Civil Litigation

Case shows courthouse doors closed to majority of Ontarians

By AdvocateDaily.com Staff

Despite concerns from the Supreme Court of Canada that justice is increasingly available only to the rich, a recent decision illustrates that this message hasn’t gotten through to the lower courts, Toronto litigator Michael Lesage tells The Lawyer’s Daily.

In an opinion piece for the legal publication, Lesage, who practises insurance, business law, personal injury, malpractice and other liabilities with Michael’s Law Firm, takes a look at an Ontario Court of Appeal decision involving a slip and fall.

The matter arose after the plaintiff tripped over a skateboard in the aisle at a mall food court and suffered injuries to his left knee and lower back. The skateboard belonged to a 12-year-old boy, who was alleged to have been shuffling it between his feet and otherwise admitted that it had gotten out from under his chair, he writes.

“There was some additional evidence that the boy had been seen playing with his skateboard in the food court earlier and had even struck one of the cleaners with it,” Lesage notes.

After discoveries, the mall moved for summary judgment, asserting that its security measures had been reasonable in the circumstances and that no problems with the boy had been noted, he writes.

The plaintiff resisted and filed an affidavit that prior to his incident, his daughter had seen the boy playing with his skateboard. Additionally, his fiancée reported that one member of the cleaning staff had seen the boy playing with the skateboard with his feet in the area, while a second had been hit by a skateboard roughly one hour prior in the same area, Lesage writes.

“Against this backdrop, Justice Paul Perell ruled that the mall’s security had been ineffective, in that they had not noticed the boy enter the mall with a skateboard, had not noticed him playing with it in the food court, had not noticed that he had failed to secure it and had not made inquiries of others (such as the cleaners) as to potential problems,” he writes in The Lawyer’s Daily.

As such, Perell granted summary judgment in favour of the plaintiff but regrettably failed to address the mall’s defence of contributory negligence, Lesage says.

At appeal, the court turned out to be very favourably disposed towards the mall, he writes, noting that not only did it reverse the grant of summary judgment in favour of the plaintiff (or limit its holding to procedural grounds), but it excluded the bulk of his evidence as hearsay (without giving real consideration to the admissions by the cleaners, mind you, arguably the mall’s agents), granted summary judgment in favour of the mall and awarded the “hapless multinational $30,000 in costs for its troubles.”

Lesage, who was not involved in the matter and comments generally, says the decision is troubling both for its reasoning and for its implications to the administration of justice.

“Looking first to its reasoning, the appellate court essentially narrowed the applicability of Rule 20.02 (which permits affidavit evidence on summary judgment motions to be based upon information and belief), holding that where the hearsay evidence is on a fundamental aspect of a motion, ‘it is unlikely that the motion judge will decide the motion favourable to the party adducing hearsay evidence,’ quoting Justice Mark Edwards in a 2014 decision.”

As the plaintiff’s affidavit did not offer “any explanation as to why his daughter and fiancée could not provide their own affidavits, same were excluded as inadmissible.” The court was also critical of the failure to produce affidavits from the two unnamed cleaners, he writes.

“Conversely, the Court of Appeal did not address proportionality or offer any guidance as to how much time and money should be invested in pursuit of such a claim,” Lesage says.

“As our courts tend to forget, the standard in civil cases is the balance of probabilities, the rough equivalent of earning a D on a test. Moreover, the provision of legal services is subject to economic reality, namely, that parties (or their counsel) can only afford to invest so much time and money in a given case,” he continues.

Lesage writes that, from the description given, this would appear to be a case of modest value, perhaps $100,000 at best, assuming chronic pain. Assuming a fee of 30 per cent, as well as expenses related to filing and serving the claim, conducting discoveries and obtaining transcripts, retaining one or more expert witnesses and summonsing the plaintiff’s doctors to court at trial, it becomes difficult to understand who will provide representation to someone with even more limited injuries.

“As is increasingly the case, it appears that the courthouse doors are closed to an ever-increasing number of Ontario residents,” Lesage concludes.

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