Court File and Parties
Court File No.: 109/17 Date: 2021-12-06 Superior Court of Justice - Ontario
Re: Brian Branton and Paula Jones And: 2008422 Ontario Limited c.o.b. as Euro-Ex
Before: Justice A. K. Mitchell
Counsel: A. Rozumek, for the defendant/moving party D. Bryce as agent for Mandryk & Morgan LLP, for the plaintiffs
Heard: November 12, 2021 at Woodstock via video conference
Endorsement
Overview
[1] Pursuant to r. 20 of the Rules of Civil Procedure (the "Rules"), the defendant, 2008422 Ontario Limited c.o.b. as Euro-Ex ("Euro-Ex"), seeks summary judgment dismissing the plaintiffs' claims for damages arising out of injuries allegedly suffered by the plaintiff, Brian Branton, when he fell in an area under construction at the end of the driveway to his residence.
[2] The defendant admits that it was responsible for the area under construction at the time of the incident and was, at all material times, an "occupier" under the Occupiers' Liability Act (the "Act") [^1]. However, the defendant submits the evidence of the plaintiffs, taken at its highest, is insufficient to prove, on a balance of probabilities that the defendant is liable to the plaintiffs under the Act for their losses. Furthermore, the plaintiffs' claims for breach of contract, breach of the Municipal Act and in nuisance are not tenable at law and should also be dismissed.
[3] The plaintiffs, Brian Branton and Paula Jones, ask that the defendant's motion be dismissed and by informal cross-motion seek partial summary judgment finding the defendant liable for their damages pursuant to the Act. Should the plaintiffs succeed on their cross-motion, the issue of damages would proceed to a trial for determination. The plaintiffs argue the uncontradicted evidence establishes, on a balance of probabilities, that the defendant's negligence caused Mr. Branton's injuries and, furthermore, that the defendant breached the statutory duty of care owed under the Act.
[4] The parties agree to have the issue of liability determined by way of summary judgment. I am required to grant summary judgment unless I find it would be inappropriate to grant summary judgment in the circumstances.[^2]
Background
[5] The plaintiffs are common-law spouses and, at the time of the incident, resided at 16 Maple Lane in the Town of Ingersoll, Ontario.
[6] In the Spring of 2015, the Town of Ingersoll contracted with Euro-Ex, to complete the installation of sewers as well as road and curb work on Maple Lane. At the time of the incident, Euro-Ex was in the midst of road construction on Maple Lane including pouring new curbs.
[7] While the construction work was ongoing on Maple Lane, the plaintiffs did not have access to their driveway. The plaintiffs were required to park their vehicle(s) on Maple Lane or nearby streets.
[8] During construction, there was a ditch at the foot of the plaintiffs' driveway. As part of its construction work, Euro-Ex created a dirt barrier separating the end of the plaintiffs' driveway from Maple Lane. In addition, two-foot metal rods were inserted in the barrier approximately 2 ½ feet apart to facilitate pouring the new curb.
[9] In 2015, Ms. Jones had mobility issues and used a walker. She was unable to safely traverse across the ditch, over the dirt barrier and onto the roadway on her own and required Mr. Branton's assistance.
[10] On September 24, 2015 following a 12-hour shift, Mr. Branton returned from work at approximately noon. He accessed his property from Maple Lane by walking around the metal rods and across the front lawn. The curb in front of the plaintiffs' residence had not yet been poured. Mr. Branton went to bed shortly after returning home and did not wake until approximately 10 p.m. later that same day.
[11] After Mr. Branton had retired to bed, Ms. Jones left their residence in the early afternoon of September 24, 2015 intending to go grocery shopping. Once outside, Ms. Jones noticed a new cement curb had been poured and access to the roadway had been restricted by a rope strung between the tops of the poles.
[12] Ms. Jones requested Euro-Ex workers to construct a means by which she could access the roadway over the newly-poured curb without assistance.
[13] To facilitate Ms. Jones' access to the roadway, a portion of the rope between two poles was removed and a temporary ramp was built from the driveway over the apex of the newly-poured curb and onto the roadway (the "ramp"). Ms. Jones utilized the ramp to access the roadway and return to the residence later that afternoon.
[14] At approximately 11:40 p.m. on September 24, 2015, Mr. Branton left his residence to return to work for his midnight shift. It was dark outside; however, Mr. Branton observed the newly-poured concrete curb at the end of the driveway and noted an opening between two metal rods. Mr. Branton proceeded to walk through this opening and, as he did, he fell injuring his left foot.
[15] Mr. Branton did not know what caused him to fall. There were no witnesses to the fall. The area of the fall was dimly-lit and Mr. Branton was not carrying a flashlight or cell phone.
The Litigation
[16] This action was commenced by statement of claim issued September 21, 2017. Mr. Branton seeks general and special damages from the defendant totaling $500,000 on account of his injuries. Ms. Jones seeks $20,000 in damages pursuant to the Family Law Act.
[17] The plaintiffs claim the defendant is liable, as an "occupier" of Maple Lane on September 24, 2015, for breach of the duty of care imposed by the Act.
[18] Examinations for discovery have taken place. The matter is set to proceed to trial before a jury.
[19] Both parties agree that the issue of liability may be decided by way of summary judgment and that a trial is not required for its resolution.
Analysis
(i) The Law – Summary Judgment
[20] R. 20.04(2)(a) of the Rules requires the court to grant summary judgment where there is no genuine issue with respect to a claim or defence.
[21] With respect to the Court's powers on a motion for summary judgment, r. 20.04(2.1) provides as follows:
(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:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[22] These enhanced powers came into effect in 2010. The Supreme Court of Canada's decision in Hyrniak v. Mauldin[^3] is the leading case on how these enhanced powers under r. 20 are to be utilized.
[23] Karakatsanis J. writing for the court made the following comments regarding the role of r. 20 as part of a necessary culture shift. She writes[^4]:
There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.
This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible – proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.
[24] The enhanced powers permit the motions judge to use the summary motion rules as a legitimate alternative means for adjudicating and resolving legal disputes. No longer are the summary judgment rules a highly restrictive tool to weed out only those claims and defences which are clearly unmeritorious.[^5]
[25] It is presumed that the judge will use these powers unless it is in the interest of justice for them to be exercised only at a trial. Whether or not a trial is required in the interests of justice will be driven by the underlying objective of the rule which is to promote access to justice by ensuring the process is proportional to the dispute.
[26] Hyrniak does not alter the well-developed principle that the parties are presumed to have placed before the court all of the evidence relevant to the material issues that would be available at trial.[^6] The Court may presume that no further and better evidence is available and the record is complete. Summary judgment motions are decided by evidence of the facts and by inferences drawn from those facts but not by speculation about those facts.[^7]
[27] Hyrniak developed the following approach as summarized by Corbett J. in Sweda Farms Ltd. v. Egg Farmers of Ontario[^8]:
(1) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
(2) On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
(3) If the court cannot grant judgment on the motion, the court should:
(a) decide those issues that can be decided in accordance with the principles described in (2), above;
(b) identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;
(c) in the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.
(ii) Liability under the Act
[28] I will now apply that approach to the case at hand.
[29] As noted earlier in these reasons, the defendant does not dispute that it was an "occupier" of Maple Lane on September 24, 2015 and, therefore, owed Mr. Branton the duty of care imposed by s. 3 of the Act.
[30] Both parties agree that all evidence relevant to the issue of liability is before the court and that the evidentiary record will be no better at trial. While some credibility issues arise on the evidence filed in support of the motion and cross-motion, I am of the opinion that any inconsistencies in the evidence are not material to a determination of the issue of liability. Therefore, I am satisfied that the issue of the defendant's liability for the plaintiffs' losses does not require a trial for its resolution and may be determined by summary judgment.
(iii) Issue: Did the defendant's design and construction of the ramp constitute a breach of the duty of care?
[31] Section 3 of the Act states as follows:
- (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons, are reasonably safe while on the premises.
(2) the duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on the premises.
[32] Section 3(1) does not contemplate a standard of perfection. It does not envision strict liability.[^9] Articulated another way, the duty under s. 3(1) of the Act is not absolute. Occupiers are not insurers.[^10]
[33] The statutory standard of care for occupiers is one of reasonableness. It requires neither perfection nor unrealistic or impractical precautions against known risks.[^11]
[34] A preliminary issue arises on the facts of this case. The defendant argues that the design and construction of the ramp and, therefore, the ramp itself was a measure taken by Euro-Ex to ensure the plaintiffs' safety when accessing Maple Lane from their driveway. The plaintiffs counter-argue that the construction and design of the temporary ramp created a hazard and led to the defendant's breach of the duty of care imposed by s. 3 of the Act.
[35] I find that once Euro-Ex undertook to remove the rope between the poles and construct the ramp to facilitate the plaintiffs' access from their driveway over the newly–poured curb and onto the roadway, it owed a duty of care to ensure the construction and design of the ramp did not create a hazard.
[36] No photographs or measurements of the ramp were taken at or near the time of the incident. The plaintiffs rely on the evidence of Ms. Jones with respect to the design, construction, and condition of the ramp at the time of the incident to support its position that Euro-Ex breached the duty of care owed to Mr. Branton.
[37] Ms. Jones deposed in her affidavit that during the afternoon of September 24, 2015 she walked to the end of the driveway where the workers had recently poured a new curb. She spoke with a Portuguese gentleman who appeared to be in charge. She explained to him that she needed to get to her vehicle but could not pass the steep curb and mounds of dirt at the end of the driveway nor navigate the deep ditch separating the front lawn from the road. The man agreed to assist and directed a couple of workers to construct a dirt mound over the new curb in between two of the metal poles positioned at the end of the driveway.
[38] With respect to the construction of the ramp, Ms. Jones deposed that the workers created a mound of dirt dug up from either side of the location for the ramp and then packed down the mound of dirt to create a makeshift ramp.
[39] With respect to the dimensions of the ramp, Ms. Jones estimated the ramp was approximately 2 ½ feet wide providing just enough width for a single pedestrian to traverse the ramp; extended about 12 to 18 inches onto Maple Lane and was between 8 and 12 inches in height. The ramp was not tapered on all sides rather there was a drop off on either side. To create the ramp, dirt was taken from portions of the roadway adjacent to the ramp thereby creating holes in the roadway approximately 4 to 6 inches deep on either side of the ramp.
[40] To support their position that Euro-Ex's construction and design of the ramp and the ramp's condition at the time of the incident did not breach the duty of care owed to the plaintiffs, the defendant's owner, Gill Moniz, provided evidence by way of an affidavit. Nicole Nolte, the defendant's controller had been produced for discovery.
[41] At her examination for discovery, Ms. Nolte testified that no additional lighting was added to Maple Lane during construction. She confirmed that Euro-Ex created the opening in the dirt barrier and string line for the purpose of providing safe passage for the plaintiffs and that the ramp was constructed in that location because Ms. Jones used a walker.
[42] Mr. Moniz was cross-examined on his affidavit and provided the following evidence relevant to the issue of liability:
(a) he acknowledged Euro-Ex's obligation under its contract with the Town of Ingersoll to provide safe, ample, and convenient means of approach and entrance to the plaintiffs' residence;
(b) Euro-Ex constructed a ramp over the freshly-poured curb at the end of the plaintiffs' driveway to facilitate a safe means of approach and entrance to the plaintiffs' residence;
(c) the defendant had no formal practice and policies with respect to the construction of temporary ramps such as the one constructed on September 24, 2015;
(d) he claimed to be present when the ramp was constructed and was involved in its design although lacked a specific recollection of designing and constructing the temporary ramp;
(e) he testified as to the usual practice of Euro-Ex when building a ramp to allow access to a residence from an area under construction;
(f) he recalled personally constructing the ramp although did not recall removing the rope between the metal poles. Instead, he testified that he removed the entire line and then installed the ramp;
(g) he recalled the ramp being the width of a bucket on a front-end loader or approximately 8 feet wide;
(h) he testified that he used the front-end loader to dump the gravel to create the ramp and that gravel, not dirt, was used to construct the ramp;
(i) he described the general practice of constructing a ramp as follows: the bucket on the front end loader is filled with gravel; the gravel is then dumped both behind the curb and at the front of the curb; the gravel is raked; and the gravel is then packed down with a plate tamper;
(j) the curb is approximately 12 inches higher than the road and the ramp was built with gravel 4 to 5 feet gradually sloping outward on either side from the top of the ramp;
(k) he did not put gravel down on September 24th because the curb had not yet cured. Gravel was put down on the 28th;
(l) only the plaintiffs' ramp was built on the 24th to allow Ms. Jones access to her property. Gravel ramps were installed for the other residences on Maple Lane on the 28th after the concrete had cured over the weekend;
(m) he agreed there was a drop off on either side of the ramp although he did not know the height of the drop off; and
(n) he testified that the installation of the ramp was an interim measure to allow access to Ms. Jones between the time the curb cured and the time Euro-Ex was able to install the gravel on either side.
[43] Mr. Moniz stated that he was present at the time the temporary ramp was constructed and furthermore, that he was involved in the construction of the ramp. He also testified as to the manner of construction, materials used and the measurements of the ramp. This evidence is contradicted by the evidence of Ms. Jones. She testified that Mr. Moniz was not involved in the construction; rather, it was two of his workers. She described the material used to construct the ramp as "dirt" not gravel.
[44] From my review of Mr. Moniz's evidence and despite his evidence to the contrary, it is apparent that he has no specific recollection of constructing the temporary ramp in response to the request of Ms. Jones on September 24, 2015. I find that his recollection of constructing a ramp at the end of the plaintiffs' driveway relates to the ramp installed in front of the plaintiffs' driveway on Monday September 28, 2015. Consequently, I accept the evidence of Ms. Jones with respect to the dimensions, design and qualities of the ramp constructed on September 24, 2015.
[45] Jeff Archbold, a mechanical engineer with Walters Forensic Engineering Inc., was retained by the plaintiffs to provide an opinion with respect to the design and construction of the ramp and whether the ramp created a hazard.
[46] Mr. Archbold was asked, among other things, to evaluate the incident location and specifically the ramp as to its suitability for pedestrians and to compare the ramp's construction and design with building codes and other standards.
[47] After reviewing available photographs taken by Ms. Jones, transcripts from the examination for discovery, affidavit evidence and other relevant documentation, Mr. Archbold assumed that there was likely an elevation difference between the concrete gutter and the dirt road surface of at least 12 inches at the time of the incident and that the area was poorly illuminated.
[48] Based on those assumptions, Mr. Archbold concluded that the ramp posed a significant hazard to pedestrians for the following reasons:
(a) it lacked demarcation of its edges;
(b) the excessive elevation difference between the concrete gutter level and the dirt roadway level;
(c) its likely excessive side slope; and
(d) the low illumination levels in and surrounding the area of the ramp at the time of the incident.
[49] The defendant did not retain an expert to respond to the report of Mr. Archbold instead Euro-Ex relied on the absence of evidence and their cross-examination of Mr. Archbold to challenge his conclusions.
[50] In preparing his opinion, Mr. Archbold acknowledged the absence of photographs or measurements of the ramp. He further acknowledged that Mr. Branton did not know precisely how he landed or the condition of the area where he fell. During cross-examination, Mr. Archibald admitted he did not measure the amount of light that was available at the point of the incident at any point in 2015. The defendant argues that little weight if any should be given to the expert evidence of Mr. Archbold because he was not provided with photos and/or measurements of the ramp and relied exclusively on the evidence of Ms. Jones which the defendant submits is unreliable.
[51] I was referred by the defendant to the decision in Haley v. Stepan Canada Inc.[^12] where the court held that expert evidence may be disregarded where there is no evidence to support the assumptions upon which the expert relied in reaching their conclusions. In Haley the motion judge's decision to disregard expert evidence based on assumptions inconsistent with the evidence on the motion, was upheld.
[52] This is not a case where there is no or inconsistent evidence to support the assumptions relied on by Mr. Archbold. Despite there being an absence of photographs and measurements of the ramp, we have the plaintiffs' evidence and, specifically, the evidence of Ms. Jones with respect to the construction, characteristics, and dimensions of the ramp. Mr. Archbold also had the evidence of both plaintiffs as to the lighting conditions on Maple Lane at the time of the incident.
[53] The defendant argues Ms. Jones' evidence is unreliable because it was provided five years after the incident. The defendant also points to Ms. Jones' evidence that September 24, 2015 was a Friday because she recalls that the workers left early for the weekend. This evidence, at least insofar as Ms. Jones' recollection of the day of the week, is incorrect. I take judicial notice that September 24, 2015 was a Thursday, not a Friday. However, this inaccuracy in Ms. Jones' evidence is not so material as to taint the reliability of all of Ms. Jones' evidence as the defendant suggests.
[54] It is unchallenged that Ms. Jones directly observed the defendant's employees construct the ramp in response to a request she made. Furthermore, she traversed the ramp at least two to three times earlier in the day. Therefore, I find that Ms. Jones provided reliable evidence with respect to the dimensions of the ramp and the manner of its construction and accept her evidence in this regard.
[55] Plaintiffs' counsel submits that the defendant had a corresponding onus to put before the court all evidence establishing the defendant has met its statutory duty of care with respect to the construction of the temporary ramp and has failed to do so. The plaintiffs argue that the undisputed evidence supports the assumptions upon which Mr. Archbold's conclusions and opinions are based. I agree.
[56] The factors which inform the assessment of an occupier's statutory duty to keep the premises safe are specific to each situation. In this case, I have considered the absence of policies and procedures related to the construction, maintenance and inspection of potential hazards including temporary ramps and the admitted absence of any visual aids (pylons or demarcations) or additional lighting to assist pedestrians to safely traverse the temporary ramp and illuminate the width of the ramp and therefore the drop-off.
[57] I find that Mr. Archbold's expert evidence based on the evidence of the plaintiffs which I accept is both reliable and credible, is sufficient to establish on a balance of probabilities that Euro-Ex failed to take such care as in all the circumstances of this case were reasonable to see that the plaintiffs were reasonably safe when using the ramp to access Maple Lane. Therefore, I find Euro-Ex breached the statutory duty of care.
(iv) Issue: Was the ramp the cause of Mr. Branton's fall?
[58] There were no witnesses to the incident. With respect to the cause of the fall, Mr. Branton provided the following evidence in his affidavit filed in response to the defendant's motion:
…As I walked towards my truck to my right I noticed that there was an opening in the rope between two metal rods. I walked through the designated opening. I felt my left foot come off the side of the dirt ramp and I fell heavily to the ground.
I remember hitting the ground and rolling. I was so surprised; I did not know what had happened. I do not know exactly why I fell as it was dark and difficult to see but I do know that my right foot was in the area that is described as the ramp and when I stepped through at the opening my left foot was no longer on solid ground and felt like I was stepping into a hole.
[59] Mr. Branton was cross-examined on his affidavit evidence. He testified as follows:
Q. So you can't tell us where you put your foot down and fell that night, today?
A. Yes. I can tell you that it was the very first step. My very first step from the end of my driveway to the road. Like, just the way I walk. My gait I walk, it had to be my left foot and I stepped and there was nothing there. And down I went. Next thing I know, I'm lying on the road. I didn't walk – I didn't do any – I didn't do one, two steps or anything. It was one step on my left foot. It was just the way my gait.
[60] At examination for discovery, Mr. Branton testified:
Q. The driveway is here at the bottom of the left-hand corner of the page. Do you mean to tell me that you walk, you walk down your driveway, and did you exit through the pathway that's in the centre of the photograph?
A. Yeah.
Q. Okay, so tell me about that pathway.
A. I got to the pathway, and I walked through the opening, because I've seen the way it was open, and then as soon as I walked to go through the pathway, then as soon as I went through that opening I tripped, or whatever, and I fell down. And I got up, and I tried to put weight on my foot, and I felt pain in my toes, and I didn't put no weight on it.
Q. And what was the condition of the area that you said you fell? I mean, did you observe where you fell after you fell?
A. No, no, I didn't even – I don't remember, all I remember was I fell, and I went to get up, and when I went to get up I couldn't put any weight on my foot, and I started – I think I remember putting weight on my heel, and when I put my weight on my heel it didn't hurt.
A. Right after I stepped off here, where the opening was, where that opening was, and as soon as I saw the opening….
Q. So right outside the opening?
A. Yeah, when I got to – as soon as I went to step down on to the whatever there was there, it – that's when I went down.
A. See, I never even knew I stepped in a hole. All I know, when I – when I stepped, I stepped and then I fell, right, and I know why I fell. And then when I went to get back up, I couldn't put any weight on my foot.
Q. but you don't know what caused you to fall, fair?
A. Yeah.
[61] The defendant argues that the plaintiffs cannot succeed in proving there was any hazard proximate to where Mr. Branton fell that caused him to fall because Mr. Branton admitted he does not know what caused him to fall.
[62] The plaintiffs counter-argue that Euro-Ex has conflated the factual differences between not knowing the cause of the fall generally versus knowing where a fall occurred and that a hazard was present in the location of the fall but not knowing the precise mechanism of the fall and/or injury. The former may lead to summary judgment, while the latter will not.
[63] The defendant relies on a number of authorities in support of its position. In Nandlal v. Toronto Transit Commission[^13] the plaintiff's claim was dismissed because she was unable to produce evidence of the debris she allegedly fell on and the defendant demonstrated that it had a reasonable system in place to keep the premises safe. Here, Euro-Ex has admitted to constructing the ramp; however, has failed to provide evidence that it had a reasonable system in place to ensure the safe design, construction, and inspection of such ramps. Euro-Ex confirmed that no additional lighting was installed in the vicinity of the ramp, no warning signage was erected, or other demarcations made to ensure the safe passage of pedestrians over the ramp.
[64] In Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation[^14] the court dismissed the action finding that the plaintiff had failed to adduce any objective evidence to pinpoint an unsafe condition at the incident site. Here, the plaintiffs have identified the ramp as the unsafe condition at the incident site.
[65] The plaintiffs rely on the decision in Kamin v. Kawartha Dairy Ltd.[^15] to support their position. In Kamin the Court of Appeal overturned the motion judge's dismissal of the action finding that the plaintiff's failure to recall the precise location of her fall in a parking lot found to be in a state of disrepair was not fatal to her proving her injuries were caused or materially contributed to by the defendant's negligence.
[66] Although Mr. Branton cannot say specifically what caused him to fall, he knew the precise location of his fall. The uncontradicted evidence places him stepping into the construction zone where the ramp was constructed earlier that day. It is not disputed there was a drop-off on either side of the temporary ramp.
[67] It is not disputed that Mr. Branton fell as he stepped through the opening between the poles. It is not disputed that Euro-Ex removed the rope between the poles to allow the plaintiffs access from their driveway onto Maple Lane. It is not disputed Euro-Ex constructed a temporary ramp between the poles where the rope had been removed. Euro-Ex has produced no evidence suggesting an alternative cause of Mr. Branton's fall other than the design and construction of the ramp.
[68] Mr. Branton's evidence material to the issue of liability has been consistent throughout. His evidence is that he stepped with his left foot through the opening between the poles at the end of his driveway into "air" and fell. Although Mr. Branton does not know what caused him to fall, it may be inferred from the evidence that it was the drop-off on the left side of the ramp.
[69] Having earlier found that the unmarked, unlit temporary ramp constructed at the foot of the plaintiffs' driveway on September 24, 2015 constituted a hazard, I find that the plaintiffs have proven, on a balance of probabilities, that this ramp was the cause of Mr. Branton's injuries suffered in his fall on September 24, 2015.
[70] In the result, the defendant is liable for the plaintiffs' damages arising from the injuries suffered by Mr. Branton in his fall on September 24, 2015.
Order and Costs
[71] The defendant's motion for summary judgment is hereby dismissed.
[72] Partial summary judgment on the issue of liability is hereby granted on the plaintiffs' cross-motion.
[73] Pursuant to r. 20.04(3), the issue of damages shall proceed to trial. The jury notice remains extant.
[74] The plaintiffs are entitled to their costs of the motions. They seek costs on a partial indemnity basis in the all-inclusive amount of $21,211.58. This amount is significantly less than the partial indemnity costs which the defendant claims had it been successful on the motion ($33,566.18). Having regard to the factors in r. 57.01 and, specifically, the importance of the issues, the costs which the unsuccessful party claimed by way of comparison, and the experience and hourly rates charged by Mr. Bryce, Ms. Stoll and Ms. Edwards, I find the amount sought by the plaintiffs to be fair and reasonable in the circumstances.
[75] The defendant shall pay to the plaintiffs their costs of this motion fixed in the amount of $21,211.58 inclusive of disbursements and HST, as claimed.
[76] The plaintiffs are entitled to their costs of the action insofar as they relate to the issue of liability. However, the quantum of such costs shall be reserved to the trial judge.
"Justice A.K. Mitchell"
Justice A.K. Mitchell
Released: December 6, 2021
[^1]: R.S.O. 1990, c. O.2. [^2]: R. 20.04(2)(b) of the Rules. [^3]: 2014 SCC 7 ("Hyrniak"). [^4]: Ibid at paras. 27 and 28. [^5]: Ibid at para. 36. [^6]: See Nguyen v. SSQ Life Insurance Co., 2014 CarswellOnt 15513 (S.C.J.) at para 32. [^7]: Chernet v. RBC Insurance Co., 2017 ONCA 337 at para. 12. [^8]: 2014 ONSC 1200 at para. 33. [^9]: See Lortie v. Hastings (Quinte West Daycare) [^10]: Waldick et al. v. Malcolm et al. (1989), 70 O.R. (2d) 1717 (C.A.) at para 19. [^11]: Miltenberg v. Metro Inc., 2012 ONSC (1063) at para. 21. [^12]: 2020 ONCA 737. [^13]: 2014 ONSC 4760. [^14]: 2017 ONSC 5467. [^15]: 2006 3259 (ON CA), 79 O.R. (3d) 284 (C.A.)