Brokers need to intensify lobby on auto file: Intact president
Rowan’s Law: Precedent Setting for Concussion Awareness
[2] On October 15, 2014, the plaintiff Slava Kushnir was struck by a car driven by the defendant Jamie Macari as she was walking across an internal access road (the “access road”) at the Kingston Centre. A four week jury trial is scheduled to commence January 7, 2019. Mr. Macari acknowledges that his liability can only be resolved at a trial and did not participate in the motion.[1]
[3] The claim against CP and Arcturus is based on their alleged breach of the Occupiers’ Liability Act, R.S.O. 1990,O.2 (the “OLA”). They admit, for the purposes of the motion, that both were occupiers of the property on the date of the accident but contend that there is no genuine issue for trial as against them because no reasonable jury, properly instructed, could conclude that they breached the OLA. Alternatively, the claim is so weak that, consonant with the culture shift inaugurated by the Supreme Court of Canada’s decision in Hryniak v. Mauldin 2014 SCC 7 (CanLII), I should grant summary judgment dismissing the action as against them because it would be a fair and just result that will best serve the goals of timeliness, affordability and proportionality.
The law
[19] Sections 3 (1) and (2) of the OLA provide:
“An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises and the property brought on the premises by those persons are reasonably safe while on the premises.”
“The duty of care provided for in subsection (1) applies whether the dangers caused by the condition of the premises or by an activity carried on on the premises.”
[33] Based on the totality of the evidence, it is a reasonable possibility that a jury could find that the property was unsafe, that its condition caused or contributed to the plaintiff’s injuries and that CP and Arcturus breached the OLA in the circumstances.
[34] Having reached this conclusion, I turn to the alternative submission that I have the jurisdiction under Hryniak to grant summary judgment if I believe that it is the most timely, affordable and proportionate manner of proceeding in the circumstances. There is much to be said for the bright line approach of MacLeod, J. in Roy and, in a jury case, to grant summary judgment only if no reasonable jury, properly instructed, could find the defendant liable. I would be reluctant to substitute my opinion if I thought that it would be open to a jury to disagree with me.
[35] I do not have to come to a final determination on this issue because, even if I accepted the alternative submission, I think that a trial is the proper forum for a fair and just resolution of this case. The trial is only three months away and it will not be unduly lengthened or complicated if the trial proceeds against all three defendants. I decline to exercise the expanded fact finding powers under Rule 20.04 because that would inevitably result in an adjournment of the trial which, given the date of the accident and the age of the plaintiff, would not be appropriate.