Category: Summary Judgment

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.

Schiavone v. Woods, 2018 ONSC 4789

The moving defendant on this summary judgment motion is a pub. Its co-defendants were patrons of the pub, who were ejected as a result of intoxication and improper behaviour. Soon after their departure from the pub, the co-defendants were involved in a physical altercation with the plaintiff in a nearby parking lot, resulting in personal injuries to the plaintiff. The pub brought a motion for summary judgment. Justice Nightengale dismissed the pub’s motion, concluding that foreseeability was a genuine issue requiring a trial. The Court noted that it would not be appropriate to consider granting summary judgment in the circumstances, where doing so would still see the claim proceed to trial against two remaining defendants. Issues respecting the credibility and reliability of the parties’ evidence on the level of intoxication and conduct of the co-defendant aggressor made it inappropriate for the Court to exercise discretion under Rule 20.04(2.1) including hearing further oral evidence or conducting a mini trial.

Walsh v. Papadopoulos, 2018 ONSC 1828

Summary judgment is not likely to be granted if the motions judge has any doubt as to whether a defendant can be found even 1% liable on the available evidence and case law. In this case, the plaintiff and defendant sisters were transporting items into the home of the defendant sister’s boyfriend. The plaintiff fell down stairs in home while carrying a large basket. The court dismissed the defendant sister’s motion for summary judgment, finding that there was evidence capable of being relied upon to find that the defendant sister was an “occupier” of her boyfriend’s house within the meaning of the Occupiers’ Liability Act. Furthermore, there was evidence to suggest the defendant sister may be found on a balance of probabilities to bear some liability for the fall.