Law Times

Law Times • sepTember 11, 2017 Page 15 www.lawtimesnews.com Summary judgment encouraged in personal injury law BY DALE SMITH For Law Times C ourts are encourag- ing more issues to be resolved by summary judgment in the inter- est of saving time and money, but lawyers say there is farther to go in terms of increasing the use of the procedure. Lawyers say there needs to be a greater emphasis by counsel in personal injury cases on getting relevant facts and evidence into submission, in order to avoid having to go to trial. Patricia Sim, managing law- yer with Grillo Barristers in Toronto, who largely works on plaintiff-side cases, says it's im- portant for personal injury law- yers seeking a summary judg- ment motion to get the most direct evidence before the court. "The court's going to feel that if the evidence can't fully be tested in cross-examination, then you run the risk of losing," she says. "From a plaintiff 's perspec- tive, you need to make sure that your experts are qualified and that your client's own affidavit evidence is fulsome," says Sim. Since the changes to Rule 20 of the Rules of Civil Procedure in Ontario came into effect in 2010, there has been a drive to- ward trying to solve more cases by summary judgment. "[There's] the opportunity to avoid an otherwise costly trial in circumstances where you might not have a lot to argue about in terms of damages or where dam- ages are fairly minimal in the context of [what] the overall cost of the litigation is," says Christi- na Polano, partner with Thomas Gold Pettingill LLP in Toronto. Polano says lawyers need to look at what kind of evidence is required to pursue a motion for summary judgment and if it will be cost-effective for their client. Not all cases will lead a judge to grant a summary judgment motion. In Rego v. Walmart 2017 ONSC 812, for example, the plaintiff alleged that she fell within a Walmart location be- cause she slipped on a puddle of liquid on the f loor, despite the lack of evidence of any liquid or debris on CCTV footage. The plaintiff acknowledged that she didn't see any liquid or debris, but she also testified that she observed a Walmart em- ployee cleaning liquid from the area of her fall after it happened, which also was not corroborated by CCTV footage. Nevertheless, Justice Kofi Barnes decided to proceed with a trial in order to resolve the issues of credibility at play. Polano said that, in many slip-and-fall cases, there may not be an abundance of evidence available and the damages the plaintiff seeks may not be sig- nificant. Polano lists desirable evi- dence such as CCTV footage or photographs of the scene of the incident from every vantage point, as well as "human factors experts" who try to mimic what the plaintiff would have experi- enced or seen through photo- graphs if CCTV footage is not available. As well as affidavits, expert commentary is often good to have. She says a large defendant that may have to deal with multiple cases may be seeking a certain amount of leeway to rely solely on evidence such as CCTV foot- age and affidavits. "[It's] the judges' job is to weigh all of the evidence, but if you don't give them everything they need to make that decision, then they're also going to be in a bit of a difficult spot," says Po- lano. "Everyone has their own perspective of why it's good that the rule is expanded but why you have to be cautious of the outcome." Polano says that balancing the need to let the plaintiff have their day in court while trying to use summary judgment motions to get issues decided without a costly trial is why defendants who move such a motion need to ensure that they have the right evidence being put forward. "There's always going to be an onus on the party bringing the motion, and it's going to be a pretty significant onus given what's at stake, and that this could be the plaintiff 's only day in court," she says. There are some cases where summary judgments have been successful, such as in Hunt v. Toronto (City) 2016 ONSC 2433. In Hunt, where the plaintiff ran into the visible hazard of a low-hanging catwalk under an advertising billboard near a parking lot, the court stated that oral testimony from experts was needed. Polano and Sim say per- sonal injury lawyers represent- ing defendants are most likely to move summary judgment mo- tions. However, a plaintiff-side law- yer notes that, while summary judgment motions are useful in cases where there isn't enough evidence to warrant a trial, they haven't proven useful for reduc- ing time or costs. "The whole concept of sum- mary judgment motions was brought in to expedite things. I actually think it does the op- posite," says Daniel Michaelson, a lawyer with Neinstein LLP in Toronto, who has experience in dealing with summary judg- ment motions from a plaintiff perspective. In one case where Michaelson fended off a summary judgment motion, the motion itself set the case back two years through ad- journments, cross-examinations of affidavits to experts and other issues. Michaelson says that, gener- ally, for plaintiffs, the risks of pursuing a motion for summary judgment outweigh the benefits, because of potentially signifi- cant cost consequences. He says that, for plaintiff-side lawyers operating on a contingency ba- sis, there is the concern that an unsuccessful summary judg- ment motion could cost tens of thousands of dollars. Sim agrees with the assess- ment. "Our experience has been since Hryniak [v. Mauldin, 2014 SCC 7] [that] it seems that the defence are willing to bring more motions for summary judgment," says Sim. "We have been seeing more of them; but for the most part, they add to the cost of litigation." Michaelson said that, in his experience, summary judgment motions tend to be brought by defence when they feel there is a missing piece of evidence, usu- ally with respect to liability, that would negate the ability to have a successful trial. "On this missing piece, what- ever that happens to be — is there a triable issue?" asks Michaelson. "That's what these judges seem to be looking at, whether it's the old test or the newer, more full appreciation test. A judge is going to say, 'Do I really have a full appreciation of the evi- dence such that I can summarily dismiss the plaintiff 's rights to this lawsuit?' And they're usu- ally fairly significant cases, too. I think judges are really hesitant to do that — they don't want to throw out a case if there's even the slimmest possible chance of success." Sim says that, personally, she tends not to push for motions for summary judgment from the plaintiff side. "We move for summary judg- ment to narrow the issues; in particular, summary judgment motions on liability where the defence is taking a zero-liability position and there is no prospect of settlement," she says. "You don't want to expose your client to the risk of losing and the costs to the client. . . . we'd better be very sure before we would bring that, and those are rare circumstances." Michaelson says it's useful for lawyers acting for plaintiffs that careful plaintiff theories of the case from day one and a plan of where they are going can help to ensure that summary judgment motions are never brought for- ward. "If you can't fill in that miss- ing hole on your own with one of your experts, then you ought to expect one of these motions to come eventually," says Mi- chaelson. LT PERSONAL INJURY Every time you refer a client to our firm, you are putting your reputation on the line. It is all about trust well placed. TRUST Thomson, Rogers Lawyers YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. CRAIG BROWN | WENDY MOORE MANDEL | STEPHEN BIRMAN Untitled-4 1 2017-09-06 2:13 PM Christina Polano says lawyers need to look at what kind of evidence is required to pur- sue a motion for summary judgment, and if it will be cost-effective for their client.

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