SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Francis et al. v. CAPREIT Apartments Inc. et al.
BEFORE: Associate Justice Perron
COUNSEL: Michael Gerhard for the Plaintiff
E-mail: michael.gerhard@stlawyer.ca
Phone : 416-216-2837
Ian Mair and Rebecca Rabinovitch for the Defendant, Lindsay Landscape Inc.
E-mail: imair@moodiemair.com
Phone : 416-340-6803
HEARD: March 4, 2026
CASE CONFERENCE ENDORSEMENT
1This case conference concerns this action.
2The purpose of the conference was to consider the defendant’s request to bring a summary judgment motion.
3This is a slip and fall action.
4The defendant seeks to bring a motion to determine whether they owed a duty of care to the plaintiff and whether the claim is barred because of the limitation period. The defendants allege that, according to the applicable contract, they were not responsible for maintenance of the area at the property where the incident took place (the plaintiff’s front step). They deny the plaintiffs’ allegations that they owed other duties (i.e. a duty to inspect the property generally).
5Lindsay admits that this would be partial summary judgment, because it involves only one of the defendants, but they submit that it is appropriate here because there is no basis in fact or at law to find liability against Lindsay.
6Mr. Mair advised that the other defendants are aware of Lindsay’s request to bring a summary judgment motion and they support the proposed motion.
7Lindsay further submits that this matter is appropriate for summary judgment because the issues are not complex, the motion would not require expert evidence, there are no credibility issues that would require viva voce evidence, their record would not be voluminous and they estimate two hours for the motion.
8The plaintiff opposes the request because only Lindsay seeks to bring the motion, and regardless of the outcome, the action would continue as against the other defendants. In addition, regardless of the outcome of the motion, Lindsay would be a witness at trial. The plaintiff is also concerned with delay in the action if the motion proceeds.
9The plaintiff’s position is that a trial is required to determine the duty of care issue which is alleged to relate to a duty to inspect the property and to report any hazards at the property. The plaintiff therefore disputes that the issue is confined to where the incident took place and that the alleged breach relates to failure to properly inspect a leaky roof that caused an ice hazard.
10In addition, the plaintiff’s position is that there will be credibility issues arising from Lindsay’s evidence and that expert evidence will be required to determine the motion.
11Examinations for discovery were completed in December 2024 and mediation took place in October 2025. The action has been set down for trial. Trial Scheduling Court is scheduled for April 8, 2026.
This court orders as follows:
1- In my view, Lindsay’s proposed motion for summary judgment is not appropriate. First, it is a partial summary judgment motion and the motion would delay the scheduling of the trial in the main action. Second, the motion is unlikely to be much more cost effective than proceeding to trial on this issue, particularly because the plaintiff intends to call Lindsay as a witness at trial regardless of the outcome of any motion. Third, because the issues may require credibility findings and/or require the Motion Judge to make findings of fact and law on issues related to the main action (i.e. who had a duty to inspect or report), to avoid inconsistent findings and the risk that the Motion Judge may not be in a position to determine the issues without hearing evidence from the other parties, it will be more efficient for the issues to be determined at trial.
2- The action has already been set down for trial and the parties will be attending Trial Scheduling Court shortly. There are no other steps that need to be timetabled.
3- This order can be varied by the parties on consent (except for Rule 48) or by order of an associate judge.
4- This endorsement has been signed electronically and is effective without further formality. It constitutes a timetable within the meaning of Rules 1.03 (1) and 3.04 and is also an order made under the authority of Rules 50.13 and 77.
Associate Justice Perron