Court File and Parties

Court File No.: CV-14-977-00 Date: 2018-12-13 Ontario Superior Court of Justice

Between: PARESH GANDHI, Plaintiff Anser Farooq, for the Plaintiff

And: ZEV INVESTMENTS LIMITED, Defendant Emily Schatzker, for the Defendant

Heard: October 31, 2017, at Brampton, Ontario

Before: Price J.

Revised Reasons For Order

NATURE OF MOTION

[1] Paresh Gandhi (“Mr. Gandhi”) was carrying garbage from his apartment to an upstairs garbage disposal area in his apartment building at approximately 8:00 p.m. on Tuesday, July 23, 2013, when he slipped on a slippery liquid that was on the stairs and fell, breaking his teeth and tearing the rotator cuff tendons in his shoulder.

[2] Mr. Gandhi sued Zev Investments Limited (“Zev”), who owned the apartment building, for damages for the injuries he had sustained. He alleges that Zev is vicariously liable for the negligence of its maintenance employee or contractor, who he says spilled paint from a paint can he was using to do maintenance in the building. Zev delivered a Third Party Claim against Mr. Bailey, by which it claimed indemnification from Mr. Bailey for Mr. Gandhi’s damages.

[3] Following examinations for discovery, in which Mr. Gandhi maintained his position that he had slipped on paint from a paint or oil from a paint can, Zev consented to a dismissal of its Third Party Claim against Mr. Bailey and brought a motion for summary judgment dismissing the action against it. Zev relies on an affidavit from Mr. Bailey, who deposes that he bought paint and paint supplies on the day of Mr. Gandhi’s fall, but that he and his brother did the painting at their own home and not at the apartment building.

[4] In response to Zev’s motion, Mr. Gandhi argues that if the substance he slipped on was not paint, it was another slippery liquid and that, in any event, it was a hazard and that Zev failed to maintain a proper system for inspection and maintenance that would constitute reasonable steps to protect Mr. Gandhi and other tenants from harm. Zev employed a maintenance contractor to attend at the premises on Mondays and Thursdays, but not on Tuesdays, and it had no regular schedule of inspections by its own property managers.

BACKGROUND FACTS

[5] Mr. Gandhi is a tenant of Zev and resides in apartment #99 of a building at 20 Sanagan Road in Etobicoke owned by Zev (“the Premises”).

[6] In the evening of Tuesday, July 23, 2013, Mr. Gandhi slipped and fell while walking up stairs from the hallway outside his apartment to dispose of his garbage in an upstairs garbage disposal area.

[7] Mr. Gandhi asserts that on July 24, 2013, he spoke to Mr. Bailey, who apologized to him for leaving a mess on the stairs that cased Mr. Gandhi to fall. Mr. Bailey denies the alleged conversation.

[8] Mr. Gandhi commenced an action against Zev by Statement of Claim issued March 4, 2014. The Claim describes the fall in the following way:

On July 23, 2013, at about 8:00 p.m. or 8:30 p.m., the Plaintiff Mr. Gandhi was going out of his apartment to dispose of [a] garbage bag. When he was going up from stairs, he slipped from steps and landed on his left shoulder. He was not able to move about five minutes. After some time Mr. Gandhi stood up and observed residue of wall paint on the stairs casing [sic] slip and fall. There was no warning board near the stairs or during his was [sic] regarding wet floor.

[9] The Statement of Claim, in paragraph 16, lists 11 allegations of negligence against Zev, seven of which argue that Zev failed to maintain the property or ensure Mr. Gandhi’s safety. The remaining four allegations advance Mr. Gandhi’s theory as to why he slipped:

(c) They knew or ought to have known the dangers of not cleaning residue of the wall paint that is unsafe and dangerous and as such failed to take appropriate and timely steps to correct the same.

(g) They failed to remove residue of wall paint from stairs, which in turn caused this accident.

(h) They failed to hire any competent painter to repair or paint the walls and overlooked or ignored the cleaning of residue of wall paint from the stairs.

(i) They acted in gross negligence in not cleaning the area after repair for the use of the tenants and as such had intentionally invited the slip and fall to take place.

[10] On March 13, 2014, eight months after the incident, Zev’s Building Superintendent, Sharon McNeil, sent an email to Zev’s lawyer, Ely Rechtsman, in which she stated:

I (Sharon McNeil) cannot recall the exact day, I passing on the ground floor of the building, I noticed Mr. Gandhi’s arm in a sling. I asked him if he was alright and he continued to tell me he had just been discharged from the hospital as he had slipped in the building. Mr. Gandhi explained to me that he had slipped in the stairwell.

Darryl McNeil had a brief conversation with Mr. Gandhi “a few” days after his hospital visit. He cannot recall the exact date. Darryl was in his workshop (across the hall from Mr. Gandhi and Mr. Gandhi entered the shop to explain to Darryl that he had slipped on some cooking oil in the stairwell that the tenant in #104 (now #501) had spilled.

[11] Zev delivered its Statement of Defence on March 26, 2014. Additionally, Zev issued a Third Party Claim against its handyman of 20 years, Delroy Bailey, who its lawyers apparently believed to be the person described by Mr. Gandhi as having as having spilled the paint or oil that caused him to slip and fall.

[12] Mr. Gandhi was examined for discovery on July 21, 2014. He testified that he observed a “building contractor” painting by the stairs on the date when he slipped and fell:

176 Q. They were painting the railing? A. No, no. They had the railing done, they brought the railing down and they were screwing into the wall and putting the new railing.

177 Q. They were installing a new railing? A. Yeah.

178 Q. And they were painting the wall? A. Yeah – no, no. What happened is, you know, where there was a railing he put it on, right, day before, and there was only side piece left. He was painting on a side – whatever he damaged, whatever – you know, he took out the old one and everything, he painted, then he just put the other one on screen.

179 Q. At that time you saw a black guy painting? A. Yeah.

180 Q. Right? You don’t know who that guy is though, do you? A. No he’s like the building contractor.

181 Q. Is he the guy that’s always at the building? A. I believe somewhere he’s there.

[13] Mr. Gandhi described his slip on paint, or on oil from a paint can in the following way at his examination for discovery:

193 Q. You’re saying they spilled something on the stairs and left it there? A. Yeah, maybe.

194 Q. But what did they spill? A. This is what I don’t know, it was slippery . It was either a paint or the thinner of the paint, when you open the paint can and all those, you know, the slippery liquid, could be that. I don’t know.

195 Q. When you fell, did you see that liquid? A. Yeah, I see it’s slippery.

196 Q. Describe it for me, was it water? A. No, it’s not water. It’s like an oil kind of thing.

197 Q. There is an oil? A. Yeah.

198 Q. So you looked down after you fell, you saw oily – was it clear? A. Yeah, it’s kind of clear and a little bit of whitey (sic)

200 Q. But when you saw it you knew that that’s what caused you to slip and fall? A. Yeah.

201 Q. It was this oil and in your mind that oil came from the guy who was painting? A. Yes.

202 Q. Where else would it have come from? A. I don’t know.

[14] On August 5, 2016, Mr. Bailey attended an Examination for Discovery of him in the Third Party Claim. Following the Examination, Zev discontinued its Third Party Claim against Mr. Bailey.

[15] Zev later moved for summary judgment dismissing Mr. Gandhi’s action against it. In doing so, it relies on the evidence given by Mr. Bailey.

ISSUES

[16] Is there a genuine issue for trial in Mr. Gandhi’s action?

PARTIES’ POSITIONS

Zev Investments’ position

[17] Zev submits that Mr. Gandhi’s inability to identify the hazard that he says caused him to slip and fall, and his reliance on alternative characterizations of the hazard as paint, oil from a paint can, or garbage demonstrates that there is no genuine issue for trial in this action based on negligence or occupier’s liability.

Mr. Gandhi’s position

[18] Mr. Gandhi submits that there are material facts in dispute with regard to Zev’s care and control over the premises, its maintenance of the stairway, the nature of the repairs and maintenance that were being done, and the nature of the slippery material. Mr. Gandhi asserts that the factual record that Zev has submitted is incomplete and that in the absence of more complete evidence, a genuine issue arises as to the compliance by Zev’s employees’ with its maintenance policies.

The Court’s findings and disposition

[19] In the present action, Mr. Gandhi has consistently asserted that he slipped on paint or oil spilled by Zev’s “building contractor”. His inability to identify the hazard any more precisely is not determinative of the outcome of the liability issue in the action, nor is the contrary evidence that Zev has advanced in support of its motion. That contrary evidence gives rise to an issue that cannot conveniently be determined at a motion for summary judgment. It will be necessary for the Court to hear the evidence of Mr. Gandhi, Mr. Bailey and possibly his brother, Mr. and Ms. McNeil, and possibly other tenants of the building to determine whether it is likely that Mr. Bailey spilled paint or paint oil, whether that constituted negligence for which Zev was vicariously responsible, and whether Zev had in place a system of maintenance that was sufficient to protect its tenants from hazards of this kind.

ANALYSIS AND EVIDENCE

a) General principles applying to motions for summary judgment

Legislative framework

[20] Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that where there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly. Rule 20.04(2) states:

(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.

[21] Accordingly, the court may grant summary judgment in the following circumstances:

1. Where the parties agree;

2. Where the claim is without merit;

3. Where the motions judge is able to dispose of the matter and where the trial process is not required in the “interest of justice.” [1]

[Emphasis added.]

Jurisprudence

[22] In 2014, the Supreme Court of Canada, in [Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87][2], and [Bruno Appliances and Furniture Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126][3], reinterpreted Rule 20 of the Rules of Civil Procedure, taking into account the need for the court to preserve the public’s access to justice. The Supreme Court held that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims. It held that a trial is not required if the court hearing a summary judgment motion can make a fair and just adjudication, by making the necessary findings of fact, and applying the law to those facts, and if the process is a proportionate, more expeditious, and less expensive means of achieving a just result than a trial.

[23] The Supreme Court observed that the summary judgment motion judge must assess the interests of justice that would be served by summary judgment, by considering the relative efficiencies that would be served by that process and those that would be served by a trial, including the cost and speed of each procedure, the evidence that is available on the motion versus the evidence that would be available at trial, and the opportunity to evaluate such evidence fairly. As the Supreme Court stated, there will be no genuine issue requiring a trial if the summary judgment process gives the motion judge the evidence required to fairly and justly adjudicate the dispute on its merits, and is a proportionate, more expeditious, and less expensive means to achieve a just result.

[24] In [Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 32][4], Corbett J. described the current approach to summary judgment motions following the Supreme Court of Canada’s decision in Hryniak v. Mauldin, as follows:

Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions. This principle does not mean that large, complicated cases must go to trial, while small, single-issue cases should not. Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse. If anything, this principle is even more important after Hryniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties’ cases before it.

[25] The Supreme Court of Canada, in Hryniak, gave guidance as to how Rule 20 should be applied to promote timely and affordable access to the civil justice system. Karakatsanis J., on behalf of the court, noted that such motions are an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial, in favour of proportional procedures tailored to the needs of the particular case. She stated:

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 (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. [5]

[Emphasis added.]

[26] Karakatsanis J. held that the judge hearing a motion for summary judgment must compare the procedures available in such a motion, supplemented, if necessary, by the fact-finding tools provided by Rules 20.04(2.1) and (2.2), with those available at trial, to determine whether the court can make the necessary findings of fact and apply the principles of law to those facts in a proportionate, most expeditious, and least costly manner, to achieve a just result:

This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.) It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.) [6]

[Emphasis added.]

[27] Based on the guidelines set out in Hryniak, I must first determine, based on the evidence before me, and without using the new fact-finding powers under Rule 20.04, whether there is a genuine issue requiring trial, whether I can fairly and justly adjudicate the dispute, and whether the motion is a timely, affordable, and proportionate procedure under Rule 20.04(2)(a). If there is no genuine issue requiring a trial, I must grant summary judgment. [7]

[28] If there appears to be a genuine issue requiring a trial, I must exercise my discretion to determine whether the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2), provided their use will not be contrary to the interests of justice and will lead to a fair and just result, and serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. [8]

[29] The party moving for summary judgment has the onus of establishing that there is no genuine issue of material fact requiring a trial. Once that onus is met, the burden shifts to the responding party, opposing summary judgment, to demonstrate that the claim has a “real chance of success”. [9] A self-serving affidavit is not sufficient to create a triable issue in the absence of detailed facts and supporting evidence.

Applying the legal principles to the facts of this case

[30] There is no dispute that Mr. Gandhi was a tenant of Zev’s building at the time of his injury and that Zev owed a duty to him as an occupier of the premises. Additionally, there appears to be no dispute that Mr. Gandhi injured himself on Tuesday, July 23, 2013, as a result of a fall in a stairwell of the building. Zev’s Building Superintendent, Sharon McNeil saw him wearing a sling and confirms that he told her that he had fallen in the stairwell.

[31] It is alleged that Zev has experienced problems with rainwater and possibly other maintenance issues in the building. Zev tendered an affidavit from its current Property Manager but not from its Property Manager at the time of Mr. Gandhi’s injury. It is apparently not disputed that Zev’s system of maintenance did not entail inspections or maintenance on Tuesdays, and Mr. Gandhi’s injury occurred on a Tuesday.

[32] Zev’s Property Manager, Howard Goldberg, was on site at the premises in the morning on July 23, 2013. It is not disputed that he gave Mr. Bailey money so he could go out and buy supplies that day. Mr. Bailey stated that he picked up the cheque from Mr. Goldberg, deposited it, and went shopping for the supplies at around 10:15 a.m. He went to Home Depot and bought painting supplies, including a tray, a roller, and primer. His receipt from Home Depot is date-stamped 12:01 p.m. Mr. Gandhi states that he observed a workman painting a wall earlier in the same day that he later slipped and fell. He says he slipped and fell at 8 p.m. that evening. His attribution of his fall to paint or paint oil is consistent with the fact that Mr. Bailey bought paint supplies earlier the same day.

[33] Zev relies on the evidence of Mr. Bailey regarding the details of the painting. Mr. Bailey, being Zev’s employee or contractor for the past 20 years, and once a defendant in Zev’s Third Party Claim, cannot be said to be a disinterested witness. Mr. Bailey testified that after buying the painting supplies and attending other stops in North York and Scarborough, he met with his brother, who was priming panels that were to be installed at Zev’s building. The panels were to be installed on a balcony of the building where Mr. Gandhi slipped in the stairwell.

[34] Mr. Bailey’s evidence regarding where, when, and in what manner the painting was done, and how the painted panels were transported, and as to their condition at that time, and as to whether the panels were touched-up at the building, and as to whether the paint cans were ever brought onto the premises and what their condition and the condition of the paint on the panels was, and what clean-up was done, involve details that should be the subject of cross-examination in the presence of the trier of fact. The evidence before the court in this motion is simply not a sufficient basis upon which the court can make a determination of Zev’s liability at this stage of the proceeding.

[35] Zev argues that Mr. Gandhi has advanced multiple theories of liability at different points in the action – the Paint Theory, the Unidentified Hazard Theory, and the Garbage/Debris Theory, etc., and that it has conclusively refuted each theory. I disagree. Zev’s lawyer raised the “alternative theories” but I find that Mr. Gandhi was consistent in maintaining his position that it was paint or paint oil that was the cause of his slipping and falling.

[36] For example, Zev’s lawyer put the “water” theory to Mr. Gandhi in the following exchange at his examination for discovery:

231 Q. Were you worried you were going to slip on that water? A. No.

232 Q. Did you slip on that water? A. No.

233 Q. So there was water there but the water has nothing to do with you falling? A. No, no.

[37] Zev’s lawyer additionally put the “cooking oil” theory to Mr. Gandhi in the following exchange:

250 Q. Are you saying though that it could have been this lady who dropped that oil at the stairwell? Is that what you’re saying? A. No, I don’t know, because there was a oil, they were painting, that’s what I know.

[38] Zev relies on emails its current Property Manager received from Ms. McNeil, one of the Building Superintendents, eight months after Mr. Gandhi’s injury, regarding a conversation on a date she did not recall, in which Mr. Gandhi stated only that he had slipped in the stairwell. This is consistent with the position Mr. Gandhi takes in this action.

[39] Additionally, Zev relies on what appears to be hearsay from the same email, in which Ms. McNeil relates a conversation her husband is alleged to have had with Mr. Gandhi, also on a date he cannot recall, in which Mr. Gandhi is alleged to have attributed his slip and fall to cooking oil that a female tenant had spilled.

[40] The evidence of Ms. McNeil appears to be hearsay and the fact it is relied on to prove is contested. As such, it is inadmissible on a motion, particularly without an assertion that it is believed to be true by the person whose affidavit is filed. Even if admissible, the evidence concerns a conversation that is alleged to have taken place eight months earlier. The substance of the conversation was denied by Mr. Gandhi at his examination for discovery on July 21, 2014. Mr. Gandhi stated that he had spoken to the Superintendents the next day or so about his fall and said that he had slipped on something oily but that he never said that he slipped on oil spilled by a lady in the building.

[41] Mr. Gandhi’s medical record dated July 30, 2013, indicates that Mr. Gandhi had fallen in a stairway in his apartment building on July 23, 2013, when he tripped, or slipped, on debris on the floor. While the doctor’s testimony may be required to interpret the meaning he intended by the word “debris”, I do not find it to be inconsistent with paint or paint oil, especially when used following the words, “or slipped”.

[42] Zev has not tendered the affidavit of Howard Goldberg, who was the Property Manager of the building on site at the time of Mr. Gandhi’s fall, and who was responsible for the maintenance and upkeep of the building. Instead, it tendered an affidavit of Ely Rechtsman, another of its Property Managers.

[43] Mr. Gandhi should not be prevented from proceeding to trial on his Claim by reason of the fact that Zev’s lawyers put to him alternative theories, or allege that he put such theories forward in statements to others.

[44] For the foregoing reasons, there is, at the very least, a genuine issue requiring a trial as to whether Mr. Gandhi slipped on paint or paint oil that was spilled by Mr. Bailey, for whose negligence Zev is vicariously liable, and as to whether Zev maintained a system of maintenance that was adequate to prevent harm to its tenants. The ultimate determination of those issues will require many witnesses, including Mr. Gandhi, Zev’s Property Manager on site, Mr. Goldberg, Mr. Mr. Bailey, possibly Mr. Bailey’s brother, the Building Superintendents, Mr. and Ms. McNeil, a representative of the third party cleaner, Vazquez Maintenance, and perhaps other tenants of the building. Calling those witnesses at a motion under Rule 20.04(2)(a) would not be an efficient use of the Court’s resources or lead to a timely, affordable or proportionate procedure.

[45] For the same reasons, the need for a trial cannot be avoided by using the new powers under Rules 20.04(2.1) and (2.2). The use of those powers in the present case would be contrary to the interests of justice and would not serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.

COSTS

[46] At the hearing, Zev’s counsel, Ms. Schatzker, who was called to the Bar in 2010, estimated that Zev’s costs of the motion at $10,000.00 on a full indemnity basis, with disbursements of a couple hundred dollars. She estimated its partial indemnity costs at 60% of that amount.

[47] Mr. Gandhi’s counsel, Mr. Majid, who was called to the Bar in 2009, estimated his costs, for six hours preparation at $450.00 per hour and the court attendance, at $13,000.00. He claims his costs on a partial indemnity scale at $250.00 per hour.

[48] I urge counsel to consult the database for the costs endorsements of this Court in other civil cases and to discuss them with each other with a view to resolving the issue of costs of this motion. If they are unable to agree, they shall submit written argument, not to exceed four pages, and a Costs Outline, by December 15, 2018.

CONCLUSION AND ORDER

[49] For the foregoing reasons, it is ordered that:

1. The defendant’s motion for summary judgment is dismissed.
2. If the parties are unable to agree on costs, they shall submit written arguments, not to exceed four pages, and a Costs Outline, by December 15, 2018.

Price J. Released: December 13, 2018

Footnotes

[1]: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at paras. 41-45. [2]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. [3]: Bruno Appliances and Furniture Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126. [4]: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 32. [5]: Hryniak at para. 49. [6]: Hryniak at para. 58. [7]: Hryniak at para. 66. [8]: Ibid. [9]: Hamilton Kilty Hockey Club Inc. v. Ontario (Attorney General), [2003] 64 O.R. (3d) 328 at para. 20.