Mosher Engineering Limited v. Ootoova Estate, 2011 NUCA 06

In the Court of Appeal of Nunavut Citation: Mosher Engineering Limited v. Ootoova Estate, 2011 NUCA 06 Date: 20111003 Docket: 11-11-001-CAP Registry: Iqaluit Between: Mosher Engineering Limited Appellant (Defendant and Fourth Party) - and - The Estate of Andy Ootoova, deceased, by the Administrator of The Public Trustee of Nunavut, Caleb Ootoova, Rigelee Ootoova, Doreen Ootoova, and Paul Ootoova Respondents (Plaintiffs) - and - Hamlet of Pond Inlet Not involved in Appeal (Defendant) - and - The Government of Nunavut Not involved in Appeal (Third Party) _______________________________________________________

The Court: The Honourable Mr. Justice Frans Slatter The Honourable Mr. Justice L.F. Gower The Honourable Mr. Justice J.D. Bruce McDonald _______________________________________________________ Memorandum of Judgment Delivered from the Bench Appeal from the Decision by The Honourable Mr. Justice R.P. Foisy Dated the 9th day of March, 2010 Filed on the 17th day of June, 2010 (Docket: 11-06-0369-CVC) _______________________________________________________ Memorandum of Judgment Delivered from the Bench _______________________________________________________ (NOTE: This document may have been edited for publication) Slatter J.A. (for the Court): [ 1 ] This is an appeal from the denial of a

summary dismissal application. [ 2 ] The deceased, Andy Ootoova, was found badly injured at the bottom of a void in the berm wall at the Pond Inlet sewage lagoon. He died soon after. At the time the appellant Mosher Engineering was doing work to expand the lagoon. [ 3 ] The estate commenced an action against the appellant and others, alleging that the deceased was killed when his ATV rolled over while he was riding on the berm around the sewage lagoon. The claim alleged that the appellant and others were negligent in the construction of the lagoon, or in failing to fence off or post warnings about the void in the berm wall.

[ 4 ] Another defendant appears to have admitted in its pleadings that there was an ATV accident. The appellant, however, denied that; noting that no ATV was found at the scene, nor were any ATV tracks seen. The appellant applied for

summary dismissal of the claim. [ 5 ] The respondent resisted the application with an affidavit of a local businessman, who gave his opinion that the slope of the berm wall was dangerous for ATV travel. This affidavit did not swear that the deceased was riding on an ATV at the time of the accident, nor that an ATV accident occurred. [ 6 ] The chambers judge dismissed the application.

While he acknowledged that the apparent admission in the statement of defence of the other defendant that there was an ATV accident was not binding on the appellant, he held that the admission “. . . in a general sense . . . tends to show that there was or may have been an ATV involved.” [ 7 ] The chambers judge was correct that the admission was not binding on the appellant. There is not, however, any evidence on this record sufficient to resist

summary dismissal. The case law is clear that the plaintiff cannot just allege facts to resist

summary dismissal, but must bring forward some evidence to show that there is a genuine issue for trial: Canada (Attorney General) v. Lameman, 2008 SCC 14 , [2008] 1 SCR 372, at para. 19 . [ 8 ] There is no evidence on this record as to how the deceased suffered his fatal injuries.

Without any evidence as to how he was injured, there is no genuine issue raised about whether the appellant was negligent. [ 9 ] In the result, the appeal is allowed, and the action is dismissed against the appellant. (Discussion on costs.) [ 10 ] The appellant is entitled to costs of the respondent plaintiff’s claim below and the appeal, to be taxed based on a claim of $100,000, with payment stayed until the resolution of the action against the other defendants, or September 21, 2014, whichever first occurs.

Appeal heard on September 21, 2011 Memorandum filed at Iqaluit, Nunavut This 3rd day of October, 2011 Slatter, J.A. Appearances: P.G. Gibson for the Appellant

H.D. Van Iderstine for the Respondent