Evidence and Fairness in Summary Judgment: Drummond V. Cadillac Fairview

OVERVIEW

The landscape of summary judgment has changed considerably since the “culture shift” imposed by the Supreme Court of Canada in Hryniak v. Mauldin[1] back in 2014. Very few decisions should prove to be as instructive as the Ontario Court of Appeal’s recent decision in Drummond v. Cadillac Fairview Corporation Limited.[2]

In Drummond, the Ontario Court of Appeal (re)visits two hot-button issues – so-called “boomerang” summary judgment and the permissibility of hearsay evidence in seeking (or resisting) summary judgment – restricting, but not precluding, the use of both.

This paper will discuss Drummond, examine its conclusions, and will provide practical advice for litigants who find themselves either seeking or resisting summary judgment.

PART I – HEARSAY IN SUMMARY JUDGMENT

THE LEGAL FRAMEWORK

A motion for summary judgment – and any response to it – is typically based in affidavit evidence.

The admissibility of affidavit evidence in any proceeding is generally dictated by Rule 4.06 of the Rules of Civil Procedure, which reads:

4.06 (2) An affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise.

This general rule is modified by Rule 39.01(4), which allows an affidavit for use on a motion to contain statements of its deponent’s information and belief, but only if the source of that information and the fact of that belief is stated within it.

On a motion for summary judgment, the rules underlying affidavit evidence are modified even further by Rule 20.02(1), which reads:

20.02 (1) 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.

Therefore, in the context of summary judgment, litigants have the same ability to proffer hearsay evidence by way of affidavit that they do in other types of motions; however, a motion judge is expressly granted the ability to draw an adverse inference from sole reliance on it where the hearsay goes to contested facts.

An exception to the above rules is where a party tenders hearsay evidence to establish facts that are not contentious, are clearly relevant, and where it is not purposefully put forward to avoid cross-examination.[3] In this context, “contentious” evidence refers to something that is in dispute or where there are differences between opposite parties.[4]

A violation of the rules concerning affidavit evidence is not a mere technicality or irregularity that should be cured – where it is clear in law that affidavit evidence is inadmissible, it should be regarded as “worthless” and prejudicial to a fair hearing of the motion.[5] Particular concern is given to the prevention of inadmissible hearsay.[6]

Put another way, Rules 20.02(1) and 39.01(4) operate as a controlled exception to the rule against hearsay evidence. Subject to this limited exception, the same rules that govern the admissibility of evidence at trial are applicable on a motion for summary judgment.[7]

DRUMMOND v. CADILLAC FAIRVIEW

In Drummond, the Ontario Court of Appeal revisited the admissibility of hearsay evidence in the context of summary judgment, ultimately emphasizing that it is subject to the same considerations at both summary judgment and trial.

I – Facts and the underlying Motion

The motion in Drummond arises in the context of an occupiers’ liability action in which the plaintiff attended a mall with his fiancé and two daughters. The mall was owned and managed by Cadillac Fairview.

While at the mall, the plaintiff tripped over a skateboard that was left in its food court. The skateboard was brought to the mall by a twelve year old boy who was not named as a party to the action.

The plaintiff eventually sued Cadillac Fairview, who brought a motion for summary judgment to dismiss the underlying action on the basis that it had met its obligations as an occupier in the circumstances. No cross-motion for summary judgment was brought by the plaintiff.

In support of its motion, Cadillac Fairview tendered affidavit evidence from a security guard employed by Cadillac Fairview who was on duty at the time of the incident. He provided the following evidence, all of which spoke to his direct knowledge of the events leading up to the accident:[8]

1. 1. the young skateboard owner was not known as a person who was a potential hazard;
   2. he patrolled the food court as part of his shift that day, including the period of time around the accident;
   3. on a typical shift he would have patrolled the food court roughly 15 times; and
   4. he saw two other security guards patrolling that day.

Cadillac Fairview’s deponent also attached “memorandum books” of the two other guards on duty at the relevant time and noted that none of them made any reference to the owner of the skateboard or any potential hazard he may have posed to patrons in the mall.

In response to Cadillac Fairview’s motion, the plaintiff deposed to evidence from his fiancé as well as one of his daughters, both of whom were present at the time of the accident, including that:[9]

1. 1. his daughter told him she had seen the owner of the skateboard playing with it on the floor with his feet, moving it from side to side;
   2. his fiancé told him she had conversations with two unidentified members of the cleaning staff at the mall, who said:

a) about an hour before the accident, a skateboard had struck the first cleaner;

b) the first cleaner sustained a small cut on the back of her foot;

c) the first cleaner told the owner of the skateboard to stop playing with it;

d) the owner of the skateboard had been seated in the same location in the food court where the accident took place; and

e) the second cleaner saw the owner of the skateboard playing with it with his feet.

The motion judge accepted the hearsay evidence of the plaintiff’s daughter and fiancé for the truth of its contents. His analysis as to its admissibility was:[10]

In the immediate case, both parties submitted and relied on hearsay evidence. I am accepting all of this evidence for the truth of its contents, which is permitted under rule 20.02 (1).

Although hearsay, the evidence would also have been admissible pursuant to the business records exceptions and the reliability and necessity exception to the rule against hearsay.

The motion judge relied on this hearsay in finding the following facts:[11]

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.

Based on the above facts, the motion judge found that Cadillac Fairview had breached its duties in the circumstances and granted judgment in favour of the plaintiff, despite the plaintiff not having sought this relief.

II – The appeal

The Ontario Court of Appeal allowed the appeal on the grounds that the motion judge relied on inadmissible hearsay in granting summary judgment in favour of the plaintiff. In doing so, it set out a framework for the admissibility of hearsay evidence in support of (or in response to) a motion for summary judgment.

Writing for the unanimous panel in Drummond, Justice Brown began his analysis by cautioning against placing reliance on hearsay evidence that goes to contested facts on summary judgment, noting that the Ontario Court of Appeal had expressed “strong reservations” about doing so in the past.[12] He noted that motion judges should not give weight to evidence that would otherwise be inadmissible at trial.[13] A strong caution is given to litigants that:[14]

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

The most important take-away from Drummond in this respect is that where parties seek to tender hearsay evidence on a motion for summary judgment, the following test for its admissibility should be used:[15]

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.

Applying this test to the decision below, Justice Brown held that motion judge had erred in relying on the hearsay evidence of the plaintiff’s daughter and fiancé, which “went to the heart of the plaintiff’s negligence claim.” On review, the evidence was fraught with the following issues:

1. 1. the hearsay evidence of the plaintiff’s fiancé ran afoul of the requirement under Rule 20.02(1) that the source of an affiant’s information and belief be set out in their affidavit – it did not name the cleaners that she spoke to;
   2. in addition, the hearsay evidence of the plaintiff’s fiancé was double hearsay – the plaintiff was deposing to what his fiancé had told him about what she had heard from two unnamed cleaners;
   3. the plaintiff argued that the unnamed cleaners were essential witnesses and that their direct evidence was required for a trial of the issues; and
   4. the plaintiff offered no explanation as to why his daughter and fiancé could not provide their own affidavit.

While the motion judge concluded that the hearsay was admissible pursuant to the principled exception to hearsay (ie it is necessary and reliable) and to the business records exception, Justice Brown noted that this conclusion was reached without analysis. The conclusion was also noted to have been in error, as there was no evidence tendered to establish its necessity, its reliability, or how any of it could possibly fall under the business records exception.

In applying the test laid out above, the plaintiff’s hearsay evidence was not admissible. First, the evidence clearly went to a fundamental and contested aspect of the motion. Despite this, there was no evidence capable of establishing that it could fall under some sort of exception to the general rule against hearsay. Further, and in any event, the fiancé’s evidence was not compliant with Rule 20.02(1) in that it did not state the source of her information. Put another way, the plaintiff had failed to provide any justification for the admissibility of any of the hearsay evidence he had tendered and thus it was inadmissible. The appeal was allowed as this inadmissible evidence formed the basis of the motion judge’s findings of liability as against it.

Further emphasizing the importance of putting appropriate evidence before the Court, the Ontario Court of Appeal went one step further and actually granted Cadillac Fairview summary judgment. After having concluded that the plaintiff’s hearsay evidence was inadmissible, the only evidence before the Court as to standard of care was Cadillac Fairview’s direct and favourable evidence. In the circumstances, the plaintiff had failed to provide the evidence necessary to establish that there was a genuine issue for trial.

THE STATE OF THE LAW

Since the release of Drummond, it has been cited by a Master in giving little weight to the hearsay evidence contained within a lawyer’s affidavit that went to the heart of a limitations issue before the Court.[16]

In light of Drummond, the Ontario Court of Appeal has made clear that the following analysis should be applied where hearsay evidence is being tendered in the context of summary judgment on a “fundamental contested aspect” of the motion:

1. 1. Consider whether it would be admissible under the rules governing admissibility at trial. a) If yes, the evidence is admissible on the motion.
   2. If not, the onus falls to the party proffering the evidence to justify some expansion of the rules governing admissibility in the context of the motion.

While the Ontario Court of Appeal did not provide an exhaustive list of possible justifications for admitting evidence that would otherwise be inadmissible at trial, one example that it gave was where the evidence complies with Rule 20.02(1) and the opposing party had a fair chance to challenge the hearsay evidence.

It is now clear that on a motion for summary judgment, the same rules that govern the admissibility of hearsay evidence at trial apply on the motion. While it may still be relied on to establish uncontroversial facts, reliance on Rule 20.02(1) in and of itself is sufficient to establish the admissibility of hearsay evidence if that evidence goes to a “fundamental contested aspect” of the motion.

PRACTICAL ADVICE

A number of practical considerations arise from Drummond that should be accounted for by parties both in bringing and responding to motions for summary judgment.

1. 1. It is (obviously) preferable to tender direct evidence on contested aspects of the motion.
   2. If hearsay affidavit evidence is required, ensure that the affidavit also lays the evidentiary groundwork for an exception to the rule against hearsay. For example, if one is going to rely on the principled exception, ensure that the affidavit speaks to why it is necessary that the evidence be tendered by way of hearsay and why the Court should consider that evidence reliable.
   3. If an affiant is tendering evidence on information and belief, the source of that information as well as the fact of that belief must be stated to ensure compliance with Rule 20.02(1).
   4. If hearsay evidence on a contested aspect of a motion for summary judgment would not otherwise be admissible at trial, it will likely not be admissible on the motion.

PART II – “BOOMERANG” SUMMARY JUDGMENT

THE LEGAL FRAMEWORK PRE-DRUMMOND

While the most common adverse consequence faced by a party that is unsuccessful in seeking summary judgment is a dismissal of their motion and an adverse award of costs, a far more rare but drastic risk is that of “boomerang” summary judgment.

“Boomerang” summary judgment refers to an instance in which summary judgment is granted – but in favour of a responding party that did not request it.[17] Such a finding has been open to motion judges since at least 1996;[18] however, became more fashionable post-Hryniak. In fact, the Ontario Court of Appeal made it “abundantly clear that this is a proper plea”[19] by upholding three separate instances in which it was granted by motion judges in the two years following Hryniak.[20]

Post-Hryniak, the policy rationale underlying the availability of “boomerang” summary judgment was given limited analysis. In upholding a motion judge’s decision to grant boomerang summary judgment in King Lofts Toronto I Ltd. v. Emmons, the Ontario Court of Appeal noted only:[21]

In oral argument, the appellant added a new ground of appeal: that the motion judge erred in granting judgment in favour of a party who had not given advance notice of a claim for summary judgment. There are two points in response to this:

1)   The appellant did not request an adjournment at the time; and

2)   The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), has approved a “culture shift” requiring judges to manage the process in line with the principle of proportionality in the application of Rule 20. 

The Ontario Court of Appeal next addressed this issue in Kassburg v. Sun Life Assurance Company of Canada, where it stated:[22]

Consistent with the decision of the Supreme Court in Hryniak and the clear wording and purpose of the summary judgment rule, it was open to the motion judge to determine the issue of the limitation defence on a final basis on the record before him in this case. 

It was also noted in Kassburg v. Sun Life Assurance Company of Canada that the motion judge had before him a comprehensive record on the subject issue and that the unsuccessful party declined to cross-examine the successful party’s affiant.

By 2016 – less than two years after later – “boomerang” summary judgment appeared to be a feature of the post-Hryniak landscape. King Lofts and Kassburg were cited by the Ontario Court of Appeal in Meridian Credit Union Limited v. Baig as “making it clear that it is permissible for a motion judge to grant judgment in favour of the responding party, even in the absence of a cross-motion for such relief.”[23] Motion judges proceeded to follow suit and on this newly clarified authority began to grant “boomerang” summary judgment.

DRUMMOND V CADILLAC FAIRVIEW

The motion judge in Drummond granted the plaintiff summary judgment for reasons discussed in this paper above. This was done in spite of the plaintiff’s failure to bring a cross-motion seeking such relief.

The appeal in Drummond was not only allowed on the basis of the hearsay issue discussed above, it was also allowed on the basis that “boomerang” summary judgment should not have been granted. This was not because the motion judge did not have the ability to do so; rather, he did so in such circumstances that amounted to an unfair process.

In allowing this appeal, the Ontario Court of Appeal essentially noted that procedural fairness is an pre-condition to the granting of summary judgment:[24]

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 (CanLII), [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. (emphasis in original)

The Ontario Court of Appeal noted that the summary judgment in the motion below did not amount to a fair and just determination on the merits of the motion due to the following factors:[25]

• 1. the plaintiff did not bring a cross-motion for summary judgment;
  2. the only suggestion made by the plaintiff that it may seek summary judgment was a three-line request in the alternative at the end of his responding factum;
  3. the plaintiff’s main position before the motion judge was that the case was not appropriate for summary judgment and that a trial was required;
  4. the plaintiff’s position before the motion judge was also that there was a need for further evidence from additional witnesses (including the unidentified cleaners referenced above);
  5. nobody spoke to summary judgment against Cadillac Fairview in their submissions;
  6. the motion judge failed to consider Cadillac Fairview’s defence of contributory negligence; and
  7. the motion judge failed to put Cadillac Fairview on notice that he might grant summary judgment against it, which deprived it of an opportunity to address that litigation risk.

The Court of Appeal additionally raised a practical issue arising where a motion judge decides to grant “boomerang” summary judgment – by failing to put Cadillac Fairview on notice of potential adverse summary judgment, its counsel did not have any opportunity to raise issues it surely would have in response:[26]

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 judge’s 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 judge’s attention the contributory negligence defence and its impact on the motion judge’s 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 judge’s analysis.

In addition to the issue with hearsay evidence considered above, the Court of Appeal allowed the appeal due to the lack of procedural fairness arising as a result of the summary judgment granted in favour of the plaintiff.

THE STATE OF THE LAW

Since its release, Drummond has been cited in at least one reported decision by a motion judge who noted that the Ontario Court of Appeal has “emphasized caution” in granting boomerang summary judgment.[27]

While the Ontario Court of Appeal has not closed the door on “boomerang” summary judgment with its decision in Drummond, it has certainly emphasized that a party against whom summary judgment may be granted without request by the party opposite must be put on notice by the motion judge and given a chance to respond.

[1] 2014 SCC 7 (“Hryniak”).

[2] 2019 ONCA 447, rev’g 2018 ONSC 4509 (“Drummond”).

[3] Belsito v. 2220742 Ontario Ltd., 2017 ONSC 7207 (“Belsito”) at para 17.

[4] Belsito at para. 17.

[5] Belsito at para. 17.

[6] Belsito at para. 17.

[7] Sanzone v. Schechter, 2016 ONCA 566 at para. 15

[8] Drummond, 2019 ONCA 447 at para. 40.

[9] Drummond, 2019 ONCA 447 at paras. 16-18.

[10] Drummond, 2018 ONSC 4509 at paras. 20-21.

[11] Drummond, 2018 ONSC 4509 at para. 53.

[12] Drummond, 2019 ONCA 447 at paras. 21-22.

[13] Drummond, 2019 ONCA 447 at para. 22.

[14] Drummond, 2019 ONCA 447 at para. 23.

[15] Drummond, 2019 ONCA 447 at paras. 24.

[16] Gates v. Gates, 2019 ONSC 5416 at footnote 15.

[17] A quick search of reported case law indicates that the first judicial mention of this phenomenon being referred to as “boomerang summary judgment” was by Justice Myers in TSCC 2130 v. York Bremner Developments Limited, 2016 ONSC 5393, though it is clear from his Reasons that the term had long become colloquial.

[18] Manulife Bank of Canada v. Conlin, 1996 CanLII 182 (SCC).

[19] TSCC 2130 v. York Bremner Developments Limited, 2016 ONSC 5393 at para. 117.

[20] King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215. Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922. Meridian Credit Union Limited v. Baig, 2016 ONCA 150.

[21] King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215 at para. 14.

[22] Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922 at para. 52.

[23] Meridian Credit Union Limited v. Baig, 2016 ONCA 150 at para. 17.

[24] Drummond, 2019 ONCA 447 at para. 11.

[25] Drummond, 2019 ONCA 447 at para. 12.

[26] Drummond, 2019 ONCA 447 at para. 14.

[27] The Office Centre (Kingston) Limited. v. Salshir Properties Limited et al, 2019 ONSC 4135 at para. 20.