In January 2012, the plaintiff was walking along the sidewalk in front of a newly built home when she allegedly tripped over the bottom of a construction fence that was covered in snow and fell into a depression in the road next to the sidewalk, injuring her ankle. She sued the homeowners, the builder, as well as Enbridge, who supplied the gas line to the home, and Link-Line Contractors Ltd., the contractor hired by Enbridge to install the line.

Enbridge and Link-Line brought a partial summary judgment motion to have the action and crossclaims against them dismissed. The Superior Court dismissed their motion.

Specifically, Enbridge and Link-Line argued that there was no genuine issue for trial because the plaintiff and co-defendants had failed to establish, based on the best evidence offered by them, that Link-Line’s work caused the depression in the road. They also argued that summary judgment should be granted as the parties failed to provide any expert evidence on the standard of care.

The Court held that, in summary judgment motions related to a professional negligence action, a defendant cannot rely on the plaintiff’s failure to proffer expert evidence unless the defendant has also put their best evidentiary foot forward. Only where the defendant discharges its burden of proving that there is no genuine issue on the merits of the defence does the burden shift to the plaintiff. In this case, Link-Line did not provide any evidence regarding whether its actions met the standard of care such that the evidentiary burden never shifted to the plaintiff or co-defendants.

The Court also found that the evidence offered by the parties did not allow for dispositive findings, which yielded a high risk of re-litigation and the prospect of inconsistent results. Since Link-Line’s crews of employees would likely be subpoenaed at trial, granting the partial summary judgment motion would also not allow for a fair and just resolution of the case or avoid the cost and expense of the trial process.

Key takeaway: If you are a defendant in a professional negligence action and want to bring a summary judgment motion, make sure you have your own ducks in a row before trying to point the finger at the plaintiff or a co-defendant. The right case will warrant obtaining your own expert report on how your actions met the applicable standard of care.

See Crawford v. Toronto (City), 2018 ONSC 1729

Shalini Thomas

Shalini defends insurance claims covering all aspects of general insurance liability including motor vehicle accidents, occupiers’ liability, slip and falls, as well as accident benefits litigation and arbitration and priority and loss transfer disputes.

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