Summary Judgment Motions: Hearsay Evidence and Boomerang Motions

by Jacinthe Boudreau | Oct 23, 2019

The Court of Appeal made new law in Drummond v. Cadillac-Fairview Corporation Limited[1]. The Court held that a motion for summary judgment should not be granted against a party who has had no notice that summary judgment was being sought against it. The Court found that the motion judge erred by failing to afford the defendant an opportunity to address the risk that judgment may be granted against it. This lack of procedural fairness was a sufficient basis to allow the appeal and set aside the judgment in favour of the plaintiff.

The Drummond decision is in sharp contrast with an earlier decision of the Court of Appeal where it upheld the decision of Justice Perell in King Lofts Toronto Ltd. v. Emmons[2]. In King Lofts, Justice Perell granted summary judgment in favour of a plaintiff though the plaintiff did not bring a cross motion for summary judgment[3].

The Court of Appeal in Drummond also held that the motion judge erred in relying on hearsay evidence to make findings against the defendant and cautioned against the admissibility of hearsay evidence to make findings on fundamental issues in dispute on a motion for summary judgment.

The Court of Appeal found that where evidence on information and belief in an affidavit (in essence hearsay evidence) goes to a fundamental contested aspect of the action, the judge must first determine if the evidence would be admissible in accordance with the rules governing admissibility at trial. If not, the onus is on the party relying on the hearsay evidence to justify an expansion of the rules governing admissibility. In this respect, the Court gave as an example instances where an opposing party has a fair chance to challenge the hearsay evidence.

In Drummond, the plaintiff had brought an action against Cadillac-Fairview for injuries suffered when he tripped over a skateboard in a mall. At issue in the action was whether Cadillac-Fairview met the statutory duty imposed by the Occupiers’ Liability Act 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”.

In responding to the motion by Cadillac-Fairview seeking a dismissal of the action, the plaintiff included in his affidavit information provided by his daughter and his fiancée. The plaintiff’s daughter had advised him that she had seen the owner of the skateboard playing with the skateboard in the food court area. His fiancée reported that one member of the cleaning staff had stated that he had been struck by the skateboard earlier and had asked its owner to stop playing with it.

The plaintiff also relied on the affidavit of a security co-ordinator who had appended to his affidavit, unsworn handwritten statements by the plaintiff’s daughter and fiancée.

A review of the motion decision showed that the motion judge relied on the hearsay evidence to make a finding that the security guards’ patrols of the mall had been ineffective as they had not noticed that the skateboard owner was moving through the mall using a skateboard and had not secured his skateboard.[4] As a result, the motion judge found that CadillacFairview failed to implement its policies. There was no finding with respect to the failure by the cleaning staff to report the incident since the cleaning services were provided by an independent contractor

The plaintiff did not provide an explanation as to why he could not deliver direct evidence from the cleaning staff, nor affidavits from his daughter and fiancée. The Court of Appeal found that the motion judge erred in finding that the handwritten statements of the daughter and fiancée, could be admitted under the business record exception. The Court of Appeal further held that the motion judge erred in admitting the statements, under the “principled exception” to the hearsay rule as there was no analysis regarding the necessity to admit this evidence nor the reliability of this evidence. In a footnote to the decision, the Court noted that at discovery Cadillac-Fairview had undertaken to advise of the identity and contact information of the cleaner identified in the adjuster’s report. The Court noted that the plaintiff did not submit that Cadillac-Fairview had not complied with its undertaking (and therefore the name of the cleaner would have been available to the plaintiff). The Court of Appeal stressed that the motion judge’s error in admitting the hearsay evidence, was an additional reason to set aside the judgment against Cadillac-Fairview.

In contrast with the evidence delivered by the plaintiff, in support of its motion, Cadillac-Fairview relied on the evidence of a “first hand” witness. This was a security guard who patrolled the food court on that day and authored the incident report with respect to the plaintiff’s fall as a result of a skateboard which had not been secured by its 12 year old owner.[5]

On the basis of this evidence, the Court of Appeal found that Cadillac-Fairview had reasonable policies to ensure the safety of its patrons, which on the day of the accident had been implemented in a reasonable manner through the patrols performed by its security guards. They had not found during their patrols that a skateboard owner had an unsecured skateboard.

The Court of Appeal stressed that the standard was not for Cadillac-Fairview to maintain a constant surveillance or look out for potential danger, but rather that it take measures which were reasonable in the circumstances. The Court of Appeal found that there was no genuine issue for trial and dismissed the plaintiff’s action.

The “take away” messages from this decision are that the standard for admissibility on fundamental issues in an action, as well as the standard of procedural fairness, are the same in a summary judgment motion as they are at trial. A principle which remains, is that a party responding to a summary judgment motion must put his/her best food forward or risk losing. As the Courts have reminded us many times, it will not be sufficient to advise the Court that better evidence will be available at trial. Whether a party brings a motion for summary judgment, or responds to it, it must ensure that its evidence fits within the four corners of the law of evidence and admissibility rules.

Kueber v. Royal Victoria Regional Health Centre[6] is another example where the Court addressed the admissibility of evidence on a summary judgment motion. In that case, the plaintiff/appellant submitted that the defendant physicians’ experts had not complied with the requirement under Rule 53.03 to provide an Acknowledgment of the Expert’s Duty Form (Form 53). The motion judge had found that the Forms 53 had been forwarded to the plaintiff/appellant. The Court of Appeal noted that it would have been preferable for the motion judge to accept the offer by the physicians’ counsel to file the Forms 53, at the time of the hearing.

The Court of Appeal found that given the finding by the motion judge that the Forms 53 had been sent to the plaintiff, the judge’s failure to accept the filing of the Forms 53 at the motion was not a reversible error, and it was open to the motion judge to conclude that the doctors’ experts had complied with Rule 53.03[7]. The Court of Appeal upheld the dismissal of the plaintiff’s claim against the nine physicians.

This decision is a reminder that in light of the requirement of the Rules, counsel should ensure that the expert’s Form 53 is in evidence at the motion, or alternatively that there are grounds before the Court to expand the Rules governing admissibility. In Kueber, it was sufficient for the Court to have found that the Form 53 had been sent to the plaintiff. In other cases, I surmise that the cross-examinations of an expert where an expert is cross-examined on his/her qualifications, may also be sufficient to expand the Rule regarding admissibility where a Form 53 is not in evidence.

[1] Drummond v. Cadillac-Fairview Corporation Limited, 2019 ONCA 447

[2] 2013 ONSC 6113, Aff’d 2014 ONCA 215

[3] King Lofts Toronto Ltd. v. Emmons, 2013 ONSC 6113, at para. 86-87, Aff’d 2014 ONCA 215

[4] Drummond supra at para. 53

[5] Drummond v. Cadillac-Fairview Corp. [2018} OJ No. 4017 (SCJ), at para. 53-54

[6] Kueber v. Royal Victoria Regional Health Centre 2018 ONCA 125

[7] Kueber v. Royal Victoria Regional Health Centre, supra at para 14