Category: Summary Judgment

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.

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.

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.

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.

The court granted summary judgment to third party participants of a game of tug of war which resulted in amputation of the plaintiff’s arm. The plaintiff sued the owner of the campground where the game took place and its principal, claiming they were liable as occupiers and also vicariously liable for the actions of the principal’s son who obtained the rope that was used for the game. The owner and principal issued third party claims for contribution and indemnity against nine participants of the game. In granting the third parties’ motion for summary judgment, the court noted that Canadian courts have not recognized relationships between participants in a non-inherently dangerous activity as a category giving rise to a duty of care. On a proximity analysis, the court found there was insufficient proximity between the participants for a duty of care to arise.