Law Times

Law Times • June 13, 2011 NEWS PAGE 5 Judiciary can find fact on summary judgment: court L BY MICHAEL McKIERNAN Law Times awyers and their clients are waiting for the Court of Appeal to bring clarity on judges' ability to fi nd fact on motions for sum- mary judgment, ac- cording to an Otta- wa lawyer who won on that question in a slip-and-fall case involving an in- jured postal worker and the federal gov- ernment. Jaye Hooper, a lawyer at Wil- liams McEnery, represented Gaetan Ranger and Nath- alie Lachance, both Ottawa homeown- ers sued by the at- torney general of Canada for allegedly failing to maintain safe conditions on the walkway to their home. Th e at- torney general was hoping to re- claim benefi ts paid out to a mail carrier who fell on their property during her rounds and damaged her shoulder and wrist. Ontario Superior Court Jus- But another group has fol- The question of finding fact depends on who the judge is, says Jaye Hooper. lowed Justice Andromache Kara- katsanis' more conservative lead in Cuthbert v. TD Canada Trust, in which she found it was "not the role of the motions judge to make fi ndings of fact" in deciding mo- tions for summary judgment. Kara- katsanis has since been elevated to the Ontario Court of Appeal, which had traditionally taken a narrow view of ju- dicial authority on Rule 20 motions before the changes. Hooper would like to see the appeal court step in to comment on the new Rules. "A lot of the judges are still reti- cent to apply what tice Denis Power granted the de- fendants' motion for summary judgment after fi nding the plain- tiff had failed to provide any evi- dence that Ranger and Lachance hadn't met the appropriate standard of care. According to Power's decision late last month, that was unlikely to change if the matter went to trial. "Th ere is no suggestion that there are eyewitnesses to be heard — there were none," Power wrote. "No expert reports were obtained by either party to the best of my knowledge. In any event, none were placed before the court. Th ere were no pictures taken of the scene at the relevant time. Would a trial judge be in any better position to try this case than I am at this time? In my opinion, the answer is no." Although pleased with the re- sult in the case, Hooper says di- vergent opinions within the judi- ciary on the ability to fi nd fact on motions for summary judgment since changes to the Rules of Civil Procedure took eff ect have caused uncertainty and made cli- ents unwilling to gamble on that legal remedy. "Sometimes you need to have the right judge. We were very lucky with the judge we got because we knew he's a strong judge. He's the kind of judge who's going to make either deci- sion. He'll make the tough call." Power spent much of his de- cision outlining the two lines of judicial thought on the new Rule 20, which now allows summary judgment if there's "no genuine issue requiring a trial." Th e old rule required "no genuine issue for trial." Power pointed out that some Superior Court judges, led by Jus- tice Paul Perell in Healey v. Lak- eridge Health Corp., have read a large shift into the subtle change of wording by weighing evidence and fi nding fact to decide mo- tions for summary judgment. seems to now have been changed to give them more power," she says. "Until there's a strong de- cision from the Court of Appeal supporting the lower court mak- ing fi ndings of facts and really testing the evidence before them, then I think the courts are still going to be reluctant to grant summary judgment unless it's a very clear case." In the meantime, Power said he was comfortable siding with Perell in this case, particularly since the Rules require that they "be liberally construed to secure the just, most expedi- tious, and least expensive de- termination of every civil pro- ceeding on its merits." Th e mail carrier fell on the defendants' walkway in February 2007 after the worst snowstorm of the year in Ottawa up until that time. She sustained injuries to her wrist and shoulder that have required multiple surger- ies. Th e attorney general alleged Lachance and Ranger had failed to clear ice and snow from their walkway and thereby contrib- uted to the carrier's injuries. According to (Canada) Attor- ney General v. Ranger, Lachance couldn't remember the particu- lar day of the accident because she had no notice of it until fi ve months later. But during ex- amination for discovery, she said her normal practice was to clear snow to the paving stone at 7 a.m. each day and again later on, depending on the level of snow- fall. She also said she kept salt in her garage that she sprinkled on the walkway as necessary. Talitha Nabbali, counsel for the attorney general, argued in court that the existence and reasonableness of Lachance's maintenance system was a "live issue" for trial. "With respect, that proposition would render Rule 20 almost meaningless," Power wrote. "Clearly, under Rule 20, I have jurisdiction to decide the issue." Power found there was no evidence produced to suggest the system wasn't in place on the day of the fall and that none was likely to materialize at trial. As well, he noted that the fall itself doesn't equate to a breach of care by the defendants. "Our winters in Canada are such that people fall all the time without someone be- ing responsible in negligence," Power wrote. Nabbali declined to comment on the case. Th e Department of Justice, noting it has 30 days to appeal, also wouldn't speak to Law Times about it. Now Accepting Applications for Classes Starting in September 2011 Part-time, executive LLM degree program for corporate counsel and practising lawyers Application Deadline Extended to June 30, 2011 Information Sessions Wednesday, June 15, 2011 5:30 - 7:00 pm Tuesday, June 21, 2011 5:30 - 7:00 pm Location: U of T Faculty of Law, Faculty Lounge, 78 Queen's Park, Toronto TIME: EVENT: Untitled-1 1 For more information and to apply: http://www.law.utoronto.ca/programs/GPLLM.html ANNOUNCEMENT 6/7/11 9:00:40 AM WILLIAM TRUDELL is happy to announce that Graeme Hamilton has joined him as an associate complimenting our legal family at Simcoe Chambers. Our Extended Family at SIMCOE CHAMBERS BILL TRUDELL, B.A., LL.B. MARK LAPOWICH, B.A., LL.B. 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