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Do Ontarians Have a Right to a Jury Trial in Civil Matters?

A slip-and-fall accident may be the fault of multiple parties. If your accident occurs in a shopping centre, for example, liability might ultimately fall on the owner of the premises, an individual store that rents space, or even a contractor who performed shoddy maintenance work. Of course, when there are multiple parties who may be liable, there is an incentive for each of them to try and shift blame to the other. There’s also the concern of juries; do Ontarians have the right to a jury trial in civil suits such as these?

Timeline Confusion Leads to Disagreement Over Repair Contractor’s Liability

For example, in an ongoing Ontario slip-and-fall lawsuit, Hollingshead v. Aerarium Development Corporation Limited, a premises owner attempted to maintain a third-party action against a contractor, whose repair work allegedly contributed to the plaintiff’s underlying accident. The judge presiding over the case rejected this claim and granted summary judgment to the third party–meaning the facts were such that it was unnecessary to send the issue to a jury.

Actually, the facts of this case are a bit muddled. The plaintiff’s central allegation is simple enough: The plaintiff went to a restaurant to “participate in the office track horse racing.” As he exited the restaurant via a set of concrete steps, the stairs “crumbled beneath his feet causing him to fall down the stairs.” Later that day, the plaintiff testified that he returned to the restaurant and observed that “part of the step was missing and part of the stone from the step had broken off.”

The plaintiff subsequently filed a personal injury lawsuit, naming the owner of premises and the restaurant as defendants. The premises owner–whom we will refer to here as “the defendant” for the sake of simplicity–then filed a third-party claim against a contractor it previously hired to repair the stairs. In effect, the defendant’s position was that it “relied on the expertise of the third party to carry out the repair pursuant to industry standards, and that if the plaintiff sustained any injury it was caused by the third party’s failure to make proper repairs to the stairs.”

Here is where things get muddled. The plaintiff’s complaint initially alleged that the slip-and-fall accident took place “on or about September 27, 2013.” The September 27 date was consistent with what the plaintiff told the defendant’s insurance adjuster in late 2013. During an August 2017 examination for discovery, however, the plaintiff revised his statements and said the accident actually occurred on September 19. The plaintiff maintained he now remembered the correct date because it coincided with a particular horse race that was held “every year on the third Thursday in September,” which was September 19 in 2013.

The exact date of the accident mattered because according to the defendant’s third-party claim, the contractor carried out its repairs between September 23 and 25, 2013. Since this was obviously after the revised September 19 accident date, that would make it impossible for the contractor to be liable for the plaintiff’s injuries.

There was also some dispute among the parties as the actual date of the repairs, as well. The defendant suggested that the repairs to the concrete stairs could have been done as early as September 20. This would still be after the plaintiff’s revised accident date but prior to the September 27 date originally alleged.

However, the defendant’s own insurance company took pictures of the stairs before and after the repairs. The “before” pictures indicated that parts of the concrete were “broken and crumbled.” The “after” pictures showed no evidence of any broken or crumbling concrete. One of the defendant’s employees testified that there was “no change to the condition of the steps within three weeks after the repairs were completed.” The third party also submitted its own photographs, taken in July 2018, which showed the concrete stairs in similar condition to the “after” photos produced by the defendant’s insurer.

Judge: Serving a Jury Notice Does Not Save You from Summary Judgment

Based on the submissions from the defendant and the third party–the plaintiff did not take a position on any of this–Justice Robert E. Charney granted the third-party contractor’s motion for summary judgment. Note this was technically a motion for partial summary judgment, as only the third-party claim was at issue. Justice Charney did not address or dispose of the plaintiff’s underlying lawsuit against the defendant. But in this case, Justice Charney concluded he could easily separate the third-party claim from the rest of the lawsuit and decide it separately.

The defence argued that it would be inappropriate to resolve the third-party claim on summary judgment as there was still some factual disputes, notably the exact dates of the accident and the repairs. But as Justice Charney explained, the precise timeline did not matter. Under any order of events, the third party could not be held liable for the accident. If the accident took place on September 19, as the plaintiff now alleged, that was before the earliest possible date the repair work was done. But if the accident occurred on September 27, as the plaintiff previously stated, the third-party contractor was still off-the-hook, as that was after the date all parties acknowledge the repairs were completed. Based on all of the evidence presented to the court–i.e., the photographs taken by the defendant’s insurer and the third party–those repairs were “properly made.”

The defendant’s only other argument in opposition to summary judgment was that it already served a jury notice, and that somehow trumped the judge’s authority to “decide all of the facts in this case.” Justice Charney categorically rejected this argument. He noted there was no “right” to a jury trial in civil matters under Ontario law. A party cannot use a jury notice “to dodge or escape a motion for summary judgment.”

Contact Preszler Injury Lawyers if You Have Been Injured in an Ontario Slip-and-Fall Accident

One reason for the timeline confusion in this case is that the plaintiff never went to the hospital following the accident or informed the defendants of what happened prior to serving notice of his lawsuit. If you find yourself in a similar situation following an accident, it is in your best interests to seek medical attention and contact a qualified personal injury lawyeras soon as possible. Call Preszler Injury Lawyers today if you would like to schedule a free, no-obligation consultation with one of our lawyers.



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