Davis v. East Side Mario's Barrie

Davis v. East Side Mario's Barrie

The motion judge correctly granted summary judgment dismissing the appellants' negligence claim based on alleged hazards or unsafe conditions of the stairs because the appellants failed to adduce independent or specific evidence of such conditions; however, the motion judge permissibly preserved the appellants' ability to amend their pleading and pursue a separate theory (contract and/or CPA s.9) alleging failure to advise of the existence of a main floor washroom. The bifurcation complained of did not prejudice the appellants. The appeal is dismissed and costs awarded to the respondent.

Citation
2016 ONCA 770
Parties
Plaintiff (appellant): Katherine Irene Davis; Plaintiff (appellant): Gregg James Davis; Plaintiff (appellant) Minor Represented by Katherine Irene Davis: Paige Gwen Davis; Defendant (respondent): East Side Mario's Barrie
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
19 October 2016
Procedural Posture
Civil (negligence, Occupiers' Liability, Contract, Consumer Protection) / Appeal From Summary Judgment (court of Appeal)
Outcome
Appeal dismissed; summary judgment upheld insofar as negligence claims based on stair hazards are precluded for lack of evidence; appellants may proceed on amended pleading to allege breach of contract and/or CPA s.9 regarding failure to advise of a main floor washroom; costs awarded to respondent.
Legal Topics
Summary Judgment, Bifurcation, Duty of Care, Amendment of Pleadings, Failure to Disclose Facilities
Source Language
English
Tort Contract Occupiers' Liability Consumer Protection Civil Procedure Summary Judgment Bifurcation Duty of Care +2 more

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Parties

Katherine Irene Davis

Plaintiff (appellant)

Gregg James Davis

Plaintiff (appellant)

Paige Gwen Davis

Plaintiff (appellant) Minor Represented by Katherine Irene Davis

East Side Mario's Barrie

Defendant (respondent)

Procedural Posture

Civil (negligence, Occupiers' Liability, Contract, Consumer Protection) / Appeal From Summary Judgment (court of Appeal)

Legal Issues

  1. 1 Whether the motion judge erred in his interpretation and application of s.3 of the Occupiers' Liability Act
  2. 2 Whether the motion judge erred by bifurcating the issue of liability into two hearings and whether that procedure prejudiced the appellants
  3. 3 Whether appellants may pursue a claim under the Consumer Protection Act (s.9) or contract for failure to advise of the existence of a main floor washroom

Ratio Decidendi

The motion judge correctly granted summary judgment dismissing the appellants' negligence claim based on alleged hazards or unsafe conditions of the stairs because the appellants failed to adduce independent or specific evidence of such conditions; however, the motion judge permissibly preserved the appellants' ability to amend their pleading and pursue a separate theory (contract and/or CPA s.9) alleging failure to advise of the existence of a main floor washroom. The bifurcation complained of did not prejudice the appellants. The appeal is dismissed and costs awarded to the respondent.

Court Disposition

Appeal dismissed; summary judgment upheld insofar as negligence claims based on stair hazards are precluded for lack of evidence; appellants may proceed on amended pleading to allege breach of contract and/or CPA s.9 regarding failure to advise of a main floor washroom; costs awarded to respondent.

Orders

  • Appeal dismissed
  • Respondent awarded costs of the appeal in the agreed amount of $12,000 inclusive of disbursements and all applicable taxes