Court File and Parties

COURT FILE NO.: CV-16-544251

DATE: 20211206

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: MELISSA BASARABA, Plaintiff

AND:

BRIDAL IMAGE INC., YORKDALE CONTRACT INTERIORS LIMITED, STEPHEN-MITCHELL REALTY LIMITED. H. LEDERMAN LIMITED carrying on business as LISSARD HOLDINGS LIMITED, HAROLD LEDERMAN LIMITED carrying on business as LEDBROW INVESTMENTS LTD., and 1548019 ONTARIO INC., Defendants

BEFORE: S.F. Dunphy J.

COUNSEL: Ryan Caesar and Star Deak, for the Plaintiff

Jay Skukowski, for the for the Defendants, Yorkdale Contract Interiors Limited, Stephen Mitchell Realty Limited, H. Lederman Limited carrying on business as Lissard Holdings Limited and Harold Ledeman Limited carrying on business as Ledrow Investments Ltd.

Denise Junkin and Daniel Iaboni, for the Defendant, Bridal Image Inc.

Allison M. Gaw and Leeza Pece, for the Defendant, 1548019 Ontario Inc.

HEARD at Toronto (Video): December 6, 2021

REASONS FOR DECISION

[1] The defendants have jointly brought summary judgment motions seeking to have this personal injury case dismissed as against them. Initially, only one of the defendants moved for summary judgment and Myers J. declined to schedule the matter for a hearing on the basis that it was, in effect, a motion for partial summary judgment. The defendants then decided that they would each bring such a motion in the hope that this might offer them the possibility of a swift exit from this litigation. They took this revised joint summary judgment proposal to Vella J. who authorized it to be brought without prejudice to the motion judge determining that the matter is not appropriate for summary judgment.

[2] Having reviewed the evidence and heard from the parties I conclude that this matter cannot appropriately be dealt with by way of summary judgment. The following are my reasons.

[3] The starting point in my view must be the recent decision of the Court of Appeal in Malik v. Attia, 2020 ONCA 787. In that case, Brown J.A. found (at para. 62):

When faced with a request to hear a motion for partial summary judgment, a motion judge should make three simple requests of counsel or the parties:

(i) Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;

(ii) Show how partial summary judgment will get the parties’ case in and out of the court system more quickly;

(iii) Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

[4] This case fails to answer any of those questions satisfactorily.

[5] I shall first refer to the unsatisfactory state of the record I am asked to rely upon to reach the level of confidence necessary to sustain a judgment on the merits. Collectively, the parties uploaded more than 2,000 pages of evidence in the form of affidavits, expert reports, discovery transcripts and cross-examination transcripts. Three moving party defendants and one responding party plaintiff filed motion records for use on this motion. Only one – that filed by Ms. Gaw for 1548019 Ontario Inc. – contained hyperlinks that might enable the user to navigate through the evidence she filed. The factum she filed however lacked hyperlinks to the relevant evidence, but at least the motion record had some.

[6] I cannot stress enough the degree to which this seemingly simple failure hampers to the point of destroying the ability of the judge conducting the hearing to arrive at a decision with any degree of confidence that he or she is able to render a decision on the merits that is fair and reasonable.

[7] The parties have lived with this case for five years at this point and the incident in question occurred two years before then. A judge hearing a summary judgment motion comes to the task with none of that history. He or she has the benefit of facta which are intended to walk the judge through a summary of the relevant evidence leading to the desired conclusion. Absent hyperlinks, the task of checking the actual evidence against the summary narrative of the factum is pretty much impossible in a record of this size and complexity. None of the parties hyperlinked the references to the evidence contained in their facta. Each such reference was to a motion record or transcripts with neither hyperlinks nor even a reference to the relevant Caselines page number.

[8] This failing alone is more than sufficient to warrant dismissal of this motion. We have been working with virtual hearings for almost two years at this point. The potential benefits in terms of cost, efficiency and access to justice are huge and will certainly outlive the pandemic. However, the system will grind to a halt if the parties do not shoulder their part of the burden seriously. The practice directions and notices to the profession have been highlighting the need for serious attention to be paid to the manner in which documents are uploaded to Caselines for a long time. Tabs do not survive uploading. Hyerlinks and, in appropriate cases, separate uploading of individual tabs or exhibits serve to make the task of navigating large volumes of documents feasible. That was simply not done here. The result was to drop a task in my lap akin to asking me to sort through an overturned bowl of spaghetti.

[9] Given the sheer volume of material filed, there is simply no realistic prospect of any judge wading through the evidence to the point of acquiring a grounding in the facts sufficient to enable a reasonable and well-grounded decision on the merits to emerge. Last week I wrote the following in relation to a summary judgment motion that appears to me to apply quite closely here as well:

Getting 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.[^1]

[10] After raising these objections with counsel, I was assured that the issue here is in fact a very simple one that is effectively cut and dried. I shall briefly explain why I was not satisfied with that approach.

[11] The claim arises from a “slip and fall” accident that occurred in a small strip mall located on Burnhamthorpe Road West in Mississauga on January 16, 2014. The plaintiff exited her car and was attempting to enter a store called “Impression Bridal” to pick up a wedding gown. She slipped and fell on some ice located in what the plaintiff describes as a pathway and the defendants describe as a landscaped area.

[12] This particular strip mall has marked parking spots that are close-in to the side of the building. The entrance to the store has a parking spot there as well almost entirely blocking access from the parking lot if a car is parked there as is alleged to have been the case at the time of the incident. There is a strip of land about the width of a sidewalk which, at the time at least, was not paved except for the area immediately in front of the store entrance.

[13] The moving parties all took the view that the case is clear under s. 3(1) of the Occupier’s Liability Act in that the paved parking area and the short narrow paved pad in front of the door were in fact kept “reasonably safe” and the plaintiff was the author of her own misfortune in having chosen instead to take the landscaped verge instead of navigating the gap between parked cars to enter the store. I should note in passing that the moving party defendants certainly lacked the courage of their convictions in the simplicity and obvious nature of their case: they each filed lengthy motion records packed with hundreds of pages of affidavits and transcripts.

[14] In support of their claim that the standard of care was plain and obvious in this case, I was directed to three photographs. Two of the photographs came from the defendants, one from the plaintiff. There is no dispute that the photos were of the store entrance – that at least was an admitted fact. The problem was that the photos were not dated nor was there any sworn testimony to support their admission.

[15] The two photos submitted by the moving party defendants and the one photo submitted by the plaintiff do not appear to have been taken the same day. A pile of snow visible in two of them is not visible in the other. The ability of the trier of fact to make definitive findings of fact regarding the condition of the premises at the time of the incident would require significant exploration of the provenance and accuracy of the photos. All of the defendants contented themselves with in-house lawyer’s affidavits to make their case. Such a witness brings no actual knowledge of any of the relevant facts and cannot be relied upon to resolve any factual issue where facts are significantly in dispute as is the case here.

[16] There is at least an open question as to whether that strip of land beside the building would appear to the reasonable observer as being the logical means of approaching the store from the parking lot in preference to the area immediately in front of the door which, while paved, was also entirely blocked by parked cars. As well, it is not at all clear whether the unpaved nature of that verge would be apparent to a reasonable observer approaching the area in winter conditions.

[17] The evidence of the provenance of the two photos came down to a “witness” statement that was itself unsworn from a store manager who was not herself present on the day of the incident. This statement describes photos as having been taken without identifying who took them. The moving parties’ decisive photographic evidence was, to all intents and purposes, useless as presented. This was not “best foot forward” being applied to the single most crucial piece of evidence on which the defendants’ joint motion relied.

[18] The plaintiff for her part had a photo taken the same day but at night. Footprints visible in the ice in the plaintiff’s photograph at least raise the suggestion that the plaintiff was not the first person to have the idea to walk along that verge which, to a casual observer at least, is where a sidewalk around the perimeter of the mall building might be expected to be located.

[19] Suffice it to say that the case on liability and standard of care was about as clear as mud when examined by me. None of the photos showed the actual location of the accident which was apparently a few feet to the right of the area depicted in the photos.

[20] There are few if any legal questions raised by this case. The nature of the duty of care under the Occupier’s Liability Act has been extensively explored in trial and appellate level jurisprudence over many years. The real issue here is a very fact-intensive assessment of the entire context of the incident to determine whether or not a duty of care existed to keep safe for transiting customers the very area where the accident occurred.

[21] The record before me leaves me singularly ill-equipped to arrive at a reasoned view of the application of the duty of care here with the confidence necessary to enter a judgment one way or the other. I emphasize this last point since the moving party defendants all appear to have assumed that this motion for summary judgment was a one-way street: heads I win; tails I live to fight again at trial. It was not. Any time a question is brought to a judge for summary judgment, the parties should fully appreciate that the question must be ripe for definitive resolution. There is no such thing as a free option where summary judgments are concerned.

[22] I dismissed the motion for summary judgment with these reasons to follow. As discussed with the parties, I am leaving it to them to discuss costs among themselves. I directed them to prepare their submissions restricted to five pages each (exclusive of costs outlines) and to upload them to case lines by no later than December 23, 2021. I shall issue a decision in writing as soon thereafter as I am able. I am relying on the parties to discuss the matter candidly and I do not expect complaints of ambush or similar to emerge. Reply is seldom necessary and I fully expect will not be necessary here.

[23] What then is to be done with this case? It has been meandering through our court system for five years. The defendants have maintained – for the time being at least- their request for a civil jury trial. I would observe that the coherence of that position is weakened somewhat when the party asking for trial by jury voluntarily submits the same question for decision by a judge alone on a summary judgment motion. At all events, given the backlog in the jury trial list that has developed over the course of the pandemic, there is very likely to be a fairly significant delay in getting this matter heard. This is not an overly complex case and a fair amount of work has gone into getting at least part of it into shape for this motion. There is no reason to lose the benefit of that work.

[24] After the close of argument, I discussed with the parties the prospect of putting a case such as this together in a format that would enable it to be dealt with in a relatively short – three or four days – summary trial. 2022 will see a very significant re-allocation of judicial resources in Toronto away from motions (which often add expense and delay to the equation without any material progress towards the definitive resolution of a dispute) towards trials. Summary trial dates can be fixed today for a three or four day trial early next year several months before the first time slot available for a half-day summary judgment motion. The price of admission for that however is collaboration between the parties. They need to agree to disagree on the outcome but work together to obtain agreement on process. A trial plan that has been worked through to allocate time for a summary trial will very likely be approved and a date secured if the parties are able to convince a case conference judge that the plan is realistic and viable. Hybrid trials can be envisaged with a mix between affidavit and viva voce evidence. Agreed statements of undisputed facts can reduce trial time even if disagreements persist on other more material facts.

[25] I have invited but not required the parties to give summary trial some further thought. If they are able to work out a trial plan – or even most of a trial plan with a few lingering disagreements on detail – a case conference appointment can be obtained to work through the plan with a judge and iron out any remaining issues. I am authorizing them to apply for such a case conference up until January 15, 2022. I don’t preclude them from doing so later, but a deadline is a useful means of focusing their collective attention on the question so that they can decide if it holds promise or if it does not. If not now, then when?

[26] I initially formed the view that there was no need to write and publish detailed reasons in this case. I have changed my view on the matter not from a desire to single out any of the counsel involved. They are in good company. The problem of parties failing to upload usable motion materials to Caselines is endemic. It will not improve if light is not shone upon it. The message needs to get out to the profession that these “motions in a box” are simply not going to work without more effort on the part of the parties. Properly hyper-linked motion records and facta are quite frankly the exception and not the rule these days.

[27] My closing comment would be to exhort ALL counsel to check back on their case after they have uploaded their documents to Caselines and verify that a judge reviewing it will be able to navigate through the evidence, case law and written argument in the way they would like. Hyperlinks in facta and motion records are a MUST. Separately loaded and clearly identified tabs should be considered. It must be usable.

S.F. Dunphy J.

Date: December 6, 2021

[^1]: Davidson v. Seepaul, 2021 ONSC 7901 at para. 8