Court File and Parties

COURT FILE NO.: CV-260/15 (Guelph) DATE: 2020 02 24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

STEVEN NADEAU and CAROLYN NADEAU Plaintiffs

Jeffrey Shinehoft, for the Plaintiffs

– and –

CBRE LIMITED, SP PLUS CORPORATION CANADA, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE MINISTER OF GOVERNMENT SERVICES, and JOHN DOES INC. WINSER DOORS INC., WILCOX DOOR SERVICE INC., HAWS DOORS & HARDWARE LTD. and HAWS OVERHEAD DOORS LTD.

Nicholas Mester for the Defendants CBRE Limited and her Majesty the Queen in Right of Ontario; Alexander Paul for the Defendant SP Plus Corporation Canada; Andrew L. Keesmaat for the Defendant Wilcox Door Service Inc.; and Michael Prosia for the Defendants Haws Doors & Hardware Ltd. and Haws Overhead Doors Ltd.

HEARD: October 21, 2019 at Guelph

REASONS FOR DECISION

Emery J.

[1] The plaintiff Steven Nadeau claims he was injured on September 29, 2014, in the underground garage of a building owned by the Ontario government at 1 Stone Road West in Guelph, when an automatic garage door closed too quickly. Mr. Nadeau alleges the descending door struck him as he was attempting to exit the garage on his motorcycle, causing him pain, suffering and other loss.

The Parties

[2] Mr. Nadeau commenced this action for damages and for relief under the Family Law Act, R.S.O. 1990, c. F.3, on behalf of his wife, the plaintiff Carolyn Nadeau, against the following defendants:

1. Her Majesty the Queen in the Right of the Province of Ontario, as represented by the Minister of Government Services (“Ontario”), as the owner of the building;

2. CBRE Limited (“CBRE”), the property manager hired by Ontario to manage the building;

3. Wilcox Door Services Inc. (“Wilcox”), the company responsible at all material times for the installation of the garage door in 2010;

4. SP Plus Corporation (“SP Plus”), the company responsible for the management of the garage on the date of loss; and

5. Haws Doors & Hardware Ltd. and Haws Overhead Doors Ltd. (collectively, “Haws”), the servicing contractor responsible in 2014 for the repairs and maintenance of the garage door, when required by CBRE.

[3] The plaintiffs initially joined Winser Doors Inc. as a defendant, alleging that the company was responsible for the installation, repairs and maintenance of the garage doors. Winser Doors Inc. inspected the garage doors after the accident, but had no prior involvement. The plaintiffs have therefore let Winser Doors Inc. out of the action.

[4] The parties have completed all pleadings, exchanged disclosure and conducted examinations for discovery. Counsel for Ontario/CBRE and the plaintiffs have exchanged expert reports. Wilcox, SP Plus and Haws now bring motions for summary judgment to have the action dismissed as against each of them. The respective defendants take the position on their respective motions that they have no liability to the plaintiffs because that defendant owed no duty of care to the plaintiffs, and if it did, there is no evidence it fell below the expected standard of care.

Context

[5] The plaintiffs bring this action in negligence, claiming that each of the defendants named in the statement of claim breached the duty of care that defendant owed to them. The plaintiffs allege that the negligence of each defendant has caused or contributed to the damages claimed.

[6] Ontario, as the owner of the building, and CBRE, as the property manager under contract with Ontario, are represented by the same law firm. They have put forward a joint defence. Ontario and CBRE have also made a cross-claim over and against each of the remaining defendants.

[7] CBRE was the property management company for the building at all material times. CBRE was therefore the property manager on the date the garage door was installed, as well the property manager on the date of loss.

[8] Wilcox entered a contract with CBRE to install the garage door in May 2010. Wilcox installed the garage door pursuant to this contract in or around August 2010.

[9] According to the evidence, SP Plus was contracted by CBRE in November 2011 to provide management over parking facilities at the building. CBRE had contracted with another garage management company, UniPark Management, to provide management services at the time the garage doors were installed in 2010.

[10] Haws was subsequently contracted by CBRE to perform the preventative maintenance on the garage doors from time to time.

Position of the parties

[11] Each of the moving defendants have brought their respective motions, arguing there is no genuine issue requiring at trial to dismiss the plaintiffs’ claim as against that defendant. Each moving defendant argues that summary judgment procedure is a fair process by which to make this determination. Each of those defendants submits that the evidentiary record is sufficient for the court to adjudicate the fundamental issue: whether that particular defendant owed a duty of care to the plaintiffs.

[12] The plaintiffs oppose the motions brought by Wilcox and Haws on two grounds. The plaintiffs maintain, consistent with their burden to prove the case, that those defendants owed them a duty of care, and it is that duty of care that the defendants in turn have breached to cause them damages. The plaintiffs also submit that, even if this court finds a defendant did not owe them a duty of care, the motion of that defendant should not be granted as it would amount to partial summary judgment in view of the interconnected cross-claims.

[13] The plaintiffs take no position on the motion that SP Plus has brought.

[14] CBRE and Ontario oppose each of the motions. They have not brought their own motion for summary judgment to dismiss the action as against them. They oppose the motions brought by the moving defendants primarily on the ground that to dismiss the action as against one or more of the moving defendants would amount to partial summary judgment because CBRE and Ontario would remain in the action. They argue that a dismissal of the claim against any one defendant would run contrary to appellate authority that cautions against granting partial summary judgment except in rare cases.

[15] Each of the moving parties do not oppose the motions the others have brought to dismiss the action, despite having made cross-claims against each other. I understand that position to include no opposition by any of those parties to the dismissal of the cross-claim one moving party has made against any other moving party should the court dismiss the plaintiffs’ claims against that party.

Applicable principles

On Summary Judgment

[16] The motions for summary judgment before the court seek a finding that there is no genuine issue requiring a trial to determine whether the moving defendant owed no duty of care to the plaintiffs on the date of loss.

[17] Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 expressly mandates that the court shall dismiss an action in respect of a claim (or defence) if there is no genuine issue requiring a trial. The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, explained that the summary judgment process would be fair and proportionate where it provides the evidence required for the motions judge to make the necessary findings of fact on which to apply the law, and to make a just determination of that claim on its merits.

[18] Cases following Hryniak have refined the evidentiary requirements expected from parties on a motion for summary judgment. Each of the parties is expected to put their best foot forward. The parties are presumed to put all evidence before the court that would be available at trial. While the onus is on the moving party to show there is no genuine issue requiring a trial, having done so the responding party must lead evidence that there is a triable issue.

Duty of care

[19] In Canada, a plaintiff must demonstrate that a named defendant owed them a duty of care to make a claim in negligence. The burden is on the plaintiff to prove the twin elements of reasonable foreseeability of harm, and of proximity, with respect to one or more defendants to establish a duty of care. The two-stage duty of care analysis that emerged from the House of Lords in the decision Anns v. Merton London Borough Council (1977), [1978] A.C. 728, was later restated and confirmed as the law of the land by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79.

[20] The Supreme Court revisited the principle of reasonable foreseeability of harm in Rankin (Rankin’s Garage and Sales) v. J.J., 2018 SCC 19. An inquiry into reasonable foreseeability of harm requires the court to determine whether there was a reason for a given defendant to contemplate that his, her or its conduct could result in the claim advanced by the plaintiff. The court in Rankin’s Garage framed the proper question for the court to answer to be this: “whether the plaintiff has offered facts to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged”: Rankin’s Garage, at para. 24.

[21] The second stage of the inquiry into whether a defendant has a prima facie duty of care requires that proximity also be established. The element of proximity was most recently discussed by the Supreme Court in Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63. In Livent, at para. 25, the court framed the question to answer as being “whether the parties are in such a ‘close and direct’ relationship that it would be ‘just and fair having regard to that relationship to impose a duty of care in law’”.

[22] To answer this question, the courts are called upon to examine all relevant factors arising from the relationship between the plaintiff and the particular defendant. These factors include an examination of the “expectations, representations, reliance, and the property or other interests involved” as between those parties: Rankin’s Garage, at para. 23; Livent, at para. 29.

[23] The elements of reasonable forseeablility of harm and proximity that provide the structure for the two-stage analysis to determine whether a defendant owes a prima facie duty of care to a plaintiff were discussed by Brown J.A. in Bonello v. Gores Landing Marina (1986) Limited, 2019 ONCA 127. In Bonello, the court referred to the earlier decision of Garratt v. Orillia Power Distribution Corporation, 2008 ONCA 422, 90 O.R. (3d) 161, as authority to find that the possiblity of resulting harm is inadequate to make a finding of forseeability in the duty of care calculus. Quoting from Garratt and from Rankin’s Garage, Brown J.A. explained:

[38] Here, the motion judge’s analysis focused on whether the appellants had demonstrated the reasonable foreseeability of the harm suffered by Mr. Bonello. The motion judge relied upon the decision in Garratt v. Orillia Power Distribution Corporation, 2008 ONCA 422, 90 O.R. (3d) 161, where this court stated, at para. 48:

Foreseeability of the possibility of resultant harm is inadequate to establish a duty of care. We do not expect omniscience, prescience or clairvoyance, or impose a duty of care on all who fall short of any such standard. Foreseeability of the probability of resultant harm involves the likelihood that such harm will result from the alleged wrongdoer's conduct. Said in different words, a duty of care is established only where what happened was a natural and probable result of what the alleged wrongdoer did or failed to do.

[39] This principle was echoed by the Supreme Court in Rankin’s Garage where the majority stated, at para. 46: “The fact that something is possible does not mean that it is reasonably foreseeable. Obviously, any harm that has occurred was by definition possible. Thus, for harm to be reasonably foreseeable, a higher threshold than mere possibility must be met”.

[24] The question whether any defendant owed a duty of care to the plaintiffs relates to the liability question in each of the motions before this court. As Karakatsanis J. wrote for the majority in Rankin’s Garage:

[66] Under tort law, liability is only imposed when a defendant breaches a duty of care. The Anns / Cooper test ensures that a duty of care will only be recognized when it is fair and just to do so. As such, it is necessary to approach each step in the test with analytical rigour. While common sense can play a useful role in assessing reasonable foreseeability, it is not enough, on its own, to ground the recognition of a new duty of care in this case. Aside from evidence that could establish a risk of theft in general, there was nothing else to connect the risk of theft of the car to the risk of someone being physically injured. For example, Rankin’s Garage had been in operation for many years and no evidence was presented to suggest that there was ever a risk of theft by minors at any point in its history.

[25] In Rankin’s Garage, the court held that once a plaintiff has demonstrated a prima facia duty of care is owed by a defendant, the evidentiary burden shifts to that defendant to satisfy the court that there are residual policy reasons why the duty of care should not be recognized. This policy based aspect of the duty of care analysis does not apply on these motions.

Partial Summary Judgment

[26] The Court of Appeal for Ontario directed motions court judges to take a cautious approach to granting partial summary judgment in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, and again in Butera v. Chown, Cairns LLP, 2017 ONCA 783.

[27] In Butera, the Court reviewed its decisions in Baywood and in Canadian Imperial Bank of Commerce v. Deloitte and Touch, 2016 ONCA 922, 133 O.R. (3d) 561, with respect to the potential risk of duplicative or inconsistent findings at trial if partial summary judgment was granted, and whether granting partial summary judgment is advisable in the context of the litigation as a whole. In each of those cases, the court held that it was inadvisable to grant partial summary judgment.

[28] The Court of Appeal has expressed concern that partial summary judgment raises problems like these are often contrary to the stated objectives underlining the applicability of summary judgment in Hryniak. I take this to mean those objectives that encourage summary judgment as a fair and just process to have a claim or defence adjudicated on the merits must be compared to the fact finding process involving all parties at a conventional trial. The Court in Butera distilled its concern down to the following terms:

1. Such motions may cause delay to a resolution of the main action;
2. A motion for partial summary judgment may be very expensive;
3. Judges would be required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action entirely; and
4. The record available on hearing a motion for a partial summary judgment would likely not be as expansive as the record at trial, therefore increasing the danger of inconsistent findings.

[29] After highlighting these concerns, the Court of Appeal then states at para. 34 that a motion for partial summary judgment should be considered a rare procedure and reserved for an issue or issues as follows:

[34] When bringing a motion for partial summary judgment, the moving party should consider these factors in assessing whether the motion is advisable in the context of the litigation as a whole. A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may 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.

The Wilcox Motion

Essential Facts

[30] Wilcox filed the affidavit of Bill Stewart, its president, in support of its motion for summary judgment. Wilcox also relies upon the affidavit of Michael Edward Key, a lawyer with the Agro Zaffiro LLP firm that represents Wilcox in this action. Those affidavits set out material facts that are essential for this motion.

[31] Mr. Stewart describes how CBRE invited Wilcox to provide a quotation for the installation of new garage doors at 1 Stone Road West in March, 2010. Wilcox was asked to quote the price for installing the garage doors using the existing framework and activation equipment on site. A representative of Wilcox met with CBRE at the site, along with other companies bidding for the job, to discuss the scope of the work.

[32] Wilcox provided a quote to CBRE for the scope of work discussed at the site meeting to meet the requirements of CBRE. This quote was prepared after sourcing a price for the doors themselves, as well as a labour estimate from Installation Plus Inc. as a sub-contractor.

[33] CBRE accepted the Wilcox quote on April 19, 2010. On May 7, 2010, CBRE advised Wilcox by email that CBRE would be sending a purchase order for the project.

[34] Wilcox received the purchase order promised by CBRE on May 25, 2010. The scope of work in the purchase order read as follows:

Upgrade Install 3 heavy Duty exterior parking garage doors to replace current doors that are no longer meeting building requirements. New doors must work on current electrical system, and all electrical work will be done by the vendor. Two doors are located at the underground parking entrance/exits. One is located at 93/95 North Labs Exterior.

[35] The purchase order set out the terms of the contractual relationship between CBRE and Wilcox. One such term read as follows:

3. The Owner [(CBRE)] shall be entitled to review the Work at any time. Prior to completion of the Work, the Vendor [(Wilcox)] shall request that the Owner review the Work. The Owner shall be the judge of whether Work is adequate, complete and performed in accordance with the Purchase Order. Any deficiencies shall be corrected by the Vendor at its expense on or before the date set by the Owner.

[36] Paragraph 7 of the purchase order provided that in the event Wilcox did not satisfy CBRE’s requirements, CBRE would issue a written notice requiring Wilcox “to rectify the situation within a prescribed time”.

[37] From emails introduced in evidence, it appears that the individuals involved with installing the garage doors, including Glenn Gallagher of Installation Plus Inc., attended a site meeting on Friday July 23, 2010 to discuss the installation plan. Wilcox prepared an additional quote dated July 27, 2010 to provide extra’s to the project and spoke about delivery of the installation “this week”. That reference related to the long weekend from July 31 to August 2, 2010.

[38] The new garage doors were in fact installed on Saturday July 31 and Sunday August 1, 2010. Wilcox performed the work under the purchase order by having its subcontractor, Installation Plus Inc., complete the installation of these garage doors as scheduled.

[39] CBRE inspected the garage doors after Wilcox had completed the installation work by taking a “walk-through”.

[40] After subjecting the garage doors to testing, CBRE identified two issues it required Wilcox to follow up on:

1. CBRE identified a tear in the yellow Velcro bottom (the safety or reversing edge) cover on one of the doors and required it to be replaced; and
2. CBRE identified the time for the underground garage doors to remain open (the “door open time”) was 35 seconds before the doors would automatically start the descent to close. CBRE requested that the door open time be reduced to 15 seconds.

[41] Harry Gill, then Operations Manager of Wilcox, advised CBRE that Wilcox would review these issues with the installation team and provide an update.

[42] Wilcox addressed the two issues identified by CBRE by replacing the yellow Velcro strip on one of the doors and reducing the door open time from 35 seconds to 15 seconds, as required. This final work was performed in mid August 2010.

[43] Wilcox was never called back by CBRE to make any repairs, or to adjust the doors or any of their components.

[44] The steps Wilcox took to rectify the two issues identified by CBRE marked the end of the Wilcox involvement with the garage door installation. The evidence on the motion is consistent from all parties that Wilcox had no involvement with these garage doors, or with respect to the building at 1 Stone Road West at all, after August 2010.

[45] Wilcox has never received any notice from CBRE under term 3 or paragraph 7 of the purchase order, either directly or indirectly. This means that Wilcox has never received any notice from CBRE or an agent with respect to issues relating to the door open time, or otherwise about the operation of the garage doors.

Duty of Care

[46] The grounds for the motion Wilcox has brought must be measured in terms of the claims made by the plaintiffs against Wilcox in the statement of claim, and by the cross-claim for contribution or indemnity made by CBRE and Ontario as the building owner.

[47] There is no evidence of substandard work performed by Wilcox or its sub-contractor Installations Plus Inc. with any of the other defendants who seek a dismissal of the action against them. SP Plus was not the garage manager at the time the garage doors were installed in 2010. That garage manager was replaced with SP Plus in 2011. Haws provides maintenance to the garage doors as and when required by CBRE and first provided that service after Wilcox had installed the garage doors in 2010.

[48] I note that the manufacturer of the garage doors, or the makers or installers of the sensors and accessories to the system that cause the garage doors to open and to close automatically, have not been named as defendants or third parties.

[49] Steven Nadeau was examined for discovery on March 26, 2018 on the claims he has made in this action. Specific admissions were extracted from Mr. Nadeau on discovery that relate to the liability issues against Wilcox and other defendants. The following admissions were summarized in the affidavit of Michael Key in this respect:

a) Mr. Nadeau has been a licenced operator of a motorcycle since he was 18 years old. b) In an average week with good weather, Mr. Nadeau would have used his motorcycle once or twice to get to and from work. c) He would use a security badge to get in an out of the garage at work. He has been using the parking garage at 1 Stone Road West where he has worked since 2008. d) He would enter and exit the parking garage on a daily basis, and also a number of times each day if he had out of the office meetings. e) In August and before the accident in September 2014, he would have left through the garage door around seven or eight times on his motorcycle. f) On those occasions, he had no problems with the door in question or the security arm that triggered the open door sequence. g) In fact, from 2008 until September 2014, he had no problems with the garage door. h) On his way into work or when leaving the garage, he would swipe his security badge on the gas tank of his motorcycle. Once the security arm went up, he would replace the badge in the pouch and start to move forward. This is what he did on the day of the accident. i) The accident occurred at approximately 5:00 pm when he was leaving work to go home. j) He pulled up to the safety arm, “badged out and rode out the garage up the hill, and then when [he] was clearing the threshold, the garage door struck [him]” k) He estimated his speed at 15 to 20 kilometres an hour at the time of the accident. l) The accident was the first time that anything had ever happened to Mr. Nadeau with respect to the garage door in question.

[50] Mr. Key also reviewed the transcripts from the examination for discovery Karen Klapwyk, facilities manager for CBRE at the time. At Ms. Klapwyk’s examination for discovery, counsel confirmed that her answers were also binding on Ontario. The following facts were summarized in Mr. Key’s affidavit from the evidence given by Ms. Klapwyk at her examination for discovery:

a) As property manager, CBRE deals with the entire facility and CBRE has an office on site. b) CBRE’s small works department dealt with the purchase of the garage door. c) CBRE’s facilities management department deals with day-to-day operations at the property. CBRE had, at the time of the accident, three technicians that were at the property on a full time basis. d) These three technicians have “daily rounds”, perform regular maintenance and do regular checks that they report to management. e) After the accident CBRE called in Windsor Doors to conduct an investigation and to verify the door’s operation, and no issues with respect to the door’s operation were identified. f) Preventative maintenance work orders are scheduled in CBRE’s “CMMS” system to go automatically to whichever vendor is designated by CBRE as the preventative maintenance contractor. g) CBRE, when issuing preventative maintenance work orders to the preventative maintenance vendor, in this case Haws, trusts that the vendor has completed the “scope of work” provided on the work order issued, and also expects that Haws would identify any issues with the garage doors. h) The scope of work expected of Haws is set out in the “library procedure” section of the work order. i) Haws was not expected to provide services unless it was sent a work order by CBRE. j) CBRE had no knowledge of any issues with the garage door between the date that Haws last serviced the garage doors in March 2014 and the accident. k) Ms. Klapwyk did not know whether the delay for the garage doors to be in their decent after the open door time was changed again after CBRE instructed the reduction of the open door time from 35 to 15 seconds in August 2010. l) CBRE would expect SP Plus to notify CBRE if they noted, or were notified about, anything unusual on site. m) CBRE has no knowledge of any other involvement of Wilcox aside from arranging the installation of the garage door in question. n) CBRE has no information or documentation identifying any deficiencies with respect to the installation of the garage doors in question. o) CBRE has no knowledge of any issue with the sensors in place at the time of the accident.

[51] Evan Bawks, a lawyer with Miller Thompson LLP, representing Haws, sworn an affidavit in support of Haws motion for summary judgment. Mr. Bawks attached a work order from Windsor Doors as Exhibit G to his affidavit. That work order indicates that Windsor Doors checked the cycle time when they inspected the garage doors on October 7, 2014 and recorded 217,000 cycles for the garage doors.

[52] Bill Haws, president of Haws, also gave an affidavit in support of the Haws motion for summary judgement. Mr. Haws confirmed that whenever Haws attended at 1 Stone Road West to inspect and service the garage doors of the underground parking facility, it was accompanied by a representative of either SP Plus or CBRE.

[53] Mr. Haws then states at paragraph 9 as follows:

9. When Haws attended at the premises to inspect and service the garage doors of the underground parking facility, we would visually inspect the doors operation, which included observing their opening and closing cycles, to ensure they were functioning properly. We further inspected the garage door for wear and tear, including all applicable springs, cables, tracks and runner. We would further inspect the doors sensors and safety mechanisms to ensure they were functioning properly.

[54] Mr. Haws then gives the following evidence at paragraphs 11 and 12:

11. The last time Haws inspected the garage door in question prior to September 24, 2014 was in March 2014. Following that inspection, the garage door, including all safety mechanisms, were in good working order and functioning as they were supposed to. Attached hereto and marked as Exhibit “A” to this my affidavit is a true a copy of the work order issued by CBRE to Haws, dated March 3, 2014, in relation to Haws last attendance at the premises prior to September 24, 2014.

12. Haw has never received any complaint from anyone on behalf of CBRE or SP Plus in relation to its work at the premises.

[55] In my view, it would be difficult, if not impossible for the plaintiffs to prove the necessary proximity with Wilcox, or that Wilcox could reasonably foresee that it’s services could cause harm to garage users like Mr. Nadeau, in order to establish on the balance of probabilities that Wilcox owed these plaintiffs a duty of care.

[56] Wilcox is in a unique position among defendants because its involvement with the garage doors and building in which they were installed ceased four years before the date of loss. There is no reasonable proximity in terms of any relationship, timing or conduct with the plaintiffs that would support the finding that Wilcox owed a duty of care to the plaintiffs four years after Wilcox performed the work. As the Supreme Court in Rankin’s Garage explained, where there is no duty of care, there is no liability. I am satisfied on the evidence that Wilcox owed no duty of care to the plaintiffs.

[57] There is a multi-directional aspect to the motion that Wilcox has brought for summary judgment. Wilcox must not only show there is no genuine issue requiring a trial to find that no liability exists to the plaintiff, but also to have the cross-claim of CBRE dismissed if there is no genuine issue requiring a trial for contribution or indemnity.

[58] The purchase order issued by CBRE serves to both define the scope of work and to confine the liability of Wilcox with respect to the installation of the garage doors. The facts are undisputed that CBRE invited Wilcox to provide a quote through a tendering process. Wilcox did not enter a contract to provide safety or security advice to CBRE. The task Wilcox agreed to perform involved arranging for the replacement of old doors to the garage with new doors, and tying them into the existing activation system. Wilcox did not manufacture the new garage doors, nor supply those doors as part of the work performed under the purchase order.

[59] Wilcox did not contract to provide advice to CBRE on timing or appropriate timing cycles for CBRE’s unique security needs, and gave no such advice.

[60] The timing of the “open door” sequence, from the moment a security card activates the security gate and opens the garage door until the door starts to close, is chosen by the owner of the building. The evidence is clear that this decision is unique to each building owner to meet the security needs of the property in which the doors are installed.

[61] A motion for summary judgment to dismiss an action can succeed where liability is limited or extinguished by the contractual relationship between the parties. The appellate decision of Extreme Venture Partners Fund LLP. v. Pharma, 2019 ONCA 446 is one such case. In Extreme Venture Partners, the respondent had been engaged to provide a valuation of Extreme Labs in the context of a management buyout. The appellants alleged that the valuation provided by the respondent had significantly undervalued Extreme Labs such that they suffered a loss as a result of the buyout.

[62] The Court of Appeal in Extreme Venture Partners found that the respondent’s motion for summary judgment rested entirely on the letter of engagement. The appellants engaged the respondent as shareholders of the corporation to be purchased, and not as its board of directors. The engagement letter made it clear to the appellants what the respondent was not providing in relation to any transaction. The engagement letter excluded any duty arising from non-contractual or fiduciary duties, and made it clear that the respondent would be relying upon information provided by Extreme Labs and would not be independently verifying that information.

[63] The evidence is undisputed that CBRE concluded, because of the unique security requirements of the building at 1 Stone Road West, that the garage doors should remain open for a shorter time than the 35 seconds initially set by Wilcox. The evidence is clear and unequivocal that CBRE called Wilcox back to reduce the door open time from 35 seconds to 15 seconds. Wilcox was required by the terms of the purchase order to rectify any deficiency that CBRE required, and shortening that open door time was simply a further performance by Wilcox of its contractual obligations.

[64] I am satisfied on the evidence that Wilcox performed the purchase order issued by CBRE in a full and proper manner. Wilcox did not provide advice to CBRE or the building owner under the purchase order, and its performance of the purchase order was limited to installing the garage doors. There is also evidence that the labour to install the garage doors was provided by Installation Plus Inc. as a subcontractor. Installation Plus Inc. is already a party to this litigation, having been named as a third party by CBRE.

[65] In conclusion, I find on applying the limiting principles set out in Extreme Venture Partners that CBRE and Ontario have no basis in fact or in law to seek contribution or indemnity from Wilcox in this action.

[66] Once the moving party satisfies the court there is no genuine issue requiring a trial to merit summary judgment, the evidentiary burden shifts to the responding party to show there is a genuine issue requiring a trial after all: Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135.

[67] The professional engineer retained by the plaintiffs, Mr. Hai Huong, did not attribute any negligence to Wilcox as the installer of the garage doors in 2010 for the reason why the garage doors in 2014 closed after a door open time of only 10.2 seconds. In particular, Mr. Huong does not explain in his report why he concludes “the incident garage door installer” and the owner of the building did not provide motorcyclists with safe passage through “the incident garage door”.

[68] The report in Mr. Huong’s affidavit refers to the study conducted by Shanna Yee, an investigator engaged by the plaintiffs, about door open times in other buildings around the GTA, and signage posted in those buildings. Mr. Huong opined that the exit system used by Mr. Nadeau when he was injured did not provide adequate warnings and/or protection for motorists.

[69] Neither Mr. Huong or Ms. Yee are experts who were qualified, or even having the credentials, to give opinion evidence on behalf of the plaintiffs about what duty of care any defendant owed to them. If anything, Mr. Huong’s evidence is relevant only to any standard of care that the court might apply should a defendant be found to owe a duty of care to the plaintiffs in the first place. In any event, Wilcox was not responsible for providing warning signs, protection or design services to 1 Stone Road West when it was contracted to install garage doors in 2010.

[70] In my view, there were no facts given in evidence by the plaintiffs or CBRE to raise a triable issue. I therefore conclude there is no genuine issue requiring a trial to show that Wilcox owed no duty of care to the plaintiffs to support the claim or any cross-claim.

Partial Summary Judgment

[71] The Court in Extreme Venture Partners also found that the dismissal of the action against the respondent in that case was not partial summary judgment. Although the claims made by the appellants against the other defendants did proceed to trial, the Court held that “as the claim against the respondent could be determined on a discrete legal issue pertinent only to the liability of the respondent, the motion judge did not err in dismissing the claim on that basis.”

[72] A similar conclusion had been reached in Kueber v. Royal Victoria Regional Health Centre, 2018 ONCA 125. Summary judgment dismissing all claims against various doctors and ambulance attendants was upheld on appeal even though further claims against the hospital were left for trial. The Court stated in its reasons dismissing the appeal that “this is precisely the type of case that summary judgment is designed to address”, explaining this result achieved the objectives of resolving a dispute on a proportionate, cost effective and timely basis without impacting the remaining issues to be adjudicated.

[73] In Larizza v. Royal Bank, 2018 ONCA 632, the court upheld partial summary granted against certain but not all defendants where the court considered the claims to be “stand alone and limited in nature”. In those circumstances, there was “no real concern about duplicative proceedings or inconsistent findings arising with respect to the claims asserted against the remaining defendants.”

[74] These cases were reviewed by Sanfilippo J. in Joroga Real Estate Ltd. v. State Farm Fire and Casualty Co., 2019 ONSC 2730. After reviewing these cases along with Butera and other appellate decisions where the court did not uphold partial summary judgment, Sanfilippo J. captured the distinction concisely at para. 34:

[34] The cases where partial summary judgments have been upheld have all shared certain common elements. First, the partial summary judgment resolved a discrete, standalone issue that could be severed from the other claims or parties in the surviving case. Second, the motion was capable of being adjudicated on factual findings that did not intersect or overlap with the factual findings required to determine the issues left for trial, on an evidentiary record that reflected the evidence expected at trial, such that there was no risk of duplication or inconsistent findings. Third, the summary motion could be dealt with expeditiously and in a cost effective manner and, fourth, the motion served the overarching objective of advancing the litigation as a whole.

[75] I must ensure that any decision I make in respect of any of the three motions for summary judgment before me is decided in accordance with the guidance provided by the Court of Appeal since Hyrniak. That guidance requires me to assess whether any of those motions that would otherwise be granted would amount to partial summary judgment and if so, the advisability of granting summary judgment in the context of the litigation as a whole: Baywood Homes Partnership.

[76] In my view, that assessment can be addressed through the lens provided by the factors set out in Butera.

Is the claim against Wilcox severable from the remainder of the action?

[77] In my view, the plaintiff’s claim against Wilcox is completely severable from the remainder of the action having regard to the specific findings of fact concerning the Wilcox work in 2010. I have determined that there is no genuine issue requiring a trial to conclude that the plaintiffs cannot prove its claim against Wilcox on the balance of probabilities because Wilcox did not owe the plaintiffs a duty of care.

[78] I have also found on the evidence that there is no reasonable prospect that Wilcox will be found negligent along with any other defendant. Nor do I find any basis to conclude that Wilcox owed a contractual obligation or a duty at law to another defendant to give effect to any cross-claim. The claim made by the plaintiffs against Wilcox is separate and distinct from the claims made against all other defendants in terms of function and time. The separate and distinct character of the role Wilcox played extends to the cross-claims made by the non-moving defendants against Wilcox. Wilcox is truly a standalone defendant, and the plaintiffs’ claim against Wilcox is severable from all other claims that form the remainder of the action. Dismissing the plaintiff’s action and all cross-claims is not partial summary judgment, and if it is, it is one of those rare cases where partial summary judgement ought to be granted.

Is there a risk of duplicative proceedings or inconsistent findings?

[79] I find that there is no risk of duplicative proceedings because the plaintiffs’ claim and all cross-claims against Wilcox will be disposed of when the motion brought by Wilcox is granted.

Can the issues raised by Wilcox on its motion be adjudicated summarily?

[80] This motion for summary judgment by Wilcox provided a forum to adjudicate the issues relating to liability with respect to Wilcox summarily, and in an expeditious and cost effective manner.

Does this partial summary judgment motion advance the litigation as a whole?

[81] The dismissal of the action and all cross-claims as against Wilcox will advance the litigation as a whole because it will allow the remaining parties to refocus on the issues between them for trial.

[82] Although not argued before this court, the Court of Appeal in La Rose Bakery 2000 Inc. v. Intact Insurance Company, 2019 ONCA 850, affirmed the dismissal of an action against a defendant on summary judgment. The action had been dismissed against that defendant based on exclusionary clauses in an insurance contract. The Court of Appeal found that permitting summary judgment that dismissed an entire claim against one of the defendants did not offend the principles relating to partial summary judgment described in Butera. The Court stated at para. 10 that:

[10] The motion disposed of the entire action between the appellant and Intact. In addition, as noted by the motion judge, Unity, a party to the litigation, had been served with the summary judgment motion material, and would be bound by the outcome. There was no real risk of duplicative proceedings or inconsistent factual findings. The action was readily bifurcated and the cost of the litigation would be reduced, not increased. Furthermore, although not before the motion judge, Unity had agreed to consent to a dismissal of its cross-claim against Intact based on the outcome of the summary judgment motion. Summary judgment in favour of Intact was appropriate in these circumstances.

[83] In this case, there is no genuine issue requiring a trial on the plaintiffs’ claim against Wilcox because Wilcox owed the plaintiffs no duty of care. As a result, the plaintiffs cannot prove liability against Wilcox to sustain a claim.

[84] The cross-claims made by CBRE and Ontario, or the cross-claim of any other defendant who remains in the action seeking contribution and indemnity, cannot succeed for the same reason. Any cross-claim for contribution and indemnity rests on either an allocation of fault in a liability analysis under the Negligence Act, R.S.O. 1990, c. N.1, a separate duty of care owed by Wilcox to that defendant, or a contractual basis to seek contribution or indemnity. I have found that the purchase order between Wilcox and CBRE clearly defines the services it was to provide to the exclusion of all others. There is no evidence that Wilcox gave any advice or opinion about setting the timing sequence for the automatic garage door to open and shut. Wilcox has no liability to those defendants to remain in the action just to answer a cross-claim.

[85] To keep Wilcox in the action would actually cause greater time and expense to the remaining parties at trial. Counsel for Wilcox and counsel for the third party Installation Plus Inc. would add extra layers of counsel entitled to cross-examine witnesses called by other parties. They would also likely call their own witnesses to defend the claims made against them.

Conclusion

[86] The motion for summary judgment that Wilcox has brought is granted. The plaintiffs’ action and all cross-claims as against Wilcox are dismissed.

The SP Plus Motion

Essential Facts

[87] SP Plus had been engaged as the garage management company by CBRE since 2011. Its duties involve the management of parking arrangements in the garage for the tenants and their employees who work in the building at 1 Stone Road West in Guelph.

[88] SP Plus describes its scope of responsibility as being the management of the garage from gate to gate. This reference “gate arm to gate arm” is intended to portray the idea that SP Plus is only responsible for the management of the interior garage between the gate arms that form the first barrier of the controlled parking equipment at each garage door. A description of this nature would exclude responsibility for management of the garage doors themselves through which vehicles enter and exit the garage.

[89] SP Plus conducts daily inspections of the garage, including a visual inspection of how the garage doors are operating. SP Plus denies that it has any responsibility for the operation of the garage doors, even though it participated in putting the garage doors through open and close cycles to test them with Haws in May 2014, several months before Mr. Nadeau was injured.

[90] SP Plus had the garage door examined by an engineer on September 1, 2016, at which time the door completely open time was 10.3 seconds. The door took 2.43 seconds to open, and 2.98 seconds to fully close. These times were consistent with the observations of Mr. Huong on a site visit in December 2017.

[91] CBRE does not know whether the door open time was subsequently altered from the 15 seconds set by Wilcox in August 2010 at CBRE’s direction.

Contractual relationship between CBRE and SP Plus

[92] CBRE gave notice in its factum that it intends to argue at trial that SP Plus was an occupier and thus liable to the plaintiff under the Occupiers' Liability Act, R.S.O. 1990, c. O.2. This position opens up the plaintiffs’ claim beyond a duty of care analysis and provides a separate basis for CBRE and Ontario to seek contribution and indemnity as co-occupiers at law.

[93] The relationship between CBRE and SP Plus is also governed by a contractor agreement that CBRE appended to the affidavit of Karen Klapwyk, described as a facilities manager employed by CBRE at the building. Relevant terms of the contractor agreement dated October 27, 2011 include a statement of work at Appendix A with sections that relate to parking administration, expectations, reporting requirements, contractors guide to environmental, health and safety practices, regulations, laws and manufacturing requirements, service level agreements and a combination service model. The Contractors Agreement also contains paragraphs M and Q, which read as follows:

M. Indemnification. To the fullest extent permitted by law, Contractor shall defend (with counsel reasonably acceptable to Owner and/or CBRE), indemnify, pay, save and hold harmless Owner, Minister of Energy and Infrastructure (MEI), CBRE, their respective affiliates, and each of their and their affiliates’ respective agents, officers, directors, invitees, employees, successors and assigns (collectively, the “Indemnified Parties”) from and against any liabilities, damages (including, without limitation, court costs, reasonable attorneys’ fees and any other reasonable costs of litigation) (hereinafter collectively, the “Claims”) that any of the Indemnified Parties may suffer, sustain or incur arising out of or in connection with:

1. Contractor’s work or presence on the Owner Properties or other site where Service may be performed, including but not limited to, any negligent acts, errors or omissions, willful misconduct, criminal act or fraud of Contractor, its employees, subcontractors or agents, whether active or passive, actual or alleged, whether in the provision of the Services, failure to provide any or all of the Services or otherwise;
2. any breach by Contractor of this Agreement;
3. assertion claiming or alleging that Contractor has violated any applicable Laws, including without limitation the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended;
4. Contractor’s failure to comply with any Law;
5. claim made by any Contractor Employee in any proceeding before a court or administrative body asserting, claiming or alleging that such Contractor employee is an employee of CBRE or Owner; and
6. any infringement or alleged infringement of Owner’s or a third party’s Intellectual Property Rights resulting from any use by Contractor or CBRE, the employees of either Party or Contractor Subcontractors or any Contractor Intellectual Property.

The foregoing indemnification shall apply irrespective of whether Claims are asserted by a party, by its employees, agents or subcontractors, or by unrelated third parties. Nothing contained herein shall relieve Contractor of any responsibility for Claims regardless of whether Contractor is required to provide insurance covering such Claims or whether the matter giving rise to the Claims is the responsibility of Contractor’s agents, employees or subcontractors. Contractors shall incorporate these indemnity obligations into all subcontracts entered under this Agreement.

Contractor acknowledges and agrees that CBRE, Owner, and their directors, appointees, officers, agents and employees shall not be liable for, and Contractor hereby releases and forever discharges CBRE, Owner and their officers, directors, appointees, servants, agents and employees from and against any and all Claims whatsoever arising out of Services performed or required to be performed by Contractor under this Agreement and for which the Contractor is hereby indemnifying the Indemnified Parties hereunder.

Q. Limitation of Liability. In no event shall either Party, except for Contractor’s gross negligence, willful misconduct or fraud, be liable to the other party for any lost or prospective profits or any other punitive, consequential, incidental or indirect loss or damage, whether based in contract, strict liability, tort or otherwise, with respect to this Agreement or any Work Order/Purchase Order regardless of the foreseeability or the cause thereof.

[94] It is apparent from reading the language in paragraph M and paragraph Q that there is an inconsistency of contractual intent expressed by the contracting parties.

[95] Paragraph M.1. provides that to the fullest extent permitted by law, SP Plus as the contractor shall defend, indemnify and save and hold harmless the owner and CBRE from and against all liabilities, damages and costs as set out. In contrast, paragraph Q provides that in no event shall SP Plus, except for its gross negligence, willful misconduct or fraud, be liable to CBRE for any loss or perspective profits or any other punitive, consequential, incidental or indirect loss or damage. There was no evidence given of the surrounding circumstances in which the contracting parties agreed upon those provisions, or that might otherwise assist the court to resolve that ambiguity: Sattva Capital Corp. v. Creston Molly Corp., 2014 SCC 53.

[96] In my view, there remains a genuine issue requiring a trial with respect to the meaning and intent behind the contractual obligations between SP Plus and CBRE with respect to indemnity for any claims such as those made by the plaintiffs in this action. This genuine issue arises because of the various provisions in the contractor agreement that seem to conflict with one another. There is no clear or unequivocal contractual term that either party has agreed to indemnify and save harmless the other in the event of this kind of claim. This is not a situation to which the principles in Extreme Venture Partners would apply as it did in the case against Wilcox.

Conclusion

[97] I find there is a genuine issue as to whether SP Plus owed a duty of care to the plaintiffs. This finding carries with it a potential liability to the plaintiffs or to split that liability between one or more of the remaining defendants under the Negligence Act, R.S.O. 1990, c. N.1. A genuine issue requiring a trial exists because SP Plus has not satisfied its evidentiary burden to show it did not have the foreseeability or proximity to support a finding it did not owe a duty of care to the plaintiffs as the garage management company on the date of loss.

[98] In view of these findings, the motion of SP Plus for summary judgment is dismissed.

The Haws Motion

Essential Facts

[99] CBRE would retain Haws to perform maintenance on the garage door from time to time. CBRE and Haws had no formal contract for Haws to perform that work. Haws would only attend at the building to provide maintenance services to the garage door when it received a work order from CBRE.

[100] The evidence filed by Haws on the motion indicates that Haws did not have its own access to the garage door when it would receive a work order to provide maintenance services. Haws would check in with CBRE at the security office, and then be escorted by an employee of SP Plus to perform the work.

[101] The work order issued by CBRE would contain a “library procedure” of the tasks and services CBRE required Haws to perform.

[102] Haws last provided its maintenances services for the garage door in March 2014. The work order issued by CBRE dated March 3, 2014 for that work contained the library procedure for Haws to perform the following tasks:

10. Check with operating or area personnel for deficiencies.
11. Check for proper operation, binding or misalignment; adjust as necessary.
12. Check and lubricate door guided, pulleys and hinges.
13. Inspect and lubricate motor gear box, drive train (or belt), and motor; adjust as necessary.
14. Check operation of limit switch; adjust as necessary.
15. Check electrical operation, wiring, connections and contacts: adjust as necessary.
16. Clean area around floor.

[103] There is also evidence from Haws that in addition to the tasks contained in the library procedure set out in a work order, Haws would perform tasks related to the mechanical and electronic functioning of the garage door, including the functioning of safety sensors, springs, cables, tracks, runners, and other duties that CBRE or SP Plus would require.

[104] Haws states that it never altered the duration of the opening and closing cycle of the garage door. Haws also states that it has never provided any party with any advice with respect to the opening and closing cycle of that door.

[105] Haws also states in evidence that its inspection and service obligations with respect to the garage door were confined to the garage doors only, and did not extend to the gate arms.

Duty of Care

[106] Wilcox filed evidence in the affidavit of Michael Key that CBRE had further work done on the garage door after it was installed in August 2010. Haws was responsible for inspecting and servicing the door on several occasions. On each of those visits, Haws would engage the garage door in the open and close sequence at least five times. Never once did Haws voice any concern about the door open time during those calls to inspect and service the garage door.

[107] William Haws has confirmed that Joel Croft of SP Plus was with him when he attended at the building at 1 Stone Road West to perform the required maintenance in or around March 3, 2014. Mr. Croft asked Mr. Haws questions while he was performing his preventative maintenance. He confirmed that Mr. Croft was with him the entire time he performed that maintenance work and that he and Mr. Croft timed the closing speed of the garage door. Unfortunately, he cannot remember the results of testing the garage door at the time.

[108] Mr. Haws also confirmed that he and Mr. Croft checked the sensors on the garage door when he performed his maintenance work in March 2014.

[109] There is no other evidence but that Haws was the last of the defendants to inspect and service the garage doors prior to September 29, 2014, when Steven Nadeau alleges he was injured while exiting the garage.

[110] For the same reasons I found that SP Plus has not satisfied the court on evidence filed for this motion that there is no genuine issue requiring a trial, I consider the lack of evidence filed by Haws to leave a genuine issue whether Haws owed a duty of care to the plaintiffs, or if there is an evidentiary basis for a court to find Haws liable on a cross-claim.

Conclusion

[111] Accordingly, the motion Haws has brought for summary judgment is therefore dismissed.

Costs

[112] Any parties seeking costs shall serve and file supplementary written submissions to the costs outlines already provided, as follows:

1. Wilcox shall serve and file written submissions by March 6, 2020;
2. Any other party seeking costs shall serve and file written submissions by March 13, 2020;
3. Any party responding to those costs shall serve and file written submissions by March 27, 2020;
4. No reply submissions are permitted without leave; and
5. All written submissions shall be no more than two double-spaced, typewritten pages, not including a bill of costs or any offer to settle.

[113] Written submissions may be filed by sending them to my judicial assistant at melanie.powers@ontario.ca.

Emery J.

Released: February 24, 2020