Ozimkowski v. Raymond, 2019 ONCA 435

Case Summary

The appellant appealed a partial summary judgment granted by the motion judge in a rear-end motor vehicle collision case that occurred on an icy road during freezing rain. The appellant argued that the motion judge applied the wrong test and failed to address the alleged contributory negligence of the respondent, contending that the respondent should not have stopped on the highway. The Court of Appeal dismissed the appeal, finding no palpable or overriding error and confirming that the motion judge correctly applied the summary judgment test. The court upheld the finding that the respondent did not act negligently in stopping her vehicle given the road conditions and visibility issues.

Court of Appeal for Ontario

Date: 2019-05-22 Docket: C66053 Judges: Tulloch, Benotto and Huscroft JJ.A.

Between

Margaret Ozimkowski Plaintiff (Respondent)

and

Luc Raymond Defendants (Appellant)

and

The Corporation of the County of Lanark Third Party

Counsel

Michael White and Jeff Pasternak, for the appellant

Shawn O'Connor and Kelly Santini, for the respondent

Heard and released orally: May 22, 2019

On appeal from: the judgment of Justice Robyn M. Ryan Bell of the Superior Court of Justice, dated September 28, 2018.

Reasons for Decision

[1] The appellant submits that the motion judge applied the wrong test in granting partial summary judgment in the context of a rear end motor vehicle collision on an icy road during freezing rain. He submits that the motion judge erred by failing to address the alleged contributory negligence of the respondent whose vehicle was hit from behind by the appellant. He submits the respondent should not have stopped on the highway.

[2] We disagree. Paragraph 39 of the motion judge's reasons deals with this.

[The appellant] has failed to persuade us that [the respondent] was wholly or partially responsible for the accident. I find that [the respondent] did not act negligently in bringing her jeep to a stop given the road conditions that evening, the fact that she observed emergency vehicles at the bottom of the hill and the fact that she was unable to see in front of her. On [the appellant's] own evidence, this was the kind of road where a driver had to be ready to stop because it is not easy to see what is ahead. Given the admission and the poor driving conditions that evening. [The appellant's] evidence that [the respondent] had no reason to stop is not credible. His position that "he could be forgiven for not seeing the flashing lights" does not discharge his burden of disproving his own negligence.

[3] We are not satisfied that the motion judge committed any palpable or overriding error, nor are we satisfied that she applied the wrong test on summary judgment.

[4] Therefore, the appeal is dismissed with costs to the respondent in the amount of $15,000 all inclusive.

M. Tulloch J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.