Court File and Parties
COURT FILE NO.: CV-14-515111-00 DATE: 20190515 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Stephen Feuer Plaintiff – and – Byling Inc. operating as The Queen’s Legs, Jie Chen, Ling Jun Zhang, Qin Yang Inc. operating as the queen’s leg, Xing Yang, Weng Juan Qin, Tridas Co. Ltd. operating as the queen’s leg, Zhiqiangguo, 2320152 Ontario Inc. and John Kit Defendants
Counsel: Jason Frederick Katz for the Plaintiff Nicholas Mester for the Defendant 2320152 Ontario Inc.
HEARD: March 13, 2019.
Decision
O’Brien, J.
[1] This action arises from alleged injuries suffered by the Plaintiff, Stephen Feuer, at the Queen’s Legs Pub in Toronto on November 16, 2012. Another patron, the Defendant, John Kit, allegedly fell on top of him. It is alleged that the Defendant, Kit was visibly intoxicated at the time. The Plaintiff states that he suffered significant injuries including a tibial plateau fracture that required invasive surgery.
[2] The Queen’s Legs Pub was located in the first floor of a property at 286 Eglinton Avenue West (the “Premises”). The second floor was made up of residential apartments. The Defendant, 2320152 Ontario Inc. was the landlord of the Premises, having purchased the property through a Power of Sale approximately eight months before the incident. The ground floor was leased to Qin Yang Inc. and its directors, Jie Chen and Ling Jun Zhang, who operated the pub.
[3] The Defendant, 2320152 Ontario Inc. (the “Defendant”) now brings this motion for Summary Judgment, arguing that it is not an occupier pursuant to the Occupiers’ Liability Act, R.S.O. 1990, c. O.2. (the “Act”). The Defendants operating the pub, Qin Yang Inc., Jie Chen and Ling Jun Zhang, did not have liability insurance. I am advised that the action has been discontinued against all of the Defendants, other than 2320152 Ontario Inc.
[4] In my view, as further detailed below, I am able to decide this issue by way of Summary Judgment. I conclude that the Defendant is not an occupier under the Act, and, therefore, the action is dismissed.
Facts regarding relationship between the Defendant and the Plaintiff
[5] In considering whether the Defendant owner/landlord is an occupier under the Act, it is necessary to assess the entirety of the circumstances. This includes the relationship between the parties during the course of the lease and the lease agreement itself: Musselman v. 875667 Ontario Inc. (Cities Bistro), 2012 ONCA 41, 8 C.L.R. (4th) 163 at para. 9.
[6] In this case, the Defendant had limited involvement with the Premises. At the time the Defendant purchased the Premises, there was a valid lease agreement in place. The Director of the Defendant, Jeff Levy, testified at his Examination for Discovery that, at the time of purchase, he did not attend the leased Premises to see how it was run. Further, he never spoke with Qin Yang Inc. with respect to expectations as to how the pub was going to be run, nor how the tenant was supposed to act. Mr. Levy has sworn that he had no control over the Premises, was not responsible for carrying out any operation on the Premises and had no control over the amount of alcohol served during the course of the tenant’s business on the Premises.
[7] At the time of purchasing the Premises, Mr. Levy also did not know and does not recall asking whether the tenant had liability insurance. He did ask the tenant about insurance and for post-dated cheques shortly before the tenant sold the business (which occurred six weeks following the incident at issue in this case). The first time Mr. Levy or the Defendant received notice of the incident was when the Defendant was served with the Plaintiff’s Statement of Claim issued on October 29, 2014, almost two years following the incident.
[8] On Examination for Discovery, Mr. Levy was asked whether he monitored the Premises to ensure the tenant was compliant with the provision in the lease that said the tenant is not permitted to do anything that would cause a nuisance, cause injury, cause annoyance, etc.. Mr. Levy said that monitoring was being done “to the best of his knowledge.” This was done by “visual inspections from the outside and inside” conducted either by him or his brother, Ben Levy. Ben Levy was not a director of the company, and had no role in the company, but was assisting Mr. Levy. The inspections were done during daytime hours. When asked how often these inspections occurred, Mr. Levy stated that he “didn’t recall,” but later, in answer to undertakings, stated that the landlord had visited the property on several occasions. There were no written logs from these visits.
Terms of lease agreement
[9] The lease agreement between the parties stated that all parties agreed that the lease was a “completely carefree net lease for the landlord.” The specific provisions of the lease agreement relevant to the matter before me are as follows: Section 6 of the lease agreement provided that the tenant was responsible for keeping the Premises in good condition, stating:
REPAIR AND MAINTENANCE (1) The Tenant covenants that during the term of this Lease and any renewal thereof the Tenant shall keep in good condition the Premises including all alterations and additions made thereto, and shall, with or without notice, promptly make all needed repairs and all necessary replacements as would a prudent owner, but the Tenant shall not be liable to effect repairs attributable to reasonable wear and tear, or to damage caused by fire, lightning or storm. (2) The Tenant shall permit the Landlord or a person authorized by the Landlord to enter the Premises to examine the condition thereof and view the state of repair at reasonable times: (a) and if upon such examination repairs are found to be necessary, written notice of the repairs required shall be given to the Tenant by or on behalf of the Landlord and the Tenant shall make the necessary repairs within the time specified in the notice; (b) and if the Tenant refuses or neglects to keep the Premises in good repair the Landlord may, but shall not be obliged to, make any necessary repairs, and shall be permitted to enter the Premises, by himself or his servants or agents, for the purpose of effecting the repairs without being liable to the Tenant for any loss, damage or inconvenience to the Tenant in connection with the Landlord’s entry and repairs; (i) and if the Landlord makes repairs the Tenant shall pay the cost of them immediately as Additional Rent. (3) Upon the expiry of the Term or other determination of this Lease, the Tenant agrees peaceably to surrender the Premises, including any alterations or additions made thereto, to the Landlord in a state of good repair, reasonable wear and tear and damage by fire, lightning and storm only excepted. (4) The Tenant shall immediately give written notice to the Landlord of any substantial damage that occurs to the Premises from any cause.
[10] Section 7 also permitted the tenant to make alterations to the Premises, on certain conditions, at its own expense:
ALTERATIONS AND ADDITIONS (1) If the Tenant, during the Term of this Lease or any renewal thereof, desires to make any alterations or additions to the Premises, including but not limited to: erecting partitions, attaching equipment, and installing necessary furnishings or additional equipment of the Tenant’s business, the Tenant may do so at his own expense, at any time and from time to time, if the following conditions are met: (a) before undertaking any alterations or additions the Tenant shall submit to the Landlord a plan showing the proposed alterations or additions and the Tenant shall not proceed to make any alteration or addition unless the Landlord has approved the plan, and the Landlord shall not unreasonably or arbitrarily withhold his approval; (i) and items included in the plan which are regarded by the Tenant as “Trade Fixtures” shall be designated as such on the plan; (b) any and all alterations or additions to the Premises made by the Tenant must comply with all applicable building code standards and by-laws of the municipality in which the Premises are located. (2) The Tenant shall be responsible for and pay the cost of any alterations, additions, installations or improvements that any governing authority municipal, provincial or otherwise may require to be made in, on or to the Premises. (3) No sign, advertisement or notice shall be inscribed, painted or affixed by the Tenant, or any other person on the Tenant’s behalf, on any part of the inside or outside of the building in which the Premises are located unless the sign, advertisement or notice has been approved in every respect by the Landlord. (4) All alterations and additions to the Premises made by or on behalf of the Tenant, other than the Tenant’s Trade Fixture’s shall immediately become the property of the Landlord without compensation to the Tenant. (5) The Tenant agrees, at his own expense and by whatever means may be necessary, immediately to obtain the release or discharge of any encumbrance that may be registered against the Landlord’s property in connection with any additions or alterations to the Premises made by the Tenant or in connection with any of the activities of the Tenant. (6) If the Tenant has complied with his obligations according to the provisions of this Lease, the Tenant may remove his Trade Fixtures at the end of the Term or other termination of this Lease and the Tenant covenants that he will make good and repair or replace as necessary any damage caused to the Premises by the removal of the Tenant’s Trade Fixture’s. (7) Other than as provided in paragraph 7(6) above, the Tenant shall not, during the Term of this Lease or anytime thereafter, remove from the Premises any Trade Fixtures or other goods and chattels of the Tenant except in the following circumstances: (a) the removal is in the ordinary course of business; (b) the trade Fixture has become unnecessary for the Tenant’s business or is being replaced by a new or similar Trade Fixture; or (c) the Landlord has consented in writing to the removal; but in any case the Tenant shall make good any damage caused to the Premises by the installation or removal of any Trade Fixtures equipment, partitions, furnishings and any other objects whatsoever brought onto the Premises by the Tenant. (8) The Tenant shall, at his own expense, if requested by the Landlord, remove any or all additions or improvements made by the Tenant to the Premises during the Term and shall repair all damage caused by the installation or the removal or both. (9) The Tenant shall not bring onto the Premises any machinery, equipment or any other thing that might in the opinion of the Landlord, by reason of its weight, size or use, damage the Premises or overload the floors of the demised Premises, and if the Premises are damaged or overloaded the Tenant shall restore the Premises. (10) The Tenant shall pay to Landlord forthwith upon request all of Landlord’s reasonable costs including, without limitation, fees of architects, engineers and designers, incurred in dealing with Tenant’s request for Landlord’s consent to any Alterations, whether or not such consent is granted, and in inspecting and supervising any such Alterations, and Landlord shall have the right to require Tenant to pay Landlord a deposit on account of such costs as a precondition to Landlord’s granting such consent.
[11] Section 8 of the lease agreement addressed insurance. It required the tenant to have public liability insurance, in which the policy was required to name the landlord as an insured. It provided:
INSURANCE (1) During the term of this Lease and any renewal thereof the Landlord shall maintain with respect to the Premises, insurance coverage insuring against: (a) loss or damage by fire, lightning, storm or other perils that may cause damage to the Premises or the property of the Landlord in which the Premises are located as are commonly provided for as extended perils coverage or as may be reasonably required and obtained by the Landlord; (i) and the insurance policy shall provide coverage on a replacement cost basis in an amount sufficient to cover the cost of all signs and leasehold improvements; (b) liability for bodily injury or death or property damage sustained by third parties up to such limits as the Landlord in his sole discretion deems advisable; (c) rental income protection insurance with respect to fire and other perils to the extent of one year’s Rent payable under this Lease; (i) but such insurance and any payment of the proceeds thereof to the Landlord shall not relieve the Tenant of its obligations to continue to pay rent during any period of rebuilding replacement, repairing or restoration of the Premises except as provided in Section 9. (2) The Tenant covenants to keep the Landlord indemnified against all claims and demands whatsoever by any person, whether in respect of damage to person or property, arising out of or occasioned by the maintenance, use or occupancy of the Premises or the subletting or assignment of same or any part thereof. And the Tenant further covenants to indemnify the Landlord with respect to any encumbrance on or damage to the Premises occasioned by or arising from the act, default, or negligence of the Tenant, its officers, agents, servants, employees, contractors, customers, invitees or licensees: (a) and the Tenant agrees that the foregoing indemnity shall survive the termination of this Lease notwithstanding any provisions of this Lease to the Contrary. (3) The Tenant shall carry insurance in his own name to provide coverage with respect to the risk of business interruption to an extent sufficient to allow the Tenant to meet his ongoing obligations to the Landlord and to protect the Tenant against loss of revenues. (4) The Tenant shall carry insurance in his own name insuring against the risk of damage to the Tenant’s property within the Premises caused by fire or other perils and the policy shall provide for coverage on a replacement cost basis to protect the Tenant’s stock-in-trade, equipment, Trade Fixtures, decorations and improvements. (5) The Tenant shall carry public liability and property damage insurance in which policy the Landlord shall be a named insured and the policy shall include a cross-liability endorsement; and the Tenant shall provide the Landlord with a copy of the policy.
[12] Section 10 of the lease agreement addressed the landlord’s remedies for acts of default, including failure to maintain insurance as required:
ACTS OF DEFAULT AND LANDLORD’S REMEDIES (1) An Act of Default has occurred when: (a) the Tenant has failed to pay Rent for a period of 15 consecutive days, regardless of whether demand for payment has been made or not; (b) the Tenant has breached his covenants or failed to perform any of his obligations under this Lease; and (i) the Landlord has given notice specifying the nature of the default and the steps required to correct it; and (ii) the Tenant has failed to correct the default as required by the notice; (c) the Tenant has; (i) become bankrupt or insolvent or made an assignment for the benefit of Creditors; (ii) had its property seized or attached in satisfaction of a judgment; (iii) had a receiver appointed; (iv) committed any act or neglected to do anything with the result that a Construction Lien or other encumbrance is registered against the Landlord’s property; (v) without the consent of the Landlord, made or entered into an agreement to make a sale of its assets to which the Bulk Sales Act applies; (vi) taken action if the Tenant is a corporation, with a view to winding up, dissolution or liquidation; (d) any insurance policy is cancelled or not renewed by reason of the use or occupation of the Premises, or by reason of non-payment of premiums; (e) the Premises; (i) become vacant or remain unoccupied for a period of 30 consecutive days; or (ii) are not open for business on more than thirty (30) business days in any twelve (12) month period or on any twelve (12) consecutive business days; (iii) are used by any other person or persons, or for any other purpose than as provided in this Lease without the written consent of the Landlord. (2) When an Act of Default on the part of the Tenant has occurred: (a) the current month’s rent together with the next three months’ rent shall become due and payable immediately; and (b) the Landlord shall have the right to terminate this Lease and to re-enter the Premises and deal with them as he may choose. (3) If, because an Act of Default has occurred, the Landlord exercises his right to terminate this Lease and to re-enter the Premises prior to the end of the Term, the Tenant shall nevertheless be liable for payment of Rent and all other amounts payable by the Tenant in accordance with the provisions in this Lease until the Landlord has re-let the Premises or otherwise dealt with the Premises in such manner that the cessation of payments by the Tenant will not result in loss to the Landlord, and the Tenant agrees to be liable to the Landlord, until the end of the Term of this Lease for payment of any difference between the amount of Rent hereby agreed to be paid for the Term hereby granted and the rent any new tenant pays to the Landlord. (4) The Tenant covenants that notwithstanding any present or future Act of the Legislature of the Province of Ontario, the personal property of the Tenant during the term of this Lease shall not be exempt from levy by distress for Rent in arrear: (a) And the Tenant acknowledges that it is upon the express understanding that there should be no such exemption that this Lease is entered into, and by executing this Lease: (i) the Tenant waives the benefit of any such legislative provisions which might otherwise be available to the Tenant in the absence of this agreement; and (ii) the Tenant agrees that the Landlord may plead this covenant as an estoppel against the Tenant if an action is brought to test the Landlord’s right to levy distress against the Tenant’s property. (5) If, when an Act of Default has occurred, the Landlord chooses not to terminate the Lease and re-enter the Premises, the Landlord shall have the right to take any and all necessary steps to rectify any or all Acts of Default of the Tenant and to charge the costs of such rectification to the Tenant and to recover the costs as Rent. (6) If, when an Act of Default has occurred, the Landlord chooses to waive his right to exercise the remedies available to him under this Lease at law the waiver shall not constitute condonation of the Act of Default, nor shall the waiver be pleaded as an estoppel against the Landlord to prevent his exercising his remedies with respect to a subsequent Act of Default: (a) No covenant, term, or condition of this Lease shall be deemed to have been waived by the Landlord unless the waiver is in writing and signed by the Landlord.
Occupiers’ Liability Act
[13] The question before me is whether it can be determined on this Summary Judgment motion that the Defendant is not an occupier as defined in the Act.
[14] Section 1 of the Act defines “occupier” as follows:
- In this Act, “occupier” includes, a) a person who is in physical possession of premises, or b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises; (“occupant”)
[15] Section 3 describes the duty of care owed by an occupier:
3(1) 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. (2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on, on the premises. (3) The duty of care provided for in subsection (1) applies except in so far as the occupier of the premises is free to and does restrict, modify or exclude the occupier’s duty.
Test on motion for Summary Judgment
[16] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 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.” The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 held at para. 49:
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.
[17] A responding party may not rest solely on the allegations or denials in the party’s pleadings, but “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”: Rule 20.02(2) of the Rules of Civil Procedure. Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried. Generally, a court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, aff’d 2014 ONCA 878 at paras. 26-27.
[18] The court should first determine if there is a genuine issue requiring a trial based only on the evidence in the motion record, without using the fact-finding powers set out in Rule 20.04(2.1) and (2.2) of the Rules of Civil Procedure: Hyrniak at para. 66. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record. Summary Judgment should be granted if there is sufficient evidence to fairly and justly adjudicate the dispute and Summary Judgment would be a timely, affordable and proportionate procedure.
[19] If there appears to be a genuine issue requiring a trial, then the court should use its discretionary power to determine if the need for a trial can be avoided by using the fact-finding powers under Rule 20.04 of the Rules of Civil Procedure.
Application to this case
Defendant not an Occupier
[20] I have concluded that the Defendant in this case does not constitute an “occupier” under the Act.
[21] Ownership by itself does not create occupancy under the Act. “Physical possession” as used in the Act’s definition of “occupier” is not synonymous with ownership but usually involves more – usually a degree of physical presence on the property: MacFadyen (Litigation Guardian of) v. MacFadyen, 2014 ONSC 6589 at para. 23; Tuffnail v. Meekes, 2016 ONSC 710 at paras. 20, 24.
[22] One of the leading cases on this issue is Musselman, supra. Musselman is not dissimilar to the current case in terms of the landlord’s limited involvement with the premises. In that case, the Plaintiff slipped and fell on the stairs leading from the restrooms to the main floor of a restaurant and suffered catastrophic injuries. The outcome of the case turned largely on whether the Defendant owner/landlord was an occupier of the rented premises within the definition of “occupier” in the Act.
[23] The trial judge and Court of Appeal concluded that the owner/landlord was not an occupier, based on an assessment of the entirety of the circumstances. These included that when the tenant restaurant renovated the staircase where the accident occurred, the landlord had “effectively nothing to do with the renovations” and specifically with the construction of the staircase. The evidence was, at best, that the landlord may have “dropped in” to see how the renovations as a whole were going. In addition, following the opening of the restaurant, the landlord dropped in, at most, once a month to pick up the rent cheque: Musselman v. 875667 Ontario Inc., 2010 ONSC 3177, 93 C.L.R. (3d) 58 at para. 183.
[24] In addition, the lease in Musselman was a “completely carefree net lease.” The tenant had complete responsibility for repair and maintenance of the premises. The landlord was responsible for the exterior walls and roof of the building but the tenant was responsible for everything inside the building. The trial judge concluded that, apart from the term of the lease that required the premises to be operated as a restaurant, the landlord had no responsibility for or control over the activities that occurred on the premises or the persons that were allowed to enter the premises: Musselman (ONSC) at para. 186.
[25] Although each case must be determined on the entirety of its own circumstances, I consider the circumstances in the case at bar to be not dissimilar to Musselman in the sense of the landlord’s limited involvement with the premises. Here, I conclude from the evidence that the Defendant had effectively nothing to do with the operation of the pub. Mr. Levy had no discussions with the tenant about the running of the pub and placed no expectations on the tenant in that regard. His unchallenged evidence was that he had no control over how the pub was run nor how much alcohol was served. Mr. Levy was not aware of the incident at issue in this case until almost two years after it had occurred, when the Defendant was served with the Statement of Claim.
[26] In addition, the terms of the lease relied on by the parties in this case are substantively the same as the terms in Musselman. In both cases, the lease was defined by the parties as being a “completely carefree net lease.” In both cases, the tenant was responsible for repair and maintenance of the premises, and in both cases the tenant was responsible for either all (in Musselman) or a proportionate share (in this case) of expenses and charges for the premises, including utilities, property taxes, and insurance premiums. In both cases, the lease provided that the premises were to be used as a restaurant or pub (as a restaurant in Musselman, as a restaurant/pub here).
[27] The Plaintiff has attempted to distinguish the Musselman case on the basis that whereas the landlord in Musselman only “dropped in” to see how renovations were going and to pick up rent cheques, the Defendant in this case conducted actual “inspections” of the premises. I am not convinced from the evidence that the so-called “inspections” in this case were much more than “dropping-in.” Mr. Levy only referenced the inspections when he was asked what was being done to monitor the Premises. The evidence before me does not suggest that any thorough inspection of any kind was being completed. Mr. Levy recalled very little about the inspections, no logs were completed, and Mr. Levy was assisted by his brother, who had no official position with the Defendant. Moreover, in terms of the question of control over activities carried on at the Premises, the inspections occurred during daytime hours. This timing would be unlikely to most accurately capture the type of concerns at issue in this case (that is, serving a patron to the point of visible intoxication), as compared to a nighttime visit. There is no evidence to suggest any real attempt to inspect for the activities taking place on the Premises and Mr. Levy’s uncontradicted evidence is that he had no control over the Premises, nor the amount of alcohol being served.
[28] The Plaintiff argues that the insurance and default provisions of the lease in this case suggest that the Defendant was an occupier. He relies on the fact that the Defendant had, what he called, a “joint responsibility” to maintain adequate bodily injury insurance. I do not agree. First, the insurance provisions relied on in this case are, in substance, the same as those in Musselman. I am told that they are standard in commercial leases. They require the tenant to maintain public liability insurance and to keep the landlord indemnified with respect to any claims. The fact that the lease here included a remedy which allowed the Defendant to, upon default by the tenant (including with respect to failing to maintain insurance), terminate the lease or rectify the default (with charge of any costs to the tenant), does not in my view change the fact that the insurance was the tenant’s responsibility. Moreover, to accept that requiring the tenant to maintain insurance renders the landlord an “occupier” squarely raises the problem identified in the Musselman trial decision: “…the Occupier’s Liability Act would become a ‘Landlord’s Liability Act,’ which was never the intention of the legislature”: Musselman (ONSC) at para. 186.
[29] Prunkl v. Tammy Jean’s Diner Ltd., 2014 ABQB 338, which was relied on by the Plaintiff in support of his argument, does not change my conclusion. There, the lessee was a restaurant that leased the premises from the landlord hotel. The restaurant was located in the hotel. The insurance provisions in the lease in that case were slightly more detailed (requiring, for example, that the tenant immediately forward to the landlord insurance and renewal premiums). More importantly, the insurance requirement took on more significance in the overall circumstances of the case, where the landlord and the tenant had a much closer relationship, given that the tenant was running a business inside the business of the landlord.
[30] In all of the circumstances of this case, the standard insurance provisions in the lease do not change my conclusion that the Defendant did not have “responsibility for and control over the condition of the premises or the activities there carried on,” as provided in the Act.
Summary Judgement is Appropriate
[31] Finally, in my view, there is no genuine issue requiring a trial in this case. The only real point in dispute between the parties is the relationship of the Defendant to the tenant and the Premises. There is no contested evidence on this point and no issue of credibility. Indeed, the Plaintiff relies on the evidence of Jeff Levy, as set out in the transcript of his Examination for Discovery. In addition, the Plaintiff had the opportunity to cross-examine Jeff Levy, who swore an affidavit on this motion, but chose not to do so. Although the Plaintiff now says that, at trial, he would subpoena Ben Levy, he obtained Ben Levy’s contact information in response to an undertaking at Jeff Levy’s Examination for Discovery but did not seek to obtain that evidence for this motion. Again, Ben Levy did not hold an official position with the Defendant and was only assisting his brother. The Plaintiff has not suggested any other source of information he would seek for trial. As set out above, the Plaintiff had a responsibility to put his best foot forward on this motion. If he had thought there was further detailed evidence to put forward about the relationship between the Defendant and the tenant, he could have sought to put it forward, but did not.
[32] I am mindful that this is a very unfortunate conclusion for the Plaintiff in this case. Shortly after the incident, the tenant sold all of its assets and left town. Without a claim against the Defendant, the Plaintiff will have no further opportunity to seek compensation for his injuries. Still, the tenant’s poor conduct does not visit liability on the Defendant.
Costs
[33] I encourage the parties to settle the costs of this motion. If they are unable to do so, the Defendant may provide written costs submissions within 30 days of the date of this decision, consisting of no more than three pages, not including the costs outline and any attachments. The Plaintiff then will have 15 days to provide responding submissions with the same limitations. The costs submissions can be emailed to my judicial assistant, Anna Maria Tiberio, at annamaria.tiberio@ontario.ca.