Adjeleian v. Ottawa (City), 2017 ONSC 6160
CITATION: Adjeleian v. Ottawa (City), 2017 ONSC 6160
OTTAWA COURT FILE NO.: 13-59586
DATE: 2017/10/18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Adjeleian, Debra Adjeleian and Jake Adjeleian, by his Litigation Guardian Michael Adjeleian, Plaintiffs
AND
The City of Ottawa, Walter Baker Sports Centre, Gym-Con Ltd. and Centaur Products Inc., Defendants
BEFORE: Madam Justice Robyn M. Ryan Bell
COUNSEL: Derek Nicholson, Counsel for the Plaintiffs
Jeremy Wright, Counsel for the Defendants The City of Ottawa and Walter Baker Sports Centre
HEARD: September 21, 2017
ENDORSEMENT
Overview
[1] On December 20, 2011, Michael Adjeleian was playing a game of squash with his son at the Walter Baker Sports Centre. The Sports Centre is owned by The City of Ottawa. The plaintiffs allege that Mr. Adjeleian tripped and fell, striking his head against the glass at the front wall of the squash court. The plaintiffs allege that the glass fractured, resulting in a severe laceration to the back of Mr. Adjeleian’s head.
[2] Mr. Adjeleian claims that the City and the Sports Centre are liable to him for his injuries pursuant to the Occupiers’ Liability Act and, in the alternative, as a result of the City’s negligence in failing to maintain the squash courts at the Sports Centre to the reasonable standard required (R.S.O. 1990, c. O.2).
[3] The City and the Sports Centre move for summary judgment dismissing the claim against them. Based on the record, I am unable to make the necessary findings of fact so as to achieve a fair and just adjudication of the claim on its merits. The motion for summary judgment is therefore dismissed.
The Law of Summary Judgment Motions
[4] 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” (R.R.O. 1990, Reg. 194). 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: (i) allows the judge to make the necessary findings of fact; (ii) allows the judge to apply the law to the facts; and (iii) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49).
[5] On a motion for summary judgment, the evidence need not be equivalent to that at trial; however, the evidence must be such that the judge is confident that she can fairly resolve the dispute (Hryniak, at para. 57). A documentary record, particularly when supplemented by the powers provided in Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure, is often sufficient to resolve material issues fairly and justly. Each side must “put its best foot forward” (Cuthbert v. TD Canada Trust, 2010 ONSC 830, 185 A.C.W.S. (3d) 768, at para. 12).
[6] The documentary record in this case is not sufficient to resolve the material issues fairly and justly. Given the nature of the deficiencies, I decline to exercise my discretion to use the expanded fact-finding powers in Rules 20.04(2.1) and (2.2).
[7] I turn to a consideration of the deficiencies in the documentary record.
The Documentary Record
(a) Non-compliance with Rule 39.01(4)
[8] The City and the Sports Centre rely on a single affidavit of the West Area Manager, Facilities. The source of the manager’s information and belief is said to be “the City of Ottawa files and memory of City of Ottawa employees.” Apart from a copy of a request for tenders attached as an exhibit, the entire affidavit is sworn on information and belief. There are no other documents and no specific employees identified as the source of the manager’s information and belief.
[9] The City’s affidavit does not comply with Rule 39.01(4). Rule 39.01(4) requires that where an affidavit for use on a motion contains statements of the deponent’s information and belief, the source of the information and the fact of the belief are required to be specified in the affidavit.
(b) Sections 3 and 4 of the Occupiers’ Liability Act
[10] The City and the Sports Centre submit that the City met the standard of care applicable to it as an occupier under subsection 3(1) of the Occupiers’ Liability Act. Subsection 3(1) provides:
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.
[11] The City and the Sports Centre submit that there is no evidence that the City did not take care in all the circumstances as was reasonable to ensure that Mr. Adjeleian was reasonably safe while on the premises. It is, however, the City and the Sports Centre, as the moving parties who bear the initial evidentiary burden. In his affidavit, the manager echoes the wording of subsection 3(1) of the Occupiers’ Liability Act when he deposes, “It is my information and belief that the City of Ottawa and its employees took all reasonable care in all of circumstances of this matter to see that the Plaintiff Mr. Adjeleian was reasonably safe while on the premises of the Walter Baker Sports Centre.” This assertion does not, in my view, constitute evidence upon which the City and the Sports Centre can rely in support of their motion.
[12] The City and the Sports Centre also submit that the lower standard of care provided for in subsection 4(1) of the Occupiers’ Liability Act applies in this case. Subsection 4(1) provides:
The duty of care provided for in subsection 3(1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.
[13] The position of the City and the Sports Centre is that Mr. Adjeleian willingly assumed the dangers inherent in playing squash on the premises and there is no evidence that the City created a danger with the deliberate intent of harming Mr. Adjeleian or that it acted with reckless disregard of his presence.
[14] Again, the City and the Sports Centre bear the initial evidentiary burden on this issue. Again, the manager echoes the words of subsection 4(1) of the Occupiers’ Liability Act. His assertion does not, in my view, constitute evidence upon which the City and the Sports Centre can rely.
[15] Based on the documentary record, I am also unable to determine whether the standard of care set out in subsection 3(1) or the standard of care set out in subsection 4(1) of the Occupiers’ Liability Act applies. In Waldick v. Malcolm, the Supreme Court of Canada clarified the meaning and effect of subsection 4(1) (1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456, 83 D.L.R. (4th) 114, referred to in Kennedy v. Waterloo County Board of Education, 1999 CanLII 3746 (ON CA), 45 O.R. (3d) 1, 175 D.L.R. (4th) 106 (Ont. C.A.)). Mere knowledge of the risk of injury on the part of the victim is not enough. The plaintiff must have assumed the risk of injury without recourse to any contribution from or liability of any other party (Waldick, at 476 [cited to S.C.R.]).
[16] There is minimal evidence as to the circumstances surrounding Mr. Adjeleian’s trip and fall on the squash court at the Sports Centre. Mr. Adjeleian deposes that he was playing a “gentle game of squash with [his] son” during which he tripped and fell back, striking his head into the front wall glass panel. He deposes that the glass did not shatter or pebble as the glass is designed to do.
[17] For the City and the Sports Centre, the manager deposes (on information and belief) that no City employees were present in the squash court when Mr. Adjeleian suffered his injury.
[18] The documentary record does not permit me to determine whether Mr. Adjeleian assumed the risk of injury without recourse from any other party.
(c) Section 6 of the Occupiers’ Liability Act
[19] The City and the Sports Centre also rely on subsection 6(1) of the Occupiers’ Liability Act, which provides:
Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.
[20] In the evidence, three independent contractors are specifically identified; however, the basis for the manager’s information and belief is not disclosed. Once again, the manager echoes the words of subsection 6(1) when he states that “these independent contractors reasonably appeared to be competent.” The evidentiary foundation required for a finding as to the applicability of subsection 6(1) is absent in this case. The manager’s statement is not evidence upon which the City and the Sports Centre can rely in relation to the application of subsection 6(1) of the Occupiers’ Liability Act.
Disposition
[21] For these reasons, the motion for summary judgment is dismissed.
[22] If the parties are unable to agree on costs of the motion, they may make brief written submissions on costs within 15 days of the release of this endorsement.
Madam Justice Robyn M. Ryan Bell
Date: October 18, 2017
CITATION: Adjeleian v. Ottawa (City), 2017 ONSC 6160
OTTAWA COURT FILE NO.: 13-59586
DATE: 2017/10/18
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Michael Adjeleian, Debra Adjeleian and Jake Adjeleian, by his Litigation Guardian Michael Adjeleian, Plaintiffs
AND
The City of Ottawa, Walter Baker Sports Centre, Gym-Con Ltd. and Centaur Products Inc., Defendants
BEFORE: Madam Justice Robyn M. Ryan Bell
COUNSEL: Derek Nicholson, Counsel for the Plaintiffs
Jeremy Wright, Counsel for the Defendants The City of Ottawa and Walter Baker Sports Centre
ENDORSEMENT
Justice Ryan Bell
Released: October 18, 2017