Court File and Parties

COURT FILE NO.: CV-19-620346 DATE: 20200506 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GEORGE MACPHERSON and SIERRA MACPHERSON, a minor, by her Litigation Guardian, GEORGE MACPHERSON, Plaintiffs AND: SYLVIA MARIE-LOUISE SAMUEL, DAVID PAQUETTE (also known as MARK PAQUETTE), ALLAN STAR ROOFING LTD. AND EBRAHIM KHEZRI, Defendants

BEFORE: Kimmel J.

COUNSEL: K.Wolf and D. Tomovski, for the Plaintiffs/Responding Parties P. Banerjee and Y. Barsky, for the Defendant Sylvia Marie-Louise Samuel, Moving Party D. Bierstone, for the Defendants Allan Star Roofing and Ebrahim Khezri, Moving Party No one appearing for the defendant David Paquette (also known as Mark Paquette), who was noted in default and is now deceased

HEARD: January 28 and 29, 2020

Endorsement (Defendants’ motions for summary judgment)

[1] The plaintiff George MacPherson suffered a serious back injury on May 15, 2012 when he fell off the roof of the home of Sylvia Marie-Louise Samuel. MacPherson had been hired by David Paquette (also known as Mark Paquette), who is now deceased, to assist in removing and replacing the shingles on the roof of Samuel’s house. At the time of his fall, MacPherson was not secured to the roof with appropriate safety equipment. Sierra MacPherson is George MacPherson’s daughter, on behalf of whom he claims under the Family Law Act, R.S.O. 1990, c. F.3, for her loss of his support, care, guidance and companionship. She was a minor at the time the statement of claim was amended to add her as a plaintiff, in July of 2016.

[2] Samuel hired Paquette to replace her roof. She agreed to provide some of the materials and a disposal bin for the job. MacPherson says he understood that Samuel was made aware of safety concerns after the first day of the job and that she agreed to provide certain safety equipment for the second day of the job. Samuel denies this and relies on Paquette’s evidence (given before he passed away on May 11, 2019). He also denies that Samuel was asked or agreed to provide any safety equipment. The credibility of MacPherson, Samuel and Paquette is at issue on this point of whether Samuel agreed to purchase and provide certain required safety equipment (among other supplies) for the second day of the job.

[3] Paquette was a one-man operation. He hired MacPherson to assist him but realized after the first day that the job at Samuel’s house was too difficult for them, so he asked Ebrahim Khezri, the owner of Allan Star Roofing for whom Paquette had worked as a roofer in the past, to attend on the second day of the job. The relationship between Paquette and Allan Star Roofing (co-contactors, head and sub-contractor, partners or otherwise), and the role of Allan Star Roofing on the day of the accident, is a point of dispute.

[4] The accident occurred early on the second day of the job, when MacPherson lost his balance as he was about to climb down the ladder from the roof. His harness was not tethered to anything when he fell. At the time, Paquette, MacPherson, Khezri and Abdul Mahamdi (a ground worker hired by Allan Star Roofing) had all recently arrived on the job site and were organizing themselves to begin work on Samuel’s roof.

[5] The defendants Samuel, Allan Star Roofing and Ebrahim Khezri move for summary judgment and the dismissal of this action against them. They maintain that the plaintiffs’ claims, if viable at all, lie only against the deceased, uninsured, defendant Paquette. They seek to characterize themselves as uninvolved by-standers. They deny they had any contractual or other relationship with MacPherson and deny that they owed to him, or breached, any statutory or common law duty of care. They contend that the plaintiffs’ claims against them fail based on MacPherson’s own testimony and the objective evidence against which his credibility can be assessed. They ask the court to use its enhanced fact-finding powers under Rule 20.04(2.1) to resolve any factual disputes which they say would leave no genuine issue requiring a trial since Paquette has been noted in default and is now deceased.

[6] The defendants Allan Star Roofing and Khezri (the “Allan Star Defendants”) also seek the dismissal of Samuel’s third-party action against them on the same grounds as they seek the dismissal of the plaintiffs’ claims. Samuel has agreed to a without costs dismissal of the third-party action against the Allan Star Defendants if the main action is dismissed against her, but she objects to the granting of partial summary judgment in favour of the Allan Star Defendants if her summary judgment motion is dismissed, on the grounds that partial summary judgment is not appropriate in circumstances such as these.

[7] The plaintiffs maintain that the relief sought by the defendants depends upon credibility assessments and findings of fact flowing from those assessments and that it is not in the interest of justice for this case to be decided summarily. They maintain that there are genuine issues for trial and that those issues should be decided at a trial by a jury. The plaintiffs further argue that, even if there might be an arguable case for summary judgment by one or the other of the defendants, the Court of Appeal for Ontario has given clear guidance that partial summary judgment (in favour of one defendant where the action will proceed to a trial against the other defendant on a disputed factual record involving the testimony of both defendants) is not in the interest of justice and should not be granted.

[8] I agree with the plaintiffs. The defendants’ motions for summary judgment are dismissed. At the chambers appointment when the summary judgment motions were scheduled, it was indicated that the defendants’ arguments would be primarily dependent upon the determination of “legal” questions. However, as the record for this motion developed, those legal arguments have been shown to be dependent upon factual determinations that, in turn, depend upon credibility assessments that should not be decided on a paper record.

[9] The issues involving the claims against the Allan Star Defendants might, if considered on their own, have been more conducive to determination by way of summary judgment with the assistance of the enhanced fact-finding powers under Rule 20.04(2.1). However, I do not consider it to be in the interest of justice for me to exercise those powers in this case where the action would continue against the defendant Samuel, particularly since Khezri (and possibly the other Allan Star Roofing ground worker) would in all likelihood be called to testify at the trial about what happened on the morning of May 15, 2012, including about their interactions with MacPherson about which there is conflicting testimony.

[10] The court’s Rule 20.05 powers are circumscribed in a case such as this where there is a jury notice and a clear indication by the plaintiffs that they intend to exercise their right to a trial by jury. I have nonetheless invited the parties to attend a chambers appointment with a view to my giving some directions to assist them in defining and narrowing the issues and streamlining the action for trial.

Procedural History

[11] Former counsel for the plaintiffs commenced this action in Brampton, originally against Samuel and Paquette [1] only. Paquette did not respond to the claim and was noted in default on January 7, 2016.

[12] Samuel responded to the statement of claim and delivered a jury notice. The plaintiffs did not deliver their own jury notice but now rely upon this one and have not consented to its withdrawal.

[13] Samuel issued a third-party claim against the Allan Star Defendants. Samuel claimed that Allan Star was retained to complete the work after the accident, and that their involvement before that was as a subcontractor retained by Paquette. The Third Parties denied Samuel’s allegations. They pleaded that Khezri was a labourer employed by Paquette, and that neither Allan Star nor Khezri had supervisory responsibilities for MacPherson.

[14] Subsequently, the plaintiffs sought and were granted leave to add the Allan Star Defendants to this action, even though the two-year limitation period had elapsed. By an endorsement dated April 3, 2017 (MacPherson v. Samuel, 2017 ONSC 2024), Trimble J. granted leave to the plaintiffs to amend their statement of claim to add the Allan Star Defendants based on delayed discoverability, elucidated by the discovery of Samuel.

[15] Trimble J. found (at para. 29) “that, on the facts as developed in this case, there is no cause of action against Mr. Khezri or Allan Star for failing in their supervisory role; based on the evidence, neither had such a role.” However, Trimble J. found (at para. 30) that there was an arguable cause of action against the Allan Star Defendants in negligence. Trimble J. further found that this cause of action could be informed by the failure of Khezri (who, based on the facts pleaded met the definition of a “worker” under the Occupational Health and Safety Act, the “OHSA”, as a person who performed work or supplied services for monetary compensation) to report to Paquette the absence of, or defect in, any safety equipment used by MacPherson, or unsafe conditions or other contraventions of the OHSA.

[16] Trimble J. adjudicated an interlocutory motion granting leave to amend the statement of claim. Contrary to the plaintiffs’ contention, no determination was made on this interlocutory motion that forecloses the defendants from arguing that the OHSA does not apply to this job site. Trimble J. did not make a ruling that the OHSA necessarily does apply, but only that it might apply and/or that any duties under the OHSA might inform the negligence claim against the Allan Star Defendants. [2] Conversely, no final determination was made on that earlier motion that forecloses the plaintiffs from arguing that Allan Star was also a contractor on the job site on the date of the accident, if the scope of the pleadings otherwise allows for that.

[17] Further, the order of Trimble J. did not limit the exposure of the Allan Star Defendants under the OHSA to the duties that might flow from a finding that Khezri was a “worker” under the OHSA. The only finding that Trimble J. made was that the Allan Star Defendants were not MacPherson’s supervisors and accordingly he did not permit the statement of claim to be amended to plead that. The scope of the issues to be decided in the final disposition of the case is ultimately determined with reference to the pleadings as they stand in the trial record.

[18] The plaintiffs set the action down for trial to avoid its administrative dismissal. At the time it was set down, the Allan Star Defendants had already brought their summary judgment motion. This was noted on the Rule 48 form completed by plaintiffs’ counsel. A pre-trial conference that had been scheduled by the Brampton court was adjourned on consent because of the pending summary judgment motion.

[19] The Allan Star Defendants included in support of their motion for summary judgment an affidavit from the in-default defendant, Paquette, who was cross-examined out of court prior to his death. Based on Paquette’s testimony, which Samuel considers to be corroborative of her testimony and her defences, Samuel decided to bring her own summary judgment motion. All parties agreed to adjourn the pending motion of the Allan Star Defendants so that both summary judgment motions could be heard together.

[20] The action was transferred to Toronto on consent. There has been no mediation or pre-trial conference and no trial date has been set. The two summary judgment motions were scheduled following the parties’ attendance in Civil Practice Court and in chambers, based on the original indications that the outcome of the motions would turn on the determination of “legal” questions. The motions were said to be predicated on the absence of any contractual or employment relationship between the moving defendants and MacPherson, MacPherson having acknowledged that he was hired by Paquette. This preliminary assessment did not, however, account for the factual elements underpinning the determination of the moving defendants’ common law duties of care in negligence, which is where the primary problems lie in granting summary judgment in this case.

Threshold Leave Question for the Motion by the Defendant Samuel

[21] The plaintiffs initially argued that leave was required under Rule 48.04 before either summary judgment motion could proceed. That rule provides that, subject to certain exceptions that do not apply here, any party who has set an action down or consented to it being put on the trial list shall not initiate or continue any motion or form of discovery without leave of the court.

[22] At the hearing of these motions, the plaintiffs conceded that the Allan Star Defendants did not require leave because their motion was outstanding, and this was expressly acknowledged, when the action was set down.

[23] The plaintiffs continued to argue that Samuel’s summary judgment motion should be dismissed because Samuel had consented to the action being set down for trial and she had not satisfied the leave requirements under Rule 48. On the second day of the hearing for these motions, I ruled that Samuel’s lawyer had not consented to the setting down of the action for trial. All that counsel had done was co-operate with the provision of the required information about the estimated number of witnesses and length of trial that had to be included on the form that the plaintiffs were required to file in advance of the assignment court date in Brampton (to avoid the administrative dismissal of the action for delay).

[24] Samuel’s counsel did not sign anything and did not do anything to indicate her consent to the action being set down for trial or put on the trial list. Consent requires some affirmative act which was not established on the record before me. To find that what Samuel’s counsel did in these circumstances was tantamount to consent under Rule 48 would discourage the type of co-operation that the court expects among opposing counsel for the completion of forms required in the normal course of a civil action.

Factual Background

[25] The following background facts are not controversial:

a. Samuel hired Paquette to replace the roof on her home by an oral agreement made on or about May 6, 2012. b. Paquette had experience and was trained as a roofer. c. Paquette asked MacPherson, who was an old friend, to assist with the job of replacing the roof and agreed to pay him a daily wage of $100.00. d. MacPherson was a carpenter and had experience working at heights on scaffolding but no experience working at heights on a roof and was not an experienced roofer. e. Paquette borrowed some equipment from Allan Star Roofing that he needed for this job, which was dropped off on the morning of the first day, on May 14, 2012. f. Khezri is self-employed and operates under the business name of “Allan Star Roofing”. Although the business is incorporated, it is conceded that Khezri is synonymous with Allan Star Roofing. Khezri is a professional roofer. Allan Star hires others to assist on roofing jobs from time to time. Allan Star had hired Paquette to work on previous jobs. g. On the first day of the job, Paquette and MacPherson worked on Samuel’s roof on their own and without incident. h. The roof was steep and that made the job tough. i. Khezri was asked by Paquette, and agreed, to work on the second day of the job at Samuel’s house. Khezri and one of his ground workers, Abdul Mahamdi, attended at the job site on the morning of May 15, 2012.

[26] The following additional background about the events on the day of the accident and the immediate aftermath formed part of Trimble J.’s reasons for decision (at paras. 2-7):

a. On May 15, 2012, the plaintiff, MacPherson, fell from the roof of Samuel’s house. He was badly injured. b. MacPherson’s friend, Defendant Paquette, hired MacPherson to assist with roofing work at Samuel’s house. When MacPherson arrived at the job [on the second day, when the accident occurred], he saw MacPherson [sic – Paquette] and two other individuals whom Paquette identified as friends who used to work with him, who were also roofers. c. MacPherson considered Paquette to be his boss and took instructions from him. d. MacPherson slipped and fell from the roof. He was not wearing appropriate harnesses and tethers.

[27] Samuel was inside her house at the time of the accident. After MacPherson fell, no ambulance was called to the scene. Paquette asked Mahamdi to drive MacPherson in MacPherson’s truck to Sunnybrook Hospital, which was the closest hospital to Samuel’s house. Initially, MacPherson told the hospital staff who attended to him that he had fallen from a tree.

[28] Samuel says that she thought Allan Star was assisting Paquette on the day of the accident. After the accident, she still needed the roofing job to be finished. Allan Star was already on site and agreed to complete the work. Allan Star Roofing says it agreed to finish the job because the roof was half open at Samuel’s house and it needed to be closed. Allan Star issued a work order to Samuel and completed the job. Paquette continued to be involved in the completion of the job.

Disputed Issues and Facts

[29] The claims against Samuel are made both pursuant to the Occupiers Liability Act, R.S.O. 1990, c. O.2 (“OLA”) and in negligence at common law. The negligence claim is also said to be informed by duties arising under the OHSA for Samuel as a “constructor”.

[30] The claims against the Allan Star Defendants are grounded in negligence. They are also said to be informed by the duties arising under the OHSA, for Khezri as a “worker” and for Allan Star Roofing as a co-contractor with Paquette.

[31] The plaintiffs’ claims are disputed. The disputed issues and some of the disputed facts that would have to be resolved to decide those disputed issues include:

a. Was Samuel responsible for MacPherson’s safety while he was working on her roof and, if so, did Samuel conduct reasonable diligence and reasonably believe Paquette to be a professional roofer to enable her to rely on the s. 6 OLA defence to relieve her of responsibility for the safety of her roof and persons on it? b. Did Samuel have an obligation (owe a duty to MacPherson) to purchase and provide safety equipment for MacPherson and Paquette to use while on her roof on the second day of the job under the OLA (subject to her s. 6 defence) or by virtue of having accepted responsibility to do so? In the latter respect: i. MacPherson says he and Paquette worked the entire first day without proper safety equipment. MacPherson says he was only on the roof with Paquette for about one hour that first day, helping to remove shingles and during that hour he used a retractable line that was designed for use on scaffolding and not designed to stop a fall. MacPherson says that he complained to Paquette about the lack of proper safety equipment for him to work on the roof and that Paquette promised to ensure that the appropriate equipment was available for the next day. ii. In contrast, Paquette testified that he and MacPherson were properly secured on the first day and that the proper safety equipment was available on the job site. iii. MacPherson says he was with Paquette when Paquette spoke to Samuel at the end of the first day of the job about additional equipment required to safely complete the roofing job the next day, including safety ropes with clips. According to MacPherson, Samuel agreed to obtain the missing safety equipment for the next day. MacPherson testified that when he arrived at the job site on the second morning and asked about the safety equipment that was to have been purchased, he was told by Paquette that “everything’s up top”, but that he found no safety equipment when he went up to the roof. iv. In contrast, both Samuel and Paquette have testified that Samuel did not agree to purchase any safety equipment during their conversation, and that it was not part of their agreement that she would supply safety equipment. They say that Samuel only agreed to take responsibility for the purchase of the roofing materials and the disposal bin. Samuel urges the court to prefer their evidence (the parties to the agreement and to the conversation) over the evidence of MacPherson about what he says he overheard. c. Did Samuel owe any other duties with respect to the safety of this job site by virtue of the provisions of the OHSA? i. Does the OHSA apply to this job site, which is an occupied residence? ii. If so, is Samuel a “constructor” within the meaning of, and with obligations under, the OHSA, with duties to maintain the safety of the job site? iii. Even if the OHSA does not apply, do the same duties codified in the OHSA apply to Samuel at common law to inform her duty of care to MacPherson in negligence? d. Did Khezri (and Allan Star Roofing) owe a duty of care to MacPherson to ensure that he was safely tethered and harnessed while on the roof and/or a duty of care not to ask him to pass the nail gun (was it reasonably foreseeable that MacPherson could lose his balance and fall off the roof when reaching to pass the nail gun to him) in the circumstances? i. MacPherson says that when he complained after climbing up to the roof about the safety equipment and asked where it was, Khezri told him that there was an extra safety clip (connector) in the Allan Star Roofing truck that MacPherson could use. ii. MacPherson says he was untethered and had one foot on the ladder and one foot on the roof and he was about to go down the ladder to retrieve the safety clip when Khezri, who was on an adjacent ladder, asked him to pass the nail gun that was beside his foot on the roof. MacPherson says it was when he was reaching for the nail gun that he lost his balance and fell. iii. In contrast, Khezri says he did not know that MacPherson was not harnessed or properly tethered with a safety harness and does not recall asking MacPherson for the nail gun as he was about to descend the ladder.

1. Khezri does not recall MacPherson asking him for a safety clip (connector) or asking MacPherson for the nail gun. He does not recall any conversation with MacPherson prior to his fall.
2. Khezri says he saw MacPherson on the roof wearing a harness and holding a rope, but he could not see if the rope was attached to the harness.
3. On discovery, MacPherson testified that he was not sure whether Khezri and his employee spoke English. Although it is admitted that Khezri does speak English, it is suggested that this discovery evidence calls into question MacPherson’s recollection that Khezri told him there was a connector in his truck or asked him to pass the nail gun.
4. Khezri says he did not see MacPherson fall off the roof; he recalls hearing MacPherson fall and seeing him on the ground, which suggests that they were not communicating or in eye sight of each other just before MacPherson fell. e. Did the Allan Star Defendants owe statutory duties with respect to the safety of workers such as MacPherson on this job site by virtue of the provisions of the OHSA? i. Does the OHSA apply to this job site, which is an occupied residence? ii. If so,
5. Was Allan Star Roofing a co-contractor or partner of Paquette with statutory obligations for the safety of the job site and workers on it? a. MacPherson acknowledges that he was employed and being supervised by Paquette, who was his supervising contractor. b. Paquette and Khezri claim that their agreement was that Paquette would pay Khezri $700.00 for labour and tools. That is significantly more than what MacPherson was being paid as a worker on the job site. c. Khezri did not attend the job site on his own. He brought a ground worker from Allan Star Roofing with him. d. It is acknowledged that Allan Star Roofing became a contractor on the job site after the accident. Based on their past dealings in which Paquette worked for Allan Star Roofing, MacPherson suggests that it would be out of the ordinary for the Allan Star Defendants to be just workers or sub-contractors to Paquette on the job site before the accident.
6. Was Khezri a worker and/or a sub-contractor hired by Paquette with statutory obligations to report unsafe conditions? a. Did Khezri owe any duty directly to MacPherson (a co-worker) or was any duty owed only to Paquette to report that MacPherson was not wearing proper safety gear and that the work site was unsafe? b. Could there be a causal link between a failure to report a safety infraction and MacPherson’s fall if Paquette already knew that MacPherson was not wearing proper safety gear when he went up on the roof that morning (as MacPherson says he did)? c. Could reporting the alleged safety infraction have prevented the fall given the compressed timeline (the falling having occurred very shortly after MacPherson arrived up on the roof where Khezri was situated)? iii. Even if the OHSA does not apply, do the same duties as are codified in the OHSA apply at common law? f. What is the extent of MacPherson’s contributory responsibility and negligence for his fall? i. He knew that proper safety equipment was needed for working at heights and on a roof and was trained in the use of safety equipment at heights yet claims to have worked the first day without it. ii. On the second day, he ascended and descended the ladder to the roof and walked on the roof without taking the proper safety precaution of being tethered by a rope. iii. He could have decided not to reach for and pass the nail gun if he felt unstable.

[32] Although the defendants argued that MacPherson’s credibility was not a central issue that had to be decided for them to succeed on their motions, they were not prepared to argue the summary judgment motions on the basis that the court would accept as true everything that MacPherson testified to. Ultimately, their position was that MacPherson’s credibility did need to be assessed but that this could be done based on alleged inconsistencies or incredulities inherent in his testimony and having regard to uncontested facts or written records.

[33] The credibility of the three key witnesses has been challenged on this motion, including:

a. Is MacPherson’s evidence credible generally, in light of inconsistent testimony that he has given about other matters, such as: i. His explanations for why an ambulance was not called after MacPherson’s fall:

1. Samuel and Khezri say that MacPherson did not want them to and suggest it was because he did not want it to be known that he had fallen while working because he was concerned about losing his EI status and they argue this is consistent with the vague way in which MacPherson’s wife reported his injury and it was recorded in the EI records.
2. MacPherson says he begged the others to call 911 but they would not do so. ii. His explanations for why he initially told the hospital workers, and it was recorded in his hospital records, that he fell from a tree:
3. Because Paquette or others told him to.
4. Because he was scared and did not know what to say.
5. That he only said this once and corrected it (in contrast with the hospital records that repeat the account that he fell from a tree multiple times, and only refer to him falling from a roof in the last two entries). iii. His testimony on discovery that he did not know if Khezri and Mahamdi spoke English, in contrast with his testimony that Khezri told him in English that there was a connector in the truck and asked him in English for the nail gun just before he fell. iv. His testimony that he and Paquette, individuals who were both experienced and trained in the safety of working at heights, would have worked the entire first day without proper safety equipment. v. His testimony that he never spoke to Samuel except to say hi, in contrast with his testimony that he talked to Samuel about the asbestos on the roof, but also testifying that he spoke to Paquette about the asbestos on the roof. b. Is Paquette’s evidence credible generally, given that he is a convict and in default in these proceedings? i. What would his motivation be to lie to help Samuel and the Allan Star Defendants? c. Is Samuel’s evidence credible generally, given: i. Her insistence that the accident occurred on the first day of the job, when it is agreed by all that it occurred on the second day of the job. ii. Her testimony that both MacPherson and Paquette were properly restrained, contrasted with her inability to identify the nature of the restraint system. iii. Her assertion that MacPherson knowingly went up on the roof on the second day without safety equipment that she claims was available to him and that he had used it on the first day of the job. iv. Her testimony that she pleaded with MacPherson to let her call an ambulance in light of his obvious injuries, yet she did not call an ambulance or the police or report the accident to anyone.

[34] The parties agreed that the inconsistencies or contradictions in MacPherson’s evidence about what happened after the accident and what he told the hospital do not need to be resolved, and no findings need to be made about what he said after the fall, or why he said it. MacPherson is not relying on the alleged failure by the defendants to call an ambulance as a basis for their liability. The moving defendants, however, continue to rely upon the existence of these and other inconsistencies in MacPherson’s evidence in support of their contention that MacPherson is not credible.

Summary Judgment Framework

[35] Rule 20.04 directs that the court shall grant summary judgment if:

a. the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or a defence; or b. the parties agree to have all, or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

[36] The framework for determining summary judgment motions comes from the Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 7. It requires that the judge be confident that the court has the evidence to make the factual findings required to adjudicate the dispute (by applying the law to the facts) and to reach a fair and just determination on the merits. The question to ask is whether there is a genuine issue “requiring a trial” and whether it is in the interests of justice for the judge to use the fact-finding powers to decide that issue. This can be considered in light of the goals of timelines, affordability, and proportionality.

[37] The procedure to be followed on a motion for summary judgment prescribed by the Supreme Court in Hryniak is in two stages:

a. the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before him or her without using the fact-finding powers in sub-rule 20.04(2.1). b. if there appears to be a genuine issue requiring a trial, Rule 20.04(2.1) permits the motion judge, at his or her discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the “interest of justice” for these powers to be exercised only at trial: Hryniak, at para. 66.

[38] The court is entitled to assume that each side has put its best foot forward with respect to the evidence and that no other or additional or better evidence would be led at trial. See, for example, Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 26-27, aff’d 2014 ONCA 878 and Da Silva v. Gomes, 2018 ONCA 610, at para. 18. [3]

[39] The Supreme Court of Canada’s description of the “interest of justice” inquiry in Hryniak at paras. 58 – 60 directs the court to consider the consequences of the motion in the context of the litigation as a whole in deciding whether the court’s fact-finding powers should be exercised only at trial. The Supreme Court used the example that if some of the claims against some of the parties will proceed to trial in any event, “it may not be in the interests of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice.”

[40] This underscores the concern about inconsistent findings at trial when a summary judgment motion is not dispositive of the entire case. The Court of Appeal has repeatedly said that granting summary judgment in circumstances where that is a potential outcome is not appropriate. (See for example, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438; Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561; Mason v. Perras Mongenais, 2018 ONCA 978, and Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc., 2019 ONCA 6.)

[41] Staged summary judgment motions in cases where credibility is important can be particularly problematic, especially if the witnesses whose credibility is to be assessed on summary judgment will be appearing at a trial. See Baywood, at paras. 44-45. The existence of material facts in dispute that depend upon credibility determinations is a genuine issue for trial. See 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670, at paras. 40-41: “If credibility cannot be assessed on a written record, that should be a sign that oral evidence or a trial is required: Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 55”.

[42] The plaintiff suggests that the existence of the jury notice is another relevant factor for the court to consider as part of the interest of justice inquiry, arguing that the court must be cautious about using its expanded Rule 20.04(2.1) fact-finding powers on a summary judgment motion where the effect would be to usurp the role of the jury. See McDonald v. John Doe, 2015 ONSC 2607 at paras. 42 and 45; See also Wardak v. Froom, 2017 ONSC 1166, at para. 42.

[43] I note that this is not a universally accepted view. In Hollingshead v. Aerarium Development Corporation Limited, 2019 ONSC 231 (at paras. 62-66) Charney J. canvassed case law and concluded that the existence of a jury notice is not relevant to the determination of the question of whether there is a genuine issue requiring a trial on a summary judgment motion. Cases cited for this proposition included: Abuajina v. Haval, 2015 ONSC 7938, at para. 46; Alexander v. Doe et al., 2018 ONSC 5882, at para. 46; Anjum et al. v. Doe et al., 2015 ONSC 5501 (at para. 12); Broomfield v. Kernaghan Estate, 2012 ONSC 739 (at para. 28); Gurpersaud v. Safie, 2016 ONSC 7033, at para. 31; MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, at para. 33; Mehlenbacher v. Cooper, 2017 ONSC 3434, at para. 38.

[44] These cases indicate that the existence of a jury notice does not preclude the granting of summary judgment where the court is otherwise satisfied that there is no genuine issue for trial. Further, the court in Hollingshead observed (at para. 67) that the analysis might be different in a case where the motion judge is unable to make findings of fact from the evidence filed and is being asked to hear oral evidence and hold a “mini-trial” pursuant to Rule 20.04(2.2). In such cases the existence of a jury notice may be a factor militating against ordering a mini-trial: Mitusev v. General Motors, 2014 ONSC 2342, at para. 91; Wardak, at para. 63.

[45] I also note that the concern about bifurcation of issues or parties before trial by granting partial summary judgment may be heightened in a case where there is a jury notice, since the court has no jurisdiction to bifurcate issues in a proceeding in which a jury notice has been delivered absent consent of the parties. See Duggan v. Durham Regions Non-Profit Housing Corp., 2019 ONSC 3445 (Div. Ct.), at paras. 25-39. [4]

Positions of the Parties on Summary Judgment

[46] The moving defendants contend that, notwithstanding the disputed issues and facts, there are certain findings that can be made on the written record using the court’s fact-finding powers that will be dispositive of the claims against them. They put forward various arguments in support of this position, which I have outlined below. The plaintiffs’ arguments against the granting of summary judgment, with reference to identified genuine issues that they say require a trial, are also outlined below.

Arguments of the Allan Star Defendants’ in Favour of Summary Judgment

[47] The Allan Star Defendants argue that the OHSA does not apply to residential properties. Section 3(1) exempts work performed by the owner or occupant or servant of the owner or occupant to, in or about a private residence. This section has been interpreted to exempt already constructed and occupied single-family residences, such as the Samuel residence. McAlonen v. Vandel, 1997 CarswellOnt 838 (Gen Div) at paras. 9-15. See also Gervais v. Lee, [2000] O.J. No. 5619, at para. 23.

[48] In any event, the Allan Star Defendants maintain that they owed no duties to MacPherson under the OHSA. The Allan Star Defendants maintain that there is no basis upon which they could be found to have been the supervising contractor (consistent with the prior ruling of Trimble J.) nor a co-contractor of this job site based on the record which clearly establishes that: Samuel hired Paquette, Paquette hired MacPherson and Samuel did not hire Allan Star Roofing directly (to complete the job) until after the accident. Further, MacPherson admits that it was Paquette who employed and supervised him.

[49] Even if Khezri was a “worker” within the meaning of the OHSA, his only obligation under s. 28(1)(c) of the OHSA would have been to report unsafe or hazardous work conditions to the supervisor of this job site, Paquette. For there to be liability in negligence arising from a statutory breach, the duties owed under and breach of the OHSA would have to correspond with a common law duty of care owed by Khezri directly to MacPherson. See Ryan v. Ontario (Workmen’s Compensation Board), [1984] O.J. No. 1395 (Div. Ct.) at paras. 37-39. As well, the alleged breach would have to have a causal connection to MacPherson’s injuries (damages). See Resurface Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at paras. 18-23.

[50] MacPherson is not alleging that he was injured because of generally unsafe work conditions, such as the alleged existence of asbestos or holes on the roof. Rather, he alleges that there was a lack of safety equipment, which on the uncontroverted facts, Khezri could not have learned about it more than a few minutes before MacPherson fell and Paquette already knew about it when he sent MacPherson up to the roof. Thus, Khezri contends that he could not be found to have failed in any duty to report the unsafe conditions to the supervisor in a timely manner, nor could that failure to report be causally connected to MacPherson’s fall since the supervisor was aware of the condition already.

[51] Finally, the Allan Star Defendants argue there is no basis to find that Khezri owed a duty of care to MacPherson not to ask for the nail gun. Khezri does not recall being aware of an unsafe condition (that MacPherson was not tethered) or asking him for the nail gun. In any case, they contend that it was not reasonably foreseeable that MacPherson would fall as a result, precluding a duty of care.

Arguments of Samuel in Favour of Summary Judgment

[52] Like the Allan Star Defendants, Samuel argues that s. 3 of the OHSA renders it inapplicable to events occurring on her occupied residential property. Even if the OHSA did apply directly, or analogously to inform a common law duty, Samuel maintains that she is not a “constructor” within the meaning of that statute and owes no duties to MacPherson pursuant thereto. To be a constructor, she would have to have hired more than one contractor for the job that MacPherson was working on (see s. 23). Samuel maintains that the evidence clearly shows that the only contractor she had hired as of the date of the accident was Paquette. She maintains that her direct dealings with Allan Star Roofing occurred after the accident, when she hired the Allan Star Defendants to finish the job.

[53] Samuel also argues that there is no liability under the OLA. Section 3 of the OLA requires an occupier (that would include Samuel as the owner and occupier of the house) to take reasonable care to ensure persons were reasonably safe while on her premises, whether the danger is caused by the condition of the premises or an activity carried out on the premises. Samuel maintains that the premises were reasonably safe and free from any structural defects or lack of repair that could be causally connected to MacPherson’s fall. She further contends that even if fixing her roof was an inherently dangerous activity because of its steepness, according to MacPherson, he fell because he lost his balance while climbing down the ladder and reaching for a nail gun when he was not connected to a rope that was tethered to the roof at the time of his fall. He did not fall because of any defect or lack of repair or hazardous condition on the roof or because of the steepness of the roof.

[54] Samuel argues that the plaintiffs have not met their onus of identifying some act or failure to act on her part to establish the necessary link of causation between any alleged breach of the standard of care and the injuries suffered by MacPherson. Whitlow v. 572008 Ontario Ltd. (c.o.b. Cross-Eyed Bear Tavern), [1995] O.J. No. 77 (Gen. Div.) at para. 17 and St. Louis-Lalonde v. Carleton Condominium Corp. No. 12, [2005] O.J. No. 2721, at para. 27, aff’d 2007 ONCA 108.

[55] Samuel also argues that MacPherson voluntarily and willingly assumed the risks associated with working on the roof without taking proper safety precautions, which is a defence under s. 4 of the OLA. MacPherson admits that he had experience working at heights and he himself says that he was persistently complaining to Paquette about the lack of safety equipment, yet he returned to work on the second day and went up to the roof and started to climb down from it without his harness being properly secured or tethered to the roof. The work MacPherson was doing had certain inherent and obvious risks, particularly the risk of falling, which were well-known to MacPherson.

[56] Further, Samuel argues that the responsibility for providing safety equipment was Paquette’s. Samuel relies on s. 6 of the OLA which gives her a defence as the owner/occupier if Paquette was negligent in failing to do so. Samuel says that she acted reasonably in entrusting the work involved in the replacement of her roof, including the provision of any required safety equipment, to Paquette, who was a competent and experienced roofing contractor. She maintains that she was entitled to assume that Paquette knew his trade and had no obligation to supervise him. MacPherson was unable to provide any reason why Paquette should not have been entrusted with this roofing contract. He admitted that he has no evidence to suggest that any of the workers on the job were unskilled. Further, MacPherson admits that he did not tell Samuel directly about his safety concerns, nor did he ask her directly for the safety equipment. Samuel maintains that she had no overriding duty to monitor whether the practices followed by the professional roofer Paquette were safe.

[57] In the absence of any defect or lack of repair or hazardous conditions affecting or associated with the premises which can be causally linked to MacPherson’s fall, the only basis for Samuel’s liability would be in negligence for not providing the necessary safety equipment to perform the roofing work. This is not a free-standing duty. Its existence depends upon the establishment of some affirmative obligation on Samuel to provide such equipment. Osmond v. Watkins, 2018 ONCA 386, affirming 2017 ONSC 5729.

[58] In the Osmond case, the motion judge made the following findings of fact on the summary judgment motion (summarized by the Court of Appeal at para. 9), which findings Samuel argues can equally be made in this case:

(i) there was no evidence the appellant’s fall was caused by any defect in or lack of repair affecting the premises or any hazardous conditions associated with the premises themselves; (ii) there was no dispute the appellant was performing the renovation work for valuable consideration; (iii) there was no basis for a contractual claim that the respondents had failed to furnish the appellant with safety equipment; (iv) there was no evidence the appellant was inexperienced in performing roofing work or working at heights; and (v) the evidence did not support a finding that the respondents were aware the appellant lacked the necessary experience to carry out the project.

[59] Samuel disputes MacPherson’s evidence that she agreed with Paquette to purchase the necessary safety equipment for the second day of the job. She maintains that she did not agree to provide safety equipment, would not reasonably have been expected to do so, and had no duty to do so.

[60] Samuel argues that her evidence, corroborated by the evidence of Paquette, is dispositive of this and allows the court to find that she made no such agreement and assumed no obligation to do so. She suggests that the Court of Appeal’s decision affirming the motion judge in Osmond supports her contention that this finding can be made on the existing paper record on this summary judgment motion.

[61] Samuel maintains that the determination of this issue does not require a trial even though it depends upon the court rejecting or giving no weight to MacPherson’s evidence about the conversation he says he overheard between Paquette and Samuel. Samuel argues that this can be done now because there is not expected to be any new or different evidence at trial that will assist or inform the factual determinations that need to be made to support MacPherson’s contention that she took on this responsibility. Paquette is dead so his evidence is static, and MacPherson and Samuel can be assumed to have said all that they have to say on this subject.

Plaintiffs’ Arguments Against Summary Judgment

[62] The plaintiffs raise the following primary arguments against the granting of summary judgment in favour of Samuel:

a. Section 3 of the OLA is engaged because the roof was unusually steep and inherently dangerous. This is reinforced by Paquette’s acknowledgment after the first day that he needed Khezri’s assistance to do this job (Paquette and Khezri described it as a tough job). In such circumstances, which are distinguishable from those in the Osmond case, MacPherson argues that there is a genuine issue that requires a trial to determine whether Samuel, as the owner/occupier, had an obligation to at least make inquiries about the need for safety equipment, which on her evidence she did not do. b. Samuel would also have had an obligation to ensure that appropriate safety equipment was available to the workers under the OHSA if Samuel is found to be a “constructor” as a result of there having been two “contractors” on the job site (Paquette and Allan Star Roofing). MacPherson argues that the applicability of the OHSA and whether Samuel was a constructor and what obligations she might have had (under the statute or, by analogy at common law) are genuine issues for trial. c. Section 4 of the OLA is not a defence unless it can be established that MacPherson assumed both the physical and legal risks associated with being on the roof (see Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186, at paras. 28-29 and 31). Samuel’s argument of “volenti” is focussed entirely on MacPherson having assumed the physical risk of going up on the roof without a safety connector, which he did, according to his testimony, only because he understood that the needed safety equipment (connector) had been purchased by Samuel and had been taken up to the roof. MacPherson argues that there remains a genuine issue for trial about whether he assumed the legal risks associated with being on the roof without a connector in these circumstances. d. Samuel has not made out the s. 6 OLA defence as she has not demonstrated her diligence to support a finding that she held a reasonable belief about Paquette’s qualifications as a roofing expert. Instead, it is argued that she had a desire to do her roofing job for less money by hiring someone like Paquette who was not part of an established and reputable roofing company and by purchasing the roofing materials directly herself. MacPherson maintains that there is a genuine issue requiring a trial about the reasonableness of Samuel’s belief in the competence of Paquette to ensure the safety of workers on the job site. Further, s. 6 of the OLA is not a defence against Samuel’s own negligence if she is found to have owed a duty to MacPherson regarding the safety precautions to be taken. e. There is a genuine issue for trial about whether Samuel agreed to purchase the necessary safety equipment for the job site at the end of the first day. i. While Samuel and Paquette deny that she agreed to do this, MacPherson maintains that they did and argues that Samuel’s recollection is suspect given her other evidence about the timing of the accident. ii. MacPherson also argues that Paquette’s evidence is suspect given his past criminal record. MacPherson also argues that the weight and utility of Paquette’s evidence is open to challenge given his deemed admissions by virtue of having been noted in default under Rule 19, including of the allegations that both he and Samuel were responsible for ensuring that the premises were safe, and both were negligent and failed in their duties of care to the plaintiff, and that Paquette was not competent to carry out the work in a professional and safe manner. [5] iii. If Samuel promised to provide the safety equipment in a conversation overheard and relied upon by MacPherson, that could be a basis for a finding of a duty of care to do so, under both the reasoning in the Osmond case relied upon by Samuel and also in Wiens v. Serene Lea Farms Ltd., 2001 BCCA 739 at para. 8. MacPherson maintains that the determination of who to believe, MacPherson as opposed to Samuel and Paquette, is a genuine issue requiring a trial (see Baywood, at paras. 44-45; see also Chambers v. Cobb, 2015 ONSC 5313, at paras. 62 and 96).

[63] The plaintiffs raise the following primary arguments against the granting of summary judgment in favour of the Allan Star Defendants:

a. It is pleaded that Allan Star Roofing was one of the contractors on the job. It is open to the court to find that Allan Star Roofing was a co-contractor with Paquette on the second day of the day of the job. They supplied the truck and the equipment (both days). Khezri did not attend alone on the second day; he brought an Allan Star Roofing ground worker with him as well. Such a finding would be consistent with the historical working arrangements between Khezri and Paquette and with the arrangement that they concede they had to partner on the completion of the job after the accident. Neither MacPherson’s knowledge and understanding of having been hired and supervised by Paquette nor the fact that no one is suggesting that he was hired by Allan Star Roofing, is determinative of the broader question of whether Allan Star Roofing was one of the contractors on the day of the accident within the meaning of the OHSA. MacPherson contends that remains a genuine issue for trial. b. If the Allan Star Defendants were one of the contractors on the second day of the job, they may be found to have had a statutory responsibility for the safety of the worksite under the OHSA, or if that statute is found not to apply to occupied residences, such a finding could inform the determination of their duty of care to MacPherson in negligence at common law. MacPherson contends that this remains a genuine issue for trial. c. Even if the Allan Star Defendants are not liable for a breach of any duty under the OHSA (as a result of the determination of the issues noted above or because of lack of causation between a failure to report safety concerns to Paquette that Khezri relies upon), there remains the question about whether Khezri was aware that MacPherson was not safely connected or tethered to the roof as he was perched on the top of the ladder and about whether, with that knowledge, Khezri asked MacPherson to pass him a nail gun. MacPherson’s testimony would be consistent with these facts; Khezri does not recall discussing them but argues that MacPherson is not credible, and his evidence should be disregarded or given little or no weight. This raises similar genuine issues of credibility for trial as the plaintiffs rely upon in opposition to Samuel’s request for summary judgment. d. Even if the court could rule now, based on the paper record that the Allan Star Defendants are not liable under the OHSA or in negligence at common law, it is not in the interest of justice for the court to decide this if there are other issues in the action going to trial about which Khezri will be called to testify and that may involve overlapping findings of fact.

Summary Judgment Analysis

[64] The Supreme Court’s analytical framework for a summary judgment motion requires me to consider:

a. Whether there is a genuine issue for trial and, if so, whether I can reach a fair and just determination on the merits using the enhanced fact-finding powers set out in Rule 20.04(2.1); b. Whether the use of the enhanced fact-finding powers to decide the issue is in the interest of justice, without running the risk of duplicative proceedings or inconsistent findings of fact.

[65] I accept the plaintiffs’ arguments and find that there are some genuine issues that require a trial. The most significant of these genuine issues for trial for purposes of this summary judgment analysis are those that require me to make findings about MacPherson’s credibility:

a. Did Samuel agree to purchase and provide the missing safety equipment for the second day of the job, giving rise to a duty of care to MacPherson; and b. Did Khezri, an experienced roofer, have knowledge that MacPherson was not safely secured to the roof (because he was on his way down to get a safety connector), and with that knowledge did he ask MacPherson to pass him a nail gun as MacPherson was about to descend down the ladder from the roof, giving rise to a duty of care based on the foreseeability of harm principle.

[66] While I might have been persuaded to use the Rule 20.04(2.1) enhanced fact-finding powers to decide many of the other issues that the plaintiffs have identified as genuine issues for trial, I am not able to reach a fair and just determination of these credibility issues using those fact-finding powers. They require me to find MacPherson’s evidence about these conversations is worthy of little or no weight. The defendants urge me to do so based on a general lack of credibility in his testimony. I do not consider it to be in the interest of justice for a finding about MacPherson’s credibility to be made without the benefit of hearing him testify so that his overall credibility can be properly assessed by the finder of fact at trial. This is consistent with the Court of Appeal’s guidance in Baywood.

[67] The words of the Court of Appeal in Butera (at paras. 30-33) also resonate in this case. Once there is going to be a trial, only an issue that is truly severable from the continuing issues and claims should even be considered for what would amount to a partial summary judgment. “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.” (See Butera, at para. 34). I do not consider any of the other issues in this case (such as the applicability of the OHSA, the availability of defences under the OLA or at common law, the plaintiff’s contributory negligence or voluntary assumption of risk) to be of such a character as to warrant a determination now that would result in partial summary judgment.

[68] For me to decide any of the other remaining issues that might be amenable to determination on summary judgment using the enhanced fact-finding powers is not in the interest of justice. To do so would run the risk of duplicative proceedings and inconsistent findings of fact, especially when the findings would be made based on the testimony of witnesses who will still be required to testify at trial, and where there are issues of credibility. The entire factual narrative will have to be told at trial in order to decide the identified genuine issues for trial. That will involve the testimony of all three key witnesses who are still alive: MacPherson, Samuel and Khezri. Their testimony presently in the record would form the basis of any findings I might make on other issues now, and it would be repeated again at a trial.

[69] Further, and in response to the suggestion that I might be able to use the Rule 20.04(2.1) enhanced fact-finding powers to grant summary judgment in favour of the Allan Star Defendants and send only the issue of the liability of Samuel to trial, the plaintiffs and Samuel rely upon reasoning similar to what was adopted in Chambers. Citing from MacFadyen (Litigation Guardian of) v. MacFadyen (c.o.b. Tori’s Trails), 2014 ONSC 6589 at paras. 37-41:

[Where claims against one defendant require a trial] and all parties will be required to give evidence at that time the trial court will be in a substantially better position to evaluate all of the evidence and make appropriate findings. No efficiency would be gained by now disposing of the [owner’s] liability issue on summary judgment. It will be substantial [sic] more proportional for all issues to be determined at trial.

The added expense and delay of fact finding until trial is necessary in this case to ensure both a fair process and a just adjudication. A full and complete examination at trial of the history of the relationships between the parties (“just friends helping friends”) will be required to fairly adjudicate at one time both defendants’ liability, the plaintiff’s contributory liability and his damages. A staged summary judgment process would be inadvisable in the context of this litigation as a whole. Fairness requires a trial.

The trial court will have a much fuller appreciation of the relationships between the parties than is apparent to me on this motion. Any summary judgment rendered on [sic] motion concerning issues of causation, liability, credibility and reliability would result in a high risk for inconsistent trial findings and resultant substantial injustice. It would be an error in principle to summarily determine the role of [the owner] when pertinent facts remain in dispute and when Tori’s role in causing her father’s injuries will, in any event, be decided at trial. It would be neither in the interests of justice nor efficient nor proportionate for [the owner’s] liability to be disposed of summarily.

The moving party has not demonstrated that the evidence on this motion supports its position that there is no genuine issue requiring a trial. In other words, the Plaintiff has demonstrated that there are genuine issues requiring a trial in relation to [the owner]. The motion is dismissed.

[70] While I do not adopt the plaintiffs’ contention that the Chambers and MacFadyen cases are so close to this one as to be dispositive, I do agree that some of the same reasoning applies in this case. It will not be possible to avoid making some findings of fact and deciding some issues now in the determination of the claims against the Allan Star Defendants that would also be relevant to the trial of claims against Samuel. Without limitation, an obvious example of this is the question of the applicability of the OHSA to a residence. As well, the question of whether Allan Star Roofing was a co-contractor (where the existence of two contractors might render Samuel a constructor under that statute) could impact the claims under the OHSA and in negligence at common law against Samuel. Samuel was herself opposed to such an outcome of partial summary judgment in favour of the Allan Star Defendants, and she sided with the plaintiffs on that point. I am not satisfied that deciding some of the claims by summary judgment is a more expeditious and less expensive means to achieve a just result. The objectives that the Supreme Court of Canada aspired to in Hryniak cannot be achieved through summary judgment in this case.

[71] A further concern about partial summary judgment, beyond the commonly expressed risks of duplication and inconsistent findings, exists in this case because of the jury notice. The existence of the jury notice is not determinative, but it is a relevant consideration given that the rules do not allow for separate hearings on one or more issues in a proceeding that is to be decided by a jury, absent consent. Once there are issues going to a jury, absent good reasons (of which I am not aware of any in this case) the jury should be left to make all of the findings of fact in relation to the claims against each of the defendants whose liability is disputed. See McDonald at paras. 42 and 45, Wardak, at para. 42.

Disposition and Rule 20.05 Directions and Terms

[72] Counsel advised at the conclusion of the hearing of these motions that they were not ready to make any submissions about Rule 20.05 directions and terms if I decided not to grant summary judgment. They asked to be afforded an opportunity to do so at a later time. I am prepared to afford them this opportunity at a chambers appointment to be arranged through my assistant. Depending on the current status of the court operations, and having regard to the Notices to the Profession due to the COVID-19 pandemic, this appointment may be held remotely rather than in person.

[73] The parties should be prepared to address at this chambers appointment all of the matters outlined in sub-rules 20.05(1) and (2) that remain applicable in this proceeding and to address a process for the trial judge’s consideration and determination of the admissibility and use of the out of court evidence of Paquette, given that he will not be available to testify at trial, and having regard to the fact that he has been noted in default.

[74] Given that there is a jury notice, and for so long as there is not an agreement among the parties for it to be withdrawn, I will not remain seized of the trial of this action and third-party action as the advantages that the Supreme Court of Canada contemplated in Hryniak to my doing so do not exist in the context of a jury trial. However, should the parties decide in the near term while the issues and evidence still remain fresh that, in light of the suspension of normal court operations and the potential for there to be additional delays in the scheduling of civil jury trials, or for any other reason, they would like to proceed by way of a trial by judge alone then, subject to other scheduling considerations, I will seize myself of this matter and preside over the trial. That would be the most efficient manner of proceeding, with some further directions and terms to be imposed under Rule 20.05 by me at the time of any election for a trial by judge alone.

[75] I note that the materials indicate that a pre-trial conference was scheduled for May 14, 2019. Under the most recent Notice to the Profession, pre-trial conferences can proceed remotely. I encourage the parties to make arrangements for such. If the court can no longer accommodate the pre-trial conference on that date, then the parties should ask for a new date to be scheduled through the court scheduling office.

Costs and Implementation and Effect of this Endorsement

[76] The parties to the motion agreed to exchange cost outlines after the hearing. I assume that exchange has taken place. I would hope the parties will be able to reach an agreement on the costs of these motions. However, if they are unable to do so, I will allow them an opportunity to make written cost submissions. If an agreement on costs is reached, counsel are asked to advise the court of such by May 22, 2020 by sending an email to my assistant, Linda Bunoza.

[77] Failing agreement on costs, the plaintiffs may provide a written cost submission (not to exceed 3 pages double spaced) together with their cost outline by May 29, 2020, the Samuel and the Allan Star Defendants may each provide their written responding cost submissions (not to exceed 3 pages double spaced) together with their cost outlines by June 5, 2020. The plaintiffs may deliver a brief reply submission to each of the responding cost submissions of the defendants (not to exceed 1.5 pages double spaced, each) by June 12, 2020. All costs submissions and outlines should be delivered to the court by sending an email to my assistant, Linda Bunoza. Given the current suspension of normal court operations and challenges that the parties and their counsel may be facing, the parties may agree to extend these deadlines. If the outside date for the court’s receipt of the final submission is to be delayed beyond June 12, 2020, counsel are asked to advise the court of the new agreed dates for their cost submissions.

[78] Notwithstanding Rule 59.05 and in accordance with Rule 1.04, this endorsement and the resulting orders dismissing the defendants’ summary judgment motions are effective from and after the date indicated below and enforceable without any need for the entry and filing of formal orders. Any party to this endorsement may nonetheless submit (with this PDF copy of my endorsement) a formal order(s) for original signing, entry and filing if required for an appeal or motion for leave to appeal to an appellate court. Any party may also do so for any other reason when the Court returns to regular operations.

Kimmel J.

Date: May 6, 2020

Footnotes

[1] In the original statement of claim Paquette was identified as David (a.k.a. Mark) Pickett. It was amended to name him as Paquette on December 15, 2015. The statement of claim was amended to add Sierra MacPherson as a plaintiff (claiming under the Family Law Act, R.S.O. 1990 F.3) and to plead reliance on the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 by Order made July 28, 2016.

[2] The case that the plaintiffs relied upon for the proposition that Trimble J.’s findings are final and binding is Jimenez v. Romeo. This was not a decision on an interlocutory motion and the considerations in that case were different. It is not instructive on this point.

[3] Older cases were cited by the parties in support of this point of law, which is not controversial. I refer to the more recent jurisprudence.

[4] Although the Hollingshead and Duggan cases were not cited or referred to by the parties, they were invited to make submissions on this point and did refer to the McDonald and Wardak cases.

[5] Pursuant to Rule 19.02(1)(a), as a defendant noted in default, Paquette is deemed to admit the allegations of fact in the statement of claim. The plaintiffs rely upon Umlauf v. Umlauf (2001), 142 O.A.C. 328 (Ont. C.A.), at paras. 13-16) to support their contention that Paquette should be taken to have admitted what was pleaded. However, there are more recent cases that do not apply the reasoning of the Court of Appeal in Umlauf to cases where there is evidence to contradict deemed admissions about conclusions of law, such as allegations of negligence and breaches of the OLA and restrict its reasoning to undefended trials (or motions for judgment) that proceed in the absence of any evidence. See Salimijazi v. Pakjou, [2009] O.J. No. 1538 at paras. 17, 26, 27 and 34. Ultimately, Paquette’s credibility remains to be determined, whether on the basis of deemed admissions and/or other considerations. The circumstances of his death ensure that there can be no further evidence tendered at trial from him to assist in this determination, but that determination could be impacted by the assessment of MacPherson’s credibility, whose evidence contradicts Paquette’s.