Category: Trial Procedure

Avedian v. Enbridge Gas Distribution Inc. (Enbridge Gas Distribution), 2021 ONCA 36

In the case of Avedian v. Enbridge Gas Distributions Inc., the Court was asked to overturn a partial summary judgment motion brought by the respondent, Enbridge Inc. One of the grounds of appeal was the timing of the motion as it was brought less than six months before a ten-week trial was scheduled to begin. As a result, the trial date was lost. The Court granted the appeal, holding that the judge should not have heard the motion given that the trial had been scheduled.

Background

The appellants owned a 251-unit apartment building in Toronto, Ontario. On September 14, 2010, a fire and explosion caused extensive damage to the building. It was determined that the explosion and fire were caused by improper installation of a gas regulator that had been completed earlier that day. Enbridge Gas Inc. had contracted with Lakeside Gas Services to service the regulator. Lakeside had subcontracted to Alpha Delta Heating Contractor Inc. and Dey. Both Dey and Alpha Delta had retained Bishop and TQB Heating and Airconditioning.

n 2012, the appellants commenced an action against four defendants, including the respondent, Enbridge Inc., claiming that Enbridge Inc. owed the appellants a duty of care and was negligent for failing to provide proper supervision and training to its subsidiary, contractors, and subcontractors, causing the fire and explosion.

In August 2019, six months before the ten-week trial was set to begin and seven years after the commencement of the action, Enbridge Inc. and Enbridge Solutions Inc. brought a motion for partial summary judgment seeking the dismissal of the action as against them.

The Decision
In September of 2019, the motion judge vacated the February 2020 trial date. In April 2020, the motion judge dismissed the action as against Enbridge Inc. and Enbridge Solutions Inc. The motion judge dismissed the action against Enbridge Inc. because they “had no control over the operations of Enbridge Gas Inc.” and there was no basis to lift the corporate veil between Enbridge Inc. and the other corporate entities. Further, the motion judge ordered $175,000 in costs against the appellants.

The appellants appealed the judgment and costs order on the basis that the motion judge erred in the following three ways:

1. By hearing the motion for summary judgment too close to the trial date;
2. In failing to find a genuine issue requiring trial; and
3. In awarding costs on a substantial indemnity basis.

The Appeal

Justice Miller references the “Consolidated Practice Direction for Civil Actions, Applications, Motions and procedural Matters in the Toronto Region.” Section 65, in force at the time, provided the following:

“Once trial dates are set, there will be no adjournments of the trial except in extenuating and exceptional circumstances.”

In March 2018, at the pre-trial conference where Justice Firestone set the February 2020 trial dates, Enbridge Inc. did not advise the court or the appellants that they intended to seek partial summary judgment. They did not make their efforts known until August 2019, a year and a half later. There were no extenuating or exceptional circumstances present and Enbridge Inc. was in the same circumstance and possessed the same knowledge that they did in March of 2018. As a result, the motion for summary judgment added unnecessary delay, expense, and squandered available court time.

Justice Miller stated that although this would have been sufficient basis to allow the appeal, the motion judge also erred in finding that there was no genuine issue requiring a trial. Whether the policies of Enbridge Inc. are evidence of their control over Enbridge Gas Inc., and whether the policies can generate legal obligations to the appellants, is a novel question of proximity and should proceed to trial.

The appeal was allowed, the order of the partial summary judgment and the award of costs were set aside, and the matter was ordered to be set down for trial on an expedited basis. The appellants were awarded costs of the appeal in the agreed sum of $25,000, inclusive of HST and disbursements.

Ismail v. Fleming, 2018 ONSC 6615

This personal injury action arose from a 2009 motor vehicle accident. Trial commenced with jury selection on October 1, 2018. On October 31, 2018, after four weeks of evidence before a jury, Justice Leach declared a mistrial when it became evident that the trial duration estimate provided by and confirmed by counsel was inadequate and that the trial could not be completed in time. Justice Leach warned that courts may have little or no choice but to declare mistrials in other similar circumstances where inaccurate and inadequate trial duration estimates cannot reasonably be attributed to developments counsel could not have foreseen.

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.