COURT FILE NO.: CV-17-5081-000

DATE: 2021 02 04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LEESA BUTLER

Simon Mariani, for the Plaintiff

Plaintiff

• and -

GO TRANSIT, METROLINX, CLS GROUP LTD. and NEW NATURE INC.

Defendants

Michael Ditkofsky, for the Defendants Metrolinx, CSL Group Ltd., and New Nature Inc.

HEARD: December 9, 2020, by videoconference

REASONS FOR JUDGMENT

Fowler Byrne J.

1The Defendants Metrolinx, CSL Group Ltd., and New Nature Inc. bring this motion for summary judgment, dismissing this action as against them, with costs. The action as against the other remaining Defendant GO Transit was discontinued on January 31, 2019.

A. Background

2This action arose as a result of a slip and fall that took place at approximately 8:00 p.m. on December 19, 2016 at the Georgetown GO Station, located at 55 Queen Street in Georgetown, Ontario (“the Accident”).

3The Defendant Metrolinx agrees that at all material times, it was the owner and property manager of the location of the Accident. It is also conceded by the Defendants, CSL Group Ltd. (“CSL”) and New Nature Inc. (“New Nature”), that at all material times they were the winter maintenance contractors responsible for clearing snow and ice from the location of the Accident. All these Defendants admit to being collectively the occupiers of the location of the Accident and to owing a duty of care to keep the location safe, pursuant to the Occupiers’ Liability Act, R.S.O. 1990, c. O.2.

4The parties agree that on December 18, 2016, the day prior to the Accident, there was a winter storm. The Defendants have provided a Daily Data Report from the Government of Canada weather station in Georgetown, Ontario, showing that on December 19, 2020, the day of the Accident, the maximum temperature was 1˚C and the minimum temperature was -18˚C. The Daily Data Report also indicated that no rain, snow or any precipitation occurred on that day. The Defendants maintain that this is the closest weather station to the location of the Accident, but no specifics were given. The Plaintiff reported that it was very cold, but that it wasn’t snowing or raining when the Accident occurred. She does not know whether it snowed or rained in Georgetown between the time she left for work in the morning and the time she came home because she was working in another area of the Greater Toronto Area.

5With respect to the Accident itself, the Plaintiff indicates that she was returning from work by the GO Train. When she got off at the Georgetown GO Station, the platform was crowded. She doesn’t recall if someone was right in front of her. She stated that it was dark but she had no problem seeing. She remembers seeing that the parking lot was plowed.

6She recalls stepping onto her right foot and slipping, causing her to fall backwards, onto the backpack that she was wearing on her back. She did not see what she slipped on. She did not look around, just up at the sky because she was in too much pain. She was on the ground for a couple of minutes before two men came to her assistance. They helped her up, one on each side, and brought her into the station. She did not look to see what she slipped on. She does not believe her coat or pants were wet. She never got the names of the men that helped her. While at the station, she told the maintenance worker, who was mopping, that he should go outside and ice the sidewalks, but he paid no attention to her. She took no pictures of the site of the fall either the day of the Accident or the day after. She believes others witnessed her fall, but she never thought to ask anyone for their name.

7The Plaintiff is certain that she slipped on ice. She claims she knows what ice feels like, and her feet slipped out from under her body, causing her to fall backwards. She states in her affidavit: “I felt my foot slip on a slippery surface in the middle of the winter, in freezing temperatures and I believed that slippery surface was ice.” She didn’t pay attention to whether the area in which she fell had been salted.

8The Defendants have produced no evidence regarding the Accident. The Plaintiff states that she called the GO Station the next day to report the accident. Although the Plaintiff was given an incident report number, no such incident report was produced for this motion, nor any call logs. Also, when she called the GO Station, she was told that the surveillance footage would be preserved. The Plaintiff states that she has received no surveillance footage from the Defendants.

9The Plaintiff did not go to the emergency department of her local hospital until the next day, when she was diagnosed with a broken ankle. On the emergency record from the hospital, it notes that she reported slipping on ice as the cause of the injury.

10In support of their position that the area of the Accident was well maintained, the Defendants have produced the daily maintenance logs of New Nature. These logs, for the period of Saturday, December 17, 2016 to Tuesday, December 20, 2016, note the following:

a) Between 9:30 a.m. and 5:10 p.m. on December 17, 2016, New Nature attended at the Georgetown GO Station and noted weather conditions of “clear”, “rain” and “freezing rain”. The log also indicated that New Nature de-iced in spots; partially de-iced the sidewalks, using 400 kg of salt; partially de-iced the parking lot; and distributed 800 kg of salt. A notation on the report for that day stated:

Approximate 10 to 15 cm of snow. Salted and cleared all surfaces. Returned at 9 p.m. Saturday to salt and another two tons onto parking lots and walkways. Was off site by 2:15 a.m. on Sunday.

b) Between 1:13 a.m. and 2:56 a.m. on December 19, 2016, they attended at the Georgetown Go Station, where they indicate the weather conditions were “clear”. They fully de-iced the sidewalks and applied 450 kg of salt; and fully de-iced the parking lot and applied 2500 kg of salt. A notation from that attendance indicated:

Full salt completed, sidewalk crew completed salting on sidewalks and platforms. Heavy salt applied. Paul salt parking lots/through ways. Some clean up completed from Saturday snow storm. Salt parking lot from ice from freezing rain from earlier in the day.”

c) Between 11:40 p.m. on December 19, 2016 and 11:40 a.m. on December 20, 2016, they attended at the Georgetown Go Station, where they indicate that conditions were “clear”. The report also indicates that they fully spot de-iced the sidewalks and applied 100 kg of salt; and partially de-iced the parking lot, utilizing 1500 kg of salt. The notation on the report stated:

Salted all puddles, drainage icing and snow in parking lots. Checked puddles on platforms. All other surfaces clear and dry.

11It is a term of the subcontract between CSL and New Nature that New Nature was required to be on site at the GO Stations within two hours of snow accumulation and every night prior to the morning peak period when temperatures are expected to drop below 2˚C.

12At the examination for discovery on September 30, 2019, the Plaintiff stated that she has no direct information or evidence that she slipped on ice. Nonetheless, on this motion, the Plaintiff relies on the evidence of Paul Vandemerwe, who was examined for discovery on behalf of New Nature, also on September 30, 2019. In this examination, Mr. Vandemerwe stated that in the second of the three years that they had this maintenance contract, he had mentioned to the site supervisors at CSL and Metrolinx that there was an issue with leaky eavestroughs.

13The evidence on this point from the examination of Mr. Vandemerwe is as follows:

184. Q. In 2016, did you observe any significant amount of ice build up in and around that area for any - in and around the station house at all?

A. To the best of my knowledge, I can't remember if this is the first year or second year of us taking care of the site, because we did it for three years. I believe this is the middle year, because we did it one year after and we did it one year before. We took images of our properties pre-season during and after. I know that I have mentioned to site supervisors at CSL and Metrolinx and told them that the building due to its age or whatever, the eavestroughs in the portion that comes right against the sidewalk and the parking lot, there was leaks. I had the same thing at a Guelph GO Station. I told them the exact same thing. We noticed because of rain, when it rains, when it freezes, we notice a lot of patterns. I already indicated to them that there was an eavestrough that was leaking and it would drop and -- and if I remember correctly, two spots on that portion of the sidewalk freeze. So, we brought it up to their attention that -- that there would be -- have to be some maintenance as not regarding our contract, but actually it is to be done to the building.

185. Q. Would you have made that – would you have passed that information on to them in writing?

A. Yeah, I believe so.

MR. MARIANI: Counsel, would you be agreeable just to see when Paul made that observation and let -- would it have been GO Transit that you let know or CSL ---

THE DEPONENT: CSL Group was who we spoke to.

MS. GRANT: Why is it relevant?

MR. MARIANI: I just want to see if there was issue with the eavestroughs leaking on to the actual area that that the fall may have taken place on ---

MS. GRANT: But why is that relevant?

MR. MARIANI: It makes the condition of the area a little more difficult to maintain if there's water pouring off of a roof so that shouldn't necessarily be there.

14And further on in the transcript:

186. Q. Let me walk this way then. Did you ever -- and I appreciate you may not remember the exact season that this was taking place, but did you -- how did you recognize that the eavestrough may have been problematic at this station?

A. We notice a lot of things, we notice if cars are parked for a long time. We notice if there's vehicles that are mobile, they're doing our services, we notice a lot of things and we started to gain a rapport with any of the site supers that came and we would just communicate, everything from the weather to conditions, to the past storm, to the one coming up. It was -- it was never came into question in terms of what our job was to do, it was just communicated. If that event or if we ever actually sent a report or file, I'd -- I don't know, I -- that's three years ago, I can't remember. I know on a different site we had water coming right through the asphalt.

187. Q. Sure

A. We had to mention it. That was not something that could have been when we put tons of salt down but ---

188. Q. Right

A. –not --there’s things that we couldn’t control.

15An undertaking was given by Mr. Vandemerwe to produce any log notes or reports from New Nature or CSL from December 17 to 19, 2016, including any photos if they were taken. The Plaintiff states that they have not yet received this information. Also, no evidence was provided showing whether or not an undertaking was requested, or given, to look for and produce any written warning from New Nature to CSL or Metrolinx about icy spots due to a leaky eavestrough.

16The Defendants have produced the subcontract between New Nature and CSL, but it is only for the year in question and the subcontract does not indicate whether this was the first, second or third year of the relationship between CSL and New Nature.

17My observation of the photo where the Plaintiff indicated the fall took place shows that there is an eavestrough over the area where she fell but there are no obvious signs of disrepair in the eaves. That being said, it is not known when this photo was taken or if it reflects the state of repair on the day of the Accident.

B. Issues

18The issues to be determined are as follows:

a) Is there a genuine issue requiring a trial?

b) If not, should this action be dismissed?

C. Summary Judgment

i. Law

19The following rules from the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, are relevant:

20.02 (2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.

20.04 (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.

20.04 (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.

3. Drawing any reasonable inference from the evidence.

20In determining whether a motion for summary judgment is appropriate, a judge must first determine whether there is a genuine issue requiring a trial based only on the evidence before them, without using the new fact-finding powers. There is no genuine issue requiring a trial if the evidence presented: (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. If, after this analysis, it appears that there is a genuine issue for trial, the judge should determine if a trial can be avoided by using the new powers under r. 20.04(2.1) and (2.2) to weigh evidence, decide credibility and draw reasonable inferences: These powers should be exercised unless it is in the interest of justice for them to be exercised only at a trial; r. 20.04(2.1): Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 42-49, 66-68.

21A process that does not give a judge confidence in their conclusions can never be proportionate, timely or cost effective. The standard of fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that they can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. The evidence need not be the equivalent to that of trial, but must be such that the judge is confident that they can fairly resolve the dispute: Hryniak, at paras. 50, 57; Zaky v. 2285771 Ontario Inc., 2020 ONSC 4380, at para. 16.

22As recently confirmed by the Court of Appeal for Ontario in Broadgrain Commodities Inc. v. Continental Casualty Company, 2018 ONCA 438, 80 C.C.L.I. (5th) 23, at para. 7:

On a summary judgment motion the parties are expected to put their best foot forward and the court will assume that all necessary evidence has been tendered. A motion judge is entitled to presume that the evidentiary record is complete and there will be nothing further if the issue were to go to trial. A motion judge is not required to resort to the summary judgment enhanced powers to remedy a party’s evidentiary shortcomings. [Citations omitted.]

23In Chernet v. RBC General Insurance Company, 2017 ONCA 337, 11 M.V.R. (7th) 1, at para. 12, the Court of Appeal for Ontario also stated that “[i]t is trite law that both parties on a summary judgment motion are required to put their best foot forward. Summary judgment motions are decided by evidence of the facts and by inferences drawn from those facts. Not by speculation about the facts.”

ii. Analysis

24I do not find that this is the appropriate circumstance in which to decide this matter by way of a motion for summary judgment.

25While there are many facts in this case which are settled, I am unable to make a finding of fact with respect to the existence of a leaky eavestrough at the Georgetown GO Station in December 2016. In addition, if it is found that it existed, I am unable to make a finding of fact of whether the Defendants were aware of this problem and whether they took reasonable steps to address it.

26The Defendants argue that the Plaintiffs have failed to put their best foot forward. In particular, they argue that the Plaintiff has no evidence that the eavestrough was actually leaking on the day in question, or that it was even leaking in the area where she fell. It appears that the Plaintiff did ask for additional information at the examination for discovery, but has not received the responses to those inquiries, or others which may provide relevant evidence for trial. The Defendants state that the Plaintiff should have pursued those undertakings or at least brought a motion to obtain an order that they be answered. They argue that the idea of a leaky eavestrough being the source of the ice is speculative at best.

27I disagree. The theory that a leaky eavestrough may have caused an ice patch to form was not speculation on the part of the Plaintiff. This evidence came from the Defendant itself in its examination for discovery. Mr. Vandemerwe stated that he saw the eavestrough drip and cause ice in areas at the Georgetown GO and at another station during periods of freeze and thaw. The weather information provided by the Defendants show a temperature fluctuation that may have led to thaw and freezing on the day in question. A reasonable inference is possible that the weather conditions allowed icy spots to form. We also have the evidence of Mr. Vandemerwe that he alerted CSL of this issue.

28While the existence of a leaky eavestrough is not certain, there is sufficient evidence of its existence, through direct evidence, that it bears being considered. That is what makes this a triable issue. If the evidence presented on the motion allowed me to decide confidently that the eavestrough was not leaking in the area of the Accident, there would be no triable issue and the motion would be decided accordingly. If the evidence presented allowed me to decide confidently that there was ice on the sidewalk where the Plaintiff slipped and that it was caused by a leaky eavestrough that the Defendants failed to address, again there would be no triable issue, but my decision may not be what the Defendants would want. A leaky eavestrough causing icy puddles may be the objective evidence that the Plaintiff needs in order to pursue this matter.

29Accordingly, based on the evidence presented at the motion, I cannot make the necessary findings of fact that would allow me to apply the law and come to a just result in a proportionate, more expeditious and less expensive manner. Based on the evidentiary record to date, I would not be confident in my decision.

30Nor would the use of my expanded fact-finding powers assist me in making these factual findings. The necessary findings could not be made after assessing the credibility of any of the witnesses. No party has challenged the credibility of any of the witnesses. I am also not able to draw a reasonable inference from any of the facts that would allow me to confidently make a determination of the triable issue.

31In addition, the evidentiary record is not complete. While I concede that it is up to the parties to “put their best foot forward”, I am not to use my additional fact-finding powers to supplement an otherwise deficient evidentiary record: Broadgrain, at para. 7.

32The Defendants acknowledge that they have outstanding undertakings but argue that it is up to the Plaintiff to have pursued this evidence so that she could put her best foot forward.

33In Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 27-29, aff’d 2014 ONCA 878, leave to appeal to the Supreme Court of Canada dismissed, 2015 CanLII 39803 (S.C.C.), the court states the following:

27Generally, the court is entitled to assume that the record on a motion for summary judgment contains all the evidence the parties would present at trial. There are exceptions to this principle: Sweda argues that there is evidence missing from the record because of conduct by the defendants….

28In these circumstances, a burden of persuasion rests on Sweda to establish that it has taken reasonable steps to obtain the evidence it needs for the motion for summary judgment, and that the missing evidence would be material to the disposition of this motion.

29The “missing evidence” falls into three categories. Two concern L.H. Gray and the third concerns Burnbrae. None would affect the outcome of this motion… [Citations omitted.]

34In Sweda, a motion on disclosure from the Defendant was scheduled for a couple months following the argument of the motion. Nonetheless, the court reviewed the evidence that Sweda was seeking and found that it would not affect the outcome of the motion.

35In the case before me, I agree it falls to the Plaintiff to pursue the evidence they require, which they did by requesting an undertaking. While I agree that it is up to the Plaintiff to pursue the undertakings, the Defendant also has an obligation to produce all relevant documentation in advance of discovery and then answer the undertakings they made. There is an incident report, as evidenced by an incident report number, that was not produced. There is potential surveillance that has not been produced, nor any definitive statement of whether it still exists or was perhaps inadvertently destroyed. The Defendants made undertakings in September 2019, and by December 2020, had still not answered them. The failure of the Defendants to place the full body of evidence before the court in a motion for summary judgment is particularly important given the impact that this evidence, or lack thereof, would have on the outcome of this motion. This distinguishes this case from the facts in Sweda, where the judge found that the missing information would have no impact on the summary judgment motion. The Defendants cannot sit on their hands and fail to produce relevant documents, and then take the position that no such evidence exists because the Plaintiff did not fight hard enough to get it.

D. Conclusion

36As a result of my decision on the appropriateness of summary judgment, it is not necessary to consider the second issue. Accordingly, I make the following orders:

a) the Defendants’ motion for summary judgment is dismissed; and

b) the parties are encouraged to resolve the issue of costs themselves. If they are unable to do so, the Plaintiff shall serve and file her written submissions, restricted to two pages, single-sided and double-spaced, exclusive of costs outline and offers to settle, no later than 4:30 p.m. on February 26, 2021; the Defendants shall serve and file their responding submissions, with the same restrictions, no later than 4:30 p.m. on March 12, 2021; any reply submissions by the Plaintiff, with the same size restrictions, shall be served and filed no later than 4:30 p.m. on March 19, 2021.

Fowler Byrne J.