COURT FILE NO.: CV-19-00142710-0000 DATE: 20241125

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JOSE PEREIRA Plaintiff

– and –

YAYA FOODS CORPORATION and ARZER CONTRACTING LTD. Defendants

Counsel: David Derfel and Charlie Fuhr, for the Plaintiff Frank Csathy and Thomas Russell, for the Defendant Yaya Foods Corporation

HEARD: September 16, 2024 (by videoconference)

REASONS FOR DECISION

S.E. Fraser, J.:

I. Overview

[1] The Plaintiff, Jose Pereira, is a welder who fell from a 12-foot step ladder and was injured while working on a project on the premises of the Defendant that involved the cutting of steel beams from the existing structure.

[2] The project used a mini-excavator with a thumb or claw attachment which was to hold the beam while Mr. Pereira cut it. The thumb attachment failed, the beam fell and hit the ladder. Mr. Pereira fell and was injured.

[3] A Ministry of Labour investigation found that the excavator was not maintained to manufacturer’s recommendations and that the failure of the machine to hold the beam in place was caused by “extensive leakage of hydraulic oil from grapple thumb cylinder reduced the clamping force of the bucket and the grapple thumb” and that the excavator “was not maintained as per manufacturer recommendation resulted in extensive leakage of hydraulic oil”.

[4] The Plaintiff alleges that the Defendant, Yaya Foods Corporation (“Yaya”), is liable as an occupier as the accident occurred on its premises.

[5] Yaya brings this motion for summary judgment alleging that there is no basis upon which to find the Defendant liable as an occupier.

[6] For the Reasons that follow, I agree. I grant the motion and dismiss the action as against Yaya.

II. Issues

[7] The issues on this motion are as follows:

a. What is the test for summary judgment? b. Does s. 6(1) of the Occupiers’ Liability Act (“OLA”) apply? c. Is there a genuine issue for trial? d. Should partial summary judgment be granted?

III. Analysis

[8] Before addressing the legal issues, I will examine the facts in more detail. Then I will address the test for summary judgment and applicable OLA principles.

Facts

[9] Yaya Foods is a business that manufactures and packages beverages. It owned the premises where Mr. Pereira was injured.

[10] Yaya contracted with Yes Services to expand a loading dock on the outside of the building. Yes Services hired subcontractors: Arzer Contracting Ltd. (“Arzer”) and Mr. Pereira.

[11] Mr. Pereira was working on a Sunday and was cutting steel beams with a welding torch. The excavator had a thumb attachment. The Ministry of Labour report provides that the failure of the thumb attachment occurred because there was not enough hydraulic fluid in the machine. As a result, the machine could not maintain the grip.

A. Summary Judgment Principles

[12] The burden is on the moving party to demonstrate that there is no genuine issue for trial based on the evidence filed upon the motion. It is well understood that a responding party to a summary judgment motion must put its best foot forward. As noted by the Court of Appeal for Ontario in Boltyansky v. Joseph-Walker, 2024 ONCA 682, at para. 15:

[The appellants] are not entitled to waylay access to summary judgment based on the speculative hope that future evidence might materialize. The appellants had an obligation to put their best foot forward during the summary judgment motion: Combined Air Mechanical Services Inc. et al. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 15; Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, 52 B.L.R. (5th) 51, at para. 9.

[13] The issue on this motion is whether there is a genuine issue for trial. Rule 20.04(2) of the Rules of Civil Procedure provides that 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.

[14] Subrule (2.1) provides various powers to the judge in determining whether there is a genuine issue requiring a trial. These include:

1. Weighing the evidence;
2. Evaluating the credibility of a deponent; and
3. Drawing any reasonable inference from the evidence.

[15] For the purposes of exercising any of these powers, the judge may order a mini trial under subrule (2.2) whereby oral evidence is presented by one or more parties, with or without time limits on its presentation.

[16] The Supreme Court of Canada’s decision Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, called for a “culture shift” finding that summary judgment motions should be used to resolve disputes in a proportionate, timely, and affordable manner to improve access to justice.

[17] Justice Glustein summarized the key principles from Hryniak in Mayers v. Khan, 2017 ONSC 200, at para. 18, as follows:

i) Summary judgment must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. It is no longer merely a means to weed out unmeritorious claims but rather a “legitimate alternative means for adjudicating and resolving legal disputes” (Hryniak, at paras. 5 and 36); ii) An issue should be resolved on a motion for summary judgment if the motion affords a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive process to achieve a just result than going to trial (Hryniak, at paras. 4 and 49); iii) On a motion for summary judgment, the judge must first determine if there is a genuine issue requiring a trial based only on the evidence before the judge and without using the judge’s fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the powers under Rules 20.04(2.1) and (2.2) (Hryniak, at para. 66); and iv) The standard for determining whether summary judgment will provide a fair and just adjudication is not whether the procedure is as exhaustive as a trial, but rather “whether it gives the judge confidence that [the judge] can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (Hryniak, at para. 50). A judge must be confident that he or she can fairly resolve the dispute (Hryniak, at para. 57).

[18] In Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 33, affirmed, 2014 ONCA 878, leave to appeal to S.C.C. refused, [2015] S.C.C.A. No. 97, Justice Corbett set out the approach for the summary judgment judge:

i) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial; and ii) 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.

[19] I note that this motion is for partial summary judgment as it will dispose only of the claim against Yaya, and not the other Defendant. However, Arzer has failed to defend this action. Previous counsel attempted to note Arzer in default but this was rejected apparently.

[20] In this case I must assess whether the granting of partial judgment presents a risk of duplicative proceedings or inconsistent findings of fact, and if resolving the claim could significantly advance access to justice and be the most proportionate, timely and cost-effective approach. If it is the latter, it may be in the interests of justice to grant partial summary judgment. See Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2021 ONCA 589, 462 D.L.R. (4th) 731, at para. 32.

B. Occupier’s Liability Act

[21] Section 3 of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (“OLA”) provides:

3 (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 on the premises. (3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty.

[22] Section 6 of OLA provides:

(1) Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken. (2) Where there is more than one occupier of premises, any benefit accruing by reason of subsection (1) to the occupier who employed the independent contractor shall accrue to all occupiers of the premises. (3) Nothing in this section affects any duty of the occupier that is non-delegable at common law or affects any provision in any other Act that provides that an occupier is liable for the negligence of an independent contractor.

C. Application

[23] The Plaintiff’s argument is that there is a genuine issue for trial and that Yaya has responsibility for the defective machine left on the premises. He argues that it was foreseeable that the machine would be used and states that leaving the defective machine on the premises was akin to leaving a loaded gun as it presented a real risk to those on the premises.

[24] In support, he relies on Botosh v. Ottawa (City), 2013 ONSC 5418, at paras. 85-86.

An occupier includes a person who is in physical possession of the premises, or a person who has responsibility for, and control over the condition of the premises or the activities engaged in on the premises, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises. Premises mean lands and structures or either of them.

Where damage is caused by an independent contractor, the occupier must take positive steps to ensure that the property is being maintained in a proper manner and that scheduled inspections occur verifying its proper maintenance. In other words, the court will not allow an occupier to avoid its responsibilities under the Act by not paying attention to the maintenance practices of a co-occupier.

[25] I read Botosh as applying to the practices of an independent contractor but only as they relate to the work that the contractor was expected to do. I do not think it extends to ensuring also that the tools used by the independent contractor are safe for use.

[26] The Plaintiff’s argument taken to its end would mean that every occupier would have to inspect the tools of an independent contractor to ensure that they were safe for use on the premises. I cannot read the OLA as requiring that.

[27] I can safely conclude on the evidence before me that the equipment failure is the responsibility of the independent contractor and not Yaya. Yaya did not have a duty to ensure that the equipment was properly maintained and that as a result, there is no failure on behalf of Yaya.

[28] I also find that because of the nature of the claim as against Yaya, there is no risk of duplicative proceedings or inconsistent findings of fact and I find that granting judgment by dismissing the claim against Yaya is the most proportionate, timely and cost-effective approach.

IV. Costs

[29] On the basis of the costs submissions made before me at the end of the motion and the costs outline filed, I am prepared to order costs payable by the Plaintiff to the Defendant Yaya. On a partial indemnity scale, the Defendant claimed fees in the amount of $7,762 plus $1,180.00 for his attendance on the day of argument. Mr. Csathy’s hourly rate is reasonable given his year of call and experience. The Plaintiff claimed a higher hourly rate although he was called 12 years after Mr. Csathy. The Plaintiff claimed $5,944 in fees on a partial indemnity basis.

[30] I would exercise my discretion to award costs in the amount of $8,000 for fees plus HST and disbursements and taxes in the amount of $807.35 for a total of $9,847.35. I find this to be fair and reasonable in light of the importance of the issues, the moderate complexity and that it would have been in the reasonable expectation of the parties.

[31] If there are offers to settle or other considerations that impact costs about which I am unaware, the parties shall bring them to my attention by written submissions limited to no more than three double-spaced pages exclusive of attachments within 7 days of the receipt of these Reasons.

V. Disposition

[32] The motion is granted and judgment shall issue in accordance with these Reasons. The parties shall have seven days to raise any additional costs issues that could not have been contemplated. In the event that there are none, the Defendant shall have its costs in the amount of $9,847.35, inclusive of HST and disbursements.

Justice S.E. Fraser Date: November 25, 2024

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JOSE PEREIRA Plaintiff – and – YAYA FOODS CORPORATION and ARZER CONTRACTING LTD. Defendants REASONS FOR DECISION Justice S.E. Fraser

Released: November 25, 2024