Court of Appeal for Ontario
Date: 2017-06-22 Docket: C63331
Judges: Epstein, Hourigan and Paciocco JJ.A.
Between
Victola Mayers Plaintiff (Appellant)
and
Ammar Khan and Brink's Canada Ltd. Defendants (Respondents)
Counsel
Bryan Fromstein and A. Fabio Longo, for the appellant
Gordon McKee and Daniel Styler, for the respondents
Heard and released orally: June 20, 2017
On appeal from: the order of Justice Benjamin T. Glustein of the Superior Court of Justice, dated January 13, 2017, with reasons reported at 2017 ONSC 200.
Reasons for Decision
[1] The appellant, Victola Mayers, appeals the motion judge's order dismissing this motor vehicle negligence claim on a summary judgment motion. The motion judge accepted evidence, including that of an independent witness, that Ms. Mayers made a left-hand turn, facing a yellow light, in front of an oncoming truck, owned by the respondent, Brink's Canada Ltd., and driven by the respondent, Ammar Khan. The motion judge also accepted evidence that Mr. Khan did not go through a red light as Ms. Mayers alleged in her claim. The motion judge further found that there was no evidence that Mr. Khan ought to have anticipated that Ms. Mayers would turn in front of him or that he could have avoided the accident.
[2] On the basis of these findings the motion judge concluded that there was no genuine issue requiring a trial that Mr. Khan was in any way responsible for the accident.
[3] Ms. Mayers argues that the motion judge reversed the evidentiary burden on the motion, and erred in granting summary judgment. She also argues that the motion judge should have ordered a mini-trial instead of granting summary judgment and made palpable and overriding factual errors.
[4] In our view, the motion judge correctly identified and applied the burden of proof applicable on a summary judgment motion. The motion judge stated the shifting onus on motions for summary judgment, at para. 20:
The moving party bears the evidentiary burden of demonstrating that there is no genuine issue requiring a trial. Only after the moving party has discharged its evidentiary burden of proving that there is no genuine issue requiring a trial for its resolution does the burden shift to the responding party to prove that its claim has a real chance of success (Sanzone v. Schechter, 2016 ONCA 566 (Ont. C.A.), at para. 30).
[5] The motion judge rejected Ms. Mayers' initial theory for why a trial was necessary – that she was turning on an "advance green light" and that Mr. Khan ran a red light. This conclusion was not appealed. Ms. Mayers advanced a secondary theory that a trial was necessary to determine whether Mr. Khan was contributorily negligent for failing to take reasonable precautions to avoid the accident. Ms. Mayers submits that the onus was on the respondents to lead expert evidence that Mr. Khan could have done nothing to avoid the accident.
[6] We disagree. Having concluded that the respondents had demonstrated that there was no genuine issue requiring a trial, Ms. Mayers was obliged to lead evidence to satisfy the burden that had shifted to her to demonstrate that Mr. Khan contributed to the accident such as by not driving more slowly, given the conditions. This she did not do. It follows that the motion judge did not err in the identification or application of the burden of proof. Rather, Ms. Mayers did not meet the onus that shifted to her, in the circumstances of this case.
[7] As to the remaining arguments, we are satisfied that the motion judge's conclusions are founded upon his consideration and weighing of the evidence provided by the three witnesses to the accident and upon a number of findings of fact and mixed fact and law. Ms. Mayers has not demonstrated any error in principle, or any palpable or overriding error, that would provide a basis for rejecting the motion judge's appreciation of the evidence and his findings of fact based on that evidence.
[8] The motion judge's reasoning reveals no reversible error. The appeal is therefore dismissed.
[9] Costs are awarded to the respondents in the amount of $10,000, plus applicable HST, as agreed upon by the parties.
"Gloria Epstein J.A."
"C.W. Hourigan J.A."
"David M. Paciocco J.A."
