COURT OF APPEAL FOR ONTARIO

Page: 98
reference to the test for summary judgment as set out in Rule 20, and there is nothing to
indicate whether he appreciated the fact that the standard is different and more flexible
under the new Rules.” However, the Divisional Court found that a review of the record
supported the motion judge‟s conclusion that a trial was required for three reasons, at
paras. 12-14. These reasons may be summarized as follows:
(1) There is conflicting evidence as to whether the work
was carried out by Scarfo personally or by his
company. Scarfo‟s personal liability should not be
decided without a trial as most of the agreements with
the sub-trades and the homeowners were verbal. These
factors “appear to put a premium on viva voce
evidence and the ability to be cross-examined”.
(2) The new homeowners‟ liability was not clearly
established on the record. To establish vicarious
liability, the appellants must show that the work
undertaken involved “unusual and inherently
dangerous risk: Savage v. Wilby, [1954] S.C.R. 376”.
The record did not differentiate between damages from
activities that might have been inherently dangerous,
such as excavating, and damages from activities that
might not be, such as constructing a walkway.
(3) The expert report filed by the appellants does not break
down the damage calculation into its components.
Further, there is conflicting evidence as to whether
there was damage that pre-existed the construction.
[246] Finally, the court observed that there was no cross-examination prior to the
motion. The court concluded, at para. 15, that “despite the new rules, this is a case that is
more appropriately dealt with by a trial, though perhaps one that is summary in nature.”