



COURT OF APPEAL FOR ONTARIO

CITATION: Drummond v. Cadillac Fairview
    Corporation Limited, 2019 ONCA 447

DATE: 20190530

DOCKET: C65825

Doherty, Rouleau and Brown JJ.A.

BETWEEN

Stephen
    Drummond

Plaintiff (Respondent)

and

The Cadillac Fairview
    Corporation Limited

Defendant (Appellant)

Larry P. Reimer, for the appellant

Shane Katz and Dilenthi Warakaulle, for
    the respondent

Heard: May 2, 2019

On appeal from the judgment of Justice Paul M. Perell of the Superior
    Court of Justice, dated July 26, 2018, with reasons reported at 2018 ONSC 4509.

Brown J.A.:

I.        OVERVIEW

[1]

This appeal raises three issues: (i) the
    fairness of granting summary judgment against the moving party when the
    responding party has not brought a cross-motion for such relief; (ii) the use
    of hearsay evidence on summary judgment motions; and (iii) the liability of a
    retail mall manager under s. 3(1) of the
Occupiers Liability Act
, R.S.O. 1990, c. O.2.

[2]

On August 23, 2015, the respondent, Stephen
    Drummond, visited the Fairview Mall in Toronto with his fiancé and two
    daughters. The appellant, The Cadillac Fairview Corporation Limited (Cadillac
    Fairview), is the property manager for the Mall.

[3]

While in the Malls food court, Mr. Drummond
    tripped over a skateboard, which a 12-year old boy had brought into the Mall.
    He suffered injuries.

[4]

In September 2016, Mr. Drummond started this occupiers
    liability action against Cadillac Fairview for general and special damages in
    the amount of $1 million. Cadillac Fairview defended, denying that it was
    negligent and asserting a defence of contributory negligence.

[5]

Following the examination for discovery of Mr.
    Drummond, Cadillac Fairview moved for summary judgment dismissing the action,
    in part on the ground that there is no genuine issue for trial with respect to
    the liability of Cadillac Fairview. Mr. Drummond did not bring a cross-motion
    for judgment in his favour.

[6]

Nevertheless, the motion judge granted judgment
    to Mr. Drummond and directed a trial of the assessment of damages in the event
    the parties could not settle that issue (the Judgment).

[7]

Cadillac Fairview appeals. It advances three
    grounds of appeal.

II.       FIRST GROUND OF APPEAL: THE JUDGMENT WAS THE PRODUCT OF AN
    UNFAIR PROCESS

[8]

The motion judge described the positions of the
    parties regarding the possible dispositions of the motion at para. 49 of his
    reasons:

In resisting
    Cadillac Fairviews summary judgment motion, Mr. Drummond submitted that there
    were genuine issues for trial and that the case at bar was inappropriate for a
    summary judgment. I disagree, but happily for Mr. Drummond, my decision is that
    he is entitled to a summary judgment on liability to be followed by an
    assessment of damages.

[9]

Cadillac Fairview submits that by granting a
    judgment not requested by the plaintiff by way of a cross-motion  colloquially
    known as a boomerang summary judgment  the motion judge acted unfairly in
    two ways. First, he did not give Cadillac Fairview notice of its potential
    litigation risk on the motion and a fair opportunity to meet that risk:
Rodaro
    v. Royal Bank
(2002), 59 O.R. (3d) 74 (Ont. C.A.), at para. 61. Second, to
    grant judgment in favour of the plaintiff, the motion judge was required to
    deal with Cadillac Fairviews pleaded contributory negligence defence. The
    motion judges reasons are devoid of any treatment of that defence or any explanation
    about why judgment was granted to the plaintiff in the face of that defence.

[10]

In response, Mr. Drummond submits that cases
    exist in which the court has granted judgment in favour of the party responding
    to a summary judgment motion in the absence of a cross-motion by the responding
    party, starting with the Supreme Court of Canada decision in
Manulife Bank
    of Canada v. Conlin
, [1996] 3 S.C.R. 415, at paras. 70-71. Consequently,
    the motion judge did not err in granting the Judgment in favour of the
    plaintiff.

[11]

To dispose of this appeal, it is not necessary
    to explore the scope of the principle that flows from the
Manulife
case
    or the specific circumstances in which it might fairly be applied. Suffice it
    to say, that whenever a court grants summary judgment  whether in response to
    a notice of motion, cross-motion or otherwise  it must firmly keep in mind
    that summary judgment motions are designed to do more than make efficient use
    of court resources. They are intended to achieve fair and just results. In
Hryniak
    v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court emphasized
    that granting summary judgment under r. 20 of the
Rules of Civil
    Procedure

requires that the result be a fair and just
    one: There will be no genuine issue requiring a trial when the judge is able
    to reach
a fair and just determination on the
    merits

on a motion for summary judgment
    (emphasis added): at paras. 49 and 66.

[12]

The motion judges grant of judgment in favour
    of Mr. Drummond was not a fair and just determination on the merits on the
    motion, based on the following combination of factors:

(i)

Mr. Drummond did not bring a cross-motion for
    judgment. To the contrary, his main position before the motion judge  and the
    position with which Cadillac Fairview engaged  was that this was not an
    appropriate case to be determined by summary judgment. In his factum filed on
    the motion, Mr. Drummond submitted that a trial is required to determine
    whether Fairview Mall breached its duty to [Mr. Drummond]  by failing to take
    reasonable care to ensure that [he] was reasonably safe while on the premises;

(ii)

Significantly, one of the reasons advanced by
    Mr. Drummond in support of his position that the case would be more fairly and
    justly decided by way of a trial was the need for further evidence from
    additional witnesses, including the cleaners who had been working in the food
    court area on the day of the incident
;

(iii)

Although at the end of his factum on the summary
    judgment motion Mr. Drummond advanced a three-line alternative request that
    judgment be granted in his favour, the motion judge granted Mr. Drummond
    judgment without considering the material defence of contributory negligence
    raised by Cadillac Fairview. While it would have been possible for the motion
    judge to grant Cadillac Fairview summary judgment dismissing the action without
    considering the issue of contributory negligence, it was not possible for him
    to grant judgment to the plaintiff without considering and rejecting that
    defence; and

(iv)

The motion judge failed to put Cadillac Fairview on notice that he
    might grant judgment against it and then afford Cadillac Fairview an
    opportunity to address that litigation risk.

[13]

The lack of procedural fairness on the motion is
    a sufficient basis to allow the appeal and set aside the Judgment in favour of
    Mr. Drummond.

[14]

Apart from the fairness concerns, the outcome in
    this case demonstrates the practical problems and inefficiencies that can arise
    when a judge chooses to go beyond the issues raised by the parties and make
    orders that no one requested or had an opportunity to speak to in the course of
    their submissions. Given the absence of any reference to the contributory
    negligence defence in the materials filed on the motion (apart from in the
    statement of defence) or in the motion judges reasons, it seems likely that
    the motion judge was either unaware of or had forgotten about the contributory
    negligence defence. Had the motion judge raised with counsel the possibility of
    granting judgment on liability in favour of the plaintiff, counsel would no
    doubt have brought to the motion judges attention the contributory negligence
    defence and its impact on the motion judges ability to grant judgment in
    favour of the plaintiff on the summary judgment motion. Because counsel did not
    have an opportunity to address the issue on the motion, an appeal, with its
    inevitable delay and added cost, became necessary regardless of the merits of
    the rest of the motion judges analysis.

III.      SECOND GROUND OF APPEAL: THE MOTION JUDGE IMPERMISSIBLY
    RELIED ON HEARSAY EVIDENCE

The issue stated

[15]

As noted by the motion judge, the possession of
    skateboards at the Mall was not prohibited as some of the Malls commercial
    tenants sold and repaired skateboards. What was prohibited was the use of
    skateboards in the Mall: at para. 16. The central issue in Mr. Drummonds claim
    against Cadillac Fairview was whether the company had breached its statutory
    duty by failing to take reasonable care to see that patrons visiting the Mall
    were reasonably protected against the hazard of others using skateboards in the
    Mall: at paras. 50 and 51.

[16]

In his responding affidavit, Mr. Drummond
    deposed that prior to the incident he had not seen the owner of the skateboard
    or the skateboard. However, he deposed that his daughter had informed him that
    she had seen the owner of the skateboard playing with the skateboard on the
    floor with his feet, moving it from side to side in the food court area.

[17]

In addition, Mr. Drummond deposed that his
    fiancé had informed him of conversations she had had with two unidentified members
    of the cleaning staff at the Mall. (Cadillac Fairview had contracted the
    housekeeping services for the Mall to a third party, GDI Services (Canada) LP,
    who employed the cleaners). The first unidentified cleaner told her that: about
    an hour before the incident with Mr. Drummond a skateboard had struck her; its
    owner had been seated in the same location in the food court where the incident
    involving Mr. Drummond took place; the cleaner had sustained a small cut on the
    back of her foot; and she had told the skateboard owner to stop playing with
    the skateboard.

[18]

The second unidentified cleaner had told the
    fiancé that she had seen the skateboard owner playing with the skateboard with
    his feet on the floor of the food court.

[19]

Mr. Drummond also tendered an affidavit from
    Steven Summerville, a security coordinator. Mr. Summerville appended an expert
    report to his affidavit. The motion judge excluded the report. However, the
    affidavit was otherwise admitted. Mr. Summerville attached to his affidavit
    unsworn, handwritten statements given by Mr. Drummonds daughter and fiancé,
    almost two years after the incident, which contained the information about the cleaners
    that Mr. Drummond included in his affidavit.

[20]

The motion judge admitted the hearsay evidence
    from Mr. Drummonds daughter and fiancé for the truth of its contents, relying
    on r. 20.02(1) of the
Rules of Civil Procedure
, the business records
    exception, and the reliability and necessity exception to the rule against
    hearsay: at paras. 19 to 21. Cadillac Fairview submits that the motion judge
    erred in so doing.

Analysis

[21]

The principles governing the admissibility of
    evidence on a summary judgment motion are the same as those that apply at
    trial, save for the limited exception of permitting an affidavit made on
    information and belief found in r. 20.02(1):
Sanzone v. Schechter
,
    2016 ONCA 566, 402 D.L.R. (4th) 135, leave to appeal refused, [2016] S.C.C.A.
    No. 443, at para. 15. Rule 20.02(1) provides, in part, that [a]n affidavit for
    use on a motion for summary judgment may be made on information and belief as
    provided in subrule 39.01(4) which, in turn, requires that the affidavit
    specify the source of the information and the fact of the belief. However, r.
    20.02(1) continues: [B]ut, on the hearing of the motion, the court may, if
    appropriate, draw an adverse inference from the failure of a party to provide
    the evidence of any person having personal knowledge of contested facts.

[22]

In
Armstrong v. McCall
(2006)
, 213 O.A.C. 29 (C.A.), at para. 33, this court expressed strong
    reservations about using r. 20.02(1) to admit affidavits that assert contested
    facts on information and belief. That caution regarding the use of hearsay
    evidence on summary judgment motions in respect of contested facts was repeated
    recently by this court in
Kawartha-Haliburton Childrens Aid Society v.
    M.W.
, 2019 ONCA 316, at para. 80:

The court must
    conduct a careful screening of the evidence to eliminate inadmissible evidence.
    The court should not give weight to evidence on a summary judgment motion that
    would be inadmissible at trial.

[23]

Although that caution was made in the context of
    a summary judgment motion in a child protection proceeding, the caution applies
    equally to the treatment of hearsay evidence that goes to fundamental issues in
    dispute on a summary judgment motion under the
Rules of Civil Procedure
.
    As Edwards J. stated in
Mitusev v. General Motors Corp.
, 2014 ONSC
    2342, at para. 20: If the hearsay evidence is on a fundamental aspect of the
    motion, it is unlikely that the motion judge will decide the motion favourably
    to the party adducing the hearsay evidence.

[24]

If the evidence on information and belief in an
    affidavit goes to a fundamental contested aspect of the summary judgment
    motion, the motion judge should first determine whether the evidence would be
    admissible under the rules governing admissibility at trial. If the evidence
    meets those criteria, it is admissible on the motion. If the evidence does not
    meet the criteria for admissibility at trial, the onus should fall on the party
    proffering the evidence to justify some expansion of the rules governing
    admissibility in the context of the motion. For example, there may be cases in
    which an affidavit complies with r. 20.02(1) and it can be said that the
    opposing party had a fair chance to challenge the hearsay evidence, even though
    the evidence might not qualify as admissible hearsay.

[25]

The information that Mr. Drummond relayed from
    his daughter and fiancé went to the heart of the plaintiffs negligence claim
    against Cadillac Fairview. While the information in Mr. Drummonds affidavit
    provided by his daughter met the technical requirement of disclosing the source
    of the information, that from his fiancé did not. The material information from
    the fiancé was information provided to her by two unnamed members of the
    cleaning staff about what they had seen the skateboard owner do some time
    before the incident with Mr. Drummond. In his factum on the summary judgment
    motion, Mr. Drummond described the two unnamed cleaners as essential
    witnesses. The absence of an actual identification of such essential witnesses
    is a significant consideration in determining whether the evidence is
    sufficiently reliable to warrant its admissibility under r. 20.02(1).
[1]

[26]

In his affidavit tendering the hearsay and
    double-hearsay statements from his daughter and fiancé, Mr. Drummond offered no
    explanation about why they could not provide their own affidavits on the
    motion, especially in light of the materiality of the information he attributed
    to them. Nor did Mr. Drummond explain why he did not tender direct evidence
    from the members of the cleaning staff, whom he described as essential
    witnesses. In his reasons, the motion judge failed address those evidentiary
    frailties or explain how, given those frailties, any weight could be given to
    the hearsay statements, even under r. 20.02(1).

[27]

Instead, the motion judge concluded, without
    analysis, that the hearsay evidence would have been admissible pursuant to the
    business records exception and the reliability and necessity exception to the
    rule against hearsay:
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787.
    In admitting the hearsay evidence on those bases, the motion judge committed
    legal error.

[28]

Mr. Summervilles affidavit did not attempt to
    lay any foundation to admit the unsworn, handwritten statements of the daughter
    and fiancé under the business records exception. Their handwritten statements
    patently were not business records.

[29]

Nor were the statements by, or the information
    from, the daughter or fiancé recounted in Mr. Drummonds affidavit admissible
    under the principled exception to the hearsay rule because there was no
    evidence about the need to admit that evidence or its reliability.

[30]

The motion judge erred in law by admitting that
    hearsay evidence for the truth of its contents.

[31]

The hearsay evidence from the daughter and
    fiancé played a central role in the motion judges finding of liability against
    Cadillac Fairview. The motion judge accepted the information contained in the
    hearsay evidence as the truth of what the skateboard owner had done before the
    incident with Mr. Drummond, as can be seen from paras. 52 and 53 of his
    reasons:

Cadillac Fairview admitted that the use of
    skateboards inside the mall was a known hazard. It posted signs prohibiting
    skateboard use inside the mall, and it admitted that if a person entered the
    mall with a skateboard, the person was to be told by a security guard to secure
    the skateboard during the persons visit to the mall. Cadillac Fairview
    admitted that it required its security guards to patrol the mall to alert
    themselves whether skateboards were being used in the mall.

However, in the
    immediate case, the security guards patrols and their documentation of the
    patrols were ineffective. The security guards patrolled, but they did not
    notice that SS had entered the mall with a skateboard.
The security guards did not notice that SS with his skateboard
    was moving through the mall. When the security guards patrolled the food court,
    they did not notice that SS had not secured his skateboard. They did not notice
    that SS was playing with the skateboard under his chair in the food court.
    Although the security guards were not alerted by the cleaning staff that there
    had already had been an incident in the food court with the skateboard causing
    minor harm to a cleaning lady, the security guards did not as part of their
    patrol make proactive inquiries of anyone in the food court, but rather they
    waited for incidents to be reported to them.
(emphasis added)

[32]

I accept the submission of Cadillac Fairview
    that the motion judges finding of liability against it was grounded in his
    erroneous admission of hearsay evidence on key, contested issues. That error by
    the motion judge constitutes an additional reason to set aside the Judgment
    against Cadillac Fairview.

[33]

For those reasons, I would allow the appeal and
    set aside the Judgment granted in favour of Mr. Drummond against Cadillac
    Fairview.

IV.     CADILLAC FAIRVIEWS SUMMARY JUDGMENT
    MOTION

[34]

Cadillac Fairview submits that in the event this
    court sets aside the Judgment, it should grant summary judgment to Cadillac
    Fairview dismissing the action pursuant to s. 134(1)(a) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43.

[35]

I accept that submission. I am persuaded that
    the record does not disclose any genuine issue requiring a trial in respect of
    Cadillac Fairviews liability to Mr. Drummond.

[36]

As framed by the motion judge, the central issue
    in Mr. Drummonds claim against Cadillac Fairview was whether the company had
    breached its statutory duty by failing to take reasonable care to see that
    patrons visiting the Mall were reasonably protected against the hazard of
    others using skateboards in the Mall: at paras. 51. The motion judge recognized
    that Cadillac Fairviews
Security & Life Safety
    Standard Operating Procedures manual
implemented a reasonable standard of
    care and the company had a reasonable system in place to guard against the
    hazards of skateboard use in the Mall: at paras. 51 and 54. He also found as a
    fact that the Mall, including the food court, was routinely being patrolled on
    the day of the incident: at para. 38. The motion judges conclusion that
    Cadillac Fairview had failed to meet the reasonable standard it had set for
    itself in its Standard Operating Procedures was based on two findings.

[37]

The first was that prior to the incident with
    Mr. Drummond, the skateboard owner had been playing with the skateboard under
    his seat in the food court, had allowed his skateboard to hit and injure a
    cleaner, had been told to stop using his skateboard yet, according to the
    information Mr. Drummond attributed to his daughter, the skateboard owner
    continued to play with his board. As explained, those findings were based on
    inadmissible hearsay.

[38]

So, too, was the motion judges further finding
    that the security guards had not been alerted to the earlier incident involving
    the member of the cleaning staff and had not made proactive inquiries in that
    regard. That finding was predicated on the tainted findings that the earlier
    incident in fact had occurred.

[39]

One of Cadillac Fairviews security guards, Mr.
    Karvan Afsar, prepared two Incident Reports regarding the incident involving
    Mr. Drummond. In his reasons, the motion judge observed that the security guard
    did not record the incident with the detail required by the Standard Operating
    Procedures manual. As well, two of the five memorandum books of the security
    guards had been lost. However, as the motion judge noted, none of those acts or
    omissions would have prevented the incident from occurring.

[40]

Once the inadmissible hearsay evidence is
    removed from the negligence analysis, the remaining material evidence on whether
    the standard of care was met is that filed by Cadillac Fairview. It included
    the direct evidence of
one security guard, Mr. Karvan
    Afsar
, about the events of August 23, 2015. He was cross-examined at
    length. In his evidence, Mr. Afsar testified that: (i) the young skateboard
    owner was not known as a person who was a potential hazard; (ii) Mr. Afsar
    patrolled the food court as part of his shift that day, which included the time
    of day when the incident involving Mr. Drummond occurred; (iii) on a typical
    shift he would have patrolled the food court about 15 times; and (iv) he saw
    two other security guards patrolling that day.

[41]

As well, Mr. Afsar attached to his affidavit the
    memorandum books of the other two guards. Based on his review of those books,
    he deposed that none of the books made any reference to the young skateboard
    owner or any potential hazard he might pose to patrons in the Mall.

[42]

Section 3 of the
OLA
imposes a duty on an occupier of premises to take such care as in
    all the circumstances of the case is reasonable to see that persons entering on
    the premises  are reasonably safe while on the premises. The statutory
    standard of care is one of reasonableness in the circumstances; it does not
    require perfection or unrealistic or impractical precautions against known
    risks:
Kerr v. Loblaws Inc.
, 2007 ONCA 371,
    224 O.A.C. 56, at para. 19. Accordingly, the standard of care did not require
    Cadillac Fairview to maintain a constant surveillance or lookout for potential
    danger; it required the company to take measures that were reasonable in the
    circumstances:
Garofalo v. Canada Safeway Ltd.
, [1998] O.J. No. 302
    (O.C.J., Gen. Div.), at para. 31;
Saisho Estate v. Loblaw Cos.
, 2015
    ONCA 172, at para. 17.

[43]

I am satisfied on the admissible evidence before
    the court that Cadillac Fairview has demonstrated that there is no genuine
    issue requiring a trial regarding the elements that Mr. Drummond must establish
    to prove his claim that Cadillac Fairview breached its duty under s. 3 of the
OLA
:
Tondat v. Hudsons Bay Company
, 2018 ONCA 302,
    at paras. 6 and 7
. The admissible evidence shows that:
    Cadillac Fairview had in place reasonable policies to ensure the safety of
    those entering into the Mall and eating in the food court; it implemented those
    policies in a routine and reasonable manner on the day of the incident through
    the patrols performed by the security guards; and it had no reason to foresee
    that the young skateboard owners conduct might pose a risk to Mr. Drummond or
    other patrons using the food court. In those circumstances, I see no genuine
    issue requiring a trial regarding Cadillac Fairviews liability to Mr. Drummond
    for the injuries that he suffered.

V.      DISPOSITION

[44]

For the reasons set out above, I would allow the
    appeal, set aside the Judgment, and dismiss the action.

[45]

Based on the agreement of the parties, I would
    award Cadillac Fairview its costs of the appeal in the amount of $15,000 and
    its costs of the action in the amount of $15,000, for a total of $30,000,
    inclusive of disbursements and H.S.T.

Released: D.D. May 30, 2019

David
    Brown J.A.

I
    agree. Doherty J.A.

I
    agree. Paul Rouleau J.A.





[1]
The examination for discovery of Cadillac Fairviews representative, Mr. Paul
    Pannozzo, took place on April 5, 2017, well before Cadillac Fairview brought
    its summary judgment motion. On that examination, Cadillac Fairview advised
    that its insurance adjuster had taken an electronic recording of the statement
    of a cleaner, which it identified in Schedule B to its affidavit of documents.
    Cadillac Fairview undertook to provide the identity of and contact information
    for the cleaner. Mr. Drummond did not argue that Cadillac Fairview failed to
    fulfill that undertaking.


