This Simplified Rules summary judgment motion involved a slip and fall at a Tim Horton’s drive-through. It focuses on the thrust of Rule 20, and whether it is being appropriately applied in personal injury cases where liability is a contentious issue. In short, the Court referenced the recent Hryniak decision from the Supreme Court of Canada, but still opined that that in this case a Summary Judgment Motion was not appropriate to determine a live issue that could have been easily and expeditiously dealt with at a short trial.

The Plaintiff was a passenger in a car that was parked in a Tim Horton’s parking lot, owned by the Defendant Carleton Place Oil, which had contracted with Reid Gardens Landscaping to remove snow from the parking lot. The parking lot had been maintained, and it was not snowing when the Plaintiff exited the vehicle. As she proceeded to the entrance door of the Tim Horton’s, she had to cross the drive-through lane. She lifted her foot to cross over the curb and slipped, breaking her wrist as a result of her fall.

Commonly, liability is a central issue between occupiers and maintenance companies, culminating with summary judgment motions to determine whether the owner of the premises or the contracted party responsible for snow plow are responsible for the Plaintiff’s injuries and losses. In this case, the two Defendants sought a liability determination via the summary judgment procedure.

In this instance, it was evident to the Court that there could be no findings of breach of contract or negligence as against the snow plow company, Reid Gardens Landscaping, meaning that the maintenance company was not liable.

However, the Court could not decide the issue as between Carleton Place Oil and the Plaintiff based on the evidence submitted during the half-day motion, finding that a determination of liability required either further materials and viva voce evidence to assess credibility, or a one day trial. The Court highlighted that requiring further materials and evidence, in this case, undermined the very pillars of the Simplified Procedure: efficiency and cost effectiveness, and favored using a one day trial.

The Court found that as the entire action could be tried in a single day, it would simply not be efficient to determine the issue of liability by also having a ½ day motion only to determine liability. In reviewing the Supreme Court of Canada’s ruling in Hryniak, the Court emphasized that to have a motion and a trial, in this case, would fall short of the foundational premise of our legal system, namely, to provide “timeliness, affordability and proportionality”:

[26] Having decided that there appears to be a genuine issue unresolved on the evidence before me, I am then to consider if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). I must then use my discretion to decide if those powers can be used in a way that is not against the interests of justice. That finding can be made if the use of those powers will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[27] As stated above, this is an action brought under the Simplified Procedure process. As stated to counsel at the time the motion was heard, it is my view that the trial could have been heard in one day of trial time. The motion itself involved the delivery of hundreds of pages of written material and took a full half-day to argue. The examinations for discovery were held approximately one year prior to the hearing of this motion. As the Local Administration Judge in the county where this matter was argued, I can confidently say that we could have easily scheduled a one day trial within that same timeframe.

[28] In a case such as this, I also see an imbalance of power between the parties. A senior citizen going for coffee at a familiar location, suffers a broken wrist in a fall on the premises. This is not a complicated case in many respects. I am left feeling that I do not have enough evidence to decide the issue of liability. The choices at this point are to either request further material and continue the motion regarding liability only, or to schedule a one day trial and conclude the matter. If liability is established, the issue of damages could also be dealt with during that one day trial in front of a judge alone.

[29] I do not find that it would lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole to continue this motion. I am not prepared to use the expanded fact-finding powers to call oral evidence, or ask for further written material, when, in my view, this matter can be resolved expeditiously in a one day trial.

Again, the Court concluded that summary judgment motions are not a cure-all for all issues in advance of trial. In cases where an issue is live, and the summary judgment procedure would not expeditiously resolve a case, or streamline the litigation process, then such motions are not an appropriate use of Court resources.