Overview

[1] The Defendants bring this motion for Summary Judgment dismissing the Plaintiff’s action.

[2] This action arises out of a trip and fall accident which occurred on June 10, 2013, in the weight room at Variety Village, located at 3701 Danforth Avenue, Toronto. The Plaintiff, Patrick Layne, was walking through the weight room when he tripped over a black cord which was attached to a weight machine at one end and a wheelchair at the other. The Defendants argue that there is no genuine issue requiring a trial to determine the issue of liability. The Plaintiff argues that this is not an appropriate case for Summary Judgment because there are genuine issues for trial and therefore the motion should be dismissed.

The Facts

[3] Mr. Layne attended at Variety Village on June 10, 2013. He was familiar with the facility having attended several times before. When he arrived, he went to reception where he signed in.

[4] According to the Defendants, the sign-in sheet included a consent and waiver which provides that the undersigned “release and waive and forever discharge” the Defendants. The sign-in sheet was made Exhibit 1 on the Plaintiff’s Examination for Discovery. The consent and waiver was made Exhibit 2 on the Plaintiff’s Discovery. It is not clear from the evidence as to how the two documents are attached. The documents are found on two separate pages in the material. (Tab 11 of the Plaintiff’s Book of Authorities).

[5] Mr. Layne, in his affidavit, deposed that he was provided with a sign-in sheet, but that there was no consent and waiver, which formed part of the sign-in sheet. He testified on his Examination for Discovery that he had never seen the consent and waiver before (Q130). There is no evidence before me that the consent and waiver was specifically brought to the attention of the Plaintiff.

[6] The Plaintiff entered the weight room area. He was accompanied by his friend, Howard Powell, who was also at Variety Village to work out.

[7] The Plaintiff and Mr. Powell both deposed that as they entered the weight room they passed a Variety Village employee, Frank Quinn, who was positioned near the entrance to the weight room. Katie Watkins, was the Fieldhouse Coordinator with Variety Village at the time of the accident. In her affidavit, at paragraph 13, she deposed that Mr. Quinn was the only employee working in the weight room at the time of the accident.

[8] The location of Mr. Quinn is in dispute. According to Katie Watkins, Mr. Quinn was assisting one of the wheelchair athletes on the pulley machine. In her affidavit (at paragraph 12) she admits that she did not witness the accident and is unaware as to whether she was working on the day of the accident.

[9] The Plaintiff, in his affidavit, deposed that as he entered the gym area, he observed at least two disabled athletes in wheelchairs to the left side of a pulley machine. The Plaintiff walked between the machine and the wheelchairs. As he walked between the wheelchairs and the machine, he tripped over a black cable. The black cable was stretched between the machine and the wheelchairs. The cable was located a few inches above the level of the floor. The floor is black.

[10] According to Mr. Layne, the disabled athletes in the wheelchairs were unattended and it did not appear that they were engaged in any particular activity. This is another area of dispute. Katie Watkins, in her affidavit at paragraph 15, deposed that at the time of the accident, Mr. Quinn was assisting a member in a wheelchair. In her affidavit she does not set out the source of this information. As stated above, Ms. Watkins did not witness the accident and did not know whether she was working on the day of the accident.

[11] The Plaintiff, in his affidavit deposed that there was a space of several feet between the machine and the wheelchairs. Although Mr. Layne observed the wheelchairs in the area of the machine, Mr. Layne deposed that there was nothing the disabled athletes were doing that made him notice the cable running between the wheelchair and the machine.

[12] Mr. Powell, in his affidavit, deposed that he entered the gym with Mr. Layne. As they entered the gym, he saw two disabled athletes to the left side of the pulley machine. They were blocking the path to the rest of the gym. There was also an athlete to the right of the machine. Mr. Powell deposed that the space between the machine and the wheelchairs was several feet. As Mr. Layne was walking between the machines and the wheelchair, he tripped on a black cable.

The Law

[13] Rule 20.04(2)(a) 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.”

[14] There will be no genuine issue requiring a trial if the motions court judge is able to reach a fair and just determination on the merits. 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).

[15] On the motion for Summary Judgment, the Court must first determine whether there is a genuine issue requiring trial based on the evidence before the Court. If there appears to be a genuine issue, for trial the Court should then determine if the need for a trial can be avoided by using the new powers under the Rules. The use of the new fact finding powers is discretionary and may be exercised unless it is in the interests of justice for them to be exercised only at trial.

[16] The Supreme Court in Hryniak recognized that some cases will require a trial to allow for a just and fair determination of the issue in dispute. The Supreme Court, at paragraphs 50 and 51, stated as follows:

These principles are inter-connected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in the conclusion can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the proceeding is as exhaustive as a trial, but whether it gives a judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
Often concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself. However, there may be cases where given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact or apply the legal principles to reach a just and fair determination.

[17] I find that in this case, the documentary record is not sufficient to resolve the material issues fairly and justly. I also decline to exercise my discretion to use the expanded fact-finding powers in Rules 20.04(2.1) and (2.2).

Analysis

[18] I find that based on the record before me, there is conflicting, or a lack of evidence, which prevents me from making the necessary findings of fact to determine the issue of liability. I note the following factual issues which cannot be resolved based on the documentary record:

(a) Where was Mr. Quinn at the time of the fall?

(b) Where were the athletes in wheelchairs at the time of the fall?

(d) What was the distance between the athletes in wheelchairs and the weight machine?

(e) Was the black cable stretched between the machine and the wheelchairs?

(f) Was the black cable visible against the black floor?

(g) Were there any signs to direct persons around the equipment?

(h) Was there a safe and clear path for the Plaintiff to access the gym?

(i) Were the machines safely positioned in the gym?

(j) Did the waiver form part of the sign-in sheet?

(k) Was the waiver brought to the attention of the Plaintiff?

[19] In the circumstances, I find that the Defendant has not met the evidentiary burden of establishing that there is no genuine issue of material fact requiring a trial. There are simply too many factual issues in dispute, many of which involve credibility issues, to conclude that a just and fair result could be achieved on a motion. I therefore find that the Defendant has failed to satisfy its burden to prove that there is no genuine issue for trial.

[20] I decline to exercise my discretion to apply the expanded fact-finding powers. As stated in Hryniak, the judge may, in his or her discretion, use the new powers, “provided that their use is not against the interest of justice.” In this case, with so many factual issues in dispute, I conclude that it would not be more expeditious, affordable or proportional to use the additional powers to resolve the issues. Such a process will not be more timely or less expensive than a trial.

[21] In any event, I am of the view that based on the evidence put forward on the motion, it cannot be said that the Plaintiff’s claim is without merit.

[22] I therefore dismiss the Defendants’ motion for Summary Judgment.

Costs

[23] Counsel for the Plaintiff advised that on January 28, 2019, before any factum was exchanged, the Plaintiff offered to agree to a dismissal of the motion on a without costs basis. The Defendant did not reply. The offer was open for acceptance, until 5 p.m. on February 1, 2019 and therefore this does not qualify as a Rule 49 offer. In exercising my discretion, pursuant to Rule 57.03, I take into account the fact that the Plaintiff made an offer to settle the motion at an early stage.

[24] I award costs to the Plaintiff fixed in the amount of $15,000.00 inclusive of counsel fee, HST and disbursements. The costs are payable within 30 days of the date of this Order.

Chalmers, J.

Date: March 29, 2019

Layne v. Variety Village, 2019 ONSC 2018

Case Summary

Overview

The Facts

The Law

Analysis

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues