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“Is this an appropriate case for summary judgment?”: A review of the use of summary judgment in personal injury cases since Hryniak

26 May “Is this an appropriate case for summary judgment?”: A review of the use of summary judgment in personal injury cases since Hryniak

Daniel Dooley, Erin H. Durant and Saly Botelho

Dooley Lucenti Barristers & Solicitors

SUMMARY JUDGMENT IN PERSONAL INJURY CASES

Daniel Dooley, Erin H. Durant, Saly Botelho

The 2010 amendments to Rule 20 of the Ontario Rules of Civil Procedure and the decision of Hryniak v. Mauldin have broadened the availability of summary judgment in Ontario.  The Court in Hryniak was clear that there must be a culture shift in civil litigation and that not all cases require a trial to be resolved fairly and in the interest of justice. The policy reason behind an increased use of summary judgment is that “trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.”

Guided by Hryniak, lawyers and sophisticated clients are increasing considering whether summary judgment is appropriate in their cases. The decision to bring a summary judgment motion in a personal injury case, however, is still a difficult one. When is a summary judgment motion appropriate? Will a summary judgment motion save time and money? Are there still cases where a trial will be necessary? The case law since Hryniak assists in answering these questions.

The Procedure and Test for a Summary Judgment Motion

Bringing a summary judgment motion is an expensive endeavor. Each party is required to put his or her “best foot forward” and put before the court complete and compelling evidence to support or oppose the motion. Affidavits must be drafted, revised and sworn by the parties and any key witnesses as unlike other procedural motions, it is not appropriate to rely on affidavits sworn by associate lawyers or law clerks based on information and belief or documentary evidence. Each witness may also be cross-examined on the content of their affidavit evidence, adding further expense. Facta are also required.

Under the revised summary judgment rule the motions judge has the ability to weigh evidence, evaluate credibility, and draw any reasonable inference from the evidence to determine if a trial can be avoided. These increased powers are only utilized after the motions judge determines that there is a genuine issue requiring a trial. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the motion record:

(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 there appears to the judge to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers to weight evidence, evaluate credibility of a deponent and draw a reasonable inference from the evidence. The judge may also order a “mini trial” and hear oral evidence from one or more of the parties.

The Supreme Court recognized in Hryniak that failed summary judgment motions add to costs and delay. This risk can be reduced if a judge makes use of the trial management powers provided in Rule 20.05 and the court’s inherent jurisdiction.  These powers allow the judge to use the insight she gained from hearing the summary judgment motion to craft a trial procedure that will resolve the dispute in a way that is sensitive to the complexity and importance of the issue, the amount involved in the case, and the effort expended on the failed motion.  Where a motion judge dismisses a motion for summary judgment, in the absence of compelling reasons to the contrary, she should also seize herself of the matter as the trial judge.

Cases Appropriate for Summary Judgment

It has now been more than a year since the Supreme Court of Canada released its decision in Hryniak in January of 2014. A review of the Ontario case law shows that summary judgment has been used – effectively and ineffectively – in personal injury cases. These cases provide guidance that will assist counsel and their clients in determining when a fact situation may be appropriate for summary judgment. This paper deals with three types of cases that have resulted in successful summary judgment motions for defendants: motor vehicle accidents, slip and fall accidents and limitation period defences. The paper then discusses the cases and facts scenarios where summary judgment will not be appropriate.

The Motor Vehicle Accident

Defendants have successfully brought summary judgment motions in two motor vehicle accident cases since Hryniak. These cases are Swain v. Gorman and Grewal v. Handa.  Both involved rear-end collisions.

The Swain case arose out of a motor vehicle accident involving three vehicles and an unidentified vehicle travelling eastbound on a road not far from Barrie.  The motor vehicle accident report indicated that an unidentified vehicle was first, followed by a vehicle driven by the Defendant Gorman, then the Plaintiff’s vehicle, and finally the Defendant Ross vehicle.

A summary judgment motion was brought only by the Defendant Gorman. The three drivers had very different versions of the accident and Gorman’s role in it:

The plaintiff asserted that she applied her brakes when she saw the Gorman vehicle stopped in front of her. She was then hit behind by the Ross vehicle and pushed into the Gorman vehicle.

The defendant Ross asserted that the unidentified car stopped to make a left hand turn and after it had turned the Gorman vehicle started to move. It was at that time that the plaintiff’s vehicle moved forward and hit the Gorman vehicle and, apparently, “bounced” backwards and hit the Ross vehicle.

The defendant Gorman stated that her vehicle was actually behind the Swain vehicle and in front of the Ross vehicle. Gorman’s evidence was that she was rear ended by the Ross vehicle which pushed her into the Swain vehicle.

Justice Healey determined that since there were three competing versions of the accident there was a genuine issue requiring a trial under the first stage of the Hryniak test. However, she found that this was a case where the powers provided in subrules (2.1) and (2.2) could be employed to determine the issue without a traditional trial and that it would be in the interests of justice to do so.

After evaluating all of the evidence Justice Healey rejected the evidence of the Defendant Gorman. She did so because (a) there was no evidence of damage to the front of the Gorman vehicle, (b) the description she provided of the vehicle in front of her did not match any of the vehicles involved in the accident and (c) it was in complete contradiction of the motor vehicle accident report. Accordingly, the court found that the Defendant Gorman was mistaken in her evidence. The court was left with two competing versions of the accident and in each of these versions, the plaintiff’s vehicle struck the Gorman vehicle from behind.

The law is clear regarding the liability of a following vehicle involved in a rear-end collision. The Court of Appeal in Beaumont v. Ruddy explained that “when one car runs into another from behind, the fault is in the driving of the rear car, and the driver of the rear car must satisfy the court that the collision did not occur as a result of his negligence.”   Justice Healey found that:

On either of the two competing theories of how the accident occurred, the Gorman vehicle was rear-ended.  The plaintiff has provided no evidence that Sherry Gorman was acting negligently prior to her vehicle being struck.    The duty was on the plaintiff, as a following vehicle, to ensure that the collision did not occur as a result of her negligence.  There is no evidence that Sherry Gorman was not exercising the standard of care that is to be expected of an ordinary, reasonable and prudent person in the same circumstances, and accordingly, there is no evidence that her conduct is negligent within the definition set out in Ryan v. Victoria (City).

Justice Healey found that there was no genuine issue requiring a trial between the plaintiff and Gorman as there was no evidence in support of any of the allegations against Gorman as set out in the Statement of Claim. The claim against Gorman was accordingly dismissed.  The Plaintiff appealed the ruling to the Court of Appeal and the appeal was dismissed.

A similar summary judgment motion was brought in Grewal v. Handa. The Plaintiff Grewal was a passenger in a car operated by the Defendant Nikhil Handa and owned by the defendant Chander Handa. The Handa vehicle was travelling westbound on Steeles Avenue when it rear-ended the tractor trailer operated by the Defendant Blackwood. The Blackwood vehicle was registered to the Defendant Consolidated Fastfrate Inc.  Blackwood and Consolidated Fastfrate Inc. brought a motion for summary judgment to dismiss the plaintiff’s claim against them and also the co-Defendants’ cross-claims. The motion was surprisingly not opposed by the plaintiff but only the co-Defendant Handa.

Again, there were conflicting accounts of how the accident occurred. The Defendant Blackwood’s evidence was that his vehicle was struck from behind by the Handa vehicle. He had been stopped at a red light for approximately one minute prior to the collision. Blackwood’s vehicle was a tractor trailer. He had done a full inspection of the vehicle that morning as part of his usual safety routine and confirmed during that inspection that the brake lights were functioning. Following the accident he drove the vehicle back to his place of employment where he again confirmed that the brake lights were operational. Blackwood’s evidence was supported by an independent witness, Hill, who had also been stopped at the red light in a separate lane. His evidence was that the transport was already stopped when he pulled up beside it and also stopped. Hill’s vehicle came to a stop towards the rear of the truck in the lane to its left. He was stopped there for at least 10 seconds when he heard screeching tires and the sound of a collision. He looked to his right and noticed that a car had crashed into the rear of the truck. He had not seen the truck move prior to the collision.

The Defendant Handa had a different account of the accident. There were 4 passengers in the Toyota, including the plaintiff. Handa deposed that the road was wet due to rain and snow flurries. His evidence was that the tractor-trailer had been travelling on Steeles approximately three car lengths in front of him and that both the tractor-trailer and himself were travelling at a rate of 70 kilometers per hour, the posted speed limit. Handa was looking to change lanes and was looking over his shoulder for a break in traffic. When he focused his attention forward he noticed that the tractor-trailer had suddenly stopped. He tried to apply the brakes and swerve into the far left lane to avoid hitting the tractor trailer but skidded and collided with the tractor-trailer. Handa’s evidence was that the tractor-trailer’s brake lights were not on prior to the collision. He asserted that he was operating his vehicle carefully, that the weather conditions made the collision unavoidable and that he was not distracted by anyone prior to the accident. No affidavits were before the court from the other passengers in the Handa vehicle.

Justice Fragomeni accepted the evidence of Blackwood and supported by the independent witness Hill regarding how the accident occurred and that the brake lights were functioning. Further, Justice Fragomeni found that the version of events as set out by Handa also could not support a finding of negligence against Blackwood based on the law of rear-end collisions. Justice Fragomeni stated that “The jurisprudence is clear that when one vehicle strikes another from behind the fault rests with the driver of the rear vehicle and the driver of the rear vehicle has the onus of proving that the collision did not occur as a result of his/her negligence. It is also clear that the rear driver must keep a reasonable distance behind the vehicle ahead; he must keep his vehicle under control at all time; he must keep a proper outlook and be alert; he must proceed at a speed which is reasonable relative to the speed of the other vehicle (Kosinski v. Snaith).” Accordingly, there was no genuine issue requiring a trial and the plaintiff’s action and the cross-claims were dismissed against Blackwood and Consolidated Fastfrate.

The defendant Handa was required to pay costs in the amount of $15,000. In the costs decision it becomes clear that the Handa defendants were not willing to let the co-Defendant’s out of the action as the plaintiff’s claim was in excess of Handa’s insurance limits. The plaintiff had refused to limit their claims to the policy limits of the Handa defendants.

Slip/Trip and Falls

There have been at least two cases where a defendant has been successful in bringing a summary judgment motion in a slip and fall case, Wiseman v. Carleton Place Oil  and Nandlal v. Toronto Transit Commission.

The decision of Wiseman v. Carleton Place Oil Inc. et al. was a summary judgment case released not long after Hryniak. In Wiseman the defendants Carlton Place Oil Inc. and Reid Gardens Landscaping & Garden Center both brought a summary judgment motion to have the action against them dismissed.   Reid Gardens Landscaping was responsible for removing snow from the parking lot and Carlton Place Oil was the owner of the property where the accident occurred.  It was not snowing when the plaintiff arrived at the Tim Horton’s and the parking lot had been plowed earlier that day.

The plaintiff walked directly from her parked car to the entrance door of the Tim Horton’s.  She crossed over a drive-through lane between marked curbs that were not designed to accommodate pedestrians.  As the plaintiff lifted her foot to step over the curb, she lost traction, fell and broke her wrist.

Justice Pedlar granted summary judgment to the Defendant Reid Gardens because there was no evidence that the snow removal contractor had failed to meet its contractual obligations. The contract did not require Reid Gardens to hand shovel around curbs.  This evidence was clear and uncontradicted. Reid Gardens accordingly had no responsibility for the area where the plaintiff fell and the claims against them were dismissed.

Justice Pedlar denied the motion brought by the Defendant Carleton Place Oil. There was no dispute on the motion that Carleton Place Oil had a duty as occupiers under the Occupiers’ Liability Act to take reasonable care for the safety of people permitted on the premises.

It was the position of Carleton Place Oil that they had a plan in place to provide safety to their visitors to the premises by contracting with Reid Gardens for snow clearance and that this met the required standard of care. The Plaintiff’s position was that, on the evidence, the Plaintiff was proceeding carefully to negotiate her way on the premises, under the conditions which existed, and despite proceeding carefully, she fell and injured herself.  Her position was that those facts gave rise to a triable issue as to liability on behalf of the owner of the premises. There was uncontradicted evidence on the motion that the Plaintiff was proceeding carefully from a motor vehicle, which was parked in a designated parking location on the premises. The evidence was that in order to proceed directly to the Tim Hortons restaurant, she proceeded to cross the drive-through lane for Tim Hortons, which was marked by curbs located on either side of the lane and to step over those curbs.  There was also uncontradicted evidence that there was snow build-up around the curbs. There was no evidence as to whether or not there were lowered curbs in the proximity that would create a path for pedestrians.

The Court found that it is a “reasonable expectation for anyone designing a parking lot with designated and marked parking spots on the far side of the drive-through lane, that people parking their cars in those spots would be required, in taking a direct path to the commercial premises on the other side of the lane, to step over those curb barriers.  It would not be a reasonable expectation that people would walk down to the far end of the drive-through lane to go around those curbs.”

Justice Pedlar found that there was a triable issue as to whether Carleton Place Oil met the standard of care in designing the parking lot and with the adequacy of the snow removal plan in place. No evidence was available to the court on the motion regarding the design of the parking lot and whether any attention had been given to the risk posed by the curbs and the location of the parking spots. Justice Pedlar considered whether the need for a trial could be avoided by using the new powers available to a judge under Rules 20.04(2.1) and (2.2). The court found that it would not be in the interests of justice to utilize these powers. The matter was a simplified rules case and the trial could be heard in a short period of time. The summary judgment motion already incurred significant costs and took a half-day to argue. The court found that it would not be fair, just or serve the goals of timeliness, affordability or proportionality to continue the summary judgment motion with additional evidence on liability. Accordingly, the court declined to order oral evidence on the motion and the motion was dismissed.

The Court of Appeal recently considered an appeal of a summary judgment motion that was granted to a defendant in a slip and fall case in Nandlal v. Toronto Transit Commission. In Nandlal the plaintiff alleged that she slipped and fell on “slippery and debris strewn steps” at Kennedy Station. Justice Perell granted summary judgment to the Toronto Transit Commission (“TTC”).

The evidence before Justice Perell on the motion did not support any liability on the TTC. Nandlal’s own evidence was that although she was “alert, walking with care and actually looking for hazards” she did not “see any debris on the tile at the location where she fell. Rather, because she had noticed garbage and debris in the station and in subway cars on prior occasions, and elsewhere on the station floor on the day in question, she believed that she had slipped on debris at the top of the stairwell.” This was not evidence that there was debris on the top of the stairwell on the day that she fell. Further, the TTC produced uncontradicted evidence that the tiles on which she fell were “non-slip tiles” and that they were “not defective or in need of repair.” Evidence of the TTC’s maintenance program at the station was also put before the court. Based on this evidence Justice Perell found that there was no evidence of debris on the stairs and that the tiles were non-slip and in good repair and granted the TTC’s motion for summary judgment.

The plaintiff raised several grounds of appeal. The most interesting ground was that Justice Perell misapplied the test for summary judgment without utilizing the enhanced fact-finding powers under rule 20.04 by failing to draw an inference based on the circumstantial evidence about the debris throughout the subway station. The Court of Appeal rejected this argument as, in accordance with Hryniak, the motion judge first considered whether there was a genuine issue for trial based on the record before him, without having to resort to the fact-finding powers under Rule 20. Based on the plaintiff’s own evidence, Justice Perell concluded that there was no genuine issue for trial, and no reason to resort to the increased fact-finding powers under Rule 20. Justice Perell did not need to assess credibility or weigh conflicting evidence – the evidence did not conflict. The appeal was denied with costs.

The Limitation Period Defence

Perhaps the most common use of summary judgment is in cases where the defendant relies on a statute of limitations defence. In Ontario, most claims must be commenced before the second anniversary of the day on which the claim was discovered. A claim is discovered when the person with the claim first knows (a) that the injury, loss or damage had occurred, (b) that the injury, loss or damage was caused by or contributed to by an act or omission, (c) that the act or omission was that of the person against whom the claim is made, and (d) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek a remedy. A person must take active steps to investigate the factors listed above and cannot rely on his or her own lack of action to extend the limitation period as the Act also provides that a claim can be discovered on “the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters” listed above. Similar limitations on the right to bring a claim exist under the Municipal Act, and the City of Toronto Act, 2006.  Both of these acts require a plaintiff to give notice of a claim within 10 days of an accident, with limited exceptions.

Limitation cases are ideal to be dealt with on a summary judgment motion because the issue that the judge is required to decide is focused. There is also less likely to be extensive conflicting evidence from a variety of witnesses on the limitation issue. Two cases involving actions against municipalities for trip and fall accidents illustrate why limitation cases are particularly amenable for summary judgment motions – Seif v. City of Toronto and Hennes v. City of Brampton.

In Seif the plaintiff tripped on a City of Toronto sidewalk and fractured her wrist. The plaintiff gave notice to the City of the accident nearly 4 months after the fall occurred, well beyond the 10 day notice period provided for in the City of Toronto Act. The only issue of the motion was whether the plaintiff could meet the exception to the notice period provided for in section 42(8) of the Act by providing a reasonable excuse for the delay in providing notice and that the City would not be prejudiced in its defence due to the lack of notice.

The plaintiff did not provide any evidence to explain the reason for her delay. She did not have any physical or psychological reason for failing to give the City notice. In fact, she was able to attend to the site of the fall with her husband on days after the fall. She took only non-prescription medications. The reason provided for not giving notice was that she “gave no thought, and had no intention to commence a lawsuit regarding the accident” in the first few weeks and months following the accident. This is not an adequate excuse and, accordingly, the summary judgment motion was granted.

The court similarly granted summary judgement in the case of Hennes v. City of Brampton. The plaintiff injured his knee, requiring surgery, after a slip and fall accident not far from his house on a city sidewalk.  In that case the plaintiff’s excuse for not providing the City of Brampton notice within the statutory time limit was that he was not aware of the requirement that he had to give notice. He was not incapacitated at any time following the fall but delayed for 18 months in providing notice to the City of the fall. Again, the motions judge found that there was no genuine issue requiring a trial and granted summary judgment to the City.

The case of Landrie v. Congregation of the Most Holy Redeemer is an example of a plaintiff benefitting from a defendant’s summary judgment motion in a limitations case. The plaintiff slipped, fell and broke her ankle on the sidewalk exiting St. Patrick’s Church in Toronto on November 19, 2008. She was transported immediately to the hospital. Several times during her hospital visit she was sedated. She underwent surgery on November 27, 2008. She remained in hospital until December 3, 2008. She received post-operative treatment at Bridgepoint Health until March 18, 2009. On October 28, 2010 she retained counsel. She mistakenly told counsel that the accident occurred on November 24, 2008. A Statement of Claim was issued on November 22, 2008 – two years and three days after the accident.

When her lawyers realized that the accident occurred on November 22, 2008 after a review of her medical records, they amended the Statement of Claim to plead that she was of unsound mind within the definition in section 7 of the Limitations Act, 2002 while she was admitted to the hospital. The limitation period does not run during any time in which a person is incapable of commencing a proceeding. Justice Perell found that there was a genuine issue requiring a trial as to when the plaintiff discovered her claim and at what time she was incapable of commencing her claim because of her physical, mental and psychological condition. He then went on to use the resources in Rules 20.04(2.1) and (2.2) to grant summary judgment – not to the defendants who had brought the motion, but rather to order that the action was commenced in time in favour of the plaintiff. Based on the medical evidence before the court, Justice Perell found that the plaintiff was not able to commence a proceeding prior to her discharge from the hospital. The claim was commenced in time and the defendants lost the benefit of their limitation defence.

Summary judgment motions have also been used to decide limitations issues in motor vehicle litigation where the plaintiff must meet the statutory threshold of a “serious and permanent impairment of an important physical, mental or psychological function.” A delay in the plaintiff recognizing that his or her case met the threshold has resulted in the limitation period being extended due to the discoverability principle. However, a plaintiff’s case can still be dismissed, notwithstanding a threshold argument, if the defence can prove that the plaintiff did not take any active steps to investigate his or her medical condition in a timely fashion. The Court of Appeal upheld such a ruling in the case of Yelda v. Vu. In that case Justice Arrell granted summary judgment to the defendants on the basis that the limitation period had expired. The plaintiff took no active steps to investigate her injury for a period of two years. The defence also put forward evidence that had the plaintiff investigated her injuries earlier she would have known that her injury was serious and permanent by November of 2008 at the very latest. The claim was not commenced until May of 2011.

When will Summary Judgment be Denied?

Notwithstanding the expanded scope of the summary judgment rule there will still be many cases that are not appropriate to decide by way of a summary judgment motion. In these cases, bringing a summary judgment motion will likely result in added costs and delay in litigation, as well as adverse costs awards against the party who brought the motion.

In Ashim v. Zia, a motion for summary judgment was brought by the third party, Ameer Mohammad Ashim, to have the claims against him by the defendants, Sabrina Zia and James Zia, dismissed.   The main action arose out of a motor vehicle accident which occurred in a shopping center.  Zia was travelling through a feeder lane which contained parking spots on either side.  She attempted to make a right turn into the thoroughfare and collided with the Ashim vehicle.  The Ashim vehicle was travelling through the thoroughfare lane at more than 30km per hour when the collision occurred.  The plaintiff was Ashim’s wife who was the passenger in the car when the accident occurred.   Mrs. Ashim sued Zia who third partied Mr. Ashim.

Mr. Ashim brought a motion for summary judgment on the basis of s.16 of the Fault Determination Rules which provides that he had the right of way when the collision occurred.  Justice Emery rejected this position on the basis of the court’s decision in Delfino v. Martin which had previously held that the fault determination rules do not apply to parking lot settings and that fault must be determined based on the ordinary rules of negligence. The driver of an automobile owes a duty of care to others even in cases where there is a presumption of a right of way in his favour. The evidence on the motion was incomplete and Justice Emery determined that there was a genuine issue requiring a trial.

Justice Emery also refused to utilize the added powers in Rule 20.04(2.1) and (2.2) as he found it was not in the interests of justice to do so in that case. In his view there would be no time savings in doing so.  The third party was to be a main witness in the main action between the plaintiff and the defendant. Justice Karakatsanis recognized in paragraph 60 of Hryniak that where a case will go to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment.  Justice Emery stated that “There are no real savings in terms of time or expense to seek a tortured resolution to the liability question between Mr. Ashim and Ms. Zia. A trial will not be disproportionate to any further step in this third party claim.  In fact, a mini-trial to extend the motion in order to exercise the enhanced fact finding powers may actually require greater resources, time and expense than proceeding to trial to achieve a just result in this case.” Accordingly, the third party claim was ordered to proceed to trial along with the main action as the issues of fact and law were intertwined and the claims should be heard together.

Similar comments were made by Justice MacKinnon in the case of MacFadyen v. MacFadyen. In that case the plaintiff was injured when he tripped over a cedar post and fell in an unlit barn at a farm near Beaverton. He sustained a serious spinal injury which rendered him a quadriplegic. The plaintiff sued the registered owner of the farm as well as the owner/operator of a horse riding business located on the farm. Interestingly, the plaintiff was a part owner of the corporation, J&H Ranch that was the registered owner of the farm. Five days prior to the fall, the operator of the horse riding business (the daughter of the plaintiff) constructed horse stalls in the barn. She failed to secure a cedar post, which later fell.

J&H Ranch brought a motion for summary judgment and argued that even though it was an owner of the property, from 2006 onwards it was not an occupier pursuant to the Occupiers Liability Act or at common law. Alternatively, it argued that it breached no duty of care to the plaintiff since the condition that caused the fall was caused solely by the operator of the horse riding business.

Central in deciding the liability issue was what occurred during an oral discussion between the plaintiff and the co-owner of J & H, Charles, in 2006. Charles held 51% of the shares of J & H and deposed that he told the plaintiff that the company would no longer be operating a riding business on the property. Charles alleged that it was agreed that the plaintiff would run his own horse riding business on the property after that date and be solely responsible for property maintenance and utilities. Hugh’s evidence was essentially that this oral agreement did not exist. Of course, no agreement was adduced to writing. There were no witnesses. When the new owner of the horse riding business took over there was also no conversation about her responsibility for maintenance or upkeep of the property. There was no tenancy or other agreement. There was no consensus amongst the various parties as to whether the responsibility for the barn remained on J & H at the time of the plaintiff’s fall.

Justice MacKinnon found that a trial is required to determine whether J & H owed a statutory or common law duty of care to users of the barn and whether it was reasonably foreseeable that a careless act by J & H could result in injury to the plaintiff.  His Honour stated that “It is not appropriate for this motions court to dispose of these contentious matters on summary judgment by simple use of affidavits and transcripts.  The summary judgment process cannot provide the full range of evidence and specific focus required to fairly and justly adjudicate this dispute in a timely, affordable and proportionate manner.”

Justice MacKinnon considered whether he should make use of Rules 20.04(2.1) or (2.2) to weigh evidence, assess credibility or order a mini trial. He declined to do so for reasons similar to Justice Emery in Ashim:

[37]           I have considered whether the need for trial could be avoided by using the new fact finding powers under rules 20.04(2.1) and (2.2).  I have already noted that witness credibility and reliability are critical.  Evidence adduced solely by way of affidavits prepared by legal counsel may well skewer the witnesses’ true voices.  Affidavit and transcript evidence alone may well result in unfairness – unlike at trial where a judge sees and hears all the evidence.  I find that, without seeing and hearing all witnesses at trial, the fact finding court will not have a record capable of fulfilling the full appreciation test.

[38]           The claims against Tori in this action will require a trial in any event and all parties will be required to give evidence at that time.  The trial court will be in a substantially better position to evaluate all of the evidence and make appropriate findings.  No efficiency would be gained by now disposing of the J & H liability issue on summary judgment.  It will be substantial more proportional for all issues to be determined at trial.

[40]           The trial court will have a much fuller appreciation of the relationships between the parties than is apparent to me on this motion.  Any summary judgment rendered on motion concerning issues of causation, liability, credibility and reliability would result in a high risk for inconsistent trial findings and resultant substantial injustice.  It would be an error in principle to summarily determine the role of J & H when pertinent facts remain in dispute and when Tori’s role in causing her father’s injuries will, in any event, be decided at trial.  It would be neither in the interests of justice nor efficient nor proportionate for J & H’s liability to be disposed of summarily.

Costs were later ordered against J & H in the amount of $14,600.

Dickson v. Di Michele was a rare case when a plaintiff brought a summary judgment motion in a simplified rules case for a declaration that a defendant was liable. The plaintiff did not ask for a determination of damages on the summary judgment motion. The plaintiff in Dickson alleged that she sustained injuries to her leg when “attacked” by a dog when delivering a pizza to the defendants’ home. The plaintiff had brought her motion after the matter had already been set down for trial under rule 48 and, accordingly, required leave of the court before the court could hear the motion. The court denied leave to bring the motion as there was no substantial or unexpected change in circumstance that would permit the plaintiff to bring a motion after the matter had been set down for trial. Further, the court found that the proposed motion would not provide for a “proportionate, more expeditious and less expensive means to achieves a just result than going to trial” relying on language from Hryniak.  The plaintiff had claimed damages for post-traumatic stress disorder and other psychological damages as a result of a frightening dog attack. Accordingly, no trial time would be saved by deciding a summary judgment motion on liability. Accordingly, the court refused to grant the plaintiff leave to bring the motion.

The plaintiff sought leave to appeal the matter to the divisional court shortly before the trial was scheduled to commence. Leave was denied by Justice Di Tomaso. He relied on the fact that the matter had already been set for trial and that granting leave would be of little benefit as the appeal would not be heard for several months, and the trial was already set to begin within the month.  A trial would still be required to determine damages, and there was little to gain from granting summary judgment and granting the leave to appeal. The plaintiff was required to pay $5,000 in costs for the summary judgment motion and a further $5,500 for the failed leave to appeal motion.

Lessons Learned

Not every case is appropriate for summary judgment. A trial will be necessary in many personal injury cases.

In personal injury cases involving multiple parties and conflicting evidence a trial may be the more cost-effective option, particularly where a summary judgment motion will not put an end to the entire case. Although the court now has increased fact-finding powers, the above case law demonstrates reluctance from the court to apply those additional powers when doing so would only result in increased costs and further delay – particularly where the matter would be required to proceed to trial in any event to determine liability of other defendants.

2014 SCC 7, [2014] 1 S.C.R. 87 [“Hryniak”].

Ibid, at para 1.

Forestall v. Carroll, 2015 ONSC 2732 at para. 26.

Ibid at para. 28.

Ibid, at para 49.

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 20.04 (2.1) and (2.2).

Hyrniak, supra note 1 at para. 78.

2014 ONSC 4686 [“Swain”].

2014 ONSC 5911 [“Grewal”].

Swain, supra note 8 at paras. 8-13.

Ibid, at paras. 26-27.

[1932] O.R. 441 (C.A.) at para. 8.

Swain, supra note 8 at para. 31.

Ibid at para. 32.

2015 ONCA 194.

2014 ONSC 5911.

Ibid, at paras. 4-5.

Ibid. at para. 6 at para. 13.

Ibid. at para. 18.

Grewal v. Handa, 2014 ONSC 6342.

2014 ONSC 1987.

2015 ONCA 166.

2014 ONSC 1987.

Ibid, at paras. 3-9.

Ibid, at para. 34.

Ibid, at para. 17.

Ibid, at para. 18.

Ibid at para. 19.

Ibid, at para. 21.

Ibid. at para. 24.

Ibid, at para. 29.

2015 ONCA 166.

Ibid. at para. 5.

Ibid. at paras. 4 and 12.

Ibid. at para. 9.

Ibid. at para. 11.

Limitations Act, 2002, S.O. 2002 c. 24 Sched. B, s. 4.

Ibid. at s. 5(a).

Ibid. at s. 5(b).

S.O. 2001, c. 25, s. 44.

S.O. 2006, c. 11, s. 42.

2014 ONSC 2983.

2014 ONSC 1116.

Ibid. at para. 10.

Ibid. at paras. 17-24.

2014 ONSC 1116.

Ibid.

2014 ONSC 4008.

Ibid. at paras. 8-12.

Ibid. at paras. 14-16.

Ibid. at paras. 25-26.

Ibid. at para. 48.

Ibid. at para. 50.

Ibid. at para. 52.

See, e.g., Huang v. Mai, 2014 ONSC 1156.

2014 ONCA 353.

Ibid. at para. 4.

2014 ONSC 6460.

Ibid. at para. 32.

Ibid. at para. 33.

Ibid. at para. 37.

ibid, at para 55-61.

2014 ONSC 6589.

Ibid. at para. 2.

Ibid. at para. 4.

Ibid. at para. 12.

Ibid. at para. 20.

Ibid. at para. 36.

MacFadyen v. MacFadyen, 2015 ONSC 187.

2014 ONSC 2513.

Ibid. at para. 10.

Ibid. at para. 17.

2014 ONSC 3043.