ONTARIO SUPERIOR COURT OF JUSTICE
FILE NO.: CV-13-577-00 DATE: 2017 03 30
Parties and Counsel
BETWEEN:
Carlos A. Carreiro and Maria Carreiro Applicants (Plaintiffs)
Counsel for the Plaintiffs: S. Grillone
- and -
TimWen Partnership and Greensward Landscaping Ltd. Respondents (Defendants)
Counsel for the Defendants Greensward Landscaping Ltd.: G. Harvey-McKean
HEARD: March 13, 2017
Reasons for Judgment
TRIMBLE J.
Nature of Motion
[1] This is a summary judgment motion brought by the only remaining defendant, Greensward, in which it seeks summary judgment on the basis that there is no genuine issue requiring a trial. Alternatively, it says that the plaintiffs’ claim should be struck or the action stayed pursuant to Rule 60.12 for failure to comply with an interlocutory order.
Background
[2] On January 3, 2012, outside of a combined Tim Horton’s and Wendy’s restaurant at 9151 Keele Street in Vaughan, the plaintiff, Carlos Carreiro, slipped and fell on ice on the parking surface while walking from his car to the restaurant. His wife Maria is claiming under the Family Law Act.
[3] It is common ground that there was freezing rain on the morning that Mr. Carreiro fell. The central question in the action is whether there was any or adequate salt on the surface on which Mr. Carreiro fell, and what were his damages.
[4] In its contract with TimWen, Greensward agreed “4) In case of freezing rain … make sure that the parking area, roadways and sidewalks are salted.” In the contract, Greensward also agreed to indemnify TimWen for any liability TimWen had arising from Greensward’s performance of the contract. Accordingly, TimWen was let out of the action. There was no agreement between the parties that Greensward took over TimWen’s the role of an occupier. Accordingly, if Greensward has liability, it is under its contractual obligations, not as an occupier.
[5] The location at which Mr. Carreiro fell is a combined Tim Horton’s and Wendy’s location. The photographs filed as exhibits are taken from the parking lot for the building. As one stands on the parking surface facing the building, Wendy’s occupies the right (or front) half of the building and Tim Horton’s, the left (or rear). The photographs marked as Exhibit C to Sergio Lisboa’s Affidavit show two drive through windows; Tim Horton’s on the left, and Wendy’s on the right. A sidewalk comes up each side of the building and ends at the left side of the Tim Horton’s and to the right side of the Wendy’s windows. To the right of the Wendy’s drive-through window is the door to the building. Between the parking lot and the building is the drive through lane. The parking lot is separated from the drive-through lane by a narrow, curb-height boulevard. The drive-through lane has a cross-walk painted on its surface for patrons crossing between the parking lot and building, wishing to enter the doors to the right of the Wendy’s drive through window. Mr. Correiro says he fell when he crossed the boulevard/curb, and put his foot down on the icy crosswalk on the laneway for the drive-through.
[6] Greensward has filed a Jury Notice.
[7] Examinations for discovery have been completed and a pre-trial was scheduled for March 29, 2016, but was adjourned by Justice LeMay, to be scheduled following this summary judgment motion.
Positions of the Parties
Defendant/Moving Party
[8] Greensward says that there is no genuine issue requiring a trial. All of the evidence indicates that Greensward satisfied its duty of care to ensure that the premises were reasonably salted. In any event, regardless of whether it met its duty to inspect, on the date of the slip and fall the ground where the Plaintiff fell, in fact, was adequately salted. Further, it argues that the Plaintiffs’ action should be stayed since the Plaintiffs have not complied with Baltman, J.’s order of April 14, 2016 that undertakings be answered by May 14, 2016.
Plaintiffs
[9] The Plaintiffs say that there is a genuine issue requiring a trial due to conflicting evidence, assessing credibility, large number of witnesses and the need for oral evidence from all persons involved. With respect to Baltman, J.’s order, they are not in default. They have answered and continue to answer undertakings.
Discussion: Summary Judgment
1) Law
[10] Rule 20.01 of the Rules of Civil Procedure provides:
The court shall grant summary judgement if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[11] Rule 20.04(2.1) sets out the powers of the court on a motion for summary judgment:
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.
[12] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada concluded that summary judgment motions must be granted whenever there is “no genuine issue requiring a trial.” The court indicated, at para. 49, that the test under Rule 20.04 would be satisfied if the judge could reach “a fair and just determination on the merits of a motion for summary judgment.”
[13] I adopt Justice Perell’s analysis of summary judgment jurisdiction and powers as set out in Canada Mortgage and Housing Corporation v. Greenspoon, 2015 ONSC 6882. Perell J. said:
[21] As a matter of procedure, rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.”
[22] With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. …
[23] In Hryniak v. Mauldin, 2014 SCC No. 7, the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers enacted when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.
[24] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2). As a matter of discretion, the motions judge may 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 their use 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.
[25] Hryniak v. Mauldin encourages the use of a summary judgment motion to resolve cases in an expeditious manner provided that the motion can achieve a fair and just adjudication. Speaking for the Supreme Court of Canada, Justice Karakatsanis opened her judgment by stating:
Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. … Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.
[26] At para. 22 of her judgment in the companion case of Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, Justice Karakatsanis summarized the approach to determining when a summary judgment may or may not be granted; she stated:
Summary judgment may not be granted under Rule 20 where there is a genuine issue requiring a trial. As outlined in the companion Mauldin appeal, the motion judge should ask whether the matter can be resolved in a fair and just manner on a summary judgment motion. 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. If there appears to be a genuine issue requiring a trial, based only on the record before her, the judge should then ask if the need for a trial can be avoided by using the new powers provided 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.
[27] Justice Corbett provided a useful summary of the Hryniak v. Mauldin approach in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, where he stated at paras. 33 and 34:
- As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:
(1) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
(2) On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
(3) If the court cannot grant judgment on the motion, the court should:
(a) Decide those issues that can be decided in accordance with the principles described in (2), above;
(b) Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;
(c) In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.
- The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a "full appreciation" of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court's appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.
[28] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will respectively present at trial: Dawson v. Rexcraft Storage & Warehouse Inc., [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 18 O.R (3d) 481 (Ont. C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 255 (Gen. Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), aff’d [1997] O.J. No. 3754 (C.A.).
[14] I should add that while I adopt Perell J.’s statement above, I add two qualifications. First, there is no doubt that the parties to a summary judgment motion are deemed to have put their best foot forward (see Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753 at para. 9). In my view, however, that assumption does not apply in those very rare cases where it is clear to the judge hearing the motion that the parties have evidence on an issue (i.e., not that they will have it later) which they have failed to put in the record, and where doing justice between the parties requires the evidence to be brought forward.
[15] Second, it is not only the responding party that must put the best foot forward. All parties must (see Ipex Inc. v Lubrizol Advanced Materials Canada, 2015 ONSC 6580 at para. 28). A plaintiff bringing a motion for summary judgment, however, does not reverse the onus of proof or alleviate his or her onus to prove the elements of the cause of action (see, for example, Sanzone v. Schechter, 2016 ONCA 566, at paras. 30-32).
2) Analysis:
[16] In this case, there is no evidence about what the standard of care is, just what the Defendant did. Were the standard of care the only issue argued, I would have dismissed the Defendant’s motion as this issue requires a trial.
[17] The Defendant argues, however, that the salting was adequate at the time the Mr. Carreiro fell, and that summary judgment should issue. What the standard of care may have been and whether it was met is causally irrelevant and summary judgment can issue.
[18] In light of this submission, I confine my analysis to the issue of the adequacy of the salting, and whether I can do justice between the parties on this issue based on the record, whether the issue requires the exercise of expanded powers under R. 20.04, or whether there are issues which require a trial.
[19] In assessing the record, I note that no one cross examined on any of the affidavits.
[20] Mr. Lisboa, Greensward’s principal, gave evidence by way of his transcript from his Examination for Discovery. He testified that he was responsible for monitoring weather. He checked weather reports regularly and performed drive-by inspections of the property. The managers of both Tim Horton’s and Wendy’s were also responsible for inspecting the parking lot and customer walkways during winter months, and applying salt to areas with snow or ice. Tim Horton’s also employed a maintenance person who inspects the inside and outside of the premises, to ensure the areas are maintained, and records their observations in a daily log book.
[21] Following Tim Horton’s or Wendy’s own inspections, which occurred throughout the day and night, if there were any problems, they would apply salt to the sidewalks and walkways. If maintenance was required, they would contact Greensward. Tim Horton’s manager also confirmed that Greensward always attended to clear the snow and apply salt diligently.
[22] On the day of the incident, January 13, 2012, Mr. Lisboa was monitoring Weather Canada, as well as conducting regular inspections. On January 12th, Mr. Lisboa had attended the premises and observed light snow. The premises were salted and this was recorded in the log. Later that evening and early morning on the 13th, it was mild and started raining. Mr. Lisboa did his usual inspection between 2:30 and 4:00 am; because the weather was calling for a “flash freeze” he went back and remained on the premises from 4:00 am to monitor the situation. His brother was with him. They parked at the back of the lot but were unable to salt before the impending flash freeze because the ongoing rain would have washed the salt away. Around 6:30 am the rain stopped. Lisboa and his brother started salting at 6:43 am. They salted the parking lot and Drive Thru lane, twice. They manually salted the sidewalks and entrances; then Mr. Lisboa inspected the area. It looked good, the salt was working well and it was not icy.
[23] The representative of TimWen, Ms. Black, also gave evidence through a transcript. She said that arrived at work at 6:30 am and performed her daily inspection of the parking lot. She noticed that there was a build-up of ice. Greensward had not done its salting by this time. She salted the front of the restaurant.
[24] Ms. Black was advised by the manager of Tim Horton’s that a customer had complained that it was slippery. Ms. Black said that following this discussion she salted the drive-through, walkway, and entrance and exit. At that time, Greensward had not yet begun their salting. She recalled that all of this occurred between 6:30 and 7:00 a.m.
[25] The Tim Horton’s manager, Ms. Prokopetz, gave evidence by Affidavit. She arrived at the restaurant at about 4:30, a.m. She performed her inspection of the whole of the premises and did not see any ice. Greensward had not applied any salt as the ground was too wet, which would have caused the salt to dissolve and wash away.
[26] At about 7 a.m., Ms. Black advised Prokopetz that she had inspected the premises and applied salt to the drive through area, customer walkway and the door where customers enter the Wendy’s because of ice. The ice-melter Wendy’s used was blue in colour. Tim Horton’s used, salt, which is white. This prompted Ms. Prokopetz to conduct another inspection (at about 7:10 a.m.) around the Tim Horton’s. The ground was beginning to dry. It was not slippery on the Tim Horton’s side of the premises. She salted the walkways around the premises including to the sidewalks and concrete dividers on the premises.
[27] At around 7:30 am a customer came in and advised Ms. Prokopetz that someone had fallen outside. She went outside and saw Mr. Carreiro lying on the ground in the drive-through lane, trying to get up. She observed that there was both blue and white salt around him and throughout the drive-through area where he was lying. She called Mr. Lisboa at about 8:00 am about the fall. He returned to inspect the premises around 9:00 am. He observed that it was cold and windy but there were no icy spots anywhere. He confirmed that there was nothing to be done and no salting required.
[28] Ms. Prokopetz showed Mr. Lisboa where the plaintiff had fallen, near the boulevard area right after the curb on the parking lot side of the Wendy’s drive-through. At the time, Mr. Lisboa noted it was almost dry, with no icy areas and the salt was visible. This is illustrated in photographs. At no time after the fall was Mr. Lisboa asked to reapply salt.
[29] The Defendant provided a report from a Wendy’s employee, Mr. Shirley on which it relied. I did not consider this statement or report as it was hearsay. No Affidavit from Mr. Shirley was produced.
[30] Mr. Carreiro’s evidence came through a transcript and Affidavit. He admitted that he was wearing running shoes at the time, and that the tread was good. He was aware of the freezing rain. He noted that the parking lot was ploughed. When he arrived at the premises, freezing rain was falling. He got out of the car, crossed the boulevard at a point nearest to his truck and began crossing the drive-through lane when he fell. Rather than go to the cross walk, he opted to take the most direct route to the building – diagonally across the boulevard and drive through lane. He mounted a snow bank on the curb. As he stepped down onto the drive through lane surface, he slipped and fell. He admitted that his route was dangerous. Mr. Carreiro made the general observation when he got out of his truck that the parking lot was icy from the freezing rain. He did not see any salt on the ground.
[31] Mr. Carreiro’s son, Brian, provided an Affidavit. He accompanied his father to work, picking him up from home at about 6:30. It was freezing rain. He says that they arrived at about 8 a.m. Mr. Carreiro left to get coffee. Brian said he got out of the driver’s and got into the rear passenger seat of the pickup truck to sleep. He said “The parking lot was icy when I got out of the vehicle.” It is uncertain on what basis he made this broad statement. For example, did he survey the parking lot, or did he extrapolate from the fact that the area immediately around the truck was icy.
[32] Someone from Tim Horton’s awoke him to say that his father had fallen. On the way into the restaurant, that lady indicated where Mr. Carreiro had fallen. Brian Carreiro did not see any salt on the ground. On the way back to his truck some unspecified time later, Brian Carreiro said that he saw salt on the area where it was indicated Mr. Carreiro had fallen. The implication was that it had been salted in the unspecified time period between when Mr. Carreiro junior entered and left the building.
[33] Greensward says that there is no genuine issue requiring a trial. All the evidence pertaining to the duty of care and system of inspection and maintenance has been adduced to the court. The court is able to gain a full appreciation of the evidence to make a fair and just adjudication on the merits.
[34] Given the realities and conditions experienced in Ontario in the winter, the landlord had in place a reasonable policy to provide proper winter maintenance for the parking lot. Greensward is a reputable contractor in this business. It had a documented and reasonable system of inspection and maintenance; there is no dispute that it was monitoring and maintaining the premises on a daily basis prior to the incident, including being on site that very morning. At least 4-5 people inspected and/or salted the premises prior to the fall. There was nothing else that could have been done by the defendants to prevent this incident. Further, the plaintiff was the author of his own misfortune. He was aware of the weather conditions and assumed the risk by taking a shorter route. He also chose to wear running shoes not boots and not go through the Drive Thru, either of which could have prevented the incident.
[35] I disagree. Summary Judgment cannot issue.
[36] As between the Messrs. Carreiro on the one hand and the Wendy’s and Tim Horton’s on the other, there is a factual issue that I cannot determine on the record about whether the area on which the Plaintiff fell was salted, adequately or at all. The photographs contained in the record (colour copies of those Ms. Prokopetz took immediately after the Plaintiff fell) are poor quality colour photocopies. Therefore, this issue of how well salted the area of the fall was will turn on the credibility of the parties and the witnesses. Credibility of the parties can only be determined following a hearing involving oral evidence from all the parties.
[37] Since I cannot determine, on a summary basis, whether the area on which the Plaintiff fell was salted, adequately or at all, the issue of the standard of care has to be addressed. Based on the record, I cannot determine a) what the standard of care expected of Greensward was b) whether Greensward met it, or c) whether the salting of the area on which the Plaintiff fell that was done (either by any individual or cumulatively) was adequate. I was not directed to any evidence addressing a) the standard of care of the industry, b) the total surface area Greensward was required to salt, the overall ice conditions on any part of the areas to be salted, the amount of salt Greensward applied to the area, and the rate at which it was spread, or c) what salt anyone else added to the area where the Plaintiff fell. Therefore, I cannot do justice between the parties on this record.
[38] Turning to Rule 20.04 (2.1), I cannot design a procedure that can address issues of liability that provides a just resolution between the parties in a more streamlined way than a full trial. Greensward’s approach to this motion is that summary judgment should be granted on the basis of liability. It cannot. A trial is required. If a trial is required on liability it is also required on damages issues, of which there appear to be many.
[39] The motion for summary judgment fails.
Stay for Breach of Baltman, J.’s Apr 14, 2016 Order.
[40] I decline to dismiss or stay the Plaintiffs’ action.
[41] The Plaintiffs’ examinations for discovery were conducted in January and April 2014. The Plaintiffs gave a number of undertakings. On April 16, 2016, Baltman, J. ordered them to be answered within 30 days.
[42] The Defendants say that the Plaintiffs have failed to respond in any way to the issues relating to the summary judgment timetable and have failed to comply with “the majority” of the undertakings. The action should be stayed under Rule 60.12. The Defendant relies on Zuk v. Atkinson, 2014 ONSC 4090 (SCJ.), appeal dismissed 2015 ONCA 96 (C.A.).
[43] The Plaintiffs say that they have provided answers to many undertakings and continue to provide ongoing productions in compliance with the interlocutory order. In addition, much of that which the Defendants request was required after the discovery, and as a result of receiving other answers to undertakings. For example, much of what the Defendant requests, says the Plaintiff, is medical records from medical people referred to in the OHIP summary produced in answer to an undertaking in March, 2016. As such, they say that it is not just to dismiss the action.
[44] Dismissing or staying an action under Rule 60.12 for failure of a party to abide by an order is a discretionary order. The Court is empowered to do what is “just”.
[45] I do not stay or dismiss the action as it is not just to do so.
[46] Zuk does not assist the Defendant for several reasons. First, in Zuk, there was non-compliance with an order that the party answer undertakings, a second order that the party answer them, and a costs order. That resulted in an ex parte order dismissing the action. Second, the issue in Zuk was not whether to dismiss the action, but whether to restore it. Third, there were findings by the judge in Zuk that non-compliance was deliberate. Fourth, the non-compliance was complete.
[47] In this case, compliance was partial, and there was only one order.
[48] The Defendant’s evidence on non-compliance was poor. There is no chart indicating what was an undertaking and what was a follow up request to an undertaking, or what remained outstanding. There was merely the bald assertion that ‘the majority’ of the requests remained outstanding. The evidence attached to Mr. Osborne’s affidavit appears incomplete. The Defendant provided an additional 5 mm. of paper, not paginated, to complete the record.
[49] This is not the end of the matter, however. The evidence produced by the parties indicates as follows:
- The earliest evidence of any attempt at complying with the undertakings was a letter dated February 9, 2016 attaching a medical report. I conclude that the Plaintiff did not begin its efforts to answer undertakings before that time, which was two years after the first discovery and 22 months after the second.
- By letter dated March 3 and 16, 2016, the Plaintiff advised of the status of answers. Most were not answered. A few clinical notes and records were provided with that letter along with an OHIP summary.
- The Plaintiffs’ approach to their obligation to answer undertakings (absent an order) and to comply with an order once made, viewed most charitably, was lackadaisical.
[50] Therefore, I order that within 30 days of the date of the release of these reasons, the Plaintiff will provide to the Defendants an affidavit by the lawyer in charge of this file which provides a status of all undertakings answered to date, and of all undertakings or requests arising from the answer to any undertaking answered to date, which remain outstanding. That lawyer will also provide detailed sworn evidence in that Affidavit outlining what steps the Plaintiffs or their representatives took to answer each undertaking or request arising, when each step was taken, and what the results were from each step.
COSTS:
[51] Unless the parties agree to the disposition of costs, I will decide costs based on written submissions. Such submissions will not exceed 3 double spaced pages excluding bills of costs and cases. The Plaintiffs shall serve and file theirs 30 days from the date of the release of this endorsement, and the Defendants, 14 days after that. The parties shall address who should pay whom costs and in what amount. The parties should also address whether I should treat costs for the undertakings aspect of this motion as if that part of the motion was a separate motion.