Court File and Parties

CITATION: Yusuf et al. v. Cooley et al., 2015 ONSC 3244

DIVISIONAL COURT FILE NO.: 597/14

DATE: 20150521

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Muna Yusuf ladan yusuf, hussein ysuuf, khatra yusuf, minors by their Litigation Guardian, MOHAMMED ALI, MARIAN ALI and ABDI YUSUF, Plaintiffs

AND:

DUANE COOLEY, SON VAN NGUYEN and Rina Chum, Defendants

BEFORE: Harvison Young J.

COUNSEL: David F. MacDonald, for the Plaintiffs/Respondents

Todd McCarthy, for the Defendant\Moving Party Duane Cooley

R. Donald Rollo, for the Defendant, Rina Chum

HEARD (in writing) at Toronto: April 9, 2015

ENDORSEMENT

[1] The Defendant/Moving Party, Duane Cooley, seeks leave to appeal from an order of Lederer J. dated November 12, 2014 dismissing Mr. Cooley’s motion for summary judgment. The summary judgment motion sought dismissal of the action against him. This action is for damages arising from serious personal injuries suffered by the plaintiff, Muna Yusuf, when she was struck by a car driven by the defendant Son Van Nguyen (and owned by the defendant Rina Chum).

[2] The motions judge was invited by the defendant Mr. Cooley to dismiss the action as against him on the basis that, pursuant to Rule 20.04(2)(a), “…there is no genuine issue requiring a trial”. He expressly considered the approach to be taken as set out in the Supreme Court of Canada decision in Hryniak v. Mauldin 2014 SCC 7, [2014] 1 SCR 87, citing para. 66 as follows:

[T]he judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the

evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure under Rule 20.04(2)(a).

[3] If it appears that there is a genuine issue requiring a trial, the Supreme Court set out the next step, also at para. 66:

[The judge] should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[4] In his reasons, the motions judge emphasized that neither the rule nor Hryniak compel the judge to use the “new powers”, noting that this is haradly surprising as there will still be some cases that must go to trial. He noted at para. 8 of his reasons that according to Hryniak, the decision to use and rely on these “new powers” should only be made where it will not be contrary to the interests of justice, and again quoted from the Hryniak decision at para. 60 as follows:

The 'interest of justice' inquiry ... also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.

[5] The defendant seeks leave to appeal on the basis of his submission, in essence, that “the determination of liability by way of summary judgment or a mini trial is an expeditious and proportionate proportionate manner in which to move this case forward to final resolution of the ultimate question of damages, it is an error in principle to decide the summary judgment motion on liability as the Learned Motions Judge did” and that there is good reason to doubt the correctness of his approach”.

[6] I disagree. The motions judge found that the evidence of Duane Cooley up to that point had been inconsistent, a conclusion that was amply supported by the record before him. He was not prepared to accept Mr. Cooley’s submissions that there was sufficient information that he had not waved the child on through the intersection as he was stopped, and that if there was, there was evidence to demonstrate that it was not a cause of the accident. He found that this is a case in which “the court should hear from Duane Cooley and any other witnesses who may contribute to a better understanding of what took place.”

[7] Having found that these constituted serious issues that require a trial, the motions judge then considered whether the need of a trial could be avoided by using the new powers provided by Rule 20.04. He was of the view that in the circumstances of this case, a “mini-trial” which would consider only Mr. Cooley’s evidence with respect to liability would not overcome the problem with the lack of context. He stated that

This would not overcome the lack of context. The question of the role of Duane Cooley is part of a continuing narrative that starts with Muna Yusuf standing on the side of the road and ends with her being struck by the car. It is not possible to understand the context by looking at one part of the narrative. It is not possible to sever the actions of Duane Cooley from the fabric of the case as a whole. This concern is confirmed by submissions made by counsel for the plaintiff. He pointed out that any mini-trial addressing the participation of Duane Cooley would require evidence of other witnesses. Counsel referred to: the police officer who took the statement, an independent witness16 and the driver of the car which struck Muna Yusuf. It is difficult to understand how a "mini-trial" of the type proposed could avoid some review of what happened after the moment it is alleged that Duane Cooley waved Muna Yusuf on and how any subsequent trial dealing with the liability of others could ignore what happened leading up to her entry into the westbound lane. (Reasons, para. 24)

This is a case where concerns expressed by the Supreme Court of Canada are demonstrated. This is a case where the interests of justice dictate that the new fact-finding powers should not be used to grant summary judgment to a single defendant. To do so would run the risk of unnecessary duplication in the proceedings and inconsistent findings of fact. While, undoubtedly, there are cases where the role of a single party can be severed from the rest, it is important to note that concerns for "...the most proportionate, timely and cost effective approach" are not always met by acting in the interest of a single party. These goals are often better satisfied with the case, as a whole, in mind. (Reasons, para. 25)

[8] I find no reason to doubt the correctness of the motions judge’s decision which carefully applied the legal principles articulated set out by the Supreme Court in Hryniak to the circumstances of this case. Moreover, in my view, given the particular factual circumstances in this case, I see no issue of such importance as to warrant an appeal to this court pursuant to Rule 62.02(4)(b).

[9] Accordingly, leave to appeal is dismissed. If the parties are unable to agree as to the costs of this motion, they may file brief submissions to the court within 30 days on a timetable to be agreed upon amongst themselves.

Harvison Young J.

Date: