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OCCUPIERS’ LIABILITY - Duty of occupier

Thursday, July 04, 2019 @ 9:02 AM  

Lexis Advance® Quicklaw®
Appeal by the defendant from the dismissal of its motion for summary judgment to dismiss the action and from judgment in favour of the respondent. The respondent sued the appellant, the property manager of a mall, for personal injuries suffered when he tripped over a skateboard in the mall. The appellant denied it was negligent and claimed contributory negligence on the respondent’s part. Although the respondent did not bring a cross-motion for judgment in his favour, the motion judge granted him judgment.

HELD: Appeal allowed. The action was dismissed. The motion judge’s grant of judgment in favour of the respondent was not a fair and just determination on the merits of the motion. The respondent did not bring a cross-motion for judgment. His main position before the motion judge was that this was not an appropriate case to be determined by summary judgment. The motion judge granted judgment without considering the material defence of contributory negligence raised by the appellant. The motion judge failed to put the appellant on notice that he might grant judgment against it and then afford the appellant an opportunity to address that litigation risk. The motion judge also erred in law by admitting hearsay evidence adduced by the respondent for the truth of its contents. The hearsay evidence played a central role in the motion judge’s finding of liability against the appellant. The admissible evidence demonstrated that there was no genuine issue requiring a trial regarding the elements that the respondent must establish to prove his claim that the appellant breached its duty under s. 3 of the Occupiers’ Liability Act. The admissible evidence showed that the appellant had in place reasonable policies to ensure the safety of those entering the mall and eating in the food court. The appellant implemented those policies in a routine and reasonable manner on the day of the incident through the patrols performed by the security guards. There was no reason to foresee that the young skateboard owner’s conduct might pose a risk to the respondent or other patrons using the food court.

Drummond v. Cadillac Fairview Corp., [2019] O.J. No. 2802, Ontario Court of Appeal, D.H. Doherty, P.S. Rouleau and D.M. Brown JJ.A., May 30, 2019. Digest No. TLD-July12019008