Category: Summary Judgment

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.

Bonello v. Gores Landing Marina, 2018 ONSC 2237

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.

Williams v. Richard, 2018 ONCA 889

The defendant hosted his late friend for after-work drinks at his mother’s home. The friend consumed 15 cans of beer in three hours before driving home and loading his children and baby sitter in his vehicle to drive the baby sitter home. On the way back to his residence, the friend was involved in a serious accident which killed him and allegedly caused injury to his children. Two court actions were commenced by the deceased’s children and their mother: one for personal injuries sustained by the children; and the other for damages pursuant to the Family Law Act. On a motion for summary judgment, the motion judge dismissed both claims, finding that the requisite duty of care had not been established, and even if it were established, it would have ended once the friend arrived home to pick up his children and the baby sitter. The Court of Appeal affirmed the appropriate duty of care analysis as that set out in Childs v. Desormeaux and held that the motion judge failed to give weight to distinguishable facts between Childs and the case at hand. Furthermore, the motion judge erred in law by accepting that as a general rule, a drunk guest’s safe return home ends the duty of care. The Court of Appeal set aside the motion judge’s order and ordered that the matters proceed to trial.

Kushnir v. Macari, 2018 ONSC 6128

The plaintiff was struck by a motor vehicle as a pedestrian crossing a private access road near a Loblaws store. She was not crossing in a demarcated crosswalk at the time. The defendant “occupiers” of the area where the collision took place sought to have the claims against them dismissed on a motion for summary judgment. Both parties retained experts who gave conflicting opinions on factual liability issues. Justice Hurley affirmed that cases with conflicting expert opinions are generally not amenable to summary judgment. The Court also noted that the action was subject to a jury notice and that trial by jury is a substantive right which should not lightly be interfered with. The defendant’s motion for summary judgment was dismissed.

Halley v. TTC, 2018 ONSC 6093

The plaintiff alleged to have sustained damages as a result of a slip and fall incident on a TTC bus. As of the time of trial, the plaintiff had failed to comply with an interlocutory costs order and failed to produce any evidence to establish her entitlement to damages. At trial, she intended to rely on her own viva voce evidence and evidence adduced by the defendant. The defendant brought two preliminary motions: (1) to have the matter dismissed on the ground that the plaintiff failed to comply with an order to pay costs thrown away from an earlier adjournment; and (2) for summary judgment or partial summary judgment, dismissing all or part of the plaintiff’s action, or alternatively striking the action from the trial list. Justice Brown granted the motion for summary judgment, reasoning that without evidence of a physician, the plaintiff could not adduce the evidence required to establish a serious, permanent impairment of an important function. As such, her claims for non-pecuniary damages and healthcare expenses must fail. She also could not substantiate her claims for special damages due to her failure to produce appropriate documentation. Justice Brown was not satisfied that there would be any evidence in support of the plaintiff’s case on which a jury, acting judicially in accordance with instruction on the law, could reasonably make choices to arrive at necessary findings to find in the plaintiff’s favour at trial.