DENIS JOSEPH SAULNIER, Plaintiff/Respondent, – v. –, 2024 NBKB 23

IN THE COURT OF KIING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Saulnier v. Foulem Construction et al 2024 NBKB 023 MC-202-2021 Date: 2024/02/02 BETWEEN: DENIS JOSEPH SAULNIER, Plaintiff/Respondent, – and – FOULEM CONSTRUCTION LTÉE and WESTMOUNT DEVELOPMENTS VHM HOLDINGS INC., Defendants/Applicants. DECISION BEFORE: Mr. Justice Jean-Paul Ouellette AT: Moncton, New Brunswick DATE OF HEARING: February 2, 2024

DATE OF DECISION: February 2, 2024 APPEARANCES: Denis Joseph Saulnier, per se Blair C. Fraser, K.C. on behalf of the Defendants/Applicants Ouellette, J. INTRODUCTION [ 1 ] Foulem Construction Ltée and Westmount Developments VHM Holdings Inc., seek an order granting judgement dismissing the claim filed by Denis Joseph Saulnier on March 23, 2021, pursuant to Rule 22 of the Rules of Court. [ 2 ] Mr.

Saulnier alleges in his Statement of Claim that, on April 26, 2020, at about 13 hrs 30, he was walking on the sidewalk on Vaughan Harvey Boulevard, in Moncton, NB, when he encountered a child on the sidewalk traveling the opposite direction. Moving to avoid the child, his foot suddenly struck a piece of construction equipment and he fell forward onto the ground. Mr. Saulnier suffered personal injuries including straining, tearing and trauma to the muscles, tendons and ligaments in his shoulder and back. [ 3 ] Foulem and Westmount denied all responsibilities for the injuries suffered by Mr. Saulnier.

For the reasons that follow, judgment should be granted dismissing this claim. The evidence [ 4 ] Mr. Saulnier did not file any affidavit in support of his claim, nor did he appear at this hearing. From the record, Mr Saulnier and his former counsel, for the reasons given by this court at the opening of this hearing, the court heard counsel for Foulem and Westmount and rendered its decision accordingly. [ 5 ] From his Statement of Claim, on or about April 26, 2020, at approximately 1:30 p.m., Mr.

Saulnier alleged being on a public sidewalk on Vaughan Harvey Boulevard, adjacent to a property for which Foulem and Westmount were responsible. [ 6 ] Mr. Saulnier moved suddenly to avoid an oncoming child cyclist when, while walking on the public sidewalk, his foot struck a piece of pipe protruding from the Westmount property causing him to fall forward onto the ground suffering injuries, loss and damages as a result of Foulem’s and Westmount’s negligence.

He alleges that Foulem and Westmount were responsible for the condition of the sidewalk, which he claims was within the scope of the construction mandate of Foulem. [ 7 ] Foulem was responsible for the construction and maintenance of an apartment complex on Ivan Rand Drive, near Vaughan Harvey Boulevard, in the whereabouts of the alleged incident. Westmount was the owner of the property occupied by Foulem. [ 8 ] On April 30, 2020, D.

Foulem, area manager of Foulem, states in his affidavit he was contacted by an individual who claimed he had tripped on a piece of pipe on the sidewalk on Vaughan Harvey Boulevard earlier that week and as stated in the Statement of Claim. Upon visiting the public sidewalk, Mr. Foulem determined that the location in question was under video surveillance. [ 9 ] Mr. Foulem took a photograph showing the public sidewalk and a length of black plastic tubing located in the grass adjacent to the public sidewalk laying flat on the ground.

The public sidewalk is located outside the fenced construction zone for which Foulem was responsible on public property. The pipe can be described as a single pipe about in a 10-foot circle away 3-4 feet from the sidewalk.

[ 10 ] Mr. Foulem subsequently reviewed the surveillance footage of the location of the alleged accident for the date of April 26, 2020, from 11:31:15 a.m. to 3:53:50 p.m., which does not reveal any occurrence similar in nature to the alleged accident as described by Mr. Saulnier. The surveillance footage was attached to Mr. Foulem’s affidavit supporting his sayings with the time and date appearing on the video. [ 11 ] The surveillance footage as above described was provided to Mr. Saulnier’s then counsel on May 4, 2022. She requested metadata to confirm the date of the surveillance footage.

On July 12, counsel for Foulem asked counsel for Mr. Saulnier to clarify her “request for metadata of the surveillance footage”. Until December 15, 2023, when she was removed as counsel for Mr. Saulnier, no response from counsel was received or provided to Foulem by Mr. Saulnier to this date. [ 12 ] Mr. Foulem states that Foulem and Westmount have no knowledge or evidence or information which would support Mr. Saulnier’s claim. ISSUE [ 13 ] The only issue to be decided is: Should this court grant

summary judgment dismissing Mr. Saulnier’s claim? ANALYSIS AND CONCLUSION [ 14 ] Foulem and Westmount rely on Rules 22.01(3), 22.04(1)(a), 22.04(2) and 22.04(3) of the Rules of Court which state as follows: 22.01 Where Available […] To Defendant

(3) After the defendant has served a Statement of Defence, the defendant may move with supporting affidavit or other evidence for

summary judgment dismissing all or part of the claim in the Statement of Claim. […] 22.04 Disposition of Motion General

(1) The court shall grant

summary judgment if (

a) the court is satisfied there is no genuine issue requiring a trial with respect to a claim or defence, or

[…] Powers

(2) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties andmay exercise any of the following powers for the purpose, unless it is in the interests of justice for those powers to be exercised only at atrial: (

a) weighing the evidence; (

b) evaluating the credibility of a deponent; and (

c) drawing a reasonable inference from the evidence. Oral Evidence (mini-trial)

(3) For the purposes of exercising the powers set out in this subrule, a judge may order that oral evidence be presented by one or moreparties, with or without time limits on its presentation. [15] In 22 King Street Inc. et al v. The Bank of Nova Scotia, 2018 NBCA 16, our Court of Appeal addressed the process by which acourt should consider a motion for

summary judgment under Rule 22 and wrote: [10] The motion judge undertook a thorough review of the record, assessed the evidence and made findings of fact that are supported bythe evidence. He interpreted and applied the proper jurisprudence: In considering the outcome of

summary judgment motions, I am guided by the words of Drapeau, J.A., as he then was, in Cannon v.Lange, (NBCA) [203 N.B.R. (2d) 121]. It confirms the high standard which must be met by a party seekingsummary judgment. Essentially, as noted in paragraph 18, The wording of rule 22.04 sets the standard at a high level. It provides that the court may grant judgment only where there is no merit tothe defence or no merit to the claim, or part thereof. The wording leaves no room for anything but a very stringent test.

In addition, the parties have pointed my attention to the decision of the Supreme Court of Canada in Hryniak v. Mauldin, [2014 SCC 7],2014 SCC 7 , [2014] 1 S.C.R. 87. That decision instructs us in part that: 4. [...] In my view, a trial is not required if a

summary judgment motion can achieve a fair and just adjudication, if it provides aprocess that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, moreexpeditious and less expensive means to achieve a just result than going to trial. Similar sentiments were expressed in Bruno Appliance and Furniture Inc. v. Hryniak, 2014 SCC 8, where the court wrote at para. 22, [T]he motion judge should ask whether the matter can be resolved in a fair and just manner on a

summary judgment motion.This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply thelaw to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

Returning again to Hryniak v. Mauldin, supra, the court further instructs us at para. 66 that, On a motion for

summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trialbased only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trialif the

summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is atimely, affordable and proportionate procedure [...] [paras. 5-8] [Emphasis added] [16] In Hryniak v Mauldin, 2014 SCC 7, Justice Karakatsanis sets out a clear two-step test: the judge must consider if there is agenuine issue requiring a trial on the evidence before them (as per Rule 22.04(2)); and the judge must do so without using any of newfact-finding powers found at Rules 22.04(2) and 22.04(3). If there is no genuine issue requiring a trial based on the record before theCourt, then the judge must grant

summary judgment. If there is a genuine issue requiring trial, the judge must move on to step twoand determine if a mini-trial is appropriate (a proportionate, more expeditious and less expensive means to achieve a just result thangoing to trial) as per Rules 22.04(2) and 22.04(3) (see Hicks v. Roy, 2017 NBQB 205). [17] In Caissie v. Pelletier, 2017 NBQB 51, McNally, J. wrote: [15] In determining whether

summary judgment should be granted the analysis must logically begin with an examination of thepleadings, the nature of the relief claimed, the facts alleged to support the claims of relief, any admissions and then an examination of theevidence presented on the motion for

summary judgment. [Emphasis added] [18] In Gaudet v. Rogers et al, 2022 NBKB 201 , 2022 NBQB 201 [Gaudet], Justice Morrison summarized the keyprinciples applicable to motions for

summary judgment (at para. 20): 1. The only test for

summary judgment is whether there is a genuine issue requiring a trial; 2. The burden of proof is on the moving party to establish there is no genuine issue requiring a trial and it is on the balance ofprobabilities; 3. The importance of the parties putting their best foot forward and leading trump or risk losing is more significant under the new Rule22; 4. The Rule provides for a two-step process to determine whether there is a genuine issue requiring a trial; 5. In step one the judge must determine if the evidence presented reveals a genuine issue requiring a trial.

If, on the filed evidencealone, the judge can fairly and justly adjudicate the dispute there will be no genuine issue requiring a trial and the judge mustgrant

summary judgment; 6. If the judge cannot adjudicate the dispute on the filed evidence, he will proceed to step two. A judge only proceeds to step twoif the assessment of the filed evidence leads to the conclusion that there may be a genuine issuer requiring a trial. The judge willthen determine if a trial can be avoided by resorting to the fact-find powers of Rules 22.04(2) and (3) (the “mini trial”);

7. The guiding principle is that it will always be in the interest of justice for a judge to make use of the mini-trial where possible. [Emphasis added] [ 19 ] Beside the Statement of Claim, no evidence was filed by Mr. Saulnier. The evidence under oath filed by Mr. Foulem on behalf of Foulem and Westmount is sufficient to discredit Mr. Saulnier’s allegations that the alleged accident occurred. On this evidence, this court can fairly adjudicate the within matter on

summary judgment. [ 20 ] There is no genuine issue requiring a trial based on the evidence available to this court, and

summary judgment should be granted at the first step of the test without resorting to the fact-find powers of Rule 22.04(2) and (3). [ 21 ] On a balance of probabilities, neither Foulem or Westmount are liable for any damages alleged by Mr. Saulnier, as there is no genuine issue requiring a trial. Consequently,

summary judgment should be issued in their favour. DISPOSITION [ 22 ] It is the decision of this court that

summary judgment in favour of Foulem Construction Ltée and Westmount Developments VHM Holdings Inc. is granted dismissing the claim of Denis Joseph Saulnier with costs of $2,000.00 all-inclusive. RENDERED at Moncton, N.B., this 2 nd day of February 2024. _______________________________________ Jean-Paul Ouellette Justice of the Court of King’s Bench of New Brunswick