) ) PETER PAIHA Plaintiff – v. –, 2010 ONSC 6358

CITATION : Paiha v. McVean Drive Estates Inc., 2010 ONSC 6358 BARRIE COURT FILE NO.: 09-0438 DATE: 20101118 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) PETER PAIHA Plaintiff – and – McVEAN DRIVE ESTATES INC., TONY RAPONI and 750359 ONTARIO LTD., operating as A/R GENERAL & MECHANICAL CONTRACTOR, also known as A.R. GENERAL & MECHANICAL CONTRACTOR Defendants ) ) ) ) ) ) ) ) )))))) M. Lemieux, for the Plaintiff R. Chown, for the Defendants (Moving Parties) ) ) ) HEARD: November 9, 2010 REASONS FOR DECISION DiTOMASO J.

INTRODUCTION [ 1 ] The defendants, McVean Drive Estates Inc. (“McVean”), Tony Raponi (“Raponi”) and 750359 Ontario Ltd., operating as A/R General & Mechanical Contractor, also known as A.R. General & Mechanical Contractor (“A/R”) move for

summary judgment dismissing this action with costs. In the alternative, the defendants seek an order dismissing this action for failure to comply with undertakings. In the further alternative, the defendants seek an order that the plaintiff, Peter Paiha (“Paiha”) shall answer all outstanding undertakings within 30 days. BACKGROUND [ 2 ] Mr. Paiha is a bricklayer who sought work from the defendants regarding a house being built at 10450 McVean Drive in Brampton, Ontario. [ 3 ] McVean owned and was constructing the house. Mr. Raponi is the vice-president of McVean. A/R is a company owned by Mr. Raponi.

The defence maintains that A/R did not own the premises and was not involved in its construction. [ 4 ] Mr. Paiha left his business card at the construction site because he wanted to provide a quote for the job. [ 5 ] Mr. Raponi met with Mr. Paiha and gave him the drawings so Mr. Paiha could prepare his quote. There is an issue as to where Mr. Paiha was to return the drawings – either inside the house that was being constructed or inside the site trailer. Mr. Raponi’s

version is that he did not give Mr. Paiha permission to enter the house with no one present. Mr. Paiha’s version is that Mr. Raponi adamantly instructed him to return the drawings to the job site and they were to be returned to the very location from which they were acquired, namely, back inside the house under construction. The defence concedes, for the purposes of this motion, there is disputed evidence regarding whether Mr. Paiha was trespassing, and what he was told about returning the drawings. These factual disputes give rise to genuine issues regarding trespass. [ 6 ] On April 5, 2007, Mr.

Paiha re-attended the job site and proceeded to return the plans inside the house under construction when no one was present. [ 7 ] Mr. Paiha entered the house through a door on the main level, which was not equipped with doorknobs or locks. [ 8 ] Upon leaving the house, Mr. Paiha exited through the same door from which he had entered. He tried to close the door by swinging it shut with his left hand. In attempting to close the door, it only swung back part of the way.

He grabbed the edge of the door with his left hand and on his second attempt to swing the door shut, the door closed on his left hand, severing the tip of his left index finger. Subsequently, the end of his finger was amputated as a result of this injury. ISSUE [ 9 ] Is there a genuine issue requiring a trial? POSITION OF THE PARTIES Position of the Defendants (Moving Parties) [ 10 ] The defendants submit that during construction, the routine for closing up the house at the end of the day was to jam the main floor doors, including the door in question, with a piece of wood.

The workers would then exit out the basement door, locking it behind them. When Mr. Paiha went to open the door, it would not open immediately. So he gave it a little bit of a push with his shoulder. [ 11 ] Mr. Paiha did not need to exit through the door he had entered. He could have closed the door from the inside and exited through the door in the basement, locking the basement door behind him. [ 12 ] The defence concedes there is a triable issue regarding trespass. Regardless of whether Mr. Paiha was trespassing, the defence maintains: (

a) it was Mr. Paiha’s own fault that he closed the door on his finger and there is no need for a trial to establish this; (

b) there was no breach of duty on the part of the defendants or any of them; and (

c) there was no foreseeable risk of harm to Mr. Paiha in the circumstances. [ 13 ] There is evidence that the house was under construction and the doorknob had not yet been installed, and no occupancy permit had been obtained yet. The door in question was not unsafe because it did not have a doorknob.

There is no evidence that the lack of a doorknob was an unusual hazard during construction. [ 14 ] Further, there was no evidence whatsoever of involvement on the part of A/R in the construction of the house, nor in any other relevant way. [ 15 ] Lastly, there was no evidence whatsoever of negligence on the part of the individual defendant, Mr. Raponi. He was not personally an occupier of the premises. Accordingly, there is no genuine issue requiring a trial and the action should be dismissed. Position of the Plaintiff [ 16 ] Mr.

Paiha submits that there is a genuine issue requiring a trial regarding the issue of trespass. This is acknowledged by the defence. Such a triable issue will require a full canvassing of the evidence of the parties given in person. The door in question was unsafe and did not function properly, not because it was lacking a doorknob, but rather because it was makeshift and could not be opened or closed properly. The door which caused Mr. Paiha’s injury was defective. The mating edges of the door and door casing were sharp edges because they lacked final trim.

As a result, the risk of harm was reasonably foreseeable and the sharp edges increased the severity of a potential injury to Mr. Paiha. [ 17 ] Mr. Paiha was instructed by Mr. Raponi to return the plans inside the house under construction and not at a worksite trailer as stated by Mr. Raponi. A duty of care existed on the part of the defendants to ensure that the premises were safe for Mr. Paiha to enter

and exit from the house without incident. The defendants failed to do so and breached their duty of care to Mr. Paiha. There arediscrepancies in the evidence which are not minor or easily resolved by way of a motion or resort to transcripts. There are serioussignificant credibility issues that can only be resolved at trial. As a result, the defendants’ motion for

summary judgment ought to bedismissed. ANALYSIS [18] Rule 20.04(2)(

a) of the Rules of Civil Procedure provides that the court shall grant

summary judgment if the court is satisfiedthat there is no genuine issue requiring a trial with respect to a claim. [19] In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by theparties, and the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers tobe exercised only at a trial: (

a) Weighing the evidence; (

b) Evaluating the credibility of a deponent; (

c) Drawing any reasonable inference from the evidence. See rule 20.04(2.1) of the Rules of Civil Procedure. [20] The onus still lies on the moving party to “prove” that there is no genuine issue for trial. See New Solutions Extrusion Corp.v. Gauthier, 2010 ONSC 1037 , [2010] O.J. No. 661 at para. 12. [21] Liability for negligence requires breach of a duty of care arising from a reasonably foreseeable risk of harm to one person,created by the act or omission of another. See Resurfice Corp. v.

Hanke, 2007 SCC 7 , [2007] 1 S.C.R. 333 at para. 6. [22] This court is not persuaded by the moving parties that there is no genuine issue requiring a trial for the following reasons. [23] The defence concedes that there is disputed evidence regarding whether Mr. Paiha was trespassing and what he was toldabout returning the drawings. The defence suggests that regardless of whether Mr. Paiha was trespassing, he was the author of his ownmisfortune. No trial is required to establish this. There was no breach of duty on the part of any of the defendants and there was noforeseeable risk of harm to Mr.

Paiha in the circumstances. I do not agree. [24] The genuine issue for trial regarding trespass is a critical one which sets the context of where Mr. Paiha was to return theplans with a view to explaining what he was doing inside the house on the day of the incident. [25] I have weighed the evidence and evaluated the credibility of Mr. Paiha and Mr. Raponi. There are two competing versions asto the accounts of events leading up to the incident. They are entirely different versions of events. [26] The defence’s position that Mr. Paiha is solely to blame for closing the door on his finger can only result from Mr.

Paiha’sevidence being rejected. However, a trial judge is required to hear the evidence of the parties in person in order to determine whether ornot Mr. Paiha was a trespasser and what duties, if any, were owed to him by the defendants. The defendants have not established thatthere was no breach of duty of care arising from a reasonably foreseeable risk of harm to Mr. Paiha. [27] Mr. Paiha’s position is that the door in question was unsafe, not because there was no doorknob, but rather because the doorwas defective and not properly functioning. [28] On his examination for discovery, Mr.

Paiha described how he swung the door to close it. While he did so, it only swungback part of the way. He grabbed the edge of the door with his left hand to pull it shut. The door was stiff and when he went to close thedoor with his left hand on the second attempt, it closed on his left index finger. Whether the door was unsafe and not functioningproperly, and whether there was a breach of duty of care, are all genuine issues requiring a trial. [29] A further triable issue is the involvement of the individual defendant, Mr. Raponi, regarding this job. Mr. Raponi is directorand officer of the corporate defendants.

The evidence discloses that he exercised personal control over the premises in question and gavetestimony that he was personally responsible for the door on the premises, and that he personally checked the door. Given this evidence,in issue is whether Mr. Raponi, on behalf of himself and on behalf of the corporate defendants were occupiers of the premises for thepurposes of the Occupiers Liability Act, R.S.O. 1990, c.O.2. [30] An additional triable issue is the involvement of the defendant, A/R in these events. Mr. Raponi’s evidence is that heprovided a business card to Mr.

Paiha for A/R as the contact information Mr. Paiha should use. Mr. Paiha takes the position that bydoing so, A/R was held out as a participant in the alleged events. [31] This is disputed by Mr. Raponi, whose evidence was that he did not have a correct business card to hand out and that A/R hadabsolutely no involvement or participation in the construction of the house. [32] I have considered the credibility of Mr. Raponi and Mr. Paiha. Their versions of events radically differ. I have concludedthat on all the evidence before the court, the evidence of Mr. Paiha and Mr.

Raponi and the credibility of these parties ought to beevaluated and assessed at trial after a trial judge has had the opportunity to hear their evidence in person.

[ 33 ] The defence has not established that Mr. Paiha was the author of his own misfortune by closing a door without a doorknob on his own finger. Rather, determinations of credibility and material facts in this action can only reasonably be disposed of by way of Mr. Paiha and Mr. Raponi attending before a trial judge, giving their evidence such that the trial judge can make critical findings which can only be made at trial and not on this motion. [ 34 ] Accordingly, the court is not satisfied that there is no genuine issue requiring a trial with respect to Mr. Paiha’s claim. The motion for

summary judgment is dismissed. [ 35 ] The defence also submits that the claims against A/R and Mr. Raponi personally ought to be dismissed. I have indicated that there are triable issues involving both Raponi personally and A/R that require determinations at trial. For the reasons stated above, the defence motion for

summary judgment in respect of A/R and Raponi also fails. [ 36 ] There are outstanding undertakings on Mr. Paiha’s examination for discovery. I have considered these outstanding undertakings set out at pages 21 and 29 of the Motion Compendium. The undertakings are further set out at questions 69, 284, 381 and 385 on the examination for discovery of Mr. Paiha dated January 14, 2010. No good reason has been given by the plaintiff as to why these undertakings have not been answered. These undertakings are proper and shall be answered by Mr. Paiha within the next 30 days. DISPOSITION [ 37 ] Accordingly, for the reasons given, the motion for

summary judgment is dismissed. Mr. Paiha shall answer undertakings at questions 69, 284, 381 and 385 on his examination for discovery held on January 14, 2010, within the next 30 days. [ 38 ] The parties agree that costs of this motion are to be determined by way of written submissions. The parties shall exchange a concise

summary of position not exceeding two pages in length, costs outline and bill of costs together with authorities, and file same with the Trial Co-ordinator at Barrie within the next 14 days. DiTOMASO J. Released: November 18, 2010