Court of Appeal for Ontario

Date: 2017-04-26 Docket: C62414

Judges: Strathy C.J.O., Gillese and Pardu JJ.A.

Between

John Chernet Plaintiff (Appellant)

and

RBC General Insurance Company, State Farm Insurance Company, Gregorio V. Galaites and Galites Gounell Zamora Defendants (Respondents)

Counsel

Martin Zatovkanuk, for the appellant

Cassandra Kleinman, for the respondents Gregorio V. Galaites and Galites Gounell Zamora

Ross Donald Rollo, for the respondent RBC General Insurance Company

Heard: April 21, 2017

On appeal from: the order of Justice Thomas R. Lederer of the Superior Court of Justice, dated June 22, 2016, with reasons reported at 2016 ONSC 4023.

By the Court:

[1] We dismissed this appeal, with reasons to follow. These are our reasons.

[2] The appellant appeals an order granting summary judgment dismissing his claim for damages arising from a motor vehicle accident.

[3] He asserts that the motion judge erred: (a) by improperly taking judicial notice of scientific and technical matters in determining how the accident occurred and by failing to give the parties an opportunity to respond to his conclusions; (b) by misapprehending the evidence; and (c) by concluding that there was no genuine issue requiring a trial.

Standard of Review

[4] The standard of review applicable to an appeal of summary judgment is set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 81: "[w]hen the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law." When there is no extricable error in principle, findings of mixed fact and law should not be overturned, absent palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36. We reject the appellant's submission, for which he cited no authority, that less deference is owed to the motion judge's findings of fact because they were based on a "paper record".

Judicial Notice

[5] The appellant impugns the motion judge's conclusion that the physical evidence established that the accident was a "straight-forward rear-end collision." The judge pointed to the absence of physical evidence that the respondents' vehicle swerved or turned suddenly into the path of the appellant's car, which would require the appellant to stop so quickly that a collision could not reasonably be avoided. There were no skid marks on the road and the collision damage was at the centre rear of the respondents' car and not at the side.

[6] The trial judge rejected the appellant's argument that the respondents' vehicle suddenly swerved in front of him and came to a sudden stop, making it impossible to avoid a collision. He said, at para. 7:

Geometry alone makes this plain. For the damage to occur, as it did, it would be necessary for the [respondents'] vehicle to have swerved cleanly into the path of the car being driven by the plaintiff in time for it to straighten out the path it was travelling such that it was in place to be struck cleanly in the rear without any skid-marks or other sign of this kind of precipitous manoeuvre.

[7] These conclusions must be considered in the context of the respondents' evidence that they were stopped at the intersection waiting for the light to change when they were hit without warning in the rear by the appellant's vehicle. They must also be considered in the context of the appellant's conflicting evidence on discovery and in his affidavit on the motion. On discovery, the appellant said that he never saw any vehicle in front of him and he thought the collision was an "explosion". In his affidavit on the motion, in contrast, he said that the respondents' vehicle suddenly appeared in front of him and came to an abrupt stop.

[8] We disagree that the motion judge improperly took judicial notice of matters that should have been the subject of expert evidence. He was simply drawing reasonable inferences from the uncontested facts. The damages to the respondents' car were in the middle of the back and there was no damage to either car to suggest that the appellant's car was sideswiped or cut off. Nor was there evidence of tire marks to suggest that one vehicle suddenly swerved in front of the other or that either vehicle came to a sudden stop. The inferences he drew were reasonable and refuted the appellant's theory of how the accident occurred.

[9] The motion judge was not required to advise the parties of the inferences he drew from these unchallenged facts. He was entitled to conclude that this evidence supported the evidence of the respondents and was inconsistent with the evidence of the appellant.

Misapprehension of the Evidence

[10] The appellant acknowledges that as the rear-ending party in a rear-end collision, he bears the onus of satisfying the court that the collision did not arise due to his negligence: Beaumont v. Ruddy, [1932] O.R. 441 (C.A.), at p. 442.

[11] The appellant asks us to review the evidence and to come to different conclusions than the motion judge. He asks us to draw the following conclusions: the accident occurred 150 meters from the intersection (and not a few car lengths from the intersection as the respondents deposed); the accident occurred because the respondents' vehicle suddenly changed lanes and came to a sudden stop; there were discrepancies in the respondents' evidence; the appellant's evidence was credible; and the accident must have happened because the respondent driver was distracted and tired.

[12] It is trite law that both parties on a summary judgment motion are required to put their best foot forward. Summary judgment motions are decided by evidence of the facts and by inferences drawn from those facts. Not by speculation about the facts.

[13] This motion was decided based in part on the failure of the appellant to give any coherent explanation of how the accident actually happened. No affidavit was filed by the passenger in the appellant's car, who admitted on discovery that he never saw how the accident happened. The appellant, who did not adduce evidence from the police officer who investigated the accident, asks us to interpret the unproven and hearsay accident report in a manner that is speculative at best.

[14] The appellant, as we have noted, gave conflicting explanations for how the accident occurred. His assertion that the respondents suddenly swerved in front of him and stopped was inconsistent with the physical evidence and with the respondents' evidence, which the trial judge accepted. We do not agree that there was inconsistency in the respondents' evidence or that the respondent driver admitted to having changed lanes prior to the accident. Nor do we accept the appellant's pure speculation about how the accident might have happened.

Conclusion

[15] As we have explained, the appellant has failed to demonstrate either an extricable error in principle or a palpable and overriding error in the motion judge's assessment of the evidence. The motion judge's conclusion that there was no genuine issue for trial is entitled to deference.

[16] In the result, the appeal is dismissed. Costs to the Galaites respondents in the amount of $10,000 and to RBC General Insurance Co. in the amount of $5,000, both amounts inclusive of disbursements and all applicable taxes.

Released: April 26, 2017

"G.R. Strathy C.J.O."

"E.E. Gillese J.A."

"G. Pardu J.A."