) ) LINDA LANGFORD Plaintiff – v. –, 2013 ONSC 2078

CITATION : Langford v. Ferguson, 2013 ONSC 2078 COURT FILE NO.: 09-44702 DATE: 2013-04-09 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) LINDA LANGFORD Plaintiff – and – BILL FERGUSON Defendant ) ) ) ) ) ) ) ) ) Douglas Menzies, for the Plaintiff Kristopher Dixon, for the Defendant ) ) ) HEARD: March 21, 2013 (Ottawa) reasons For decision on motion for

summary judgment KERSHMAN J. Introduction [ 1 ] The Defendant, Bill Ferguson, brings a motion for

summary judgment against the Plaintiff, Linda Langford in relation to an incident that occurred on January 23, 2009 when the Plaintiff, as an employee at the Mac’s Milk store, 13 Moore Street, Carleton Place, Ontario, alleges that she slipped and fell on a carpet in the store.

Defendant Moving Party’s Position [ 2 ] The Defendant’s position is that the Plaintiff has failed to provide any evidence to establish that the Defendant was in any way involved or was in any way negligent with respect to the slip and fall incident. [ 3 ] The Defendant argues: 1) that there is no genuine issue requiring a trial with respect to this claim; 2) that in the absence of any evidence whatsoever against the Defendant, there is no triable issue and an order for

summary judgment should be issued; 3) that the Plaintiff has not put her best foot forward and has not adduced evidence to support the allegations that the Defendant was negligent in the discharge of his duties on the night in question; and 4) that the Plaintiff is unable to show that the acts or omissions of the Defendant, if any, are in any way causally related or substantially connected to the injuries allegedly sustained by the Plaintiff. Plaintiff’s Position [ 4 ] The Plaintiff’s position is that there are real issues for trial of the events leading up to the alleged slip and fall and the Defendant’s practices with respect to the floor mat and buffing of the floor.

[ 5 ] The Plaintiff argues that only a trial judge can fully appreciate the evidence and the issues in order to make dispositive findings and that viva voce evidence is required. [ 6 ] For the reasons set out below, the motion for

summary judgment fails. Analysis [ 7 ] The Court notes that unfortunately, the night manager Fred Woolcombe, a witness to the cleaning of the floor mats and the buffing of the floor at Mac’s Milk, has passed away. [ 8 ] On June 9, 2011, Mr. Woolcombe was examined as a non-party witness. The transcripts of this evidence were available at the hearing of the motion. [ 9 ] The test for a

Summary judgment is set out in rules 20.01(3) and (4) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, as well as in the case of Combined Air Mechanical Services Inc. v. Flesch , [2011] ONCA 764. [ 10 ] The Court of Appeal in Combined Air has set out those cases in which

summary judgment is appropriate. They are listed at paras 40-44. Specifically,

summary judgment will generally be available in the following three instances: 1) where both parties agree that

summary judgment is the appropriate manner in which to determine the action; 2) where a motions judge determines that a claim or defence has no chance of success or merit; 3) where a motions judge is satisfied that the issues are capable of being fairly and justly resolved and where the trial process is not required in the interest of justice. [ 11 ] The second and third categories are relevant to this motion. The question to be posed is: “can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of

summary judgment, or can this full appreciation be achieved by way of a trial?” [ 12 ] The second type of case referred to in para 10 above which encompasses claims or defences that are shown to be without success was discussed in the Supreme Court of Canada case of Canada [AG] v. Lameman , 2008 SCC 14 , [2008] 1 S.C.R. 372 at para 10 . 10 This appeal is from an application for

summary judgment. The

summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage.

Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial. [ 13 ] This matter is also discussed at paras 46 and 47 of Combined Air which read as follows: 46 What is it about the trial process that certain types of cases require a trial for their fair and just resolution? In Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 , the majority decision of Iacobucci and Major JJ., at para. 14, quotes a passage from R.D.

Gibbens in "Appellate Review of Findings of Fact" (1991-92), 13 Advocates' Q . 445, at p. 446, which refers to the trial judge's "expertise in assessing and weighing the facts developed at trial". The quoted passage states: "The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence." The passage further notes that the trial judge gains insight by living with the case for days, weeks or even months.

At para. 18, Iacobucci and Major JJ. go on to observe that it is the trial judge's "extensive exposure to the evidence, the advantage of hearing testimony viva voce , and the judge's familiarity with the case as a whole" that enables him or her to gain the level of appreciation of the issues and the evidence that is required to make dispositive findings. 47 As these passages reflect, the trial judge is a trier of fact who participates in the dynamic of a trial, sees witnesses testify, follows the trial narrative, asks questions when in doubt as to the substance of the evidence, monitors the cut and thrust of the adversaries, and hears the evidence in the words of the witnesses.

As expressed by the majority in Housen , at para. 25 , the trial judge is in a "privileged position". The trial judge's role as a participant in the unfolding of the evidence at trial provides a greater assurance of fairness in the process for resolving the dispute.

The nature of the process is such that it is unlikely that the judge will overlook evidence as it is adduced into the record in his or her presence. [ 14 ] The Court is of the view that in this particular case, there is enough evidence to show that the Plaintiff may have some chance of success with respect to the claim for the following reasons: a. while the Plaintiff’s case appears to be inadequate to the Defendant, it does not appear to be inadequate to the Court.

There may be some weaknesses in the Plaintiff’s case however they did not amount to the Plaintiff having no chance of success at trial; b. while the Plaintiff relies on Mr. Woolcombe for part of the evidence, that is not the only source of evidence. There is the Plaintiff’s evidence of what happened when she slipped and fell and what happened afterwards; c. there is also a question of what condition the floor mat and the floor were in when the alleged incident occurred;

d. there is also the question of who removed the mat in question from the floor prior to the floor being buffed; and e. lastly, there is the question of how the mat got wet or what condition the floor was in. [ 15 ] The Plaintiff’s evidence in her affidavit is that she spoke with Mr. Woolcombe twice during her shift on January 23, 2009 about the incident. According to the Plaintiff, Mr.

Woolcombe told her that he had warned the Defendant repeatedly not to roll up the mats together and put them in the sink because the floor mats would become slippery when wet. [ 16 ] The Plaintiff’s evidence is that the mat was wet.

While she may not have known what happened when the Defendant buffed the floor and dealt with the mat, she had direct evidence of the alleged incident and the condition of both the floor and the floor mat at the time of the incident. [ 17 ] In the Court’s view, based on the evidence, it cannot be said that there is no genuine issue to the trial. [ 18 ] As to the third type of case set out in para 10 above, the Court is not satisfied that the issues are capable of being fairly and justly resolved without a trial. The Court believes that a trial process is required in the interests of justice.

This will allow the whole story to be heard by way of viva voce evidence. The Court notes that the Plaintiff was not cross-examined on her December 13, 2012 affidavit which was used at the

summary judgment motion. Therefore, the Plaintiff’s version of what occurred was not challenged by the Defendant. [ 19 ] The Court agrees with the Court of Appeal’s assessment in para 47 of the Combined Air case that “the trial judge is a trier of fact that participates in the dynamic of a trial, sees witnesses testify, follows the trial narrative, asks questions when in doubt as to the substance of the evidence, monitors the cut and trust of the adversaries and hears the evidence in the words of the witnesses.” [ 20 ] Based on the evidence before the Court, the Court is not capable of making dispositive findings on this motion for

summary judgment. That can only be achieved in this case by the trial judge. [ 21 ] For the aforesaid reasons, the motion for

summary judgment fails. Costs [ 22 ] Both parties have provided costs outlines. As the Plaintiff was successful, she is entitled to her costs. [ 23 ] The Plaintiff is seeking costs of $9,603.75 + HST and disbursement of $522.09 inclusive of HST on a full indemnity basis. [ 24 ] The Court is satisfied that in this case that costs should be granted on a partial indemnity basis.

There is no evidence which would increase the scale of costs to a substantial or full indemnity basis. [ 25 ] Considering the factors in Rule 57.01(1) of the Rules of Civil Procedure , the Court is satisfied that the case was of importance to the Plaintiff. The issues were of moderate complexity. [ 26 ] The Court finds that the Plaintiff shall be entitled to her costs assessed at $6,780.00 inclusive of HST plus disbursements of $522.09 inclusive of HST. These costs shall be paid in the next 30 days.

In the event that the costs are not paid as aforesaid, the Defendant will not be entitled to take any fresh steps in the litigation until such costs are paid. [ 27 ] Order accordingly. Kershman J. Released: April 9, 2013 CITATION : Langford v. Ferguson, 2013 ONSC 2078 COURT FILE NO.: 09-44702 DATE: 2013-04-09

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: LINDA LANGFORD Plaintiff – and – BILL FERGUSON Defendant REASONS FOR DECISION ON MOTION FOR

SUMMARY JUDGMENT Kershman J. Released: April 9, 2013