Putting Your Best Foot Forward: Evidence on Summary Judgment Motions

July 23, 2019 Garrett Horrocks Estate & Trust, Estate Litigation, Litigation, Public Policy Tags: , , 0 Comments

In Drummond v Cadillac Fairview, the Court of Appeal for Ontario considered the issue of the admissibility of hearsay evidence on a motion for summary judgment.  The facts in Drummond are quite simple.  The plaintiff tripped on a skateboard while shopping at the Fairview Mall in Toronto, owned by the defendant.  The plaintiff brought an action for occupier’s liability, supported by an affidavit sworn by him.  The defendant, Cadillac Fairview, responded by bringing a motion for summary judgment.

At the hearing of the motion, not only did the judge dismiss Cadillac Fairview’s motion for summary judgment, but it granted summary judgment in favour of the plaintiff (a remedy that the plaintiff was not seeking).  Cadillac Fairview appealed and was successful at the Court of Appeal.

In granting the appeal, the Court identified serious concerns regarding the hearsay evidence relied on by the plaintiff in responding to Cadillac Fairview’s summary judgment motion.  The plaintiff’s responding affidavit relied heavily on statements purportedly made by his fiancée and his daughter, and two unidentified staff members working at the mall.  The trial judge agreed that these statements were hearsay but admitted them nonetheless under the business records exception to the hearsay rule and under Rule 20.02 of the Rules of Civil Procedure.

The Court of Appeal rejected the admission of the hearsay statements.  While the Court agreed that Rule 20.02 permitted the admission of affidavit evidence “made on information and belief”, the Court also noted that the Rule permits a trier of fact to draw an adverse inference if a party with personal knowledge of contested facts does not give evidence.

The Court of Appeal found that the information relayed by the plaintiff from his fiancée and his daughter “went to the heart” of his claim.  The plaintiff’s failure to have his fiancée or daughter swear their own affidavits with respect to the key facts at issue caused the Court to have considerable reservations about admitting their evidence.  The Court of Appeal ultimately held that the finding of liability against Cadillac Fairview was based on an “erroneous admission of hearsay evidence on key, contested issues” and reversed the decision.

On motions for summary judgment, courts will expect the parties to put their best foot forward, including the nature and source of relevant evidence.  As can be seen in this case, a party’s failure to do so can have serious consequences.

Thanks for reading.

Garrett Horrocks

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