) ) John Mark Cotnam Plaintiff/Responding Party – v. –, 2013 ONSC 5502

CITATION : Cotnam v. National Capital Commission , 2013 ONSC 5502 COURT FILE NO.: 11-51861 DATE: 2013/08/28 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) John Mark Cotnam Plaintiff/Responding Party – and – The National Capital Commission Defendant/Moving Party ) ) ) ) ) ) ) ) ))) John Mark Cotnam, Self-represented Paul Battin, Counsel for the Defending/Moving Party ) ) HEARD: August 16, 2013 (Ottawa) DECISION ON MOTION FOR LEAVE TO APPEAL beaudoin j. [ 1 ] The Defendant seeks leave to appeal to the Divisional Court from the Honourable Mr. Justice Hugh McLean’s endorsement dated May 9, 2013. On that date, Justice McLean dismissed the defendant’s motion for

summary judgment. Justice McLean gave oral reasons for dismissing the motion and did not require the Plaintiff to make any submissions. [ 2 ] A transcript of that oral decision is attached as

Schedule A to this Endorsement. Background [ 3 ] On July 14, 2011, the Plaintiff commenced proceedings against the Defendant National Capital Commission (“NCC”) with respect to injuries he claims to have suffered on July 17, 2009 while bicycling on the Experimental Farm pathway, a recreational bicycle pathway in the City of Ottawa. The Plaintiff claims he fell while negotiating a curve on the pathway resulting in injury to himself and damage to his bicycle. The Plaintiff alleges that the signage on the pathway was improper thereby constituting a danger. [ 4 ] Justice McLean dismissed the motion for

summary judgment and questioned the applicability of

section 4 of the Occupiers Liability Act and, if it did, he concluded there was a rebuttable presumption that the Plaintiff could advance to dislodge the lower standard of care liability provided that this

section imposes upon the Defendant. The motions judge was not persuaded that a motion for

summary judgment should be granted in the context of a simplified action. [ 5 ] Rule 62.02(4) sets out a two-prong test: (

a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or (

b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. R.R.O. 1990, Reg. 194, r. 62.02 (4) . [ 6 ] There was no dispute before the motions judge or in this motion that the pathway in issue was a “recreational trail” as set out in section 4(4) (

f) of the Occupiers Liability Act . As noted, the motions judge expressed doubt whether or not that

section applied and that even if it did, the assumption of the risk by the Plaintiff set out in section 4(3) was a rebuttable presumption that required evidence to be introduced at trial. This decision appears to be in conflict with the analysis set out by the Ontario Court of Appeal in Schneider v. St. Clair Region Conservation Authority , 2009 ONCA 640 , 97 O.R. (3d) 81 [ Schneider ] and Dally v. London (City) , [2004] O.J.

No. 3231 and Kennedy v.

London (City) , 58 M.P.L.R. (4th) 244 (S.C.J.) . [ 7 ] Sections 4(1) and 4(3) of the Occupiers Liability Act were reviewed by the Court of Appeal in Schneider where Justice Rouleau held that these sections “ work together such that a person who enters recreational trails, reasonably marked by notice as such, for the purpose of a recreational activity and without payment of any fee is deemed to have willingly assumed the risks associated with the activity.” An occupier of these lands cannot be held responsible but for the proof of engaging in “reckless disregard”. [ 8 ] None of the jurisprudence has come to the conclusion that there is a rebuttal presumption in the legislation.

The motions judge’s decision is at odds with the analysis of section 4(4) by the Court of Appeal in Schneider . There, the Court held that the very purpose of

section 4 was to reduce the duty of care owed by occupiers of recreational lands. I agree with the defendant moving party that if the motions judge’s decision is allowed to stand, the purpose of

section 4 could be undermined. [ 9 ] Moreover, there is reason to doubt the correctness of the decision and it raises some important matters. I agree with the defendant moving party that there are serious reasons to debate the correctness of the motions judge’s decision in light of the evidence before him. The decision has consequences beyond the dispute between the parties to this litigation, specifically, with respect to the Occupiers Liability Act and the availability of

summary judgment within the context of the simplified action. [ 10 ] The motions judge indicated he was aware that

summary judgment could be granted in the context of simplified actions, noting that it is rare. The Defendant submits that the motions judge likened “rare” to “never”. The motions judge appears to have taken the position that

summary judgment cannot be granted when there is a question of fact in issue. According to the motions judge, where such an issue arises, the matter had to proceed to trial. [ 11 ] This is not consistent with the Ontario Court of Appeal’s decision in Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 . While the Court held that

summary judgment motions should be rare in simplified actions, it still upheld that the purpose of

summary judgment motions is to winnow out claims that do not require proceeding to trial when there is limited contested evidence. In his oral decision, the motions judge did not refer to any contested facts in the evidence before him.

He appears to have concluded that as long as there was a finding of fact to be made, that this could only be made at trial. [ 12 ] The motions judge’s conclusions about the applicability of the Occupier’s Liability Act and his conclusion that there was a rebuttable presumption that the Plaintiff willingly assumed the risks when he entered the trail are in conflict with other decisions and further lead to doubt as to the correctness of his decision. Moreover, it does not appear that the motions judge undertook any analysis of the purpose of

section 4 within the context of the entirety of the Occupiers Liability Act before dismissing the motion for

summary judgment. In doing so, the motions judge did not proceed to determine the true issue at hand: whether or not the Defendant had displayed a reckless disregard that caused the Plaintiff’s injury. This is the standard to be applied when

section 4 of the Occupiers Liability Act is applied. [ 13 ] The motions judge’s decision specifically targets the application of

section 4 of the Occupiers Liability Act and limits its application. It also severely restricts the application of

summary judgment in simplified actions. These issues are of general importance to parties who may wish to consider bringing motions for

summary judgment in simplified rule actions and has an obvious impact with respect to municipalities and other organizations such as the National Capital Commission who maintains recreational pathways for cyclists and other users. [ 14 ] For all of these reasons, leave to appeal is granted. Mr. Justice Robert N. Beaudoin Released: August 28, 2013

SCHEDULE A D E C I S I O N H. Mclean (orally):

The motion for

summary judgement is dismissed. The motion is brought on the basis that

Section 4 of the Ontario Occupiers Liability Act applies, in that the plaintiff willingly assumed certain risks when he entered the NCC path. It is the plaintiffs allegation that he fell as a result of design, or fell because of the nature of the path. Certainly their evidence is that it is his allegation as to what he was doing, and how the accident occurred. It is the position of the NCC that, clearly that evidence would not be advocatious(sic) because

Section 4 of the Ontario Occupiers Liability Act applies, and therefore there must be some evidence with regard to the design of the path such that would indicate that it was negligently, or it was improperly built with a view to injuring the plaintiff. Now, that is not the exact test, but however their - it is their position that there may be some onus upon them.

The issue with regard to the matter is, the various deeming provisions in that particular act that says the public recreational grounds, or those persons entering public recreational grounds shall be deemed to assume risks, or - The issue, however notwithstanding that, is it may well be a rebuttable presumption based on what the knowledge of the plaintiff was in these particular circumstances. The Court is also aware that, with regard to, this particular matter it is under the simplified rules.

The simplified rules are designed to bring matters to a trial so that the matter can be – can be litigated without extraneous motions. Clearly under the Court of Appeal, under its construction of the revised rule for

summary judgement, has said in certain circumstances

summary judgement is still available, however it also commented that it is only available under the simplified rules in rare cases. In this particular matter the Court finds that this is not a rare case, and that the matter is one of the construction of a statute. And, with regard to the matter as a whole, the Court is not satisfied that the record available to it, under the most recent Court of Appeal decision, is adequate to grant

summary judgement, and the matter may proceed to trial in that, given the affidavit in reply there may be some evidentiary matters that may benefit the plaintiff, and it is not clear that on this particular record the matter is – should be dismissed. For those reasons the motion for

summary judgement is dismissed. CITATION : Cotnam v. National Capital Commission , 2013 ONSC 5502 COURT FILE NO.: 11-51861 DATE: 2013/08/28

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: John Mark Cotnam Plaintiff/Responding Party – and – The National Capital Commission Defendant/Moving Party decision on MOTION FOR LEAVE TO APPEAL Beaudoin J. Released: August 28, 2013