Court File and Parties

COURT FILE NO.: CV-16-547075

DATE: 2019-11-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shirley Vecchiarelli and Giovanni Vecchiarelli, Plaintiffs

AND:

City of Toronto, Toronto Transit Commission and Pave-Tar Construction Limited, Defendants

BEFORE: Pollak J.

COUNSEL: Joel P. McCoy & Joseph Baldanza, for the Plaintiffs Stephen Libin, for the Defendant Pave-Tar Sarah Merredew, for the Defendant TTC George Wray, for the Defendant City of Toronto

HEARD: August 13, 2019

ENDORSEMENT

[1] In this Action the Plaintiff, Ms. Vecchiarelli, claims she was injured when she fell on “a large accumulation of ice concealed by snow” on a municipal sidewalk on February 24, 2014. The statement of claim was issued against the City of Toronto and the Toronto Transit Commission on February 19, 2016. The Plaintiff, Giovanni Vecchiarelli, is the son of Ms. Vecchiarelli who has a derivative claim under the Family Law Act.

[2] On October 17, 2016 the plaintiffs on an unopposed motion, obtained leave to amend the Statement of Claim to add Pave-Tar Construction Limited as a defendant to this action. The Statement of Claim was amended on October 25, 2016.

[3] Pave-Tar brings a motion for partial summary judgment to dismiss the claims against it.

[4] Pave-Tar’s defence is that “the claim is statue barred because it was issued more than two years after Ms. Vecchiarelli discovered or ought to have discovered her claim against it.” The Defendant, Toronto Transit Commission (“TTC”), also brings a motion for partial summary judgment dismissing the claims as against it, on the basis that it as owner and operator of the bus, did not owe the Plaintiff a duty of care and that it is not an owner or occupier of the municipal sidewalk where she fell. TTC’s defence is that the bus operator stopped the bus in correct position at the bus stop. The Plaintiff exited the bus and slipped on ice concealed by snow on the municipal sidewalk. There is nothing that could have prevented the Plaintiff’s fall. The Plaintiff’s evidence is that she fell on black or greyish ice underneath a fresh, light covering of snow that she did not see. As such conditions are normal in Toronto in February, it is unreasonable to find that there is a duty on the bus operator to notify Transit Control or passengers of potential snow and ice at bus stops.

[5] The City of Toronto does not move for summary judgment and has brought crossclaims against the moving defendant TTC and the moving defendant Pave-Tar for:

(a) Contribution and indemnity in respect of any successful claim in the action;

(b) Its costs of defending the main action and of its crossclaim;

[6] At paragraph 24 of its crossclaim against the TTC and Pave-Tar, the City of Toronto pleads that:

The City has denied the allegations made as against it in its Statement of Defence. In the event that the Plaintiffs’ claim succeeds in any fashion as against the City, then the City claims contribution and indemnity as against the co-defendants, Toronto Transit Commission and Pave-Tar.

[7] Further, the City pleads as follows against Pave-Tar and TTC:

(a) “The City pleads and relies upon the allegations of negligence set out in the Plaintiffs’ Amended Statement of Claim as against the co-defendants Toronto Transit Commission and Pave-Tar that do not involve any allegations of negligence as against the City, as if they were set out herein, in this, its crossclaim;

(b) The City further pleads and relies upon the provisions of the Negligence Act, R.S.O. 1990 c. N.1, as amended, in claiming contribution and indemnity from the co-defendants, Toronto Transit Commission and Pave-Tar;

(c) The City further pleads and relies upon the provisions and terms of Contract No. 6032-08-0197 (the “Contract”);

(d) The City pleads that pursuant to the provisions of the Contract, Pave-Tar agreed to indemnify and hold the City harmless in respect of any and all claims arising in relation to performance of the Contract, such as the claim brought by the plaintiffs herein;

(e) The City further pleads that pursuant to the provisions of the Contract, Pave-Tar was obliged to obtain and place general liability insurance including the City as an additional insured in respect of any and all claims as the claim brought by the Plaintiffs herein;

(f) The City pleads therefore that it is entitled to be reimbursed by Pave-Tar for the entirety of its defence costs in respect of the plaintiffs’ claims; and

(g) The City pleads that the crossclaim ought to be heard at the same time and place as the trial of the main action.”

[8] Counsel for the City has advised that there are no instructions to undertake to withdraw its crossclaims, if this court were to allow either the motion of TTC to dismiss the plaintiffs’ claims against it and/or the motion to dismiss the plaintiffs’ claim against Pave-Tar. Regardless of the outcome of these motions, the action will proceed to trial against the defendant City and the City’s crossclaim against these defendants will also proceed.

[9] In Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.R. 87, the Supreme Court of Canada provided a roadmap to follow on a summary judgment motion. At para. 66, the court states:

"On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).

If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers 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. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness…”

[10] The Supreme Court of Canada in Hryniak attempted to create a procedure designed to be expeditious and affordable. However, the process must also ensure that the dispute is resolved fairly and justly.

[11] The Ontario Court of Appeal stated in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at paras. 35 and 37, that the advisability of a staged summary judgment process must be assessed in the context of the litigation as a whole. The Court noted that in a staged summary judgment process there was a risk that a trial judge would develop a fuller appreciation of the relationships and the transactional context than the motion judge. This difference in appreciation could lead to a trial decision that would be implicitly inconsistent with the motion judge's finding, even though the parties would be bound by the motion judge’s finding. This difference in appreciation could lead to inconsistent findings and substantive injustice. At paras. 44-45 the court stated:

“…Evidence by affidavit, prepared by a party's legal counsel, which may include voluminous exhibits, can obscure the affiant's authentic voice. This makes the motion judge's task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.

Judges are aware that the process of preparing summary judgment motion materials and cross-examinations, with or without a mini-trial, will not necessarily provide savings over an ordinary discovery and trial process, and might not "serve the goals of timeliness, affordability and proportionality" (Hryniak at para. 66). Lawyer time is expensive, whether it is spent in court or in lengthy and nuanced drafting sessions. I note that sometimes, as in this case, it will simply not be possible to salvage something dispositive from an expensive and time-consuming, but eventually abortive, summary judgment process. That is the risk, and is consequently the difficult nettle that motion judges must be prepared to grasp, if the summary judgment process is to operate fairly.”

[12] The Ontario Court of Appeal considered the appropriateness of motions for summary judgment that will determine some of the issues, but will not dispose of the action as a whole. The Ontario Court of Appeal reviewed the problems associated with partial summary judgment motions.

[13] In particular, the partial summary judgment motions tend to defeat the stated objectives of proportionality, timeliness, and affordability set out in the Hryniak case.

[14] The Court of Appeal held in Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34, that a partial summary judgment motion should be considered a “rare procedure” that is reserved for issues that can be easily bifurcated from the main action and that can be dealt with expeditiously and in a cost-effective manner.

[15] The Court, at paras. 26-34, reasoned that this approach is entirely consistent with the Supreme Court’s comments in Hryniak:

“[26] The pre-Hryniak appellate jurisprudence on partial summary judgment limited its availability. At para. 3 of Corchis v. KPMG Peat Marwick Thorne, 2002 CanLII 41811 (ON CA), [2002] O.J. No. 1437 (C.A.), this court applied Gold Chance International Ltd. V. Daigle & Hancock, [2001] O.J. No. 1032 (S.C.J.) to state that:

[P]atrial summary judgment ought only to be granted in the celarest of cases where the issue on which judgment is sought is clearly severable from the balance of the case. If this principle is not followed, there is a very real possibility of a trial result that is inconsistent with the result of the summary judgment motion on essentially the same claim.

[27] Since Hryniak, this court has considered partial summary judgment in Baywood homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 and in Canadian Imperail Bank of commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3D) 561. Baywood was decided in the context of a motion for summary judgment on all claims, but where only partial summary judgment was granted. CIBC involved a motion for partial summary judgment.

[28] In both Baywood and CIBC, the court analyzed the issue from the perspective of whether (i) there was a risk of duplicative or inconsistent findings at trial and whether (ii) granting partial summary judgment was advisable in the context of the litigation as a whole. In both cases, the court held that partial summary judgment was inadvisable in the circumstances.

[29] The caution expressed pre-Hryniak in Corchis is equally applicable in the post-Hryniak world. In addition to the danger of duplicative or inconsistent findings considered in Baywood and CIBC, partial summary judgment raises further problems that are anathema to the stated objectives in Hryniak.

[30] First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of a motion for partial summary judgment. A delay tactic, dressed as a request for partial summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the actions and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is always the possibility of an appeal.

[31] Second, a motion for partial summary judgment may be very expensive. The provision for a presumptive cost award for an unsuccessful summary judgment motion that existed under the former summary judgment rule has been repealed, thereby removing a disincentive for bringing partial summary judgment motions.

[32] Third, judges, who already face a significant responsibility addressing the increase in summary judgment motions that have flowed since Hryniak, are required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action.

[33] Fourth, the record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial therefore increasing the danger of inconsistent findings.

[34] When bringing a motion for partial summary judgment, the motion be dealt with expeditiously and in a cost effective manner. Such an approach is consistent with the objectives described by the Supreme Court in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits.” [emphasis added]

Pave-Tar’s Motion

Are there genuine issues requiring a trial?

[16] The Plaintiff alleges she fell on February 23, 2014.

[17] On May 1, 2015, the adjuster advised counsel for the Plaintiffs that the City denied liability. The adjuster or the City did not advise counsel at any time during the City’s investigation of their claims that a contractor was involved in the maintenance of the sidewalk that the plaintiff fell on.

[18] This action was commenced against the City on February 19, 2016. The City defended, and the parties completed examinations for discovery in January 2018.

[19] On July 29, 2016, the Plaintiffs’ lawyer was told that the City had contracted winter maintenance of the sidewalk to Pave-Tar. The Plaintiff obtained leave to add Pave-Tar as a Defendant on October 17, 2018 and the parties’ examinations for discovery were completed in January of 2018.

[20] Pave-Tar submits that the plaintiffs’ action ought to be dismissed as having been commenced after the expiration of the limitation period.

[21] The parties agree that:

• The basic limitation period is two years from the date upon which the claim is discovered.
• The plaintiff is presumed to have discovered the claim on the date of the incident unless the contrary is proven.
• The onus is on the plaintiff to satisfy the court that a claim was discovered some time other than the date of the incident.
• If the plaintiff can rebut the presumption, then the court must consider when a reasonable person with the plaintiff’s abilities first ought to have discovered the claim.

[22] Pave-Tar’s position is that a reasonable person ought to have discovered the potential involvement of Pave-Tar more than two years before the statement of claim was amended to add Pave-Tar as a defendant on October 25, 2016. Ms. Vecchiarelli did not act with due diligence in investigating the potential involvement of a winter maintenance contractor. Pave-Tar’s argument is that our Courts have held that: “Due diligence is not about information arriving on one’s doorstep – it is about actively taking steps outside the door.”

[23] The plaintiffs submit that there are three issues for the court to consider:

(a) Whether questioning the City in April 2014 about the involvement of a contractor would have caused them to discover their claim against Pave-Tar in April 2014;

(b) Whether a reasonable person in the circumstances and with the abilities of the plaintiffs would have questioned the City about the involvement of a contractor in the Claim Letter; and

(c) Whether a proceeding against Pave-Tar first became an appropriate remedy for plaintiffs’ loss when the City denied liability for their injuries.

[24] Pave-Tar relies on s. 5(1)(b) of the Act to argue that the plaintiffs ought to have discovered their claim earlier. It submits that a reasonable person with their abilities and in their circumstances would have asked the City about the involvement of a contractor in April of 2014, and this would have resulted in discovery of the claim that month. However, the Plaintiffs argue that there is no evidence that the question, if asked, would have resulted in discovery in April 2014, or at any time before the plaintiffs subjectively discovered their claim.

[25] The plaintiffs' argument is that it would not have been reasonable for their lawyer to ask the City if it used a contractor in the Claim Letter dated April 17, 2014.

[26] Pave-Tar has filed the affidavit of the law clerk to counsel for Pave-Tar, Kyle Hamilton. Such evidence does not address:

a) whether the City would have responded to the plaintiffs' question;

b) if the City had responded, when would it have done so; and,

c) what the response would have been.

[27] There is no evidence that had the plaintiffs asked the question about a city contractor in her Claim Letter of April 17, 2014, the City would have answered by advising of Pave-Tar's involvement within nine business days, (the end of April 2014). Rather, the only evidence before the Court is that the City took about twelve months from the date of the Claim Letter to advise the Plaintiffs that it was not liable and an additional 15 months to advise the Plaintiffs of Pave-Tar's involvement, for a total of 27 months after the date of the Claim Letter and not 9 business days. I find that the lack of such evidence raises a genuine issue for trial. Applying the guidance set out by the Supreme Court of Canada in the Hryniak case, I must dismiss Pave-Tar’s motion on this basis.

The TTC’s Motion

[28] As the City of Toronto is not moving for summary judgment, all of the issues and defenses raised by the City of Toronto will be the subject of a trial. If this court were to dismiss the plaintiff’s claims against TTC and Pave-Tar, the City of Toronto would be permitted to introduce evidence to support its crossclaims, which would include the same evidence that this court must consider and rule on these motions for partial summary judgment. Not only is there a risk of inconsistent findings, there is also no evidence that the granting of these partial summary judgments would fulfill any of the goals set out by the Supreme Court of Canada in the Hryniak case. There is no evidence of any time or cost saving to the parties. To the contrary, the same type of evidence that would be called and considered at the trial is the same evidence that must be considered on these motions for partial summary judgment.

[29] I find that the concerns raised by our Court of Appeal which I have referenced above are applicable on these motions. The facts of this case are too intertwined and interrelated. The Court is of the view that it is not possible to segregate and isolate the issues as the court is being urged to do so by the two moving parties. I am of the opinion that the moving parties have not satisfied their burden of proving that their partial motions for summary judgment are appropriate in the circumstances of this case. They are therefore dismissed.

[30] There is one further practical issue. The Supreme Court of Canada in Hryniak also held, at para. 78, that:

Where a motion judge dismisses a motion for summary judgment, in the absence of compelling reasons to the contrary, she should also seize herself of the matter as the trial judge.

[31] In my view, this is an appropriate case for me to follow the Supreme Court’s direction. I must, however, qualify this to be subject to the practical reality of our court’s ability to schedule trials in a timely and expeditious manner. I will not be seized of this trial if the effect of my unavailability would be to delay the hearing of the trial between the parties. If it is possible to do so without adverse delay or consequences to the parties, I seize myself of the trial of this matter as directed in Hryniak.

Costs

[32] The parties have reached an agreement on costs to be awarded on a partial indemnity basis to the successful party on these motions at the hearing of this matter. The successful party, the Plaintiffs, are therefore awarded costs on a partial indemnity basis equal to $8,500 in accordance with the agreement of the parties.

[33] Should the Plaintiff’s wish to make submissions that costs on a higher scale should be awarded, written submissions may be made as follows:

Plaintiff’s submissions no more than 3 pages in length by 12 p.m. on November 22, 2019 and Defendant’s responding submissions no more than 3 pages in length by 12 p.m. on December 2, 2019.

Pollak J.

Date: November 13, 2019