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The Skateboard


Skateboard! What image one gets when we hear that word? Whatever the image is, can it be safely considered as a potential hazard/risk for the skateboarder, as well as for the people near the skateboarder? Maybe! Maybe not! Again, the opinions may vary and may be very subjective depending upon how familiar one is with being around or riding this equipment.


Now imagine a scenario where a person trips and fall over the skateboard owned by a minor, who left it unattended in the food court of a shopping mall. Can that minor be held liable? Minor’s Parents? Or for that matter, the property manager of the shopping mall? Does seem like a triable issue right?


In Drummond v. Cadillac Fairview Corporation Limited, 2019, The Ontario Court of Appeal, discussed similar issues, with respect to liability of the property management company of the shopping mall, in light of a trip and fall incident with details as under.


BACKGROUND


On August 23, 2015, the respondent/plaintiff, Stephen Drummond, visited the Fairview Mall in Toronto with his fiancé and two daughters. The appellant/defendant, The Cadillac Fairview Corporation Limited (“Cadillac Fairview”), was the property manager for the Mall at the material time.


THE INCIDENT


While in the Mall’s food court, Mr. Drummond tripped over a skateboard, which a 12-year old boy had brought into the Mall, thereby suffering injuries.


THE ACTION


In September 2016, Mr. Drummond started an action against Cadillac Fairview, under the OLA, for general and special damages in the amount of $1 million.


SUMMARY JUDGMENT MOTION


Cadillac Fairview moved for summary judgment dismissing the action, in part on the ground that “there is no genuine issue for trial with respect to the liability of Cadillac Fairview.” Mr. Drummond however did not bring any cross-motion for judgment in his favour. Notwithstanding this, the motion judge granted judgment in favor of Mr. Drummond.


APPEAL


Cadillac Fairview appealed.


ISSUES


1. Was the motion judge fair in granting a summary judgment against the moving party when the responding party did not bring a cross-motion for such a relief?


2. Should the motion judge have used hearsay evidence in the summary judgment motion?


ANALYSIS


ISSUE 1 – FAIRNESS OF THE PROCESS WHEN RELIEF WAS NOT SOUGHT VIA A CROSS-MOTION

Cadillac Fairview submitted that by granting a judgment not requested by the plaintiff by way of a cross-motion – colloquially known as a “boomerang summary judgment” – the motion judge acted unfairly since the motion judge did not give Cadillac Fairview notice of its potential litigation risk on the motion and a fair opportunity to meet that risk, as well the motion failed to deal with the contributory negligence defence pleaded by Cadillac Fairview.


Mr. Drummond submitted that cases exist in which the court has granted judgment in favour of the party responding to a summary judgment motion in the absence of a cross-motion by the responding party.


Rejecting Mr. Drummond’s arguments, the court of appeal stated:


…whenever a court grants summary judgment – whether in response to a notice of motion, cross-motion or otherwise – it must firmly keep in mind that summary judgment motions are designed to do more than make efficient use of court resources. They are intended to achieve fair and just results.


The court provided four factors based on which the motion judge’s grant of judgment in favour of Mr. Drummond was found to be not a fair and just determination on the merits on the motion. These four factors were:


· Failure to bring a cross-motion and plaintiff’s main position being that the case is not appropriate for a summary judgment motion to begin with.


· The case needs to go to a trial and needs further evidence to establish the position of the plaintiff.


· Failure of the motion judge to deal with the defence of contributory negligence.


· Failure of the motion judge to put Cadillac Fairview on notice that he might grant judgment against it and then afford Cadillac Fairview an opportunity to address that litigation risk.


Brown J.A., writing for the court of appeal confirmed:


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.


ISSUE 2 – RELIANCE ON THE HEARSAY EVIDENCE

The Mall did not prohibit the possession of skateboards but the use of the same was prohibited inside the mall. Mr. Drummond deposed that prior to the incident he had not seen the owner of the skateboard or the skateboard. However, he deposed that his daughter had informed him that she had seen the owner of the skateboard playing with the skateboard. In addition, Mr. Drummond deposed that his fiancé had informed him of conversations she had had with two unidentified members of the outsourced cleaning staff at the Mall.


The first unidentified cleaner told her that a skateboard had struck her, and its owner had been seated in the same location in the food court where the incident involving Mr. Drummond took place as well the cleaner had sustained a small cut on the back of her foot; and she had told the skateboard owner to stop playing with the skateboard. The second unidentified cleaner had told the fiancé that she had seen the skateboard owner playing with the skateboard with his feet on the floor of the food court.


The motion judge admitted the hearsay evidence from Mr. Drummond’s daughter and fiancé for the truth of its contents, relying on r. 20.02(1) of the Rules of Civil Procedure, the business records exception, and the reliability and necessity exception to the rule against hearsay evidence.


The court of appeal, allowing the appeal on this ground as well, stated (excerpts taken from the case not necessarily in the same order)


The hearsay evidence from the daughter and fiancé played a central role in the motion judge’s finding of liability against Cadillac Fairview.


Mr. Drummond described the two unnamed cleaners as “essential witnesses”. 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.


The motion judge erred in law by admitting that hearsay evidence for the truth of its contents.


Allowing the appeal in its entirety and reversing the motion judge’s decision, the court granted the summary judgment motion in favor of The Cadillac Fairview Corporation Limited, dismissing the case against the property management company.


THOUGHTS


I am not sure why no action was initiated against the parents of the skateboard owner (to my knowledge there appears none based on my review of this case). Further, the court of appeal also stated as under which I believe to be so to the point:


Apart from the fairness concerns, the outcome in this case demonstrates the practical problems and inefficiencies that can arise when a judge chooses to go beyond the issues raised by the parties and make orders that no one requested or had an opportunity to speak to in the course of their submissions.

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