Canadian Underwriter

The State of Summary Judgement

May 31, 2015   by Erin H. Durant, lawyer, Dooley Lucenti|Erin H. Durant, lawyer, Dooley Lucenti

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The Supreme Court’s decision in Hryniak v. Mauldin broadened the availability of summary judgment across Canada as the court focused its attention on access to justice and proportionality in litigation (2014 SCC 7, 1 S.C.R. 87]. The opening words of Hryniak demonstrate why the court did so: “Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.”

Insurance adjusters and defence counsel should now consider summary judgment in their personal injury cases. A review of the law since Hryniak across Canada reveals that summary judgment can be used to benefit innocent defendants in the right case. What are the circumstances where summary judgment has been granted in personal injury cases to dismiss unmeritorious actions against defendants?

Occupiers’ Liability

Justice Scherman in Saskatchewan granted summary judgment in Morozoff v. Fitness Focus Health where the plaintiff sued a gym after falling on icy stairs outside the gym (2015 SKQB 89). The gym argued that it was not an occupier of the stairs, which were not part of its leased premises. The lease showed that the gym occupied the inside of the building; occupation and control of the outside stairs at issue was held by the owner/landlord. The landlord had sole responsibility over the stairs, including ice removal, in the lease. The claim against the gym was dismissed.

A court may also grant summary judgment in a trip and fall case if there is no evidence regarding the state of an occupier’s premises. In Nandlal v. Toronto Transit Commission, the plaintiff claimed she fell on slippery and debris-strewn steps owned by the Toronto Transit Commission (2015 ONCA 166). The plaintiff’s evidence was that she did not “see any debris on the tile at the location where she fell.” Instead she stated that she had seen debris in the station on prior occasions and elsewhere on the floor that day. The TTC produced evidence that the tiles were non-slip and that they were not defective or in need of repair at the relevant time,. Justice Perell accepted that evidence and granted the TTC’s motion dismissing the action. The Court of Appeal agreed.

Summary judgment was also granted in a case where a snow removal company was not responsible for the area where the plaintiff slipped and fell in Wiseman v. Carleton Place Oil. The defendants Carlton Place Oil [“Carleton”] and Reid Gardens Landscaping & Garden [“Reid”] brought summary judgment motions (2014 ONSC 1987). Reid was responsible for removing snow from a parking lot and Carlton was the owner of the property where the accident occurred – a Tim Horton’s. On her way to the entrance, the plaintiff slipped and fell when stepping over the curb due to ice build up. Justice Pedlar granted summary judgment to Reid because it met contractual obligations by plowing the parking lot earlier that day. The contract did not require Reid to shovel the curbs.

The Rear-End Collision

Defendants have also brought successful summary judgment motions in motor vehicle accident cases involving rear-end collisions. An interesting example in a case that did contain conflicting evidence is Swain v. Gorman (2014 ONSC 4686).

In Swain Justice Healey granted summary judgment in favour of Gorman – even though Gorman’s evidence was not helpful to her case. The accounts of the accident were as follows:

1. Motor Vehicle Accident Report: showed an unidentified vehicle first, followed by the defendant Gorman’s vehicle, followed by the plaintiff’s vehicle, and then the defendant Ross vehicle. The plaintiff had a similar recollection of the accident. She asserted that she applied her brakes when she saw the Gorman vehicle stopped in front of her. She was then hit behind by Ross and pushed into Gorman.

2. The Defendant Ross: the unidentified car stopped to make a left hand turn and after it had turned the Gorman vehicle started to move when the plaintiff’s vehicle moved forward and hit the Gorman vehicle and, apparently, “bounced” backwards and hit the Ross vehicle.

3. The Defendant Gorman: Gorman’s vehicle was behind the plaintiff’s vehicle and in front of the Ross vehicle. Gorman’s evidence was that she was rear ended by the Ross vehicle and pushed into the plaintiff.

Justice Healey had enough evidence to reject the evidence of Gorman of how the accident happened because (a) there was no evidence of damage to the front of the Gorman vehicle, (b) the description she provided of the vehicle in front of her did not match any of the vehicles involved in the accident, and (c) it was contradicted by the motor vehicle accident report. The court was left with two competing versions of the accident and in each of these versions, the plaintiff’s vehicle struck the Gorman vehicle from behind.

The law of rear-end collisions is well-settled: “when one car runs into another from behind, the fault is in the driving of the rear car, and the driver of the rear car must satisfy the court that the collision did not occur as a result of his negligence” (Beaumont v. Ruddy [1932] O.R. 441). Justice Healey held that Gorman was not negligent as the duty was on the plaintiff to ensure that a collision did not occur and there was no evidence that Gorman breached the standard of care that is to be expected of an ordinary, reasonable and prudent person in the same circumstances. The Court of Appeal agreed with Justice Healey.

Expert Reports

The law is settled that an expert report is required to prove a medical professional is negligent in the professional’s care of a patient. In the Nova Scotia case of Chan v. White, Justice Coady granted summary judgment to defendant doctors when the plaintiff had no expert evidence to prove the doctors breached the required standard of care (2014 NSSC 383).

The plaintiff in Chan was the estate of a deceased cancer patient. The allegation was that Chan’s treating physicians’ negligence resulted in his death. The allegations did not relate to negligent cancer care, but rather their actions during his resuscitation in the face of respiratory arrest. The court agreed with the defendants that the plaintiff’s case could not be established without expert evidence. The court found no genuine issue requiring a trial and dismissed the action against the doctors.

The Limitation Period Defence

Defendants commonly bring motions for summary judgment in personal injury cases where there is a limitation period defence, such as the recent example of Seif v. City of Toronto ( 2014 ONSC 2983).

In Seif, the plaintiff tripped on a Toronto sidewalk fracturing her wrist. Notice was given to the city 4 months after the fall – well past the statutory 10 day notice period. The issue on the motion was if the plaintiff could meet the exception in the legislation that extended the limitation period if there was a reasonable excuse for the delay and no prejudice to the city in its defence. The plaintiff’s excuse was that she “gave no thought, and had no intention to commence a lawsuit regarding the accident” in the immediate time period after the accident. This was no excuse and summary judgment was granted.


Not all injury cases are appropriate for summary judgment. In most cases involving conflicting facts, nu
merous parties, several witnesses and complex issues, a summary judgment motion may not resolve the case and would only add unnecessary delay and expense to the litigation. Summary judgment motions are expensive and should only be brought after careful consideration with defence counsel. The above case law, however, shows that the Courts since Hryniak are willing to grant summary judgment dismissing actions against innocent defendants in personal injury cases.

Erin Durant is a lawyer at Dooley Lucenti Barristers & Solicitors in Ontario acting for insurers in professional negligence, title insurance, wrongful dismissal, personal injury and insurance coverage claims. She is a member of the CDL Young Lawyers Committee.