Skateboards & Boomerangs: Court of Appeal reverses boomerang summary judgment, clarifies use of hearsay in affidavits

In Drummond v Cadillac Fairview Corporation Limited, 2019 ONCA 447, the Ontario Court of Appeal reversed a decision granting summary judgment in favour of a responding party (a so-called “boomerang summary judgment motion”), finding that the decision was not fair and just in the circumstances. In the course of so finding, the Court provided a helpful reminder regarding the limitations on hearsay evidence in affidavits.

Background

In August 2015, Stephen Drummond tripped over a skateboard belonging to a young patron of a mall managed by Cadillac Fairview (“CF”). Drummond commenced an occupier’s liability action against CF.

Following the examination for discovery of Mr. Drummond, CF moved for summary judgment dismissing the action. In response, Mr. Drummond argued that there were genuine issues for trial and that the case was inappropriate for a summary judgment. Mr. Drummond did not bring a cross-motion.

Decision at First Instance

The motion judge granted summary judgment in favour of Mr. Drummond on the issue of liability.

In his affidavit on the motion, Mr. Drummond led evidence regarding what he was told by his wife and daughter about their observations that day. The motion judge admitted the hearsay evidence for the truth of its contents, relying on r. 20.02(1) of the Rules of Civil Procedure[1], the business records exception, and the principled approach to hearsay.

CF appealed on two principal grounds:

  1. the fairness of granting summary judgment against it when Mr. Drummond had not brought a cross-motion for such relief;
  2. the admission of the hearsay evidence.

Court of Appeal

The Court of Appeal overturned the decision, and granted summary judgment in favour of CF.

The Court held that the motion judge’s 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:

  1. Drummond did not bring a cross-motion. His argument – and the position with which CF engaged – was that it was not an appropriate case for summary judgment;
  2. Drummond had argued that a trial was required because of the need for further evidence from additional witnesses;
  3. The motion judge had failed to consider CF’s contributory negligence defence; and
  4. The motion judge had failed to put CF on notice that he might grant judgment against it, thereby affording CF the opportunity to address that litigation risk.

The Court noted that the case was an illustration of the problems that can arise when the Court goes beyond the issues raised and spoken to by the parties.

The Court also held that the motion judge had erred in law by admitting the hearsay evidence. Regarding r. 20.02, the Court held that if 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 at trial. If so, it should be admitted. If not, the onus is on the party proffering the evidence to justify some expansion of the rules governing admissibility in the context of the motion. The Court suggests that one such example of this may be circumstances in which the affidavit complies with r. 20.02(1) and the opposing party had a “fair chance to challenge the hearsay evidence”.[2]

The Court also found that some of the evidence was in any event inadmissible for failure to disclose the identity of the third party speakers (as required by r. 20.02(1)). The evidence was not found to be admissible under the business records exception nor the principled approach.

The Court held that without the hearsay evidence, the remaining evidence on whether the standard of care was met was that of CF. Accordingly, the Court overturned the decision and granted summary judgment to CF.

The Court’s decision is a caution against the granting of boomerang summary judgment and other decisions involving the determination of issues that the parties had not had the opportunity to speak to. The Court’s decision concerning the limitations of the affidavit exception is likely applicable to all motions involving contested evidence, and not just summary judgment motions. Counsel would be well served to heed the Court’s warning, and to be mindful of the presence of such hearsay evidence in the affidavits of opposing parties.

CITATION: Drummond v. Cadillac Fairview Corporation Limited,
2019 ONCA 447
DATE: 20190530
DOCKET: C65825
 

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[1] RRO 1990, Reg 194. 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”. The Rule 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.”

[2]Drummond v Cadillac Fairview Corporation Limited, 2019 ONCA 447, at para 24.

Ontario Court of Appeal limitations Evidence

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