



COURT OF APPEAL FOR ONTARIO

CITATION: Haley v. Stepan Canada Inc., 2020
    ONCA 737

DATE: 20201118

DOCKET: C67737

Fairburn A.C.J.O., Pepall and Roberts
    JJ.A.

BETWEEN

Patrick J. Haley

Appellant/Plaintiff

and

Stepan Canada Inc. and

Chemical Developments of Canada
    Limited

Respondents/Defendants

Adam Moras, for the appellant

Amanda Potasky, for the respondents

Heard and delivered orally: November
    12, 2020 by videoconference

On appeal from the judgment of Justice Clyde
    Smith of the Superior Court of Justice dated October 25, 2019.

REASONS FOR DECISION

[1]

The appellant appeals from the dismissal of his
    action following the respondents motion for summary judgment.

[2]

The appellant was a truck driver. He alleges
    that on June 19, 2013, he fell on uneven ground and suffered serious injuries at
    the respondents premises when he attended to pick up a load. It is common
    ground that he did not tell the respondents about the fall until he served his
    statement of claim. There were no witnesses to the fall and no photographs of
    the scene. On June 18, 2015, he commenced his action against the respondents. He
    was examined for discovery on April 4, 2017. In response to the respondents
    motion for summary judgment, he filed his experts opinion dated January 17,
    2019 that there was an unsafe elevation that caused the appellants fall.

[3]

The motion judge determined there was no genuine
    issue requiring a trial and dismissed the appellants action.

[4]

The appellant submits that the motion judge
    erred by reversing the onus on the summary judgment motion, and by assuming that
    the respondents premises were safe in the face of his experts opinion about
    the unsafe condition of the respondents premises.

[5]

We do not accept these submissions.

[6]

The motion judge did not reverse the onus.
    Rather, he determined, correctly in our view, that the respondents had established
    that there was no genuine issue requiring a trial. He did not merely assume the
    premises were reasonably safe. As he was entitled to do, the motion judge
    accepted the evidence of the respondents production supervisor, Bill Pewar,
    that was unchallenged by cross-examination. Mr. Pewar deposed that at the
    relevant time in 2013, in fulfilment of their supervisory duties, he and
    another employee had daily and regularly inspected the area in question for hazards
    and discovered no issues, nor were any deficiencies ever reported.

[7]

Further, the motion judge was not obliged to rely
    on the appellants expert opinion. The appellants discovery evidence about the
    area where he said he fell was inconsistent with the information provided to
    his expert. The expert acknowledged that inconsistency in his cross-examination.
    The experts report depended on what the appellant had told him, in contrast to
    his discovery evidence.

[8]

It was open to the motion judge to conclude on
    the basis of the evidence before him that the respondents had discharged their
    burden as occupiers to take reasonable steps to ensure that the premises were
    reasonably safe, and that the appellant had failed to raise a genuine issue
    requiring a trial that the respondents had not done so and that the premises
    were not reasonably safe.

[9]

We see no error that would warrant appellate
    intervention.

[10]

Accordingly, the appeal is dismissed.

[11]

The respondent is entitled to their partial indemnity costs in the amount of $6,000, inclusive of disbursements and applicable taxes.

Fairburn
    A.C.J.O.

S.E.
    Pepall J.A.

L.B.
    Roberts J.A.


