Negligent drivers liable to rescuers for injuries that are reasonably foreseeable

A recent summary judgment motion dealt with the extent of the duty of care owed to rescuers.

In Maguire v Padt, 2014 ONSC 6099 (S.C.J.), the defendant, Suzanne Padt, was driving in whiteout conditions when she lost control of her car and rolled into a ditch. Several passing motorists pulled over to rescue Padt from her car. After placing Padt safely in a police cruiser, the rescuers were preparing to return to their vehicles when another passing car lost control and drove into them. Two of the rescuers were killed and a third was seriously injured.  They commenced an action against Padt.

Padt brought a motion for summary judgment, arguing that the duty of care that she owed to her rescuers concluded at the end of the rescue and that the rescue had concluded when she was removed from imminent peril and was safe in the police car.

In its decision, the court first reviewed and affirmed the established legal principle that negligent parties who cause themselves or others to be placed in danger owe a duty of care to the responding rescuers.

The court stated that the rationale underlying this duty was that injury to rescuers was a reasonably foreseeable consequence of the negligent conduct that led to their involvement. The court stated that the negligent party should be liable for any injury that was a reasonably foreseeable consequence of the negligent conduct – not just for injuries that occurred while the person being rescued was in peril. The court put it this way: “It is foreseeability, not the end of the peril, that sets the limits of the liability.”

Given the whiteout conditions on the road, the court found that the second accident was a reasonably foreseeable consequence of Padt’s negligent conduct. The court dismissed Padt’s motion and, under the assumption that Padt was negligent in causing the first accident (which was accepted for the purpose of the motion), granted partial summary judgment in favour of the plaintiffs.

Slip and Fall Action Dismissed on Summary Judgment Motion

In Occupier's Liability cases, it is important to remember that occupiers are not insurers.

In Nandlal v. Toronto Transit Commission, 2014 ONSC 4760 (S.C.J.), the plaintiff alleged she fell on debris on the stairs in a subway station.  At her examination for discovery she testified she slipped on floor tiles.  She could not describe what she fell on and there were no witnesses.  A janitor was assigned to the station and followed a detailed schedule of regular maintenance and cleaning.

Justice Perell held that a plaintiff must pinpoint some act or omission on the part of the occupier that caused the plaintiff's injury.  The Occupier's Liability Act does not impose strict liability and the presence of a hazard does not lead inevitably to the conclusion that the occupier has breached its duty.  The occupier does not have to remove every possible danger; the standard of care is one of reasonableness, not perfection. 

Justice Perell allowed the TTC's summary judgment motion and dismissed the claim.  The plaintiff could not prove a hazard existed, and the evidence was that TTC took steps to make its premises as safe as in all the circumstances was reasonable.  He used a common sense approach:

[29]           It is important for a court to use common sense when applying the statute: (Canada) Attorney General v. Ranger, supra, at para. 34. Falls at bus terminals, airports, seaports, train stations, subway stations, occur without someone being responsible or with the responsibility resting with someone other than the occupier of the property. Falls occur on stairs found everywhere without anybody being responsible for what is just an accident. It is not reasonable or even practicable to impose an obligation on the TTC to be in a position to continuously and immediately cleanup after its patrons who litter the TTC premises including its staircases.  

Court Grants Summary Judgment Against Party Bringing Motion

Courts seem to be embracing the "culture shift" advocated by the Supreme Court in Hryniak.

In King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215 (C.A.), the plaintiff sued for solicitor's negligence in connection with a commercial real estate transaction.  The defendants brought a summary judgment motion to dismiss the claim on the basis of an expired limitation period.  The motions judge dismissed the motion, but went a step further, granting summary judgment for the plaintiffs on the basis that the defendants had acted negligently.

The defendants appealed and the Court of Appeal dismissed the appeal.  It held that the evidence was clear that there was a duty to warn and the solicitor failed to do so.  The Court of Appeal held that "the principles of proportionality and sensible management of the court process support the judge's ruling". 

King Lofts shows a danger to bringing a summary judgment motion under the new Hryniak test.  Is this an unintended consequence of the new regime or in line with a goal of reducing the number of cases that need a full blown trial?

Evidence Required to Dismiss a Non-Earner Benefits Claim

In Willoughby v.Dominion of Canada General Insurance Co, 2014 ONSC 1136 (S.C.J.), the plaintiff sustained injuries in a motor vehicle accident on July 8, 2004. The plaintiff settled her claim for income replacement benefits with her insurer and proceeded to bring a claim for non-earner benefits.

The insurer brought a motion for summary judgment on the basis that the plaintiff did not satisfy the test for non-earner benefits. To support the motion, the insurer submitted an affidavit relying on the oral evidence given by the plaintiff at her examinations for discovery that showed she had continued to engage in her pre-accident activities. The plaintiff opposed the motion and submitted an Affidavit sworn by the plaintiff, a report of a neurologist and a report from an occupational therapist, all highlighting the differences in her pre and post-accident life. The insurer did not cross-examine on the affidavit nor did they submit an affidavit in response. Given this the court held that the evidence provided by the plaintiff would be considered undisputed.

In their reasoning, the court relied on the Ontario Court of Appeal’s decision in Heath v. Economical [2009] O.R. (3d) 785 for the general principle that in cases where pain is a primary factor preventing the claimant from engaging in substantially all of her pre-accident activities the question is not whether the insured is physically able to do these activities, but whether the degree of pain experienced is such that the claimant is practically prevented from engaging in those activities. The court applied a qualitative perspective requiring the activities to be viewed as a whole and held that the evidence led by the insurer was insufficient. Therefore the motion was dismissed.

Willoughby indicates the high standard courts will apply in summary judgment motions to dismiss applications for non-earner benefits. Defendants who bring such motions should not merely rely on the plaintiff’s evidence provided at examinations for discovery to satisfy the court’s qualitative approach.  

Supreme Court Sets Out The Test for Summary Judgment

The Supreme Court has overturned the "full appreciation" test used by the Ontario Court of Appeal in summary judgment.  The appeals in Hryniak v. Maudlin, 2014 SCC 7 and Bruno Appliance and Furniture v. Hryniak, 2014 SCC 8 were released January 23, 2014.


The Court emphasized that summary judgment rules must be interpreted broadly, "favouring proportionality and fair access to the affordable, timely and just adjudication of claims".  The new Rule 20 represents a significant alternative model of adjudication.


There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.  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 the law to the facts, and
(3)  Is a more proportionate, more expeditious and less expensive means to achieve a just result (para. 49).




The standard for fairness is whether it gives the judge confidence s/he can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. The evidence need not be equivalent to a trial.  The Court held that a documentary record, particularly when supplemented with the new fact-finding tools such as oral testimony, is often enough to resolve material issues justly and fairly (para. 57). The judge may need to compare things such as the cost and speed of a trial versus summary judgment.




At para. 66, the Court set out a roadmap for summary judgment:




There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).  If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2).  She may, at her discretion, use those powers, provided that their use is not against the interest of justice.  Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.




The Supreme Court's interpretation of r. 20 seems to be a firm statement that summary judgment is an appropriate way to resolve cases, rather than the restrictive interpretation taken by the lower courts.  We may see an increase in the number of summary judgment motions in the future.

Timing of Summary Judgment Motions

At what point in a lawsuit is it appropriate to bring a summary judgment motion?

In Stever v. Rainbow International Carpet Dyeing & Cleaning Inc., 2013 ONSC 4054 (S.C.J.), the defendant brought a summary judgment motion prior to discoveries, alleging there was no issue requiring a trial as the limitation period had expired.  Justice Morgan held that summary judgment motions typically proceed after discoveries are complete, or with affidavit evidence and cross-examinations that "go a long way to replicating what will be produced at discoveries."  Justice Morgan adjourned the summary judgment until after discoveries had been completed.

Stever is in line with the Court of Appeal's decision in Combined Air, which held:

58     Moreover, the record built through affidavits and cross-examinations at an early stage may offer a less complete picture of the case than the responding party could present at trial. As we point out below, at para. 68, counsel have an obligation to ensure that they are adopting an appropriate litigation strategy. A party faced with a premature or inappropriate summary judgment motion should have the option of moving to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery. This option is available by way of a motion for directions pursuant to rules 1.04(1), (1.1), (2) and 1.05.

In many cases, especially where there is an issue of discoverability, summary judgment is likely not appropriate until discoveries are complete.

No Leave Required for Summary Judgment Motion After Set Down

Does a party that sets an action down require leave to bring a summary judgment motion?

According to Justice Quinn in Fruitland Juices Inc. v. Custom Farm Service Inc. 2012 ONSC 4902 (S.C.J.), no leave is required.

In Fruitland, the defendant brought a summary judgment motion after it set the action down for trial.  The plaintiff objected pursuant to r. 48.04(1).  Justice Quinn granted leave.  He held:

[28]   The requirement for a substantial and unexpected change in circumstances is not a helpful or logical test where the motion for which leave is requested seeks summary judgment. The primary purpose of such a motion is to spare the parties and the legal system the expense and intrusion of an unnecessary trial or, at least, unnecessary issues within the trial. A party is not obliged to bring a summary judgment motion at the earliest opportunity; neither must there be a precipitating event such as a change in circumstances. So long as the motion, if successful, will be less costly and time-consuming than the trial, and will not unduly delay the start of the trial, I do not see why the moving party must explain his or her choice of timing. In other motions (such as to add parties, raise new issues or amend pleadings), the explanation for a delay in so moving is relevant, as is the issue of prejudice to the opposing party. However, none of that is relevant or required in a motion for summary judgment, at least in the circumstances of this case. A summary judgment motion brought at any time is a potential blessing for the administration of justice.

The Agony of the Collision

A recent motion decision dealt with the standard of care in emergency situations.

In Dubois v. Ford Credit Canada Leasing, 2012 ONSC 7311 (S.C.J.), the plaintiff was a passenger in a vehicle being driven by Gunn.  An oncoming vehicle crossed into Gunn's lane and he swerved left to avoid the accident.  Unfortunately, the other driver also swerved and they collided.

Gunn brought a motion for summary judgment on the basis that his actions occurred in an emergency situation and he was not negligent on the basis of the "agony of the collision" principle.  Justice Spence reviewed three formulations of the test for negligence in an emergency:

1.  Which focuses on whether the driver was driving with the skill and care expected of a reasonable driver at the time and place in issue;
2.  Which provides that the driver has a duty to extricate himself and his passengers from the situation with safety if possible, but his conduct is not to be judged by the standards involving deliberation and the opportunity for careful and conscious decision.  He is not negligent for failing to adopt the best course of action in the light of hindsight;
3.  Which provides that if driver A loses control and seeks to apportion blame on B, A must show that B became aware or should have become aware and had an opportunity to avoid the accident.

Justice Spence concluded:

[39]  The conclusion to be drawn from the above analysis is that the test to be applied is properly set out in the first formulation on the understanding that, as emphasized in the second formulation, a driver in the “agony of a collision” generated by an emergency, may properly be considered to have acted reasonably even though his conduct might not be considered reasonable if it had occurred in circumstances that offered a reasonable time for decision.

Justice Spence dismissed the motion for summary judgment, as there were competing expert opinions and the potential for unfairness to the plaintiff, who was an innocent passenger. Although the decision is an interesting summary of the "agony of the collision" principles, it also imports a fairness component, which introduces a new factor in the analysis.

Costs on a Summary Judgment Motion

In Mo v. Johnson, the defendant successfully moved for summary judgment dismissing the plaintiff's claim.  Justice Morgan's decision on costs is reported at 2012 ONSC 6307 (CanLii). 

One of the arguments made by the plaintiff was that the defendant was only entitled to costs of the motion, not the entire action.  Justice Morgan disagreed, holding that:

[24]      I agree with Mr. Bizezinski that where summary judgment dismisses the action, it is the costs of the action in its entirety that are at issue. To hold otherwise would allow a party who brings spurious litigation to cause the opposing side to incur substantial costs with no means of compensation. 

The defendant was awarded costs of the entire action on a substantial indemnity basis due to the plaintiff's conduct, which was described as "aggressive and high-handed".  The decision is a nice synopsis of some of the basic principles relating to costs. 

Restricting Summary Judgment

Are courts beginning to restrict the use of summary judgment?

Justice Brown took the opportunity to comment on summary judgment in a decision encompassing two cases, George Weston Limited v. Domtar Inc and 1318214 Ontario Limited v. Sobeys Capital Inc., 2012 ONSC 5001 (S.C.J.).  These were two cases from the Commerical List in Toronto where counsel sought to schedule summary judgment motions.  In George Weston, the plaintiff sought to schedule a summary judgment motion prior to examinations for discovery.  In 1318214 Ontario, discoveries were mostly complete and when the plaintiff sought to set the matter down for trial, the defendant advised it intended to bring a motion for partial summary judgment to limit the issues for trial.

Justice Brown laments the motion culture in Toronto and what he sees as a reluctance of counsel, especially counsel who have practiced for less than 15 years, to bring cases to trial.  He suggests that instead of bringing summary judgment motions, counsel should take more cases to trial and that courts should facilitate the process by approving innovative ways of proceeding to trial; for example, evidence could be a hybrid of written and viva voce evidence.

It will be interesting to see if other judges share Justice Brown's concerns and if courts will start restricting the use of summary judgment motions.  Defence counsel and insurers will need to carefully assess each case to determine whether the appropriate way is to proceed by way of summary judgment or whether it might be more beneficial to simply proceed to trial.