Fadler v. Milton (Town), 2024 ONSC 4253,

By: Fahad Warraich, Associate

In the recent decision of Fadler v. Milton (Town), 2024 ONSC 4253, his Honour Justice Agarwal R. reinforces the Court’s post-Hryniak approach to summary judgment – namely, that parties put their best evidentiary foot forward in the face of a summary judgment motion and to make use of the procedural tools available to a party in respect of the same.

In May of 2020, George Fadler suffered catastrophic injuries when he lost control of his motorcycle near a Milton shopping plaza.  Mr. Fadler and his family alleged that a pothole near a catch basin at the plaza’s exit caused the accident. In April of 2022, Mr. Fadler and his family commenced an Action against the Town of Milton (“the Town”), the owner of the shopping plaza, and an unidentified contractor believed to be responsible for the road’s repair. The Town advised that it would assume the liability of the unidentified repair company.   

Following the close of pleadings in July of 2022, the plaintiffs took no substantive steps to discover the Action until September of 2023 when they proposed scheduling examinations for discovery or a summary judgment motion. At this time, the Town advised that it intended to move for summary judgment.

In November of 2023, the Town moved for summary judgment on the basis that the road was in a state of repair and that Mr. Fadler’s driving caused the accident (“the Motion”).  Prior to addressing the underlying issue of negligence, the Court first addressed a pair of threshold issues, specifically: (1) whether the plaintiffs’ argument that the Motion was brought prematurely for want of discovery; and (2) whether the plaintiffs’ hearsay evidence is admissible to demonstrate that there exists a triable issue.

Firstly, the Court rejected the plaintiffs’ argument that the Motion was premature due to incomplete discoveries. His Honour Justice Agarwal emphasized that in the post-Hryniak landscape, summary judgment motions are no longer exceptional steps but rather standard "final-adjudication-on-the-merits procedural tools.”

In light of this landscape, the fact that the plaintiffs did not take advantage of various discovery mechanisms available to them following the close of pleadings or at any time prior to the Motion, including proposing a discovery plan, examining witnesses, and cross-examining experts, demonstrated to the Court that they were prepared to argue the merits based on the existing evidentiary record.  In short, the Court held that the plaintiffs’ could not fail to use the discovery mechanisms available to them while concurrently arguing that the evidentiary record is incomplete for want of discovery.

In their responding materials, the plaintiffs sought to rely on an affidavit of a lawyer from the law firm representing the plaintiffs, which described a telephone call with representatives of an engineering firm and recounted their preliminary verbal opinions on road conditions.

Justice Agarwal noted that under the Rules, affidavit evidence can be put forth on an individual’s information and belief. However, where this hearsay evidence goes to a "fundamental contested aspect" of the summary judgment motion, the presiding Judge must first determine whether the evidence would be admissible under the Rules governing admissibility at trial.

Applying this principle, Justice Agarwal held that the plaintiffs' hearsay evidence was inadmissible, even for the limited purpose of demonstrating a triable issue. The Court distinguished the plaintiffs’ use of affidavit evidence from caselaw brought forth by the plaintiffs where actual expert reports were filed, noting that without a formal report, it was impossible for the adverse party and the Court to properly assess the validity and strength of the evidence.

In addressing the substantive issues of municipal liability and negligence, the Court considered whether (a) the plaintiffs could prove that the road presented an unreasonable risk of harm to ordinary users; (b) whether the plaintiffs could prove that the state of non-repair was causally linked to the accident; and (c) whether the Town had any statutory defences available to it. 

The Court found that the plaintiffs failed to establish that the road presented an unreasonable risk of harm to ordinary, reasonable drivers or that the state of non-repair caused the accident at issue due to the plaintiffs’ reliance on inadmissible hearsay evidence.

In particular, the Court rejected the plaintiffs’ attempt to rely on inadmissible evidence in the form of witness statements to create a triable issue on non-repair, emphasizing that the plaintiffs had ample opportunity to obtain this evidence through examinations for discovery or witness testimony, but failed to do so.

Relatedly, the Court rejected the plaintiffs' attempt to rely on inadmissible hearsay witness statements to prove causation, noting the plaintiffs failed to obtain proper affidavits or testimony from these witnesses. Justice Agarwal concluded that even if liability was established, the Town could still invoke a complete statutory defence.

This decision is an instructive reminder of the evidentiary standards required on summary judgment motions in the post-Hryniak landscape. The key lessons for litigants are twofold: first, parties must be vigilant in meeting the heightened requirements for adducing expert and hearsay evidence. Mere affidavits describing preliminary verbal opinions will generally be insufficient to demonstrate a genuine triable issue. Second, parties cannot afford to be dilatory in conducting discovery when facing a summary judgment motion. The Court has made clear that it will not permit otherwise inadmissible evidence where a party has failed to take the necessary steps to properly discover the action. Litigants must proactively use the various procedural tools available to them, such as discovery plans and examinations, in order to put their best evidentiary foot forward.