The Court of Appeal released a decision today in Drummond v. Cadillac Fairview Corporation Limited, dismissing a claim involving a trip and fall on a skateboard in a mall food court.
On a summary judgment motion, the mall sought a dismissal of the action. The motion judge did not dismiss the action and, in fact, granted summary judgment in favour of the plaintiff on liability.
The Court of Appeal held that there was a lack of procedural fairness. The plaintiff did not bring a cross-motion for judgment. The plaintiff had argued that a trial was necessary. The motion judge did not advise the defendant that he may grant judgment against it.
Moreover, the motion judge failed to consider contributory negligence on the plaintiff.
The motion judge also improperly relied on hearsay evidence. Caution must be exercised when relying on hearsay evidence that goes to a fundamental issue in dispute in a motion.
The Court of Appeal stated that, once the hearsay evidence was disregarded, the evidence showed that there was no liability on the mall.
A security guard conducted regular patrols of the food court. The mall was not required to maintain a constant lookout for potential dangers.
As a result, the plaintiff’s lawsuit was dismissed.