COURT FILE NO.: CV-17-00583951-0000
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: MR. ADAM DAVIDSON (FAMILY OF), Plaintiff
AND:
SANDRA SEEPAUL, CUMMER AVENUE UNITED CHURCH and HUB INTERNATIONAL INSURANCE, Defendants
BEFORE: S.F. Dunphy J.
COUNSEL: Adam Davidson, acting in person
Ejona Xega, for the moving parties/defendants
HEARD at Toronto: November 30, 2021
REASONS FOR DECISION
1The defendants move for summary judgment dismissing a claim alleging that they bear responsibility for an assault upon the plaintiff that occurred in October 2015 at a drop-in centre operated by the second defendant. For the reasons that follow, I am dismissing this motion with no costs to any party and subject to the directions provided below regarding the steps to be taken to bring this dispute to a hearing on the merits as soon as possible.
2The claim brought by Mr. Davidson is admittedly difficult to analyze given the inexpert drafting of a self-represented litigant. That status does not of course release Mr. Davidson from any obligation to comply with the Rules of Civil Procedure, including the rules in relation to pleading, but it does require me to apply a reasonably generous and purposive reading to his effort.
3At its core, the claim is simple enough. Mr. Davidson attended a drop-in centre run by the defendants in a Church hall one afternoon in October 2015. The drop-in centre is essentially a grass-roots, charitable endeavour staffed by volunteers with the one paid staff member in charge. While there, he says that he observed another guest being threatening and abusive to other clients. He reported the behaviour to Ms. Seepaul, the staff member supervising the drop-in centre for the defendant Church. Mr. Davidson’s evidence is that the defendants had done nothing to deal with this abusive guest despite indications of several weeks of prior incidents nor had any staff person observed the matter escalating that day or done anything about it. Ms. Seepaul is alleged to have brought Mr. Davidson over to confront the abusive individual. There followed an altercation during which Mr. Davidson was assaulted by the individual and suffered injuries the extent of which are not agreed to.
4Ms. Seepaul’s account is rather different. She denies any prior knowledge or indication of trouble in relation to the guest in question. She first heard of it when Mr. Davidson approached her that day. She accompanied Mr. Davidson over to talk to the individual and she says that Mr. Davidson escalated matters leading to the assault he complains of.
5Suffice it to say that there are significant differences between the accounts of Mr. Davidson and Ms. Seepaul as to what actually happened including how, when and in what manner Mr. Davidson was assaulted.
6The claim alleges that the negligence of the defendants in failing to have had adequate measures in place to deal with this situation as it developed played a material role in the assault that he suffered. Among other measures allegedly not taken are employing security guards, deploying CCT cameras and having more personnel on site with up-to-date conflict de-escalation training.
7The above is of course a very short summary of a claim that is exceptionally difficult to puzzle through. While I sympathize with defendants having difficulty in understanding the claim they are faced with and wanting a quick and efficient way out of the process, summary judgment is not a magic bullet for all circumstances. It is particularly not so in the case of a motion record containing several volumes uploaded on to CaseLines where tabs are stripped away and no hyperlinks have been provided nor even a master index with the relevant CaseLines page references. Finding even as basic a document as the statement of claim took ten or fifteen minutes in this case. The task of working through the factum and cross-referencing all of the relevant evidence is long, frustrating and exceptionally tedious. An expert report was filed with a list of approximately a dozen documents examined by her – locating those documents in the record (if indeed they are all there) is an exercise akin to playing pin the tail on the donkey. This is not the first motion to suffer from this defect despite explicit practice directions on the books for many, many months requiring hyperlinks or a separate up-loading of each tab. The near impossibility of handling a summary judgment motion with significant volumes of evidence should not be lost on the profession.
8Getting to the bottom of disputed accounts of relevant facts when fishing through hundreds of pages is not something judges can or should be asked to do in the limited time available to prepare for and hear a summary judgment motion. I cannot grant judgment where I am not confident in my ability to make findings of fact and I cannot acquire that confidence where every single fact requires me to dive repeatedly into the thick of the electronic document jungle, machete in hand as some kind of judicial Stanley in search of Dr. Livingstone.
9The defendants’ low opinion of the merits of the plaintiff’s claim may be well founded or it may not be. It is simply not enough that I should develop a hunch about which party holds the best cards. For summary judgment to be granted, the evidence must be present and present in a form that enables me to reach necessary findings of fact with a level of confidence that is comparable to what can be achieved at trial. The paper record I have is woefully inadequate to enable me to do that.
10Despite the pleading imperfections, this is a claim that needs to be brought to a resolution through the court process if the parties are unable to resolve it. I should note in passing that I do not abandon hope that resolution is possible – Mr. Davidson has indicated a willingness to engage in mediation. It is not too late to follow up on that offer.
11This case has languished literally for years. Mr. Davidson delayed bringing the claim initially as he thought he might be able to pursue relief in a different forum. That did not work out but it did delay the issuance of the claim. Since the claim was issued, there is no indication that Mr. Davidson has attempted to move the case forward quickly or at all. No examinations for discovery have been held by either side.
12This case needs to get a move on. The defendants appear content to set the matter down for trial without conducting an examination for discovery of the plaintiff – that is certainly their right if they choose to invoke it. As imperfect as they may be, the defendants have several written statements from the plaintiff and his main witness. They know what his evidence will be. The plaintiff for his part has the affidavits of the defendants on this motion and cross-examined at least one of the affiants and it is not clear that the plaintiff expects to learn anything he does not already know through an examination for discovery or is prepared to pay the costs required to engage a court reporter and obtain transcripts.
13Having decided not to grant summary judgment and to dismiss this motion, I am following the directions of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 to issue directions for the swift resolution of this claim that will enable both parties to capitalize to some degree on the work already done.
14If the defendants are prepared to confirm their willingness to forego conducting examinations for discovery and list the matter for trial, they shall serve their trial record before December 31, 2021. Service may be effected electronically to the email address provided by Mr. Davidson at the hearing of this motion and recorded on the counsel sheet. Mr. Davidson of course is free to adopt the same course of action by the same deadline.
15I am dispensing with the normal sixty-day delay to place the matter on the trial list.
16It does not appear that mediation has been held in this matter. Frankly it would be desirable were the parties to do so. However, given the water under the bridge, I am not going to impose mediation as a step prior to trial. A consensual resolution would be the most efficient way to resolve this matter quickly.
17If the defendants list the matter for trial, the plaintiff is permitted but not required to undertake an examination for discovery of some or all of the defendants. The progress of the case shall not wait for him to do so. If examinations for discovery are to be scheduled, they shall be limited to one day IN TOTAL to be undertaken at the plaintiff’s own expense before an official examiner and to be COMPLETED prior to February 28, 2022.
18In my view, this case can and should be heard by way of a summary trial. While the Simplified Procedure has not been applied here by reason of the face value of the claim advanced by the plaintiff, I am ordering the parties to prepare for a summary trial as if such rules did apply with the following modifications:
(1) The plaintiff shall provide a SWORN or AFFIRMED affidavit in proper format, attaching if need be some or all of the statements, handwritten or otherwise, that are contained in his responding motion record setting forth in a summary way the evidence he wishes to present at trial concerning all of the matters he is required to give evidence about to prove his claim;
(2) Mr. Davidson shall similarly provide an affidavit sworn or affirmed from Mr. Anisman (the other witness that he indicated he would intend to call at trial).
(3) The defendants may rely upon the affidavits already filed on this motion or file fresh affidavits if desired.
(4) All of the above affidavits shall be completed and delivered to the opposing side before February 28, 2022 in the case of the plaintiff and March 15, 2022 in the case of the defendants. All such affidavits shall be admissible at trial subject of course to any rulings the trial judge may make regarding the admissibility of any portion of them.
19The parties shall confer as soon as possible regarding a trial plan to provide for the following:
a. Which documents shall be admitted at trial as part of a joint book of documents without further proof (there did not appear to be any disputed documents in the record before me)?
b. Which witnesses will testify at trial and which witnesses will be “heard” via their affidavits only?
c. How much time will be required for the examination in chief and cross-examination of each witness?
20The trial plan shall be discussed at a case conference to be arranged as soon as practicable but no later than April 1, 2022. If all elements of the case plan are not agreed in advance of the case conference, the case conference judge shall assist the parties in bridging any remaining gaps in their agreement as to the contents of the trial plan, by order if necessary.
21The case conference judge shall review, finalize and certify the trial plan always subject to any alterations the trial judge may decide to make and arrange for a summary trial date to be obtained.
22As indicated, it would appear to me that a two-day trial – or at most three – will be sufficient to enable a fair and comprehensive hearing of this matter.
23This motion is dismissed subject to the foregoing directions. No order as to costs will be made given the tortured history of this motion. The plaintiff’s failure to advance his own claim in a diligent manner bears some portion of the blame here as well.
S.F. Dunphy J.
Date: November 30, 2021