What happens when the Defendant seeks summary judgment, and instead, the Plaintiff is granted judgment, a trial of the assessment of damages is ordered, and the decision is taken to appeal? This is what happened in the Ontario Court of Appeal 2019 decision of Drummond v. Cadillac Fairview Corporation Limited.
The appeal raised the following issues:
- the fairness of granting summary judgment against the moving party when the responding party has not brought a cross-motion for such relief;
- the use of hearsay evidence on summary judgment motions; and
- the liability of a retail mall manager under 3(1) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2.
The Plaintiff attended at Fairview Mall (“the Mall”), when he tripped and fell over a skateboard which a 12 year old had brought to the Mall. He sustained injuries. The Plaintiff brought a Claim against Cadillac Fairview (CF), the owner of the Mall, for damages. Following the examination for discovery of the Plaintiff, CF brought a motion for summary judgment dismissing the action in that there was no liability on CF. The Plaintiff did not bring a cross-motion. Nevertheless, the motion judge GRANTED JUDGMENT to the Plaintiff and directed a trial on damages.
Summary Judgment Motion
The principles of summary judgment motions state that “there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment”. However, was granting judgment in favour of the Plaintiff following this principle? The Court of Appeal found that the summary judgment motion Judge clearly went outside of his scope of jurisdiction in granting judgment, when that was not sought by any of the parties. The Court of Appeal concluded that, “The lack of procedural fairness on the motion is a sufficient basis to allow the appeal and set aside the Judgment in favour of Mr. Drummond.”
The motion’s Judge also accepted hearsay evidence in granting Judgment to the Plaintiff. This was based on evidence from the Plaintiff’s step children regarding alleged evidence from cleaning personnel. The personnel were not identified. The Court of Appeal concluded:
The absence of an actual identification of such essential witnesses is a significant consideration in determining whether the evidence is sufficiently reliable to warrant its admissibility under r. 20.02(1).
Did CF breach the Occupiers’ Liability Act?
“The central issue in Mr. Drummond’s claim against Cadillac Fairview was whether the company had breached its statutory duty by failing to take reasonable care to see that patrons visiting the Mall were reasonably protected against the hazard of others using skateboards in the Mall”. The evidence, through the incident report and the log books of inspections made throughout the day, did not note that skateboarders were an issue at the mall that day or that they could pose a hazard. Therefore, pursuant to section 3 of the Occupiers’ Liability Act, an occupier of a premises is “to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises … are reasonably safe while on the premises.” “Accordingly, the standard of care did not require Cadillac Fairview to maintain a constant surveillance or lookout for potential danger; it required the company to take measures that were reasonable in the circumstances”.
The appeal was allowed, the judgment was set aside and the action was dismissed! It is nice to see a reasonable and thorough analysis of the law and the evidence. The case also highlights the importance of having contemporaneous logs as an occupier to demonstrate an evidentiary basis to substantiate a reasonable practice, which is what is required by the Occupiers’ Liability Act.
A costly endeavour for CF, but in the end, justice prevailed.