solicitors in mid-July 2015. At that time the plaintiff had counsel. Subsequent to the service of the defendants’ motion for summary judgment, plaintiff’s counsel obtained an order removing them as solicitors of record.
[9] This matter came before me on December 8, 2015, at which time the plaintiff appeared without counsel and sought an adjournment to retain counsel. I granted the adjournment, to be heard by me on January 26, 2016 at 3:30 p.m., a date which I made pre-emptory on the plaintiff. I also directed that if the plaintiff was going to file any responding materials, he would have to do so by no later than January 8, 2016.
[10] When the motion came before me on January 26, 2016, Mr. Sauve again appeared without counsel and indicated he had attempted to make contact with his former solicitors to obtain his file without success. He also indicated that he had inquired of a number of lawyers who had indicated they would not take on his file. I inquired of Mr. Sauve as to what evidence, if any, he thought he might be able to put before the court to respond to the defendants’ motion, and he candidly advised me that he had no such evidence.
[11] While I appreciate that Mr. Sauve is self-represented, in my view, having had the benefit of legal counsel and having this motion in his hands now for six months, and given my order of December 8, 2015, I was not prepared to entertain any further delay in the hearing of this motion.
Analysis
[12] Mr. Sauve was examined for discovery with the assistance of counsel on October 2, 2014. At that time, the plaintiff was asked the following question:
What is your theory of liability, what is it that Canada’s Wonderland did or failed to do that would put them in breach of the Occupier’s Liability Act or made Canada’s Wonderland, its agents, servants or employees liable in negligence or otherwise?
The response to this question was provided by plaintiff’s counsel as follows:
I believe they failed to investigate properly because they couldn’t produce any theory of what possibly could have hit him in the face.
Mr. McCarthy: So a post incident failure to investigate. Anything else?
Ms. Litinetsky: All the other particulars can be advised to you at a later date.
[13] The basis then, of the plaintiff’s theory of liability, would appear to be a failure to properly investigate. No other evidence or theory was put to me in oral argument by Mr. Sauve.
[14] As I indicated to Mr. Sauve during the course of argument, he had an obligation to put his best foot forward in terms of evidence that could establish a genuine issue for trial on liability. No such evidence was put before me, other than the theory from the plaintiff’s examination for discovery. In my view, a theory does not amount to evidence.
[15] The Supreme Court of Canada, in its recent decision Hryniak v. Mauldin, 2014 SCC 7 at para. 43, has made it abundantly clear that the court is to grant summary judgment where the court is satisfied that there is no genuine issue requiring a trial. In my view, at this stage of the proceedings I am in as good a position to determine the liability issue as the trial judge would be, given the comments of Mr. Sauve that he candidly provided to me during the course of argument, that he had no evidence with respect to liability.
[16] On the basis of the evidence provided by the defendant, that the Leviathen was inspected both before and after the plaintiff’s unfortunate injury and was shown to be in good working order, there is nothing in the evidence that would suggest that the defendants, in any way, were in breach of the Occupier’s Liability Act or that there was any negligence on the part of the defendants that contributed to the plaintiff’s injury.
[17] As I indicated to Mr. Sauve during the course of argument, this was not a case where anyone is disputing that he was injured. As I also indicated to Mr. Sauve, this is one of those unfortunate cases where the plaintiff suffered an injury through no fault of his own, but also through no fault of the defendants.
[18] In this case, the defendants’ motion for summary judgment is granted. The defendants are not seeking costs. The action is dismissed without costs.
Justice M.L. Edwards
Released: February 3, 2016
CITATION: Sauve v. Canada’s Wonderland et al.,2016 ONSC 881
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TRAVIS SAUVE
Plaintiff
– and –
CANADA’S WONDERLAND AND CEDAR FAIR L.P. acting under the name of CEDAR FAIR ENTERTAINMENT COMPANY
Defendants
RULING ON MOTION FOR SUMMARY JUDGMENT
The Honourable Mr. Justice M.L. Edwards
Released: February 3, 2016