Sep 6, 2019

The Importance of Experts in a Summary Judgment Motion

Ali v Smart REIT, 2019 ONSC 2824 (CanLII)

This 2019 decision of the Ontario Superior Court serves as a good reminder of the importance of expert reports on a motion for summary judgment.

In Ali v. SMART REIT (“Ali”), the plaintiff, Zakira Ali, tripped and fell on a curb located between the parking lot and sidewalk of a strip-mall plaza. The central issue on the summary judgment motion was whether the defendants breached their standard of care under the Occupiers’ Liability Act in regard to the manner in which the curb was constructed and/or maintained. The main allegations against the defendants were that the curb was uneven and there was no yellow paint marking on the curb.

In Ali, Justice Copeland provides a non-exhaustive list of factors considered by the court when assessing whether an occupier exercised reasonable care:

1. The likelihood that the harm at issue will occur;

2. The gravity or severity of the potential harm;

3. The utility of the object or conduct at issue;

4. The cost of preventative measures;

5. The weather;

6. The time of the year;

7. The nature of the premises;

8. Local custom;

9. Industry practice; and

10. Applicable regulatory standards.

The court granted the defendants’ motion for summary judgment against the plaintiff. Justice Copeland found the curb complied with the standard of care and did not pose an unreasonable risk to people attending the plaza as: the curb appeared to be an ordinary sidewalk curb found around Toronto; the curb was neither unusually high nor unusually low and did not contravene any municipal or provincial by-laws or building standards; the curb and curb-cut out was in a good state of repair; and the curb and the curb-cut were clearly visible to pedestrians (despite the lack of any yellow / white paint). The court therefore ruled that there was no genuine issue for trial and the plaintiff’s action was dismissed.

In arriving at the above conclusion, the court relied heavily upon the defendants’ expert, Mr. Stephen Blaney, professional engineer. Mr. Blaney’s opinion was that the curb was not a hazard; at 3.25 high (8.3 cm) it measured just below the average curb height (4” to 8”). He also commented that there was no standard or requirement in Ontario that curbs on the exterior of buildings be painted. The plaintiff did not file a responding expert report, but disputed the findings and credibility (unsuccessfully) of the defence expert.

Accordingly, this decision of Justice Copeland speaks to the importance of serving an expert report on the standard of care issue in cases where the defence seeks to have a case dismissed on the basis that there is no genuine issue for trial. As the onus rests with the defendant to establish that there is no genuine issue for trial, an expert can be of great assistance in meeting this onus.