The stage was set. The tug-of-war pitted 20 or so trailer renters against 20 or so cottage renters. Disaster ensued.

In Bonello v. Gores Landing Marina (1986) Limited, 2017 ONCA 632, the Plaintiff, Timothy Bonello ("Bonello"), sought relief from an injury arising from a game of tug-of-war. Bonello put his left arm through one of the loops on the rope to get a better grip, but when the participants pulled the rope on each side, the loop closed and crushed Bonello's arm. Unfortunately, this injury resulted in the amputation of his forearm. The contest took place on a campground owned and operated by Gores Landing Marina (the "Marina"). The rope used for the contest was found by Joseph Davies Jr. ("Davies Junior") in a shed located on the Marina's property.

The Litigation
Bonello brought an action against several parties, including the Marina, Davies Junior and Joseph Davies Sr. ("Davies Senior"), the principal of the Marina. In Bonello's claim, he asserted that the Marina and Davies Senior were negligent and also liable pursuant to the Occupiers' Liability Act. In addition, Bonello claimed that the defendants were vicariously liable for the negligent actions of Davies Junior. The Marina and Davies Senior responded with a summary judgment motion to dismiss the action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

The motion judge found in favour of the moving party and dismissed Bonello's claim. Bonello appealed the motion judge's order to the Ontario Court of Appeal. The Court of Appeal allowed the Plaintiff's appeal, set aside the motion judge's order, and consequently allowed Bonello to continue his claim.

Analysis
Part of the motion judge's decision included an order to not consider discovery evidence relevant to Marina and Davies Junior except that which they had provided themselves. The exclusion included the discovery evidence provided by Davies Junior.

The ONCA considered whether the motion judge erred by excluding the aforementioned discovery evidence. There are two relevant Rules of Civil Procedure with respect to the admission of discovery evidence. Rule 39.04 with motions and Rule 31.11 that deals with trials.

Rule 39.04: (1) On the hearing of a motion, a party may use in evidence an adverse party's examination for discovery or the examination for discovery of any person examined on behalf or in place of, or in addition to, the adverse party and rule 31.11 applies with necessary modifications.

Rule 31.11(1): At the trial of an action, a party may read into evidence as part of the party's own case against an adverse party any part of the evidence given on the examination for discovery of the adverse party.

The key distinction is that Rule 39.04 allows a party to use evidence provided through discovery of any adverse party against the adverse party. In contrast, Rule 31.11 only allows evidence provided by the adverse party during their discovery to be used against them. The ONCA ruled that the motion judge erred in allowing the wording in Rule 31.11 to override the wording in 39.04.

As a result of this error, the respondents' assertion that Davies Junior had no connection to the Marina was left to be taken at face value which then led to the conclusion that the Marina could not be held vicariously liable for Davies Junior as will be discussed below.

...the ONCA reviewed whether the motion judge addressed the following three substantive issues:

The ONCA also considered whether the motion judge erred in concluding that there was no genuine issue requiring a trial. To do so, the ONCA reviewed whether the motion judge addressed the following three substantive issues:

  1. Were the Marina and Davies Senior liable to Bonello under the Act?

    The ONCA stated that the motion judge did address this issue and that he clearly found that the Marina and Davies Senior were not liable to Bonello under the Act.
  1. Were the Marina and Davies Senior liable to Bonello under the principles of common law negligence?

    The ONCA found that the motion judge did not adequately deal with this issue since he did not consider the possibility that the Marina and Davies Senior could be held vicariously liable for Davies Junior.
  1. If the Marina and Davies Senior were found to be liable to Bonello for common law negligence, the motion judge was then required to analyze the issue of whether the defendants were vicariously liable to Bonello for Davies Junior's negligence?

    As the ONCA previously mentioned, the excluded discovery evidence supported the argument that the Marina and Davies Senior were vicariously liable for the actions of Davies Junior. However, due to the exclusion, the motion judge was unable to properly assess whether vicarious liability was a triable issue.

Conclusion
Evidentiary issues, even on summary judgment motions, are significant questions that must be considered from all angles prior to a decision to bring a motion. Litigants and their counsel need to consider whether there is sufficient evidence to marshal that will support a party's position. In this case, the interplay between Rule 31.11 and Rule 39.04 was engaged, which led to different results in different courts. Issues of direct liability and/or vicarious liability are also sometimes complex and not suitable for summary judgment.

This case is a cautionary tale for defendants that may be tangentially connected to litigation to consider the appropriateness of summary judgment.

Litigants often seek clarity from counsel as to the likelihood of success on a summary judgment motion, given the tendency to prefer shutting down litigation as opposed to being dragged along when there is ostensibly no liability. This case supports the proposition that the only certain thing in litigation is uncertainty.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.