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.

Dainov v. Lee, 2019 ONSC 5993

The plaintiff sustained injuries as a result of a motor vehicle accident and commenced an action for damages against the driver of the other vehicle involved in the accident. The defendant moved for summary judgment based on evidence provided by a dashboard mounted video camera in his car. Justice Koehnen held that the dashcam footage was admissible. On the basis of the footage, he found that the plaintiff was at fault for the accident and granted summary judgment in favour of the defendant.

Wallace v. Ralph-Edwards, 2019 ONSC 899

The plaintiff suffered vision loss as a complication of a life-saving cardiac surgery. He commenced an action for damages against the doctor who performed the surgery and the hospital where the surgery was performed. The parties resolved certain issues in the action, and the sole remaining issue was the plaintiff’s allegation that the defendant doctor failed to obtain informed consent before performing the surgery. The defendant doctor brought a motion for summary judgment. The plaintiff argued (among other things) that the applicable test for summary judgment was heightened due to the fact that a jury notice had been served. The motion court granted summary judgment, holding that no reasonable person in the plaintiff’s position would have declined the surgery, even if apprised of the very low risk of vision loss. Justice Di Luca noted that there is split authority and no clear appellate guidance on the issue of whether service of a jury notice raises the bar on the test for summary judgment. Justice Di Luca held that the applicable test for summary judgment does not depend on whether a jury notice has been served, reasoning that Rule 20 does not suggest a different test for cases subject to a jury notice; there is nothing in Hryniak suggesting that the summary judgment test is to be applied on a different standard in jury cases; and there is no right to a trial either with or without a jury under the Rules.

Janssen v. William and Markle Jewellers Ltd., 2019 ONSC 70

The plaintiff slipped and fell on a municipal sidewalk adjacent to the front entrance of the retail store operated by the defendant. The municipality was not a party to the action. The defendant brought a successful summary judgment motion on the basis that it was not an “occupier” of the municipal sidewalk and did not otherwise owe the plaintiff a duty of care at common law. The plaintiff unsuccessfully argued that the defendant had exercised sufficient control over the area to make it an occupier, pointing to evidence that the defendant routinely performed winter maintenance of the fall location; that the fall location was directly below an overhang off of which snow and ice fell; and that the fall location was less than a foot away from the carpeted entrance to the store used exclusively by patrons. Justice Mitchell rejected the plaintiff’s arguments, and reasoned that the defendant did not keep any signage or goods on the sidewalk and that its storefront was indistinguishable from the portions of the sidewalk adjacent to other storefronts. Snow and ice removal is not sufficient to make an adjacent owner an occupier of a sidewalk. Justice Mitchell also rejected that the defendant owed any other duty of care to the plaintiff.

Hosseinkhani v. QK Fitness Inc., 2019 ONSC 70

The plaintiff tripped and fell over a dumbbell during a gym class at the defendant fitness centre. She allegedly sustained personal injuries and commenced an action for damages against the defendant, claiming that it was negligent. The defendant brought a motion for summary judgment on the grounds that: (1) the waiver signed by the plaintiff protected it from liability; or in the alternative (2) the plaintiff was solely responsible for the incident. The plaintiff argued that she had no opportunity to read the waiver when she signed it, that the exclusion of liability clause was not brought to her attention when she signed it, and that the defendant failed to discharge its duty to properly instruct her on the safe use of dumbbells. Justice Charney held that the defendant failed to take reasonable steps to bring the exclusion of liability clause to the plaintiff’s attention and therefore failed to meet the minimum requirement contained in section 5(3) of the Occupiers’ Liability Act. As such, the waiver did not protect the defendant from liability. With respect to the defendant’s alternative ground, the court accepted that the defendant bore no liability for the plaintiff’s fall and granted summary judgment. Justice Charney reasoned that there was no evidence to suggest that the dumbbells in question were hazardous or not reasonably safe for the purpose for which they were intended. The court also found that the possibility that a round dumbbell might roll was an obvious risk.

Pagano v. Anderson and Yik, 2018 ONSC 7341

The plaintiff was a passenger in the rear seat of the defendant Anderson’s vehicle. Anderson’s vehicle was rear-ended by the defendant Yik. The defendant Anderson brought a motion for summary judgment. The plaintiff sought an order ruling that Anderson was at least one percent liable for the collision. Justice Brown held that she could not make the necessary findings of fact on the record to grant summary judgment. While Justice Brown acknowledged the presumption of negligence on a vehicle which rear-ends another vehicle, the court noted that several inconsistencies arose at examinations for discovery with respect to the mechanics of the accident. The summary judgment motion was dismissed and it was ordered that the action proceed expeditiously to trial.