Court File and Parties

COURT FILE NO.: CV-21-9654 DATE: 2023-08-30

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

James Derro and Margherite Derro Plaintiffs – and – George Blechta and Huguette Blechta Defendants

Counsel: Michael Gauthier, for the Plaintiffs Christopher Martyr, for the Defendants

HEARD: June 28, 2023

DECISION ON SUMMARY JUDGMENT MOTION

BOUCHER J.

[1] This action involves James Derro’s claim for damages resulting from alleged injuries sustained due to a fall in the Blechtas’ driveway, and Margherite Derro’s claim for damages arising under the Family Law Act. The Blechtas deny liability. They submit there is no genuine issue requiring a trial and ask that the action be dismissed. The Derros oppose this request, arguing credibility issues involving the Blechtas require an in-person hearing so that the trier of fact can properly assess and fully appreciate the evidence.

Issues

[2] Without using the expanded summary judgment powers, is there a genuine issue requiring a trial to determine whether the defendants satisfied their obligations under the Occupiers’ Liability Act (OLA)? Put another way, do credibility issues require a trial in the circumstances of this case?

[3] If there appears to be a genuine issue requiring a trial, can it be avoided by the court exercising the following expanded powers: weighing the evidence, making credibility findings, and drawing reasonable inferences from the evidence?

[4] If the answer to this question is yes, would exercising these powers be contrary to the interest of justice?

Background

[5] The parties were friends and neighbours at the time of the incident giving rise to this action. They shared a common driveway that starts at the road entrance and then splits in two, heading off to each of their homes. The non-shared part of the Blechtas’ driveway is approximately two hundred feet long.

[6] George Blechta’s (hereinafter “the defendant”) normal winter maintenance of his driveway included snow blowing and shoveling as well as applying traction materials such as sand, salt and fly-ash from his woodstove.

[7] The day prior to the incident, rain and snow had caused four to six-inch ruts to form in the Blechtas’ driveway. The defendant accordingly asked James Derro (hereinafter “the plaintiff”) to use the steel plow on his truck to scrape the ice so that the defendant could apply sand to the driveway. The plaintiff plowed snow in the defendant’s driveway about once per year but had never been asked to scrape ice.

[8] The plaintiff attended the Blechtas’ residence on the morning of February 18, 2019. He removed the shoes from the bottom of the blade on his plow to allow it to scrape lower. He spent about ten or fifteen minutes scraping the ice in the driveway.

[9] When he was done, the plaintiff exited his truck and walked around the front of his plow. He spoke with the defendant and then returned to his truck the same way he came. Before entering his truck, he fell and allegedly sustained injuries. The defendant did not see him fall.

The Law

Occupiers’ Liability

[10] An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to ensure that people entering on the premises are reasonably safe while on the premises: subsection 3(1) Occupiers’ Liability Act (“OLA”).

[11] The duty owed by occupiers is not absolute. It is simply to take reasonable care in the circumstances. The trier of fact must determine in each case what standard is reasonable and whether it has been met: Waldick v. Malcolm (1989) CarswellOnt 679, ONCA at para. 19; aff’d Waldick v. Malcolm (1991) CarswellOnt 766, SCC at para. 33.

[12] This duty of care does not apply to risks willingly assumed by people while on the premises. In that case, the occupier owes a duty not to create a danger with the deliberate intent of doing harm or damage to the person, and not to act with reckless disregard of the person’s presence: subsection 4(1) OLA.

Summary Judgment

[13] The court on a summary judgment motion should first determine if there is a genuine issue requiring a trial based only on the evidence before the court. If there appears to be a genuine issue requiring a trial, the court must determine if a trial can be avoided by exercising the following powers: weighing the evidence, making credibility findings, and drawing reasonable inferences from the evidence. However, these powers must not be exercised at this stage when it is in the interest of justice that they be exercised only at a trial: Hryniak v. Mauldin (2014) CarswellOnt 640, SCC at para. 66.

[14] The use of these powers will not be contrary to the interest of justice and can be used “if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole”: Hryniak, at para. 66.

[15] Parties are expected to put their best case forward on a motion for summary judgment: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995) CaswellOnt 63, ONCA at para. 36.

Analysis

[16] Is there a genuine issue requiring a trial with respect to determining whether the defendants satisfied their obligations under the Occupiers’ Liability Act (OLA)?

[17] The Derros argue there is a dispute in the evidence regarding material facts. At the heart of this dispute, they submit, lie credibility determinations that are obscured by the affidavits and transcripts of cross-examinations. The authentic voices of the parties can only be properly heard and assessed at a trial.

[18] The Blechtas submit there is no difference between the evidence of the parties with respect to their obligations under the OLA in the circumstances of this case. That evidence alone is enough to establish there is no genuine issue requiring a trial, and the court need not use the expanded powers to determine if a trial can be avoided.

[19] For the reasons that follow, I find there is no genuine issue requiring a trial at the first stage of the summary judgment analysis and I would grant summary judgment in favour of the Blechtas.

[20] The following evidence is not in dispute. The plaintiff had previously on occasion provided snow plowing assistance to the defendants but had never been asked to scrape ice. The defendant normally conducted his own winter maintenance by snow blowing, shoveling, and spreading anti-slip agents.

[21] A combination of rain and snow had caused ice ruts to form in the Blechtas’ driveway. This prevented the defendant from engaging in his usual winter maintenance. He accordingly asked the plaintiff to use his steel plow blade attached to his truck to scrape the ice ruts so that the defendant could continue with his normal maintenance, including scattering sand.

[22] The plaintiff attended at the property in his truck and scraped the ice in the driveway. When he was done, he parked his truck, exited through the driver’s door, and walked around his truck to speak with the defendant. When they were done speaking, the plaintiff returned along the same path and fell when he reached the driver’s door.

[23] The dispute in the evidence includes where the defendant was standing while the plaintiff scraped the ice (on his porch or in his driveway), whether the defendant’s son was with him and whether the defendant wanted the plaintiff to speak with him when he was done scraping the driveway. In the circumstances of this case, I find this disputed evidence is of no moment in my determination of whether the Blechta’s met their obligations under the OLA.

[24] I find that the defendant acted reasonably in his maintenance of the driveway in these circumstances and the Blechtas are not liable for the injuries as claimed by the Derros. The defendant determined he could not safely undertake his usual maintenance until the ice ruts had been addressed. He accordingly asked the plaintiff to scrape the ice so that he could sand the driveway.

[25] The plaintiff was aware that a winter storm of rain and snow had caused ice ruts to form in the Blechtas’ driveway. He knew the defendant could not continue with his maintenance, including spreading a traction agent, until after he was done scraping the driveway.

[26] In cross-examination the plaintiff confirmed he was not certain he had scraped all the ice and acknowledged he knew it was possible there was still ice on the ground. Regardless of whether the defendant wanted the plaintiff to get out of his truck or whether the defendant was on the porch or in the driveway, the plaintiff knew there may still be ice under the snow. He had no duty to leave the truck. He accordingly willingly assumed the risks associated with getting out of his truck and walking on the driveway in those conditions before the defendant had an opportunity to continue with his maintenance.

[27] For these reasons, I would grant summary judgment to the Blechtas.

If there appears to be a genuine issue requiring a trial, can it be avoided by the court exercising the following expanded powers: weighing the evidence, making credibility findings, and drawing reasonable inferences from the evidence?

[28] If the evidence had raised a genuine issue requiring a trial, as argued by the Derros, I would exercise the expanded powers and grant summary judgment to the Blechtas.

[29] The thrust of the Derros’ argument is that by their actions and inaction the defendant and his son suggested to the plaintiff that the driveway was safe. This included standing in the driveway the entire time he scraped the ice – in fact, the plaintiff suggests he had to get them to move so he could continue with his work. It also included standing next to the passenger side door of his truck in what to him seemed an obvious non-verbal request to speak with them. Their inaction involved not warning him the driveway was still unsafe when he exited the truck.

[30] The Derros suggest the defendant’s evidence about where he and his son stood is not credible and only a trial will allow the trier of fact to make the findings necessary to resolve the dispute. The Derros point to the fact that the defendant provided inconsistent statements regarding where he was standing when the ice was being scraped. In his evidence for this motion, the defendant suggested he stood on his porch and could not recall if his son was with him. However, when the Derros attempted to make a claim against their own insurance for the slip and fall, the defendant confirmed the accuracy of an email to an adjuster which claimed he was standing next to the plaintiff’s truck when he fell. When this inconsistency was put to him in cross-examination, the defendant stated that he said this to help his friend with his claim. He also stated in cross that he believed his son came out and stood behind him, which is why he did not know if he was there.

[31] The Derros further argue that the porch where the defendant says he was standing is too small to accommodate two adults standing one behind the other and that this is another example of the defendant being dishonest in his evidence about what happened.

[32] The Blechtas submit that the plaintiff’s evidence confirms they did not act negligently: he was asked to attend the property to scrape the ice so the defendant could continue with his maintenance. The Blechtas further ask the court to infer from the plaintiff’s evidence that he was the author of his own misfortune. For example, the plaintiff’s evidence is that the defendant and his son neither verbally nor by gesture asked him to exit his vehicle. Rather, he exited his truck because the defendant looked at him and he took this as an invitation to get out and speak with him. The plaintiff was aware no salting or sanding had occurred and gave evidence that he knew there may still be ice under the snow. He therefore assumed, the Blechtas argue, the risks inherent in walking on the driveway at that stage of its incomplete maintenance.

[33] I find that even if the defendant and his son were standing in the driveway as the plaintiff states, this evidence does not support the Derros’ argument. Believing the defendant wanted him to get out and speak to him simply by looking at him was not the only inference available to the plaintiff on this record. It would also be unreasonable to draw the inference that by standing in the driveway the defendant was signaling to the plaintiff that the entire driveway was safe. The plaintiff was there for the specific purpose of permitting the defendant to continue with his maintenance, which to that point had not continued.

[34] In any event, assuming the defendant wanted to speak with the plaintiff, the latter was aware of the icy conditions and should have delayed that conversation, which he has not suggested that he believed was urgent. It would have been more prudent for the plaintiff to call the defendant, whether from his truck or from his home, or to return after the defendant had completed his maintenance.

Would exercising the expanded powers be contrary to the interest of justice?

[35] This is not a case where a trial is required in the interest of justice. The use of the expanded powers on this record results in a saving of time and expense for the parties as well as valuable court time. With respect, the written record does not obfuscate the authentic voices of the parties. The facts of this case are straightforward, and the Derros have failed to establish a pathway to the Blechtas’ liability.

Conclusion

[36] For these reasons the Blechtas’ motion is granted, and the action is dismissed. If the parties cannot agree on costs, the Blechtas may deliver within 15 days from today’s date submissions no longer than 2 pages, double-spaced, not including their bill of costs as well as any offers to settle. The Derros have 30 days from today’s date to file their materials. There will be no reply and late submissions will not be considered.

The Honourable Mr. Justice P.J. Boucher Released: August 30, 2023