COURT FILE NO.: 851/01

DATE: 20030213

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

BARRY APPLETON

Plaintiff

• and -

TAMMIE A. GREEN, FLORENCE FRASER, STEPHEN L. HONG, DANA HARRISON, IRENE HARRISON and CANADA LIFE CASUALTY INSURANCE COMPANY

Dwain C. Burns, for the Appellants, Tammie A. Green and Florence Fraser

Joanna Chadwick for the Respondent/ Defendants Dana Harrison and Irene Harrison

Defendants

(Appellants, Tammie A. Green and Florence Fraser)

(Respondents, Dana Harrison and Irene Harrson)

HEARD: November 20, 2002

Ellen Macdonald J.

1The defendant/appellants (“appellants”) Tammie A. Green and Florence Fraser appeal from the orders of Master Egan dated November 17, 2001 and December 19, 2001. In short, the appellants say that the Master erred in granting summary judgment in favour of the defendants, Dana Harrison and Irene Harrison (“the Harrison defendants”). The claims against them were dismissed in the summary judgment motion. The appellants also seek leave to appeal costs awarded to the Harrison defendants by Master Egan on December 19, 2001. The appellants say that the Master erred in concluding that there was no genuine issue for trial on the issue of liability of the Harrison defendants. The appellants also say that the Master erred in that she weighed evidence, made findings of credibility and fact, and drew inferences all of which are matters for a trial judge. For the reasons that follow, the appeal is allowed. Leave is granted to appeal the costs order dated December 19, 2001.

Factual Background

2A brief summary of the facts follows. The action arises out of a multi-vehicle accident that occurred on the eastbound passing lane of Highway 401 near Highway 10 in Mississauga on May 20, 1998. The plaintiff, Barry Appleton (“Appleton”) issued a claim on May 16, 2000 seeking damages for personal injuries. The statement of claim alleges that Mr. Appleton, while wearing his seatbelt, slowed and stopped for traffic when suddenly and without warning he was repeatedly struck by the defendant, Tammie A. Green who was then struck by the defendant Stephen L. Hong who was then struck by the defendant, Dana Harrison who was the driver of the fourth vehicle.

3The very nature of the accident, involving four vehicles and four drivers, gives rise to the evidentiary conflicts that results in competing and differing recollections of events germane to the issue of liability. Ms. Chadwick submitted that there is no evidence on which a court could find the Harrison vehicle could have caused or contributed to Mr. Appleton’s injuries. On this basis, she submitted that the judgment dismissing the claims against the Harrison defendants should stand. Acknowledging that there is a major dispute between the defendants Hong and Green as to which of them contributed to Mr. Appleton’s injuries, Ms. Chadwick submitted that this dispute cannot, on the evidence, involve the Harrison defendants. As she put it "they (the Harrison defendants) should not be dragged to trial" because of the dispute between Hong and Green.

4Particulars of the alleged negligence against each of the personal defendants are set out in paragraphs 9, 10, and 11 of the statement of claim.¹

5Hong and Dana Harrison were convicted of following too closely. The existence of these convictions does not assist me in deciding whether or not there is a genuine issue for trial on the matter of whether Dana Harrison caused any vehicle to impact with Mr. Appleton’s vehicle.

6I do not find the evidentiary record conclusive as submitted by Ms. Chadwick on the key issue of whether Dana Harrison probably contributed to Mr. Appleton’s injuries.² This, combined with my understanding of the jurisprudence governing Rule 20 motions, has led me to allow this appeal. To this extent, I depart from the very thorough reasoning of Master Egan. Ms. Chadwick and Mr. Burns agreed that the law respecting summary judgment motions is correctly stated by Master Egan in paragraphs [2], [3], and [4] of her reasons. In her reasons, Master Egan referred to Gutierrez v. Tropic International Ltd, [2001] O. J. No. 3506 (S.C.J.) since affirmed in the Ontario Court of Appeal at 2002 45017 (ON CA), 162 OAC 247. As I see it, the evidentiary record begs questions key to the issue of the determination and apportionment of liability. On this basis alone, the matter should proceed to trial including the Harrison defendants.

7Ms. Chadwick stated in the concluding part of her submissions that the issue is whether Dana Harrison is liable for any of Mr. Appleton’s injuries. Mr. Burns was correct to point out in reply, that the issue is whether or not there is a genuine issue for trial on the matter of whether Ms. Harrison is liable in any way for Mr. Appleton’s injuries. There are conflicts in the evidence which must be tried.³ For example, Mr. Appleton’s evidence conflicts on whether he felt one or two impacts. The issue of whether there were one or two impacts is relevant to the matter of any potential liability on the part of Dana Harrison. There is also conflict in the evidence in that Hong’s statement to the police defers from what he said on discovery. There is a dispute between Hong and Green as to which of them struck Mr. Appleton’s vehicle. The defendant Green says that she was pushed to Mr. Appleton’s car because of the heavy impact from the Hong vehicle. All of these conflicts raise genuine issues for trial that ought not be resolved on a motion for summary judgment.

8On the issue of costs, the order of Master Egan is set aside. Costs of the motion before Master Egan and of this appeal are awarded to the appellants. If there is no agreement on quantum and scale, the parties may make written submissions within three weeks from the date of the release of these reasons. I have endorsed the Appeal Book accordingly.

Ellen Macdonald J.

Released: February 13, 2003

COURT FILE NO.: 851/01

DATE: 20030213

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

BARRY APPLETON

Plaintiff

• and -

TAMMIE A. GREEN, FLORENCE FRASER, STEPHEN L. HONG, DANA HARRISON, IRENE HARRISON and CANADA LIFE CASUALTY INSURANCE COMPANY

Defendants

(Appellants, Tammie A. Green and Florence Fraser)

(Respondents, Dana Harrison and Irene Harrison)

Footnotes

1. 1The claim against the defendant Canada Life is pursuant to the P.P.C.F. 44 Family Protection Endorsement contained in Mr. Appleton’s policy with Canada Life.
2. 2The evidentiary record consisted of transcripts of discoveries, statements to the police of the plaintiff and all of the defendants, the accident report, portions of the discovery of Ms. Harrison contained in an affidavit of Mr. Gregory Houser, a lawyer employed in Ms. Chadwick's firm, transcripts of the discoveries of Hong and Green and affidavits of Alfred M. Kwinter and Nestor E. Kostyniuk solicitors for Mr. Appleton and Canada Life respectively. Mr. Houser's affidavit is particularly noteworthy in that he draws conclusions from the evidence which favour his clients, the Harrison Defendants. An example is paragraph 11 that states " It is clear that Green told the investigating police officer that her vehicle struck the plaintiff's vehicle from behind. I believe that the evidence given by Green to the investigating police officer at the accident scene would be preferred over the evidence given by Green at her examination for discovery over three years after the accident."
3. 3I am not persuaded by the suggestion that the presence of the Harrison defendants will unnecessarily confuse a jury.