Category: Summary Judgment

Kongtakane v. Howes, 2023 ONSC 6167

This personal injury action arises from a motor vehicle accident that occurred when the defendant vehicle crossed into an oncoming traffic lane and struck the plaintiff vehicle. The defendants brought a motion for summary judgment seeking dismissal of the action on the grounds that the defendant driver could not have avoided the accident because she suffered severe anaphylactic shock caused by an allergic reaction to Aleve taken a short time before the collision. Justice Ricchetti dismissed the motion, holding that there were credibility and factual issues which could not be determined on a summary judgment motion and therefore required a trial. Justice Ricchetti noted that there was considerable evidence filed on the motion, and some if it (including medical evidence) was conflicting. The liability issues were complex and highly disputed by the experts, and the essential findings of fact required to make a decision on the inevitable accident defence could not be made in the context of the summary judgment motion.

Strilchuck v. Tecumseh (Town of), 2022 ONSC 5841

This personal injury action arose from a slip and fall that occurred on a sidewalk owned by the defendant municipality. The plaintiff was walking her dog and slipped on stones laying on the sidewalk. The defendant brought a summary judgment motion seeking to have the action dismissed. The plaintiff brought a motion in the alternative for summary judgment with respect to liability on the basis that the defendant failed to keep the sidewalk in a reasonable state of repair, and that the defendant could not utilize the defences set out in s. 44(3) of the Municipal Act. Justice King granted the defendant’s motion and dismissed the action. Justice King found that the condition of the sidewalk as referenced in the evidence was such that a person using ordinary care could pass safely. The stones did not cover the width of the sidewalk at any point, and the stones were not stacked on each other. Any person could have passed using ordinary care and the stones did not constitute an unreasonable state of non-repair. Justice King affirmed that it would be impossible to require municipalities to maintain all sidewalks to a perfect level.

Gray v. Sobel Adjusting Solutions, 2022 ONSC 2260

The plaintiff’s home was damaged in a fire and she made a claim to her home insurer, Allstate. The plaintiff and Allstate settled the claim. The plaintiff was later unhappy with the settlement, and (together with her husband) commenced an action against Allstate and adjusting company, Sobel, alleging that the settlement was unfair. Allstate and Sobel brought a summary judgment motion on the basis that the action was barred by the settlement. Justice Pollak dismissed the motion, finding that there were triable issues regarding the validity of the release. Justice Pollak also noted that neither the husband nor Sobel were parties to the release and were not bound by it. Regarding Allstate’s reliance on the release Justice Pollak found that the contents of the release were confusing, there were insufficient communications preceding the release to show good faith, and there were no records showing that the plaintiff was explained the contents of the release.

Sunnybrook Health Sciences Centre v. Buttcon Limited et al, 2021 ONSC 6061

This action arises from the alleged improper selection, design, and installation of a steam boiler at Sunnybrook Hospital. The boiler was installed in 2012, and the action was commenced in 2017. The defendants brought a summary judgment motion for dismissal of the action on the basis that it was barred due to the limitation period having expired. Sunnybrook argued in response that it could not have discovered the claim until receipt of an expert report, and that the claim was brought in time on that basis. Justice Vella dismissed the motion, holding that there was a genuine issue for trial. In support of their motion the defendants had put forth a single affidavit by one of the defence counsel, with attached documents that were intended to speak for themselves. The plaintiff put forward affidavit evidence from its Director of Plant Operations, its engineering expert, and a law clerk from its counsel’s firm. In failing to submit affidavits from those with direct knowledge, and instead relying on a solicitor’s affidavit, the defendants did not put their best foot forward and were shielded from cross examination. On the other hand there was credible evidence from the plaintiff that there were genuine issues requiring a trial on the limitation issue.

Taylor v David, 2021 ONSC 3264

The plaintiff underwent jaw surgery in 2004. She commenced a personal injury action in February 2020. The defendants brought a motion for summary judgment, arguing that the action was statute-barred by operation of the Limitations Act. Justice Diamond reviewed the law regarding the absolute 15-year limitation period and the exceptions to it for willful concealment by a defendant, and for periods where a person lacks capacity. He granted the defendants’ summary judgment motion, holding that the plaintiff failed to prove that any of the exceptions would apply. The FLA claim of the plaintiff’s son, who did not reach the age of majority until the age of 2008, was also dismissed because it was derivative of the primary plaintiff’s claim which was barred.

Petitpas v. Kingston (City), 2021 ONSC 1521

The plaintiff fell on a sewer grate hole and sued the City of Kingston for damages. The City brought a summary judgment motion, in which it relied on an expert report which concluded that the sewer grate met the applicable Ontario Provincial Standards Drawing when it was installed in 2001. Justice Rogers dismissed the motion, reasoning that the City did not lead any evidence that: (1) the sewer grate was appropriate and met standards in place as of the time of the subject fall; and (2) the sewer grate was in a proper state of repair as of the time of the subject fall.

Haley v. Stepan Canada Inc., 2020 ONCA 737

The plaintiff truck driver alleged that he tripped and fell on uneven ground when he attended the defendant’s premises to pick up a load. He alleged to have sustained serious injuries, and brought an action for damages. He did not advise the defendant of the incident until he served his statement of claim. There were no witnesses of the fall and no contemporaneous photographs of the scene. More than five years after the incident, he delivered an expert opinion that the fall was caused by an unsafe elevation. The report conflicted with the plaintiff’s discovery evidence regarding the fall location. The motion judge determined there was no genuine issue requiring a trial and dismissed the action. The plaintiff appealed, arguing that the motion judge erred by reversing the onus on the motion and by assuming that the premises were safe in the face of the expert opinion about the unsafe condition. The Court of Appeal rejected those submissions, and found that the motion judge had correctly determined that the respondent had established there was no genuine issue requiring a trial. The motion judge had evidence before him regarding systems in place for inspection at the premises, which revealed no issues. He was not obliged to accept the expert opinion. The appeal was dismissed.

Zaky v. 2285771 Ontario Inc., 2020 ONSC 4380

The plaintiff was injured while attempting a backflip at the defendant indoor trampoline park. He sued the facility for damages, alleging that it breached the Occupiers’ Liability Act. Before using the facility’s equipment, the plaintiff had signed an electronic waiver document at a computer kiosk. The plaintiff’s evidence on the motion included that the defendant’s employee rushed him to complete the waiver and did not explain its implications to him. None of the waiver of liability terms in the document captured his attention and he did not knowingly give up his legal rights. His evidence was uncontested on the motion. Justice Conlan dismissed the motion, finding that the issue of whether the defendant took reasonable steps to bring the waiver to the plaintiff’s attention was a genuine issue requiring a trial.

Moxam v. Anderson, 2020 ONSC 4173

The plaintiff sustained injuries in a motor vehicle accident and commenced an action for damages against the driver of the vehicle in which he was a passenger at the time (among others). That driver was going through an intersection when he collided in a T-bone fashion with another defendant’s vehicle, which had failed to stop at a stop sign. The driver of the vehicle that carried the plaintiff brought a motion for summary judgment. Justice George granted summary judgment, and dismissed the action as against that driver. He found it to be an appropriate case for partial summary judgment to be allowed as the moving defendant met the test and objectives outlined in Hryniak. Justice George found that there was nothing the moving defendant could have done to avoid the consequences of the other defendant driver’s negligent driving, and that a reasonable driver would not have done anything differently. There would be no better evidence at trial because the other defendant driver had no recollection of the facts of loss.

Faltas v. Macerollo, 2020 ONSC 1450

The plaintiffs were injured in a motor vehicle accident. In addition to suing in their personal capacity, the corporation through which they provided services as pharmacists sued for damages. One of the plaintiffs was an excluded driver on the auto policy, and was seated in the stationary and inoperable vehicle when it was rear-ended. That plaintiff had driven the vehicle prior to its engine breaking down. He had pulled over the side of the road and was waiting for a tow truck. The defendants brought a summary judgment motion against the excluded driver plaintiff based on s. 267.6(1) of the Insurance Act (i.e. that an uninsured user or operator of a vehicle cannot bring an action for MVA injuries), and against the corporate plaintiff arguing that it did not have a valid claim. Justice Gordon dismissed the motion. He held that there was a triable issue as to whether the excluded driver plaintiff was barred by s.267.6(1) from bringing a claim because his vehicle was not operable at the time of the accident. Further, the defendant’s only evidence was through an affidavit from a lawyer, who had no first-hand knowledge as to the plaintiff’s use of the vehicle. Justice Gordon also found that the issues of the claim by the corporate plaintiff was a triable issue and that a judge had to determine the merits of the claim.