In the recently released decision of Gallo v Bramalea City Centre Equities et al., 2019 ONSC 1443 (CanLII), Bogoroch and Associates LLP were successful defending a summary judgment motion brought by the Technical Standards and Safety Authority (“TSSA”), seeking a dismissal of the Plaintiffs’ claims. The TSSA is mandated to promote and enforce public safety, and is responsible for ensuring that devices such as escalators operate safely.
Justice Faieta dismissed the Defendant’s summary judgment motion in this action involving a young child whose finger was trapped and severed in an escalator incident. On September 3, 2015, the minor plaintiff, then 3 years old, her mother and two siblings visited a Shopping Centre. While on an upwards moving escalator, the child fell backwards to her left side. Her left hand became entrapped in the step-to-skirt gap on the escalator causing her left index finger to be severed. The child suffered extensive injury to her left hand resulting in the amputation of her left index finger.
The Defendant, TSSA, brought a partial summary judgment motion, seeking a dismissal of the action on the basis that (1) the TSSA owed no duty of care with respect to the frequency of inspections (2) it met the requisite standard of care, and (3) the Plaintiffs failed to establish that a 6 mm escalator gap existed at the time of the incident or caused the child’s injuries.
Justice Faieta dismissed the motion for summary judgment and held that it raises genuine issues requiring a trial. He held that this is not a clear case for the grant of partial summary judgment as it would not result in a fair and just determination on its merits. He held that the issues in relation to the Defendant, TSSA, are not clearly severable from the balance of the case against the remaining Defendants, and raises the very real risk of inconsistent findings.