



COURT OF APPEAL FOR ONTARIO

CITATION: Dia v. Calypso Theme Waterpark, 2021 ONCA 273

DATE: 20210429

DOCKET: C68635

Tulloch, Nordheimer and Jamal JJ.A.

BETWEEN

Ihab Dia, Faten
    Zeineddine, Samer Dia (a minor by his litigation guardian Ihab Dia), Anisah Dia
    (a minor by her litigation guardian Ihab Dia), Ali Dia (a minor by his
    litigation guardian Ihab Dia), and Mohamed Dia (a minor by his litigation
    guardian Ihab Dia)

Plaintiffs (Appellants)

and

Calypso Theme Waterpark,
    Jacques Bui, Jamie Crowder, Khamea Louangrath,
Paolo Messina
and Shaun
    Wheeler

Defendants (
Respondent
)

AND BETWEEN

Paolo Messina

Plaintiff by Counterclaim

and

Samer Dia and Mohamed
    Zeineddine

Defendants by Counterclaim

Katie Black and Kelli Day,
    for the appellants

Danesh Rana, for the
    respondent

Heard: April 9, 2021 (by video conference)

On appeal from the order of Justice Heather J. Williams of
    the Superior Court of Justice, dated April 27, 2020, with reasons reported at 2020
    ONSC 2601, and from the costs endorsement, dated August 29, 2020, with reasons
    reported at 2020 ONSC 5191.

Nordheimer
    J.A.:

[1]

The plaintiffs appeal from the summary judgment granted by the motion
    judge that dismissed the plaintiffs action against the respondent and certain
    of the respondents crossclaims and ordered that the respondent discontinue
    other crossclaims.
[1]

Background

[2]

The claims in this action result from an altercation that occurred on
    July 3, 2013, at the premises of the defendant, Calypso Theme Waterpark, which is
    located in Limoges, Ontario, about 35 kilometres east of Ottawa. Two of the
    appellants, Samer Dia and Anisah Dia, were assaulted by a group of males that,
    it is alleged, included the four individual defendants.
[2]
At the time, Samer was 15 years old and Anisah was 13 years old.

[3]

The altercation is said to have started with verbal attacks by the group
    of males directed towards Samer and Anisah. The events then escalated to a
    physical assault by the group of males on both Samer and Anisah. Samer claims
    he was punched, pushed down a set of stairs, and then kicked in the head, rendering
    him unconscious. Anisah claims she intervened in an effort to stop these males
    from kicking her brother, when she was beaten and rendered unconscious. These
    beatings were observed by their seven-year-old brother, Ali, who was only a few
    feet from the altercation.

[4]

Both children were rendered unconscious for a period of time, and claim
    to have suffered serious bodily harm, including facial contusions and trauma to
    the back, neck and head.

[5]

The police were called. Officers from the Ontario Provincial Police
    attended at the park. The officers took statements from a number of individuals
    and filed reports on the incident.

[6]

The respondent acknowledges being present at the park at the time of the
    altercation. Indeed, he identified himself in a group photograph of the males
    said to have been involved in the assault. Nonetheless, he claims that he had
    nothing to do with the assault on Samer and Anisah. Instead, the respondent
    says that he was the subject of a separate assault occasioned by the uncle of
    Samer and Anisah, that rendered the respondent unconscious.

[7]

More than five years after this action was commenced, the respondent
    brought a motion for summary judgment. Although all of the defendants had filed
    statements of defence, the respondent and the corporate defendant are the only parties
    who have continued to defend the action since the pleadings were closed.

THE DECISION BELOW

[8]

The motion judge began her analysis by stating some of the principles
    relating to summary judgment, including principles drawn from
Hryniak v.
    Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87.

[9]

The motion judge concluded that there was no genuine issue requiring a
    trial in respect of the claim against the respondent and that the claim against
    him should be dismissed. In reaching this conclusion, the motion judge placed
    significant reliance on the fact that none of the appellants identified the
    respondent as one of the men involved in the alleged assault, even in response
    to the motion.

[10]

The
    motion judge also rejected an argument by the appellants that evidence might be
    available at trial, such as that of the other individual defendants, that could
    satisfy the trier of fact that the respondent was involved in the alleged
    assault. The motion judge found that this argument has no merit. She said
    that on a motion for summary judgment, the responding party may not rely on the
    prospect of additional evidence that may be tendered at trial; the responding
    party must put its best foot forward, citing
Sweda Farms v. Egg Farmers of
    Ontario
, 2014 ONSC 1200, at para. 26, aff'd 2014 ONCA 878, leave to appeal
    refused, [2015] S.C.C.A. No. 97.

[11]

Finally,
    the motion judge rejected any concern arising out of the fact that this was a
    partial summary judgment motion. She found that there was no risk of inconsistent
    findings being made when the balance of the action is tried. Rather, she said,
    at para. 32:

My finding that the plaintiffs have failed to identify Mr.
    Messina as having been involved in the alleged assault does not require me to
    make any findings in respect of whether an assault took place, if so, what
    precipitated the assault, who was involved in the assault or the nature and
    extent of any injuries.

Analysis

[12]

In
    my view, the conclusion reached by the motion judge reflects both errors of law
    and palpable and overriding errors of fact. Given the nature of the claim here,
    and the type of evidence that was placed before the motion judge, summary
    judgment was an entirely inappropriate avenue to pursue. In addition, the fact
    that the motion was brought more than five years after the action was commenced
    was another factor that ought to have weighed into the calculus as to whether a
    motion for summary judgment was appropriate.

[13]

The
    evidentiary record on this motion was far from ideal. In terms of that
    evidence, the respondent did not file an affidavit. Rather, he filed a series
    of affidavits from a legal assistant and trained paralegal in his lawyers
    office. The first affidavit appended, as exhibits, the transcript of the
    respondents examination for discovery; various witness statements and reports
    taken from the police file; transcripts of, and an exhibit to, the examinations
    for discovery of two of the appellants; the respondents requests to admit and the
    appellants responses to those requests; and accounts of legal expenses
    incurred by the respondent in defending criminal charges. The second affidavit
    appended, as exhibits, two photographs of the respondent. The third affidavit appended
    a third photograph of the respondent. The appellants did not file any evidence in
    response to the summary judgment motion.

[14]

The
    motion judge, correctly, found that the respondent could not rely on his own
    examination for discovery on the summary judgment motion. This conclusion is clear
    from the provisions of r. 39.04(2) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194 and from the decision of this court in
Lana
    International Ltd. v. Menasco Aerospace Ltd.

(2000), 50 O.R. (3d)
    97 (C.A.), at para. 37.

[15]

This
    then left the motion judge with a record that consisted of the photographs of
    the respondent, the material from the police file, the requests to admit and
    responses, the accounts of legal expenses, and the examinations for discovery
    of two of the appellants.

[16]

The
    motion judge was asked to, but did not, draw an adverse inference from the fact
    that the respondent did not file an affidavit. In declining to do so, she said,
    at para. 24:

I am not, however, prepared to draw a negative inference
    against Mr. Messina on this basis. Mr. Messina attempted to provide evidence of
    his personal knowledge by filing his discovery transcript. Having refused to
    allow him to do so, I will not penalize him further for not having provided
    evidence of his personal knowledge; his error was in attempting to rely on
    evidence on which he could not be cross-examined, not in attempting to avoid
    filing evidence of his personal knowledge.

[17]

This
    stated reason for not drawing an adverse inference fails to take into account
    the fundamental rationale for the express provision in r. 20.02(1) that permits
    an adverse inference to be drawn, that is, an attempt by the moving party to avoid
    cross-examination. The fact that the respondent did not make himself available
    for cross-examination, in a case such as this, is precisely the type of
    situation where an adverse inference would have been properly drawn. After all,
    this case is largely, if not entirely, an identification case. The respondent
    sought to have the action dismissed against him on the basis that he was not
    part of the assault on the two children, without providing the appellants with
    any real opportunity to test that contention. The fact that the respondent
    would not affirmatively attest to his non-involvement ought to have been a
    matter of significant concern to the motion judge.

[18]

The
    remaining evidence did not establish that there was no genuine issue for trial
    regarding the central question whether the respondent was part of the assault.
    The motion judge seems to have proceeded on the basis that the material from
    the police file, including witness statements, were properly before the court. They
    were not. Apparently, the parties thought that the statements and reports were
    admissible hearsay under r. 20.02(1) which reads:

An affidavit for use on a motion for summary judgment may be
    made on information and belief as provided in subrule 39.01(4), but, 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.

[19]

The
    problem with that approach is that it ignores the requirement, expressly
    provided for in subrule 39.01(4), that an affidavit based on information and
    belief (i.e. hearsay) must state the source of the information and the fact of
    the belief. The legal assistants affidavit did not satisfy that requirement,
    nor could it have, because the legal assistant was not in a position to
    properly form a belief as to the accuracy of the information contained in the
    witness statements and the police reports.

[20]

With
    that information removed from the record, it left the motion judge simply with
    the photographs of the respondent, the examinations for discovery of two of the
    appellants, the requests to admit and responses, and the accounts of the
    respondents legal expenses, which were of no probative value by themselves. None
    of that evidence provided any foundation for the motion judge to conclude that
    no genuine issue for trial existed. Put simply, there was insufficient evidence
    on which the motion judge could reach a fair and just determination on the
    merits:
Hryniak
, at para. 49.

[21]

While
    that would be sufficient, by itself, to require the appeal to be allowed and
    the summary judgment set aside, there are other aspects of the decision that should
    be addressed.

[22]

One
    is that it is evident that the motion judge reversed the onus or burden of
    proof from the respondent, who was the moving party, to the appellants as
    responding parties. For example, the motion judge said, at para. 25:

The plaintiffs argue that Mr. Messina has not proven that he
    was not involved in the alleged assault. He is not required to do so. Mr.
    Messina's burden on this motion is to satisfy me that there is no issue
    requiring a trial in respect of the plaintiffs' claim against him because the
    plaintiffs cannot prove that he
was
involved in the alleged assault. He
    has met that burden. [Emphasis in original.]

[23]

That
    statement is simply wrong in law. In the circumstances of this case, the
    respondent was required to prove that he was not involved in the assault. That
    is the only way he could show that there was no genuine issue for trial as
    regards the claim against him. It was not up to the appellants to prove the
    contrary, at least not until the respondent had first met his evidentiary
    burden.

[24]

This
    error appears to have arisen from the motion judges misunderstanding of the
    body of case law regarding the obligation of parties on both sides of a motion
    for summary judgment to put [their] best foot forward. The obligation on the
    responding party is often captured by the expression a respondent on a motion
    for summary judgment must lead trump or risk losing:
1061590 Ontario Ltd.
    v. Ontario Jockey Club

(1995), 21 O.R. (3d) 547 (C.A.), at p. 557.

[25]

The fact
    that both sides to a motion for summary judgment may bear evidentiary burdens
    does not alter where the onus or burden of proof originates. On this point, I repeat
    the explanation of the burden of proof enunciated by Brown J.A. in
Sanzone
    v. Schechter
,
2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 30, leave
    to appeal refused, [2016] S.C.C.A. No. 443, where he said:

First, the evidentiary burden on a moving party defendant on a
    motion for summary judgment is that set out in rule 20.01(3)  "a
    defendant may... move with supporting affidavit material or other
    evidence." As explained in
Connerty
, at para. 9, only after the
    moving party defendant has discharged its evidentiary burden of proving there
    is no genuine issue requiring a trial for its resolution does the burden shift
    to the responding party to prove that its claim has a real chance of success.

[26]

The
    motion judge erred in skipping over the respondents initial burden and moving
    straight to the appellants. In doing so, she improperly shifted the burden of
    proof onto the appellants to prove their case before the respondent had proven
    his. The motion judge also erred in her application of the decision in
Sweda
    Farms
. While the decision in that case does say that the court is entitled
    to assume that the record on a motion for summary judgment contains all the
    evidence the parties would present at trial, the case also notes that [t]here
    are exceptions to this principle:
Sweda Farms
, at para. 27. An
    exception that presents itself in this case is the possibility of a "blame
    game" developing, as I explain in para. 28 below, or that the plaintiffs
    might call one or more of the investigating police officers that would provide
    evidence that was not reasonably available on the motion.

[27]

Finally,
    this case once again points out the risks associated with granting partial
    summary judgment. The motion judge said that she was not required to decide who
    was involved in the assault. As I have already pointed out, that is precisely
    what she was required to do, at least insofar as it involved the respondent.
    That was the central issue in the action.

[28]

The
    motion judge also said that there was no risk of inconsistent findings being
    made when the balance of the action is tried. Quite the contrary is true. At
    the trial, if the appellants call one or more of the defendants, which they are
    entitled to do, there is every prospect that a finger pointing or blame game
    will result. It does not appear that the motion judge gave any consideration to
    this possibility. The risk of inconsistent findings is, therefore, very much
    alive in this case. While the motion judge referred to this courts decision in
Butera v. Chown, Cairns LLP
, 2017 ONCA 783, 137 O.R. (3d) 561, she failed
    to heed the caution expressed by Pepall J.A., at para. 34: A motion for
    partial summary judgment should be considered to be a rare procedure that is
    reserved for an issue or issues that may be readily bifurcated from those in
    the main action.

[29]

I will
    add one final observation. As I mentioned at the outset, this summary judgment
    motion was brought more than five years after this action was commenced. The
    fundamental purpose of summary judgment is to provide proportionate,
    cost-effective and timely dispute resolution:
Hryniak
, at para. 67. An
    unsuccessful summary judgment motion adds both expense and delay to a
    proceeding. As also observed in
Hryniak
, at para. 32, summary judgment
    motions can also slow down the proceedings if used inappropriately.

[30]

In
    this case, the proceeding has already taken more time to get to trial than it
    ought to have. It is unclear from the record why this has occurred, but this
    motion has only exacerbated the situation. In such cases, I suggest that motion
    judges ought to stand back and consider whether the pursuit of a summary
    judgment motion is likely to achieve its fundamental purpose. Given the nature
    of this case, and the state of the evidence that was before the motion judge,
    it would have been more helpful if the motion judge had simply worked with the
    parties to move the matter directly onto trial. Alternatively, she might have
    exercised her authority, under r. 20.04(2.2), to order oral evidence to be presented,
    but she did not.

CONCLUSION

[31]

I would
    allow the appeal, set aside the judgment below, and, in its place, grant an
    order dismissing the summary judgment motion. The appellants are entitled to their
    costs of the appeal fixed in the amount of $20,000 inclusive of disbursements
    and HST. If the parties cannot agree on the disposition of the costs below,
    they may make written submissions on that issue. The appellants shall file
    their written submissions within 10 days of the release of these reasons and
    the respondent shall file his submissions within 10 days thereafter. Each
    sides submissions shall be limited to five pages (excluding bills of costs)
    and no reply submissions shall be filed without leave.

Released: April 29, 2021 M.T.

I.V.B. Nordheimer
    J.A.

I agree. M. Tulloch
    J.A.

I agree. M. Jamal
    J.A.





[1]

I note that the decision in this case led to an order being
    formally signed as opposed to a judgment as it ought to have been styled given
    the relief that was obtained. I also note that the formal order improperly
    contained a declaration that was not sought in the motion and was, in any
    event, unnecessary.



[2]

The claim appears to have been discontinued against the
    defendant, Jacques Bui.


