



COURT OF APPEAL FOR ONTARIO

CITATION: Bonello v. Gores Landing Marina (1986) Limited,
    2017 ONCA 632

DATE: 20170802

DOCKET:
C62732

Sharpe, Tulloch and Lauwers JJ.A.

BETWEEN

Timothy Bonello
,
    Ted Bonello, Anne Cutajar Wagner,

Andrew Bonello and
    Mark Bonello

Plaintiffs
    (
Appellants
)

and

Gores Landing Marina (1986)
    Limited, Joseph Davies
, and Murray E. Carslake and Joseph Davies
    Jr. also known as Joey Davies

Defendants
    (
Respondents
)

and

Chris Kane, Chris
    Ryan, Anthony Cook, Gabe Mansueto, Gerald Chestnut, Jeff Jaglel, Frank
    Buttigieg, Dan Rule, and Mike Buttigieg

Third Parties

Earl A. Cherniak, Q.C., Gillian T.
    Hnatiw and David E. Litwin, for the appellant

R. Steven Baldwin, for the respondents
Gores
    Landing Marina (1986) Limited and Joseph Davies Sr.

Heard:
June 28, 2017

On appeal from the judgment of Justice
Paul
    M. Perell
of the
Superior Court of Justice
,
    dated
August 25, 2016
, with reasons reported at 2016
    ONSC 5372, 30 C.C.L.T. (4th) 316.

Lauwers J.A.:

[1]

On August 4, 2007, the appellant Timothy Bonello
    participated in a game of tug-of-war on a campground owned and operated by
Gores Landing Marina (1986) Limited (the Marina)
. Mr.
    Bonellos left arm was caught in a loop in the rope and he suffered a crush
    injury to his forearm that required amputation. He sued the Marina and Joseph Davies
    Sr.
, its principal
. He later added Joseph Davies Jr.
    after learning of his role in finding the rope and making it available to the
    guests of a campground get-together where the tug-of-war occurred. The amended
    statement of claim asserted that the Marina and Mr. Davies Sr. were liable
    under the
Occupiers Liability Act
, R.S.O. 1990, c. O.2, and for common
    law negligence, and that they were also vicariously liable for the negligent actions
    of Mr. Davies Jr.
[1]


[2]

The motion judge granted summary judgment and
    dismissed the action against the
Marina
and Mr. Davies
    Sr., along with their third party actions against several individuals who had
    taken part in the tug-of-war.

[3]

For the reasons that follow, I would allow the
    appeal.

A.

Factual and Procedural Overview

[4]

The Marina
owned and operated a ten acre
    property at the southwest end of Rice Lake. It rented cottages, sites for
    vacation trailers, and boat slips. For some years the Marina sponsored Jimmy
    Buffet Day on the August long weekend. It eventually stopped sponsoring the
    event but the campground guests carried it on.

[5]

On August 4, 2007, the days culminating contest
    was to be a tug-of-war. Mr. Davies Jr., who occupied a cottage and participated
    in the events of the day, was asked by the guests to provide a rope for the
    tug-of-war. He eventually found one in a shed on the property. The rope had
    several loops in it that the guests were unable to untie. They decided to use
    the rope anyway. The tug-of-war started with 20 or so trailer renters on one
    side, and 20 or so cottage renters on the other side, including both Mr.
    Bonello and Mr. Davies Jr.

[6]

Mr. Bonello put his left arm through one of the
    loops in order to get a better grip on the rope. As the guests pulled on the
    rope, the loop cinched on Mr. Bonellos forearm. Although he screamed and tried
    to stop the tug-of-war, the noise of the participants and the onlookers prevented
    him from getting their attention quickly enough to prevent the crush injury
    that eventually necessitated the amputation of part of his left forearm and his
    hand. He then sued the named defendants.

[7]

Mr. Davies Jr. did not defend the lawsuit. The
    other defendants did and issued third party proceedings against some of the
    guests who participated in the tug-of-war. The parties were examined for
    discovery, including Mr. Davies Jr. In January 2016, the Marina and Mr. Davies
    Sr. brought the summary judgment motion to have the main action dismissed
    against them. The motion was heard in August 2016.

[8]

At the argument of the motion, the moving parties
    successfully sought to exclude certain evidence from the motion judges consideration.
    The order under appeal provides:

1.       This Court orders that paragraphs 21
    to 48 of the affidavit of Joan Scott are struck from the affidavit and not
    received as evidence on the motion, as is the discovery evidence of Joseph
    Davies Jr., Frank Buttigieg and Mike Buttigieg.

2.       This Court orders that the main
    action against Mr. Davies, Sr. and Gores Landing Marina, and the third party
    proceedings arising therefrom are hereby dismissed.

[9]

In the result, only Mr. Davies Jr., who did not
    defend the action, remains a defendant. Pleadings were closed against him and
    he was deemed under r. 19.02(1) of the
Rules of Civil Procedure
,
    R.R.O 1990, Reg. 194,
to admit the claims against him, but the
    admission is not binding on anyone else. It appears Mr. Davies Jr. is
    impecunious.

B.

The issues

[10]

There are three issues on this appeal:

1.

Is the order striking affidavit and examination for discovery evidence interlocutory,
    and therefore only appealable to the Divisional Court?

2.

Did the motion judge err by excluding the
    discovery evidence of Mr. Davies Jr., Mike Buttigieg, and Frank Buttigieg?

3.

Did the motion judge err in concluding that there was no genuine issue
    requiring a trial in relation to the Marina and Mr. Davies Sr.?

C.

Analysis

[11]

I will address the issues in turn.

(1)

Is the order striking affidavit and examination
    for discovery evidence interlocutory, and therefore only appealable to the
    Divisional Court?

[12]

The respondents submit that this court has no
    jurisdiction to hear the appeal concerning para. 1 of the order under appeal,
    which excluded certain evidence from consideration, on the basis that it was
    interlocutory. They assert that the appellant should have sought leave to
    appeal from the Divisional Court under sections 6 and 19 of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43
.

[13]

I would reject this submission.

[14]

In my view this court has jurisdiction to hear
    this appeal including the challenge to the motion judges evidentiary ruling.
    Had para. 1 of the order been issued as a standalone order, it would have been
    interlocutory and the appeal would have been required to take the prescribed route
    to the Divisional Court. However, the paragraph is found in the order that
    granted summary judgment and was an inextricable part of the decision to grant
    judgment. The ruling was part of the evidentiary fabric of the motion and did
    not need to be in the order. Put differently, this is conceptually equivalent
    to a trial judgment in which the trial judges evidentiary trial rulings are
    subsumed in the judgment but are nonetheless challengeable as grounds of
    appeal.

[15]

The bifurcated approach to the appeal advanced
    by the respondent would risk unduly complicating the appeal process from a
    summary judgment, contrary to the spirit of r. 20 and r. 1.04 of the
Rules
    of Civil Procedure
, and the jurisprudence.

[16]

The Supreme Court prescribed the courts preferred
    approach to summary judgment motions in
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87.
Justice
Karakatsanis stated at para. 2: Increasingly, there
    is recognition that a culture shift is required in order to create an
    environment promoting timely and affordable access to the civil justice
    system.
The culture shift called for by the Supreme Court
    requires courts to promote more efficient and less expensive access to justice,
    and seeks to avoid placing expensive roadblocks in the way of litigants.

[17]

There is no good reason to bifurcate the appeal,
    and doing so is not compelled by the

Courts
    of Justice Act
or the Rules. This court has jurisdiction
    to consider the appeal and, as a necessarily incidental or inextricably related
    matter, to address the motion judges decision to exclude the evidence.

(2)

Did the motion judge err by excluding the
    discovery evidence of Mr. Davies Jr., Mike Buttigieg, and Frank Buttigieg?

[18]

The appellants proffered discovery evidence of Mr. Davies Jr., Mike
    Buttigieg, and Frank Buttigieg on the summary judgment motion. The motion judge
    excluded the evidence at the request of the respondents. He did so on the basis
    of an interpretation of rr. 39.04 and 31.11 that led him to conclude: 
On the hearing of a motion, while a party
    can use discovery evidence from an adverse party against that adverse party,
    the evidence is not useable against other adverse parties (at para. 35). Since
    the motion had been brought by the Marina and Mr. Davies Sr., the motion judge
    concluded that the discovery evidence of the other parties not involved in the
    motion had to be struck.

[19]

This issue takes its context from the Amended Statement of Claim,
    which is quoted at para. 60 of the motion judges reasons. It includes several
    allegations about the defendants that implicated Mr. Davies Jr., who took the
    rope for the tug-of-war from a storage shed owned by the Marina and gave it to
    the guests:

(f)      they failed to inspect the rope for the existence of
    dangerous conditions or defect;

(g)     they prepared and or distributed a rope which they knew
    or ought to have known was faulty, and was not fit for the purpose for which it
    was intended;

(h)     they failed to take all reasonable precautions to
    ensure that the equipment system would function properly without causing
    injury;

(i)      they failed to make a proper inspection of the rope
    prior to starting the tug-of-war to ensure that the participants could
    participate in safety;

(j)      they failed to warn the Plaintiff that the subject
    rope was not fit for its intended purpose;

(k)     such further and other particulars of negligence, as
    shall become known to the Plaintiffs.

[20]

The
    motion judge set the procedural context for the evidentiary issue at para. 36:

On the summary judgment motion in the main action, Mike
    Buttigieg, Frank Buttigieg, and Mr. Davies, Jr. did not file affidavits for
    either party to the main action nor were they summonsed as witnesses by either
    party. Had they delivered affidavits, then they could have been cross-examined
    pursuant to rule 39.02 and their evidence would have been evidence at large for
    the purposes of the summary judgment motion. Had they been summonsed as
    witnesses, their evidence would have been available for use at the hearing
    pursuant to rule 39.03.

[21]

The
    appellant summarizes, in my view fairly, the excluded evidence they proffered
    in support of the argument that the Marina and Mr. Davies Sr. were vicariously
    liable for the actions of Mr. Davies Jr.:

Davies Jr. stated on examination for discovery that he was in
    charge of Gores Landing when his father was not around. He was considered his
    fathers substitute decision-maker, and had ready access to his father when he
    was off the property. Tenants regularly spoke to him about matters of general
    concern relating to Gores Landing. He was a well-known authority figure to the
    patrons.

In the summer of 2007, when he was approximately 35 years old,
    Davies Jr. was residing in a cottage at Gores Landing, free of charge. He spent
    the majority of his summers at Gores Landing (which is only open seasonally).

Davies Jr. assisted his father with tasks at Gores Landing,
    including doing repairs and upkeep on the cottages and landscaping, in
    consideration for his access to the cottage.

Davies Jr. was present for Jimmy Buffet Day in 2007, actively
    participated in the events, and socialized with his friends and other patrons.

On August 4, 2007, Davies Jr. was drunk. Nevertheless, when
    asked to provide a rope for tug-of-war, he promptly scoured the grounds until
    he found a rope belonging to Gores Landing in a storage building.

Davies Jr. was familiar with the rope, which had been
    previously used for rope swings, among other things.

Davies Jr. did not examine the rope, nor did he turn his mind
    to examining it, before supplying it for use in the tug of war.

The fact that the rope had loops in it was pointed out to
    Davies Jr., as was the fact that the loops could not be removed in advance of
    the tug-of-war. Davies Jr. took no steps to implement safety measures or issue
    a warning before the competition commenced.

Following Timothys injury, Davies Jr. immediately stepped
    forward to call 911. Once contact with 911 was made, Davies Jr. went to the
    road to flag down the ambulance, and when he arrived he directed it to the area
    where Timothy was waiting.

[22]

The
    evidence put forward by the responding party to a summary judgment motion is
    governed by r. 39, of which r. 39.04 regarding the use of discovery evidence is
    particularly relevant to this case. It provides:

39.04 (1) On the hearing of a motion, a party may use in
    evidence
an adverse party's examination for discovery or the examination for
    discovery of any person examined
on behalf or in place of, or
in
    addition to, the adverse party
, and rule 31.11 (use of discovery at trial)
    applies with necessary modifications. [Emphasis added.]

[23]

This
    is to be contrasted with r. 31.11 which governs the use of discovery evidence
    at trial. Rule 31.11(1) provides:

31.11 (1) At the trial of an action, a party may read into
    evidence as part of the party's own case against an adverse party any part of
    the evidence given on the examination for discovery of,

(a)
the
adverse party; .

[Emphasis added.]

[24]

With
    respect to the use of discovery transcripts on a motion, r. 39.04 states: rule
    31.11 (use of discovery at trial) applies
with necessary modifications
.

[25]

The
    motion judge took a strict approach to the use of the discovery evidence of
    Mike Buttigieg, Frank Buttigieg, and Mr. Davies, Jr. and allowed the wording of
    r. 31.11(1)(a) (
the
adverse party) to override the wording of r.
    39.04(1) (
an
adverse party's examination for discovery or the
    examination for discovery of any person examined  in addition to, the adverse
    party) and refused to apply r. 39.04. He said at paras. 34-35:

The problem with this evidence is that it can only be read in
    as evidence against
the
adverse party that was examined for
    discovery. In other words, for example, the discovery evidence of Mr. Davies,
    Jr. that is incorporated by reference is not evidence at large as against Mr.
    Davies, Sr.

On the hearing of a motion, while a party can use discovery
    evidence from an adverse party against that adverse party, the evidence is not
    useable against other adverse parties. The use of discovery evidence is limited
    to be the party who gave the evidence; that is, it cannot be read in against
    any party other than the party who gave it:
Urbacon Building Groups Corp. v.
    Guelph (City)
, 2013 ONSC 5773 (Ont. S.C.J.);
Cain v. Peterson
(2005), 24 C.P.C. (6th) 298 (Ont. S.C.J.);
MacEachern v. Rennie
(2009),
    80 C.P.C. (6th) 1 (B.C.S.C.). [Emphasis in original.]

I note that the authorities cited by the motion judge
    were all trial cases where r. 31.11 (or its equivalent) would apply with full
    rigour.

[26]

In
    my respectful view, this approach fails to comport with Rule 39.04 and the
    motion judge erred by concluding that the discovery evidence of Mr. Davies Jr.
    and the other witnesses was inadmissible on the summary judgment motion.

[27]

The
    motion judge took an overly technical approach to the admission of the
    discovery evidence on the motion. He said at, para. 37, he had read the
    evidence and added that he did not understand why the Defendants objected to
    the evidence other than on technical grounds. However, he then permitted those
    technical grounds to underpin his decision. Respectfully, this was an error

[28]

I
    accept that the weight to be attached to the discovery evidence of an adverse
    party other than the adverse party who brings a summary judgment motion may
    vary depending upon the context.

[29]

If
    the motion judge is invited to use the discovery of another adverse party as
    evidence establishing liability, he or she may well conclude that the evidence
    falls short of what is required. On the other hand, where the relevant issue on
    the motion is whether there is sufficient evidence in the record to establish
    that there is a genuine issue requiring a trial under r. 20.02(2), the motion
    judge may well conclude that the discovery evidence is sufficient.

[30]

The
    excluded discovery evidence at issue established that the vicarious liability
    of the Marina and Mr. Davies Sr. for any negligence on the part of Mr. Davies
    Jr. was a genuine issue requiring a trial. This triggered the motion judges
    discretion to consider exercising the powers in r. 20.04 as an alternative to a
    full trial or simply finding that a trial was required.

[31]

By
    excluding from his consideration the evidence that purported to establish Mr.
    Davies Jr.s negligence and the vicarious liability of the Marina and Mr.
    Davies Sr., the motion judge was left with the respondents bald assertions in
    the notice of motion for summary judgment that Joseph Davies Jr. has no
    connection with Gores Landing, and in Mr. Davies Sr.s affidavit that he was
    the only employee of the Marina. I note that embedded in this position is the
    erroneous legal proposition that the Marina and Mr. Davies Sr. could only be
    vicariously liable for the actions of Mr. Davies Jr. if he were an employee of
    the Marina. Vicarious liability can arise as the result of other less formal
    relationships, including agency, as the statement of claim alleges.

(3)

Did the motion judge err in concluding that
    there was no genuine issue requiring a trial in relation to the Marina and Mr.
    Davies Sr.?

[32]

In
    order to render judgment in this case, the motion judge was obliged to address three
    substantive issues on the pleadings and the evidence:

1.

Were the Marina and Mr. Davies Sr. liable to Mr. Bonello under the
Occupiers
    Liability Act
?

2.

Were the Marina and Mr. Davies Sr. liable to Mr. Bonello under the
    principles of common law negligence?

3.

If so, were the Marina and Mr. Davies Sr. vicariously liable to Mr.
    Bonello for Mr. Davies Jr.s negligence?

[33]

I
    now turn to consider the motion judges treatment of the appellants causes of
    action.

(a)

The
Occupiers Liability Act


[34]

The motion judge clearly found that the Marina and Mr. Davies Sr.
    were not liable to Mr. Bonello under the
Occupiers Liability Act
. He
    found, at para. 59, that the Marina and Mr. Davies Sr. had met the standard of
    reasonableness under the Act, a finding he repeated at para. 61 and again at para.
    69 following a lengthy exposition of occupiers liability cases.

(b)

The Negligence Claim

[35]

The appellant argues that
the motion judge erred
    in failing to consider Mr. Bonellos negligence claim in common law, beyond the
    strictures of
occupiers
    liability
. As noted earlier, the Amended Statement of Claim
    includes several allegations about the defendants that implicated Mr. Davies
    Jr., who took the rope for the tug-of-war from a storage shed owned by the
    Marina and gave it to the guests
.

[36]

The respondents assert the motion judge did consider Mr. Bonellos
    negligence claim. They point to his express reference to negligence at para.
    60, and to his conclusion at para. 69:

The Defendants could not have reasonably foreseen that the rope
    for the tug-of-war would be taken from its supply shed and even if they had
    purposefully provided the rope, they could not have reasonably foreseen that
    the participants in the tug-of-war would not properly prepare the rope for the
    tug-of-war or have the rudimentary safety equipment necessary to officiate the
    event.

[37]

I disagree with the respondents. These findings were made in the
    context of the occupiers liability claim and do not address the possibility that
    the Marina and Mr. Davies Sr. could be vicariously liable for the actions of
    Mr. Davies Jr., who found the rope, provided it to the guests, and participated
    in the tug-of-war, and arguably should have foreseen the risk of injury arising
    from the use of the rope. I observe that the motion judge did not consider
    further or in any detail the particulars of negligence referred to in the
    pleading.

(c)

The Vicarious Liability Claim

[38]

The motion judge was alive to the vicarious liability issue. He set
    the scene in paras. 49-50:

Mr. Davies, Jr., whose role and relationship with Gores Landing
    Marina is a disputed matter, was asked to provide a rope. He provided a rope
    from a shed on the property. The rope, which belonged to Gores Landing Marina,
    had been used for children's swings.

Unfortunately, Mr. Davies, Jr. supplied a rope which had
    several loops or knots along its length.

[39]

As
    I have already explained, the improperly excluded evidence, which was
    summarized earlier, offers some support for the argument that the Marina and
    Mr. Davies Sr. were vicariously liable for the actions of Mr. Davies Jr. As
    there is a triable issue as to vicarious liability, I would allow the appeal
    and set aside the judgment dismissing the appellants action.

Disposition

[40]

I
    would allow the appeal, set aside the order under appeal, and leave the parties
    free to pursue their claims including, if so advised, other motions for summary
    judgment, without being bound by any of the determinations made in the decision
    under appeal.

[41]

I would fix costs of this appeal payable by the respondents to
    the appellant in the amount of $20,000 inclusive of disbursements and taxes. I
    would reverse the order for costs made below and require the respondents to pay
    the amount awarded below to the appellant.

P.
    Lauwers J.A.

I
    agree Robert J. Sharpe J.A.

I
    agree M. Tulloch J.A.

Released: August 2, 2017





[1]
Only Timothy Bonello appeals. The defendant
Murray E. Carslake
    is now deceased and the action against him was dismissed in 2012.


