At our weekly firm meeting, Michael Kryworuk discussed the recent decision of Justice Dunphy in Basaraba v. Bridal Image Inc., 2021 ONSC 8038, which contains important practical advice for parties seeking summary resolution of their matters.
History of the Litigation:
This decision arose from a summary judgement motion that was brought by the three moving defendants (Bridal Image Inc., York Contract Interiors Limited, and 1548019 Inc.) seeking to have a personal injury claim against them dismissed.
The underlying claim arose from a slip and fall outside of a strip mall in Mississauga in January 2014. The plaintiff exited her car and was attempting to enter a store to pick up a wedding dress.
The plaintiff slipped and fell on some ice located in what the plaintiff described as a pathway to the entrance of the store, but what the defendants describe as a landscaped area. This pathway, which was approximately the width of a sidewalk, was unpaved save for a small, paved portion right outside the entrance of the store.
Initially, only one of the defendants moved for summary judgment, and Myers J. declined to schedule the matter for a hearing on the basis that it was, in effect, a motion for partial summary judgment.
The defendants then decided that they would each bring such a motion in the hope that this might secure their exit from this litigation. Vella J., authorized this revised summary judgment motion to proceed, without prejudice to the motion judge (Dunphy J) to determine whether the matter was appropriate for summary judgment.
The Legal Test:
Justice Dunphy began his analysis by examining the recent Court of Appeal decision in Malik v. Attia. In that case, it was held that when faced with a request to hear a motion for partial summary judgment, a motion judge should make three simple requests of the parties:
- Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;
- Show how partial summary judgment will get the parties’ case in and out of the court system more quickly;
- Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.
Furthermore, Malik v. Attia itself builds upon the SCC decision in Hryniak v. Mauldin, 2014 SCC 7, that promoted summary judgement as an important procedural tool that provides litigants with timely and affordable access to the civil court system.
Justice Dunphy felt that the moving defendants in this case had failed to answer any of the aforementioned questions. His Honour then went on to lament the generally unsatisfactory state of the record before him.
Collectively, the parties uploaded more than 2,000 pages of documents, including affidavits, expert reports, discovery transcripts and cross-examination transcripts onto the Caselines program used by the Ontario Superior Court of Justice to organize filed materials.
But of the four parties, only one of them filed materials with hyperlinks that might enable the judge to navigate through the evidence filed by the parties.
His Honour commented that :
“I cannot stress enough the degree to which this seemingly simple failure hampers to the point of destroying the ability of the judge conducting the hearing to arrive at a decision with any degree of confidence that he or she is able to render a decision on the merits that is fair and reasonable.”
His Honour further commented that while the parties had been working on this matter for five years at this point, a judge hearing a summary judgement motion comes with none of that history. Absent hyperlinks, the task of checking actual evidence against the summary narrative of the factum is impossible in a record of this size and complexity.
His Honour said that this failing by the parties alone was more than sufficient to warrant dismissal of this motion.
His Honour commented that the legal profession has been working with virtual hearings for almost two years since the start of the Covid-19 pandemic and that potential benefits felt by the judicial system by virtual hearings in terms of cost, efficiency and access to justice have been significant and will continue beyond the pandemic.
However, his Honour warned this progress will grind to a halt if parties do not shoulder their part of the burden seriously.
Given the sheer volume of material, in this case, there was no realistic prospect of any judge wading through the evidence to the point of acquiring a sufficient grounding in the facts to come to a reasonable and well-grounded decision on the merits of the summary judgement motion.
Furthermore, Justice Dunphy found that despite the preponderance of evidence presented to him, his Honour was unable to satisfactorily answer a number of key questions and determine whether or not a duty of care existed for the defendants to keep customers safe in the area the accident happened.
Some of these unresolved issues included whether the strip of land the plaintiff used and slipped on would appear to a reasonable observer to be the logical means of entering the store. Another question was whether the unpaved nature of this strip of land was obvious to an observer during winter conditions.
After dismissing the summary judgement motion, Justice Dunphy discussed how he thought the matter should proceed. Noting that a backlog in the jury trial list has accrued over the course of the Covid-19 pandemic, added to the fact that there will be a fairly significant delay in getting this matter heard, and that this was not an overly complex case, His Honour suggested the putting of this case to a short summary trial in early 2022.
Interestingly, Justice Dunphy telegraphed that the coming year of 2022 will see a very significant re-allocation of judicial resources in Toronto away from motions towards trials. As such, Dunphy J noted that the parties could schedule a short three/four day summary trial for early in 2022 which would be several months before the first time slot available for a half-day summary judgement motion.
Before concluding his decision, Justice Dunphy stated that he was initially of the view there was no need to write and publish detailed reasons for this decision. However, his Honour changed his mind because the:
“problem of parties failing to upload usable motion materials to Caselines is endemic. It will not improve if light is not shone upon it. The message needs to get out to the profession that these “motions in a box” are simply not going to work without more effort on the part of the parties. Properly hyper-linked motion records and facta are quite frankly the exception and not the rule these days” 
In his decision, the motion for summary judgement by the defendants was dismissed by the motions judge, on the account of the poor quality of the evidentiary record before him.
While the case itself was not particularly complex, the poor organization of the record prevented His Honour from coming to a determination on the issue.
Justice Dunphy bid the parties to discuss the issue of costs amongst themselves and make submissions at a later date.
This decision contains an important message to the legal profession to properly make their evidentiary submissions usable and navigable for judges.
This decision also includes interesting advice that judicial resources in 2022 are expected to shift from motions to trials.
Finally, this decision suggests that parties should consider the utility of choosing summary trials as opposed to relying on summary judgement motions to resolve claims quickly and efficiently.
 Basaraba v. Bridal Image Inc., 2021 ONSC 8038 at para 3.
 Malik v. Attia, 2020 ONCA 787 at para 67.
 Basaraba, supra 1, at para 6.
 Ibid at para 8.
 Ibid at para 9.
 Ibid at para 24.
 Ibid at para 26.