Court File and Parties

COURT FILE NO.: CV-19-00631715 DATE: 2021-03-30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kamran Mohebbi AND: Saeed Yassobi, Laleh Rahman and Xiaoru Zhang

BEFORE: Vermette J.

COUNSEL: Joel Cormier for the Defendants Saeed Yassobi and Laleh Rahman Anne Fyfe for the Defendant Xiaoru Zhang No one appearing for the Plaintiff

HEARD: March 26, 2021

ENDORSEMENT

[1] This is a motion for summary judgment brought by the Defendants Saeed Yassobi and Laleh Rahman for the dismissal of the action as against them and for the dismissal of the crossclaim of the Defendant Xiaoru Zhang. While the Defendant Xiaoru Zhang has not brought a motion for summary judgment, she also seeks the dismissal of the claim as against her and the dismissal of the crossclaim of Mr. Yassobi and Ms. Rahman. Ms. Zhang relies on the case law that holds that it is permissible for a motion judge to grant summary judgment in favour of a responding party, even in the absence of a cross-motion for such relief: see, e.g., Meridian Credit Union Ltd. v. Baig, 2016 ONCA 150 at para. 17.

[2] The Plaintiff chose not to participate in this motion. He did not file any material and his counsel was not present at the hearing of the motion. I was advised by counsel that the Plaintiff did not oppose the motion brought by Mr. Yassobi and Ms. Rahman. However, the Plaintiff’s position with respect to the relief sought by Ms. Zhang (without a formal motion) was not known, even though the Plaintiff was served with the Defendants’ motion materials.

FACTUAL BACKGROUND

[3] On February 4, 2017, Mr. Yassobi and Ms. Rahman entered into a residential tenancy agreement with Ms. Zhang to lease residential premises in Richmond Hill, Ontario. The premises are a single-family dwelling. The lease agreement was a one-year lease. After the initial year, Mr. Yassobi and Ms. Rahman continued living in the premises and transitioned to a month-to-month lease.

[4] On April 15, 2018, the Plaintiff visited Mr. Yassobi and Ms. Rahman at the premises. The Plaintiff is a friend of Mr. Yassobi. Later in the evening, the Plaintiff came out of the house to go to his car, and he slipped and fell on the porch. The Plaintiff alleges in his Statement of Claim that the surface was “wet and icy”. He also alleges that, as a result of his fall, he has sustained serious, lasting and permanent injuries.

THE PLEADINGS

[5] In his Statement of Claim, the Plaintiff seeks damages in the amount of $1 million against the Defendants. He makes eighteen different allegations of negligence against each of Mr. Yassobi and Ms. Rahman, and twenty-two different allegations of negligence against Ms. Zhang. The allegations are not restricted to the presence of ice on the porch and include, among others, allegations that the premises were not adequately lit, that the porch was dangerous as a result of holes or other hazard, and that the Defendants failed to properly clear the premises of objects or stones.

[6] In their Statement of Defence and Crossclaim, Mr. Yassobi and Ms. Rahman rely on section 20 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”), and plead, among other things, that “the duty to maintain the snow and ice at the Subject Premises falls to the landlord”, Ms. Zhang. Their crossclaim against Ms. Zhang is for contribution and indemnity.

[7] Like Mr. Yassobi and Ms. Rahman, Ms. Zhang filed a Statement of Defence and Crossclaim. Ms. Zhang denies being an occupier of the premises in the manner contemplated by the Occupiers’ Liability Act R.S.O. 1990, c. O.2, and being responsible for the care, custody and control of the area where the fall occurred. She pleads that Mr. Yassobi and Ms. Rahman were entirely responsible for the maintenance and snow removal on the premises. Her crossclaim against Mr. Yassobi and Ms. Rahman is also for contribution and indemnity.

THE PARTIES’ POSITION AND EVIDENCE

[8] Mr. Yassobi and Ms. Rahman’s evidence is limited to the Agreement to Lease and a very short affidavit of Mr. Yassobi that deals mainly with the issue of snow and ice maintenance of the rental unit. Their position is that Ms. Zhang, as landlord, was responsible for the snow and ice maintenance of the rental unit pursuant to the RTA, and that she did not contract out of this responsibility. They argue that liability rests solely with Ms. Zhang and that there is no genuine issue requiring a trial against them.

[9] Ms. Zhang filed an affidavit in which she discusses the lease and her beliefs regarding the responsibility for snow and ice removal. She attached to her affidavit excerpts from the transcript of the examination for discovery of the Plaintiff, and she filed the transcript of the cross-examination of Mr. Yassobi. Ms. Zhang’s position is that this is not a proper case for summary judgment. In the alternative, she argues that liability rests entirely with the tenants, Mr. Yassobi and Ms. Rahman, as they were responsible for the ordinary cleanliness on the front porch, including snow and ice removal, pursuant to section 33 of the RTA.

[10] As stated above, the Plaintiff did not file evidence on this motion, but the Defendants rely on some of the evidence that the Plaintiff gave during his examination for discovery. While they did not include excerpts of the transcript in their motion record, Mr. Yassobi and Ms. Rahman have reproduced in their Factum a short excerpt from the Plaintiff’s examination for discovery (three questions) where the Plaintiff states that he does not remember structural issues with the porch and that ice on the porch caused his fall. In different excerpts from the same examination for discovery attached to the affidavit of Ms. Zhang, the Plaintiff states that, after his fall, when Mr. Yassobi turned on the light in the garage, he saw that the driveway was icy, but he did not observe the condition of the porch either during or after his fall.

[11] I was advised by counsel during the hearing that the Plaintiff has not formally abandoned the broad allegations of negligence in his Statement of Claim. There was no evidence before me to the contrary, nor was there evidence that the Plaintiff has made formal admissions with respect to issues of liability or causation.

DISCUSSION

[12] I do not think that it is open to Ms. Zhang on this motion to seek the dismissal of the claim as against her given that she has not brought her own motion for summary judgment. While a motion judge can grant summary judgment in favour of a responding party even in the absence of a cross-motion for such relief, this is not the situation in this case. The Plaintiff has not brought a motion for summary judgment against Ms. Zhang; rather, Ms. Zhang’s Co-Defendants have brought a motion against the Plaintiff. Thus, Ms. Zhang is not a responding party vis-à-vis the Plaintiff. My conclusion is reinforced by the fact that, as stated above, it is unclear whether the Plaintiff is aware of the relief sought by Ms. Zhang on this motion, which is only set out in her Factum.

[13] Turning to Mr. Yassobi and Ms. Rahman’s motion, this is a motion for partial summary judgment. If their motion is granted, the Plaintiff’s claims would continue against Ms. Zhang who, in turn, has brought a crossclaim against Mr. Yassobi and Ms. Rahman for contribution and indemnity.

[14] The courts have articulated many concerns regarding motions for partial summary judgment. As pointed out by Karakatsanis J. in Hryniak v. Mauldin, 2014 SCC 7 at para. 60, partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact. The Court of Appeal has also held that “[p]artial summary judgment is a rare procedure that should be sparingly invoked” (Way v. Schembri, 2020 ONCA 691 at para. 16), and that “[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” (Butera v. Chown, Cairns LLP, 2017 ONCA 783 at para. 34).

[15] I find that Mr. Yassobi and Ms. Rahman’s motion should be dismissed for two main reasons. First, considering the litigation as a whole, this is not an appropriate case for partial summary judgment. While the Defendants’ arguments on this motion were focused on who was responsible for snow and ice removal at the premises as between the tenants and the landlord, the Plaintiff’s allegations of negligence are not restricted to the presence of ice or snow on the porch. It is possible that factors other than ice could be found to have contributed to the fall of the Plaintiff. The apportionment of liability between the tenants and the landlord for such other factors was not argued before me and remains an open issue until the cause of the fall has been determined or formally admitted. Given this uncertainty, it is not possible at this stage to dismiss Ms. Zhang’s crossclaim for contribution and indemnity as against Mr. Yassobi and Ms. Rahman. Since the crossclaim must continue, it is not advisable to dismiss the Plaintiff’s claims as against Mr. Yassobi and Ms. Rahman because granting such partial summary judgment would, among other things, raise the risk of inconsistent findings and duplicative proceedings.

[16] Second, I find that Mr. Yassobi and Ms. Rahman have not discharged their evidentiary burden of proving that there is no genuine issue requiring a trial. As stated above, the Plaintiff’s allegations of negligence are not restricted to the presence of ice on the porch. In his short affidavit, Mr. Yassobi does not give any evidence with respect to the condition of the porch (such as lighting, the presence of objects or holes, etc.) on the night of the fall. It is only after a moving party defendant has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution that the burden shifts to the responding party to prove that its claim has a real chance of success: Sanzone v. Schechter, 2016 ONCA 566 at para. 30. In my opinion, Mr. Yassobi and Ms. Rahman have not discharged their evidentiary obligation as moving parties under rule 20 to put their best foot forward, adduce evidence on the merits and prove that there is no genuine issue requiring a trial. Therefore, the burden never shifted to the Plaintiff to prove that his claim has a real chance of success.

[17] The fact that the Plaintiff did not oppose Mr. Yassobi and Ms. Rahman’s motion and did not file responding material does not change this conclusion. As stated above, the evidentiary burden never shifted to the Plaintiff. Further, and more importantly, the Plaintiff’s failure to respond to and oppose the motion should not automatically result in the dismissal of the action as against Mr. Yassobi and Ms. Rahman. While this result would be beneficial to the Plaintiff’s friend, Mr. Yassobi, it could be prejudicial to Ms. Zhang, who opposed the motion. The Plaintiff’s laissez-faire attitude on this motion should not impact the determination of the liability issues as between the Defendants, and I find that it is not appropriate to determine such issues on the basis of the very limited evidentiary record before the Court.

CONCLUSION

[18] The motion for summary judgment of Mr. Yassobi and Ms. Rahman is dismissed.

[19] If costs cannot be agreed upon, Ms. Zhang shall deliver submissions of not more than two pages (double-spaced), excluding the costs outline, within 10 days of the date of this endorsement. Mr. Yassobi and Ms. Rahman shall deliver their submissions (with the same page limit) within 7 days of their receipt of Ms. Zhang’s submissions.

VERMETTE J.

Date: March 30, 2021