Trotter and Morton Limited v Biegel, 2024 ABCA 312 is a case of interest with respect to what factual issues can be dealt with on summary judgment versus what requires a trial.
The respondent had a serious bicycle accident. At the time of the accident, the appellants were the contractors doing construction work. The respondent alleged that loose gravel from the construction site created a hazard causing the accident.
The appellants applied for summary dismissal of the claim arguing that the respondent would be unable to establish that the alleged loose gravel and divots from the construction site created a hazard that caused the accident. The appellants relied on questioning responses given by the respondent where she indicated that she had not seen gravel or divots prior to falling and that her understanding that her bicycle hit divots and gravel was “because of the injury” that resulted from the accident.
The applications judge granted the application for summary dismissal based on the respondent’s answers during questioning, determining that the respondent could only “speculate” as to the existence of gravel, that she was “unable to establish the nature of the hazard with which her bicycle collided” and could therefore not prove her claim.
The chambers judge overturned that decision finding that the applications judge failed to take into account other evidence such as statements made by the respondent to third parties shortly after the accident in which the respondent said that the accident occurred as a result of her encountering gravel in her path. The chambers judge concluded that the existence of a hazard “should be properly tested and assessed at trial where a full evidentiary record may be obtained”.
The Court of Appeal upheld the decision that the accident could not be fairly resolved on a summary basis. The alleged inconsistencies in the respondent’s testimony about the loose gravel and divots from the construction site could not be relied on to support summary dismissal. The Court of Appeal determined that in light of the evidence, it was necessary to adjudicate a claim for injuries where there was an issue with respect to the presence of a hazard and its causal role in the accident.
