Superior Court of Justice - Ontario

COURT FILE NO.: 1742/18

DATE: 20210318

RE: LORI NUTT, Plaintiff

AND:

TOWNSHIP OF ASHFIELD-COLBORNE-WAWANOSH, COUNTY OF HURON and MAPLE GROVE BEACH ASSOCIATION, Defendants

BEFORE: K.A. GORMAN

COUNSEL: Dallas Lee, Counsel, for the Plaintiff (Respondent) Matt Brown, Counsel, for the Defendant ("the Township") (Applicant)

HEARD: March 15, 2021

ENDORSEMENT

[1] The plaintiff alleges that she slipped and fell on a wet surface near a private cottage driveway accessed via a privately maintained road. She has filed claim against the above-noted defendants.

[2] The moving party, the Township of Ashfield-Colborne-Wawanosh, claims that it had no responsibility for, or jurisdiction over the area where the plaintiff fell, nor for any of the potential causes of the slippery ground.

[3] Accordingly, the Township brings this motion for summary judgment. Only the plaintiff opposes this motion.

[4] The plaintiff takes the position that this motion is premature, and that she has been deprived of a reasonable opportunity to fully and properly investigate this matter, which can only be achieved through examinations of all parties in this litigation.

OVERVIEW

[5] On September 4, 2016 at approximately 6:00 p.m., Lori and a friend were each walking their dogs along Dickson Street in the Township of Ashfield-Colborne-Wawanosh ("the Township") parallel to the property owned by Caroline and Daniel Demers, which is located at municipal address 83816 Dickson Street (the "Demers Property").

[6] The two were walking side by side when the plaintiff slipped and fell backwards. Lori landed directly on her left wrist.

[7] As she was lifted to her feet, she noticed her body and clothes were soaking wet. She observed a trail of wet ground leading directly from under the cottage deck of the Demers' property, and a sewer grate nearby.

[8] As a result of the injuries she sustained, two separate actions were commenced. A Statement of Claim naming Caroline and Daniel Demers as defendants was issued on July 19, 2017.

[9] In their Statement of Defence, the Demers maintain that Lori's fall occurred on Municipal property.

[10] Following the Examinations for Discovery in the Demers action, the subject action was commenced on August 28, 2018 by way of Statement of Claim, which named the Moving Party, the County of Huron ("Huron") and the Maple Grove Beach Association (the "Association") as defendants.

[11] All Statements of Defence were served and filed by April 2020.

[12] Examinations for Discovery were scheduled to proceed in March 2021. Given the index motion for summary judgment, examinations were rescheduled for June 21, 2021. No party has been examined in this action.

LAW and ANALYSIS

[13] Rule 20.04 of the Rules of Civil Procedure outlines the test by which the court may grant summary judgment:

(2) 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 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

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence;

2. Evaluating the credibility of a deponent; and

3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[14] The approach to be taken by the court on a motion for summary judgment has now been clearly articulated by the Supreme Court of Canada in Hyrniak v. Mauldin, 2014 SCC 7, [2014] S.C.J. No. 7. Speaking for the court, Karakatsanis, J. stated at paras. 47-51:

47 Summary judgment motions must be granted whenever there is no genuine issue requiring a trial (Rule 20.04(2)(a)). In outlining how to determine whether there is such an issue, I focus on the goals and principles that underlie whether to grant motions for summary judgment. Such an approach allows the application of the rule to evolve organically, lest categories of cases be taken as rules or preconditions which may hinder the system's transformation by discouraging the use of summary judgment.

48 The Court of Appeal did not explicitly focus upon when there is a genuine issue requiring a trial. However, in considering whether it is against the interest of justice to use the new fact-finding powers, the court suggested that summary judgment would most often be appropriate when cases were document driven, with few witnesses and limited contentious factual issues, or when the record could be supplemented by oral evidence on discrete points. These are helpful observations but, as the court itself recognized, should not be taken as delineating firm categories of cases where summary judgment is and is not appropriate. For example, while this case is complex, with a voluminous record, the Court of Appeal ultimately agreed that there was no genuine issue requiring a trial.

49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

50 These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

51 Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself. However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.

[15] In Butera v Chown, Cairns LLP, 2017 ONCA 783, at para 25, the court dealt with the situation of motions for partial summary judgment:

[25] Hryniak does not address partial summary judgment per se except in the context of exercising the enhanced fact-finding powers contained in r. 20.04(2.1). In that regard, Karakatsanis J. observed that it may not be in the interests of justice to use the new fact-finding powers to grant summary judgment against a single defendant if the claims against other parties will proceed to trial in any event. Such partial summary judgment runs the risk of duplicative proceedings or inconsistent facts…

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

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

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

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

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

[16] A party responding to a summary judgment motion must demonstrate that there exists a genuine issue for trial. As the court stated in Canadian Imperial Bank of Commerce v. Ryan Ernest Mitchell 2010 ONSC 2227 at para.18:

[…] the responding party may not simply restate mere allegations contained in its pleadings. He must instead set out in affidavit material coherent evidence of specific facts showing that there is a genuine issue requiring a trial. It is not sufficient to say that more and better evidence will or might be available at trial. While there is an onus on the moving party to establish that there is no genuine issue requiring a trial, the case law also resolutely establishes that the respondent must "lead trump or risk losing": Rule 20.02(2); Pizza Pizza Ltd. v. Gillespie et. al. (1990), 1990 CanLII 4023 (ON SC), 75 O.R. (2d) 225 (Ont. Ct.); Irving Ungerman Ltd. v. Galanis (1994), 1991 CanLII 7275 (ON CA), 4 O.R. (3d) 545 at 552 (C.A.); High-tech Group Inc. v. Sears Canada Inc. (2001), 2001 CanLII 24049 (ON CA), 52 O.R. (3d) 97 (C.A.).

[17] Prior to its amalgamation in 2001, the Township was comprised of three separate townships. On cross-examination (in preparation for this motion), Florence Witherspoon, the representative produced by the Moving Party, deposed that all records that pre-dated the amalgamation remain within its possession and control. This included specific reference to historical by-laws related to the sub-division where the plaintiff fell, being Registered Plan 584 ("Plan 584").

[18] The Demers and Nutt properties are both located within Plan 584. The question of who maintains jurisdiction over the area where the fall occurred remains unclear.

[19] Plan 584 was previously known as Ashfield Plan 18. On cross-examination, Ms. Witherspoon testified that she was not aware of this fact and that all searches conducted by the Township concerned only Plan 584. She further deposed that the Township had no information regarding the construction, supervision, inspection, approval or licencing process of Plan 584 (formally Plan 18).

[20] The Court of Appeal indicated that some matters are not appropriate for summary judgment consideration when the normal process of production of documents and oral discovery has not been completed or initiated:

[57] It will not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross-examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.

[58] Moreover, the record built through affidavits and cross-examinations at an early stage may offer a less complete picture of the case than the responding party could present at trial.

Reference: Combined Air Mechanical Services Inc. et al. v. Flesch et al., 2011 ONCA

[21] The purposes of an examination for discovery have been held to be as follows:

a) To enable the examining party to know the case he or she has to meet;

b) To enable the examining party to procure admissions which will dispense with other formal proof of his or her own case; and

c) To procure admissions which will destroy his or her opponent's case.

See: Modriski v. Arnold, 1947 CanLII 316 (ON CA), [1947] 3 D.L.R. 321 (Ont. C.A.) at p. 232, [1947] O.W.N. 483 (Ont. C.A.).

[22] In my view, to grant summary judgment at his juncture runs the extreme risk of prejudice to the plaintiff. With the purposes of the examination process in mind, the plaintiff is entitled to make enquiries of the defendants and to compel disclosure of relevant facts.

[23] It remains unclear exactly where Lori fell. The plaintiff is entitled to explore the historic ownership and maintenance of the roadway. This can only be done through examination for discovery and the production of relevant documents. The motion for summary judgment is premature.

[24] The motion is accordingly dismissed, with costs payable to the plaintiff. If the parties are unable to come to an agreement as to quantum, I will receive brief written submissions within 30 days.

"Justice K.A. Gorman"

Justice K.A. Gorman

Date: March 18, 2021