COURT OF APPEAL FOR ONTARIO
Blair and Juriansz JJ.A., and Pepall J. (ad hoc)
BETWEEN:
Janice Martin-Vandenhende
Plaintiff (Respondent)
and
Peter Myslik and Edward Myslik
Defendants (Appellants)
David M. Miller, for the appellants
Tanya A. Pagliaroli, for the respondent
Heard: October 28, 2011
On appeal from the judgment of Justice Bruce G. Thomas of the Superior Court of Justice, dated January 31, 2011.
Overview
1During the afternoon of December 31, 2001 a Toyota Camry driven by Ms. Martin-Vandenhende and a GMC Sierra pickup truck driven by Peter Myslik collided. Both vehicles were travelling southbound on Erie Street in Ridgetown, Ontario, at the time, with Ms. Martin-Vandenhende in the lead. She was in the process of making a left-hand turn into a driveway in order to return to her work at Home Hardware when the collision occurred.
2The parties had differing versions of how the accident occurred, and it is the disputed circumstances surrounding the making of that left-hand turn that give rise to the issues on this appeal. The trial judge did not resolve the conflicting testimony. Instead, he proceeded to determine liability – as he put it – by “taking the Myslik position at its highest.”
3The appellants argue that the trial judge erred in failing to resolve the conflicting testimony and either did not apply the evidence by “taking the Myslik position at its highest” or, if he did, he erred in finding that Peter Myslik was negligent or, at least, in failing to find that Ms. Martin-Vandenhende was contributorily negligent. I agree that the trial judge erred – although not necessarily in finding Mr. Myslik negligent – and, for the reasons that follow, would allow the appeal and order a new trial.
Facts
4It was a snowy New Year’s Eve. Ms. Martin-Vandenhende left her work at Home Hardware at about 4 o’clock and was proceeding southbound on Erie Street when she realized she had forgotten something. She decided to return to the store to retrieve it. Peter Myslik – then a high school student nine days short of his 17th birthday – was returning home from a hockey tournament with his father. They were driving in his father’s new Sierra pickup, Peter at the wheel, his father in the passenger’s seat.
5The Mysliks were travelling at the posted 60 kmph speed limit when they first saw the Martin-Vandenhende car about 200-300 yards ahead of them. It was travelling at a slower speed (about 40 kmph) and the gap was closing between the two vehicles. From this point the evidence of the parties diverges with respect to what happened leading up to the collision.
6According to Ms. Martin-Vandenhende, she activated her left-turn signal and slowed to 20-30 kmph with the intention of turning left into a private driveway on the east side of the road in order to complete her turn and retrace her steps to pick up the forgotten article. As she was about to make her left turn, and before her vehicle crossed the centre line of the road, she was struck violently from the rear. The next thing she recalled was that her car was in the ditch on the opposite (east) side of the road and she was bleeding from the head and had a severe headache.
7Ms. Martin-Vandenhende acknowledged that she could not recall looking in her rear view or side view mirrors or checking her blind spots to verify if there was any oncoming traffic from behind.
8The Myslik version was somewhat different. Both Peter and his father testified that when the two vehicles were about 100 yards apart, Ms. Martin-Vandenhende activated her right-turn signal and, as she did so, pulled her vehicle to the right with both right wheels on the right shoulder of the road. She slowed to the point where, according to Peter, she was “close to dead still.” Peter thought that she was pulling over to let him pass and he decided to do so by pulling into the northbound lane and going by. When the pickup was about 20-30 yards behind and moving to the northbound lane, however, Ms. Martin-Vandenhende suddenly turned her vehicle left directly into the path of the Myslik pickup. According to Peter’s evidence, her right-hand turn indicator was still activated at the time she commenced her turn. Neither Peter nor his father saw a left-turn signal.
9When Peter saw the Martin-Vandenhende vehicle turn left, he braked and attempted to steer the pickup toward the right in the hopes of passing Ms. Martin-Vandenhende on the right because it seemed that she was fully into her left turn.
10Ms. Martin-Vandenhende testified that she did not pull her vehicle onto the right-hand shoulder of the road and that she did not activate her right-hand turn signal.
11The parties accept that the actual collision took place while both vehicles were in the southbound lane. The trial judge concluded that the Martin-Vandenhende vehicle was heavily damaged on the left rear corner, consistent with the vehicle being slightly turned to the left when hit from the rear. Peter Myslik testified that if he had not turned to the right he would have collided with the driver door on the other vehicle.
12Damages were settled. The trial proceeded on the issue of liability only. The trial judge found Peter Myslik to be totally responsible.
Analysis
13In my view, the trial judge initially went astray when he failed “to resolve the divergent testimony” between the parties on the crucial factual issues surrounding which turning signal Ms. Martin-Vandenhende activated, and when and how she manoeuvred her vehicle just prior to the collision. This error, in turn, led to other flaws in his reasoning. In particular, although he purported to determine the issues on the basis of the Myslik position taken at its highest, he does not appear to have done so in fact. Rather, he constructed his liability conclusions on facts that – although they may have been open to him to find, had he resolved the credibility conflicts in the evidence – are not drawn from a view of the evidence taking the Myslik position at its highest.
14Let me explain.
Failure to Make Factual Findings
15A trial judge has an obligation to make factual findings on conflicting evidence with respect to material facts that were essential to a proper determination of the issues before him or her. As Denning L.J. observed, in Jones v. National Coal Board, [1957] 2 Q.B. 55, at p. 64, it is the judge’s role “at the end to make up his mind where the truth lies.” This Court expressed a similar sentiment a year earlier when it said that a trial judge “must make the findings of fact that enable the Court to say whether or not there is liability involved”: see Waring v. Jarvis, [1956] O.J. No. 246 (C.A.), at paras. 4-5. See also Aujla v. Hayes (1997), 1997 4459 (ON CA), 100 O.A.C. 129 (C.A.), at para. 31. The fact-finding exercise in itself brings a certain discipline and rigour to a trial judge’s analysis of the evidence and guards against imprecise thinking and the risk of a case being decided on the basis of facts that were not actually found.
16As Mr. Miller points out on behalf of the appellants, it was incumbent on the trial judge to make a number of findings of fact in order to resolve the issues of liability. These included whether:
a) Ms. Martin-Vandenhende pulled her vehicle over to the west (right) shoulder of the road, or continued to travel down the southbound lane of Erie Street right up until the time of the collision;
b) she activated her right-hand turn signal as she pulled her vehicle onto the west shoulder of the road;
c) she slowed almost to a stop in the process of doing this;
d) Peter Myslik reasonably believed Ms. Martin-Vandenhende was inviting him to pass her to the left by engaging in this manoeuvre;
e) Ms. Martin-Vandenhende suddenly commenced a left-hand turn from the right shoulder of the road directly into the path of the Myslik vehicle;
f) Ms. Martin-Vandenhende left her right-hand turn signal activated or had activated her left-hand turn signal prior to the collision; and
g) Peter Myslik admitted fault to Ms. Martin-Vandenhende in a conversation she alleges to have had with him while his father was calling emergency services.
17The failure to make these findings of fact reveals that although the trial judge professed to take the Myslik position at its highest, he does not appear to have done so.
18The operative portions of the trial judge’s liability analysis are found in the following portions of his reasons:
[21] I accept the position taken by the plaintiff to this extent. The collision here on all the evidence took place entirely in the southbound lane of Erie Street. I am unable to resolve the divergent testimony of the signalling of the Martin vehicle, but taking the Myslik position at its highest, the Martin vehicle was plainly visible ahead. It moved from a position of having its right tires just off the paved southbound lane onto the shoulder and then moved back to the left so that its left tires, while close to the centre line with the front wheels turned somewhat to the left, were still fully in the southbound lane. The defendants’ vehicle then collided with the left rear corner of the Martin vehicle. The move to the left by Martin happened when Peter Myslik was still 20-30 yards away. He locked up his brakes and slid into the rear of the Martine vehicle.
[22] If in fact Janice Martin was signalling a move to the right, while perhaps confusing to Peter Myslik, it nonetheless does not detract from his obligation to have his vehicle on such control that on these road conditions he can stop without colliding with her vehicle no matter what she chooses to do, within her own lane. That is so even recognizing that Martin took no steps to see what was behind her in the southbound lane.
[26] It is my view that Peter Myslik was an inexperienced driver, proceeding too quickly for the road conditions, who when faced with a slow moving vehicle in front of him, perhaps giving him inconsistent signals, failed to have his vehicle under the necessary control to avoid this collision. [Emphasis added.]
19Respectfully, this analysis does not reflect the Myslik evidence taken “at its highest.”
20For example, the trial judge gave little, if any, weight to the evidence that the Martin-Vandenhende vehicle slowed almost to a complete stop while pulling over onto the shoulder of the road. In addition, the statement that the Martin-Vandenhende vehicle “[had] its right tires just off the paved southbound lane onto the shoulder” (emphasis added) does not accurately reflect the evidence of the Mysliks, suggesting as it does that the vehicle had barely left the roadway and feeding the respondent’s argument that Ms. Martin-Vandenhende never stopped and never exited her lane.
21Such a finding might have been open to the trial judge, but it does not reflect Peter Myslik’s testimony. He acknowledged in cross-examination that the shoulder on the right side of the southbound lane on Erie Street was narrower than most, but nonetheless maintained that “it’s not small by any means.” He remained resolute that Ms. Martin-Vandenhende “was definitely on the shoulder and it was visible from where [he] was driving in the southbound lane that she was definitely pulled off to the right,” and that “she was off enough that [he could] judge that she was on the shoulder.”
22Coupled with the foregoing misconceptions, the trial judge made an important finding that is inconsistent with the Peter Myslik’s testimony. As noted in para. 22 of his reasons, cited above, the trial judge found that if in fact Ms. Martin-Vandenhende was signalling a move to the right, the signal would have been “perhaps confusing” to Peter Myslik. At para. 26, the trial judge concluded that she was “perhaps giving him inconsistent signals.” However, there is no room on Mr. Myslik’s evidence for a finding that he was “confused,” or that Ms. Martin-Vandenhende was giving him “inconsistent signals.” His evidence was unequivocal: Ms. Martin-Vandenhende activated her right-turn signal only, pulled off onto the right shoulder of the road, and slowed down to a near stop in a manner that led him to believe he was being invited to go by her. Peter Myslik believed he was being signalled by the driver of the vehicle ahead of him to pass it on the left, and began his manoeuvre to do so safely. On his evidence, he was not “confused” about anything nor had he received “inconsistent signals.”
23Had the trial judge resolved the conflicting credibility issues with respect to the turning signals and the manner in which Ms. Martin-Vandenhende manoeuvred her vehicle, he may well have rejected Mr. Myslik’s testimony and found that he was confused by inconsistent signals and that the Camry was not really off the road. On the other hand, he might have accepted Mr. Myslik’s testimony and rejected that of Ms. Martin-Vandenhende – a viewpoint that could well have led him to consider the liability of Peter Myslik in a different light (something to which I will return). But the trial judge could not make the findings that Mr. Myslik was confused and receiving inconsistent signals or that the Camry tires were “just off” the southbound lane, taking his testimony at its highest.
24Taking “the Myslik position at its highest” would have required the liability issue to have been determined on the basis of at least the following evidence:
(a) Ms. Martin-Vandenhende activate her right turn signal and moved her vehicle over onto the right shoulder of Erie Street when the Myslik vehicle was approximately 100 yards behind her, slowing down to a near complete stop.
(b) Peter Myslik believed that she was pulling over to let him pass, and turned his vehicle towards the centre of the road in order to do so on the left.
(c) When the Myslik vehicle was only a short distance behind the Martin-Vandenhende vehicle, Ms. Martin-Vandenhende suddenly turned her vehicle to the left directly into the path of the Myslik vehicle.
(d) Ms. Martin-Vandenhende did not activate her left turn signal prior to the collision. In fact, the right turn signal was still activated when she commenced her left turn.
(e) Peter Myslik applied his brakes and steered his vehicle hard to the right in order to avoid striking the Martin-Vandenhende vehicle. The front left of the Myslik vehicle struck the rear of the Martin-Vandenhende vehicle which was angled sufficiently into a left turn that if Peter Myslik had not made the sharp right turn, the front of his vehicle would have struck the driver door on the left side of the Martin-Vandenhende vehicle.
25The trial judge’s failure to make these findings of facts lead to a flawed liability analysis, in my view.
Flawed Liability Analysis
26The trial judge addressed the common law respecting the onus on a following driver, as expressed by this Court in Beaumont v. Ruddy, 1932 147 (ON CA), [1932] O.R. 441 (C.A.), at p. 442:
Generally speaking, when one car runs into another from behind, the fault is in the driving of the rear car, and the driver of the rear car must satisfy the Court that the collision did not occur as a result of his negligence. [Emphasis added.]
27He also relied upon the “following too closely” provisions of s. 158(1) of the Highway Traffic Act R.S.O. 1990, c. H.8:
The driver of a motor vehicle or street car shall not follow another vehicle or street car more closely than is reasonable and prudent having due regard for the speed of the vehicle and the traffic on and the conditions of the highway.
28In the end, however, the trial judge treated the case as a rear-end collision case in which an inexperienced driver, perhaps confused by inconsistent signals from the lead vehicle, was proceeding too quickly without having his vehicle under proper control in the circumstances and who, as a result, failed in “his obligation to have his vehicle on such control that on these road conditions he can stop without colliding with her vehicle no matter what she chooses to do, within her own lane” (emphasis added). This approach was neither justified in law or on the facts, taking the Myslik position at its highest.
29The approach is unjustified on the facts because, as outlined above, it is not compatible with the Myslik evidence taken at its highest, which is the basis upon which the trial judge purported to impose liability. For one thing, Ms. Martin-Vandenhende did not stay “within her own lane” as the trial judge appears to have found. He was correct in that respect in terms of whether her vehicle had crossed into the northbound lane, but on the Myslik testimony she left her southbound lane and moved her vehicle well onto the right hand shoulder of the road. This was not staying “within her own lane” and was important in terms of the “signal” Peter Myslik believed Ms. Martin-Vandenhende was sending him, inviting him to pass her on the left.
30More generally, though, on the Myslik version of events, Peter Myslik provided an explanation as to why the accident did not occur as a result of his negligence but was instead caused by the negligence of Ms. Martin-Vandenhende, or by a combination of the negligence of each driver – the onus contemplated in Beaumont v. Ruddy. The trial judge did not reject that explanation. He simply declined to make the necessary factual findings in order to resolve the conflicting testimony. On that basis it could not be said one way or the other whether the Beaumont v. Ruddy onus had been satisfied.
31In addition, the trial judge’s approach was wrong in law, in my view. The common law principle enunciated in Beaumont v. Ruddy does not prescribe that a following driver is always at fault if he or she runs into another from behind. It simply states that generally speaking this will be the case, and shifts the onus to the following driver to show otherwise. There is no principle of law of which I am aware that automatically fixes a following driver who runs into another vehicle from the rear with liability “no matter what [the lead driver] chooses to do, within [his or] her own lane.” Subject to the law’s general bias in favour of fault on the part of the following driver and the “following too closely” jurisprudence, liability – as in any negligence case – depends upon whether the following driver was acting reasonably in the circumstances and, conversely, whether the lead driver was as well.
Conclusion
32The upshot of the foregoing analysis is twofold, for purposes of the appeal.
Contributory Negligence
33Section 3 of the Negligence Act, R.S.O. 1990, c. N.1 requires the judge to apportion damages if fault or negligence is found on the part of the plaintiff that contributed to the damages.
34The trial judge did not directly address the issue of contributory negligence, but he did refer to three authorities cited to him by the appellants, which he said “all [found] fault in the operator of the lead vehicle when abruptly changing lanes, or directions of travel, without signalling or ensuring the way was clear.” The three authorities were Adshade v. Jackson (1987), 1987 9083 (NS CA), 82 N.S.R. (2d) 8 (C.A.); Wierenga v. Hemmons, 1993 Carswell BC 1845 (S.C.); and Schleiermacher v. Neider (1996) Carswell BC 2761 (S.C.).
35The trial judge distinguished all three cases on the basis that in all of them the offending lead vehicle had changed lanes and in none of them had the point of the collision been in the single lane originally travelled by both drivers. The flaw in the trial judge’s distinction is that it is rooted in a version of the facts that he was not entitled to take if he were determining liability on the basis of the Myslik position at its highest, for the reasons outlined above. If the Myslik position is taken at its highest, Ms. Martin-Vandenhende did change lanes by moving onto the shoulder.
36Particularly telling as an example of how his approach to liability and contributory negligence was based on a non-Myslik version of events, is the trial judge’s treatment of the Schleiermacher decision. At para. 29 of his reasons he said:
In Schleiermacher the offending vehicle was off the road fully on the shoulder and then, as it was being passed, re-entered the roadway without signalling cutting off the other vehicle.
37Far from being distinguishable on that basis, however, Schleiermacher – with the exception of the vehicle being “fully” on the shoulder as opposed to being “partially” but “definitely” on the shoulder – is a case very similar to the facts as presented by the Mysliks. Indeed, here there is the added dimension of the lead driver’s conduct apparently leading the following driver to believe that he was being invited to pass the lead vehicle on the left. Schleiermacher is not binding of course, but it is instructive. The law as presented to the trial judge provided a basis upon which he should have considered Ms. Martin-Vandenhende’s contributory negligence.
38In concluding that the trial judge erred in his liability analysis, I do not think it matters whether the standard of review on this issue is correctness or palpable and overriding error, or something in between the two. On the Myslik version of events, taken “at its highest,” I am satisfied that the trial judge’s failure to find that Ms. Martin-Vandenhende was at least contributorily negligent amounted to palpable and overriding error.
39Given the facts outlined in para. 24 above, it is inconceivable to me that the driver of a lead vehicle, who signals a turn to the right, pulls her vehicle off to the side of the road and slows almost to a dead stop – thereby reasonably signalling to a following vehicle that she intends to let the following vehicle pass – and then suddenly, without warning and without even changing to a left-turn signal, cuts across in front of the oncoming vehicle to make a sharp left turn across the roadway, is not at least contributorily negligent. This was not a case about a lead car simply stopping suddenly or engaging in some confusing manoeuvres within its own lane, and the driver of a following vehicle not having proper care and control of the following vehicle sufficient to enable him or her to react to the sudden stop. This was a case in which the lead driver – based on the Myslik evidence taken at its highest – operated her vehicle in a fashion that sent a clear signal to the following driver that she was pulling off the road to let him pass.
40In my view, a new trial is required to resolve the issue of contributory negligence.
Peter Myslik’s Liability
41Although I am more reluctant to do so, I would also order a new trial on the issue of Peter Myslik’s liability.
42In doing so, I am mindful that, even taking the Myslik testimony at its highest, there may well have been evidence upon which the trial judge could have justified a finding of liability on Peter Myslik’s part. However, as I alluded to earlier in these reasons, it cannot be said with assurance that the trial judge would necessarily have come to that conclusion if he had made the required findings of fact and if those findings had favoured the Mysliks. As I have tried to explain, I do not believe that he was approaching his determination of liability through the lens of the Myslik case taken at its highest.
43At a new trial, the trial judge might arrive at the same conclusion that the trial judge here arrived at, based on findings of fact favouring Ms. Martin-Vandenhende. But he or she might reach a different conclusion, based on findings of fact in favour of the Mysliks, too. I am not satisfied that a new trial should only be ordered on the question of contributory negligence.
Disposition
44For all of the foregoing reasons, I would allow the appeal and order a new trial.
45The appellants are entitled to their costs of the appeal, fixed in the amount of $14,513.96, including disbursements and all applicable taxes. I would leave the costs of the trial to be disposed of by the judge hearing the new trial.
“R.A. Blair J.A.”
“I agree R.G. Juriansz J.A.”
“I agree S.E. Pepall J.
RELEASED: January 30.2012
