Feb 5, 2018
Ont. Super. Ct. dismisses summary judgment motion in occupiers case finding genuine issues requiring a trial
Authors Caroline Mowat and Michael S. Teitelbaum
Many thanks to Caroline Mowat for preparing the following case note on the Ontario Superior Court decision of Douglas v. Borthwick
while I was away, which I've lightly edited:
In Douglas v. Borthwick, Ontario Superior Court Justice Rady refused to summarily dismiss this occupiers' liability action against the defendant, Fox Hollow Farm, as there were liability issues requiring a trial, including what obligation an occupier has vis-à-vis an independent contractor.
The plaintiff William Douglas was injured in a tree felling accident while cutting down trees at Fox Hollow. As a result, he was rendered paraplegic. The defendant, Fox Hollow, was in the business of growing and selling trees. The defendant, Larry Borthwick operated L. B. Woodshavings, a wood chipping business. The arrangement with Fox Hollow Farm was that Mr. Borthwick and Mr. Douglas would cut down trees at the property, and in return, they could keep them. No written contract was entered into. No money was exchanged.
On May 2, 2011, while cutting down trees, Mr. Douglas’ chainsaw became stuck in a tree. He asked Mr. Borthwick for help. Mr. Borthwick threw a rope around the tree in order to pull it down and told Mr. Douglas to get out of the way. Instead, Mr. Douglas stood three feet away, believing the tree would fall away from him. Mr. Borthwick was unaware and Mr. Douglas had forgotten that a second tree that Mr. Douglas cut down earlier had become lodged in the tree. While Mr. Borthwick pulled the tree down, the second tree became dislodged and fell on Mr. Douglas.
Mr. Douglas and his family commenced an action for damages against Mr. Borthwick, L. B. Woodshavings and Farm Supplies and Fox Hollow. The plaintiffs relied on the Occupiers’ Liability Act. As against Fox Hollow (the moving party), Mr. Douglas alleged:
(l) it entered into a contract with the other defendants [i.e. Mr. Borthwick and L. B. Woodshavings] when it knew or ought to have known that they were not qualified to carry out the duties it required, that being the removal of trees;
(m) it failed to ensure its property was in good repair and properly maintained;
(n) it failed to adequately supervise or train the plaintiff and the defendant Larry Borthwick;
(o) it failed to ascertain whether or not the defendants were qualified to engage in tree removal;
(p) it allowed tree removal to be conducted on its property without adequate supervision; and
(q) it employed agents who were inadequately trained to remove trees.”
With respect to the use of a summary judgment motion, the parties agreed that summary judgment was an appropriate way to proceed. And, notwithstanding the fact that the trial was five months away, Justice Rady agreed to hear the motion as she was satisfied the motion might streamline the trial and shorten its duration. However, Her Honour commented that there was no reason the motion was not brought immediately after the parties’ examinations for discovery.
At para. 26, Justice Rady outlined that the following propositions were uncontroversial:
“1. Fox Hollow was an occupier of the land where Mr. Douglas was injured;
2. Fox Hollow owed Mr. Douglas a duty to take reasonable care for his reasonable safety;
3. That duty of care would not be engaged in respect of risks Mr. Douglas willingly assumed but Fox Hollow cannot create a danger intended to harm Mr. Douglas or recklessly disregard his presence;
4. Fox Hollow is not liable for damage caused by an independent contractor [Her Honour found Mr. Douglas and Mr. Borthwick were independent contractors on the available evidence] if:
- Fox Hollow acted reasonably in entrusting the work to Mr. Borthwick and Mr. Douglas; and
- Fox Hollow took such measures (if any) as it ought, in order to be satisfied that Mr. Borthwick and Mr. Douglas were competent and the work had been properly done; and
- it was reasonable for that work to have been undertaken by Mr. Borthwick and Mr. Douglas.”
At para. 28, Justice Rady outlined that the issues on the motion were narrow:
 There is no meaningful or significant issue respecting the facts in this case. Rather, the issues are narrow. Did Fox Hollow take reasonable measures to be satisfied that Mr. Borthwick and Mr. Douglas were up to the task? What inquiries were required? Were their representations (or those of Mr. Borthwick) sufficient to discharge that obligation? Does volenti apply?
In the result, Justice Rady concluded there was a genuine issue of liability requiring a trial:
 In my view, there is a genuine issue requiring a trial on the limits of any obligation an occupier has vis-à-vis an independent contractor like Mr. Douglas. A similar conclusion was reached by Justice DiTomaso in Chambers v. Cobb, 2015 ONSC 5313 (CanLII). In that case, His Honour concluded that in factually different but similar and analogous circumstances, there were genuine issues requiring a trial.
 Therefore, and at the risk of repetition, I have come to the conclusion that there is a genuine issue respecting whether Mr. Rapai, on behalf of Fox Hollow, took reasonable steps to satisfy himself that Mr. Borthwick and Mr. Douglas were competent to undertake the cutting work. Was the duty of the care met by the inquiries that Mr. Rapai undertook? Was Fox Hollow’s reliance on Mr. Borthwick respecting Mr. Douglas’ ability sufficient? Did Mr. Douglas assume the risk as that term is properly understood?
 A fair and just determination cannot be made nor do the expanded fact finding powers conferred by Rule 20 give me confidence the issues can be resolved in a proportionate and cost effective way. It is true that there are no credibility issues that require assessment. I expect the evidence at trial will be largely the same. However, it is for the jury to answer the question respecting the adequacy of the inquiries undertaken.
 It follows that the plaintiffs are not entitled to summary judgment [against Fox Hollow] either.