Court File and Parties

COURT FILE NO.: CV-14-503368 DATE: 20160422 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CARLA GOMEZ Plaintiff – and – NICOLE VICTORIA ALEXANDRA VANDELDEN and PERSONAL INSURANCE COMPANY OF CANADA Defendants

Counsel: Tajinder Gogna, for the Plaintiff Ryan Garay, for the Defendant Nicole Victoria Alexandra Janet S. Young, for the Defendant Personal Insurance Company of Canada

HEARD: March 17, 2016

G. DOW, J.

REASONS FOR JUDGMENT

[1] The defendant, Nicole Vandelden, seeks summary judgment and a dismissal of the action against her by the plaintiff arising from an incident which occurred on December 22, 2012. The incident occurred on Bellair Street, just south of Cumberland Street, in Toronto.

[2] The plaintiff opposes this Defendant’s motion on the basis there is a genuine issue of requiring a trial and, in particular, evaluation of the credibility of the parties given their disparate version of what occurred. The codefendant insurer had an employee present at the hearing and advised it supported the moving defendant.

Background

[3] In paragraphs 6 and 7 of the Statement of Claim, the plaintiff alleges she was walking across Bellair Street near Cumberland Street when the defendant Vandelden negligently operated her motor vehicle northbound and struck the plaintiff resulting in serious and permanent injuries.

[4] The accident was investigated by P.C. Cannella whose Motor Vehicle Accident Report indicates he arrived at the scene 15 minutes after the incident which is indicated occurred at 3:45 p.m. The plaintiff’s initial version of events, as contained in the investigating officer’s Collision Field Notes (partially redacted, presumably for privacy reasons), has the plaintiff advising the officer she was walking eastbound crossing Bellair Street when the defendant’s vehicle, approaching northbound at a high rate of speed slowed as it neared the plaintiff. The defendant honked and told the plaintiff to move out of the way. The defendant then made contact with the plaintiff who fell onto the road.

[5] The plaintiff subsequently provides a typewritten statement, apparently provided by email to the officer, in which she alleges crossing eastbound on Bellair with her friend, S.M. She hears the defendant vehicle approaching when one half of the way across the street. The defendant vehicle stops “an inch” from them. The plaintiff asked the defendant if she did not see them crossing and was told by the defendant (using a profanity) to get out of the way. There is a further, brief exchange of words before for the defendant vehicle moves forward striking the front of the plaintiff’s knees causing her to fall on the ground. The plaintiff struggles to get up to avoid being run over and acknowledges knocking on the vehicle window and reaching for the door to prevent the defendant from leaving the scene but was unsuccessful.

[6] This version of events with additional details was repeated in an affidavit of the plaintiff sworn March 24, 2015 and she was cross-examined June 2, 2015 by defendant’s counsel. All of the material referred to above and below was before me.

[7] P.C. Cannella’s field notes indicate he was aware of the defendant’s vehicle being a Toyota Yaris and that it had left the scene but he did not observe it as he approached. An ambulance was called to the scene and while the officer was dealing with that, he was approached by the defendant and advised she was the driver involved. His notes indicate the defendant advising there had been no collision and that the plaintiff and her friend were being aggressive, and tried to get into the defendant’s car. She got very scared and terrified and that she left the scene returning when she observed the officer.

[8] The defendant gave an initial handwritten statement to the investigating officer of having turned onto Bellair from Bloor Street and having to stop for the plaintiff and her friend crossing eastbound not at a crosswalk. She honked at them and they started yelling and swearing at her as well as refusing to move off the street. The defendant, as she put her vehicle in park, yelled back at them (through the closed windows of her vehicle) to move out of the way. The plaintiff’s friend came over to the driver’s door and began banging on the window. The defendant moved her car ahead a foot upon which the plaintiff remained in front of her and put her hands on the hood. The defendant stopped again. The plaintiff then fell over backwards “dramatically” followed by getting up and continuing to yell at the defendant who was then able to drive away. Her statement concludes she returned when she saw the police on the scene.

[9] This version of events with additional details was contained in a statement the defendant provided to her insurer April 16, 2013. The defendant also executes an affidavit sworn February 17, 2015 and was cross-examined by plaintiff’s counsel June 2, 2015.

[10] From the collision field notes, the officer canvassed three businesses on the street for available surveillance video. One of the businesses did have the incident on video from a distance which the officer reviewed.

[11] The officer’s notes indicated it was not good picture quality and would periodically jump ahead a few seconds such that it was “difficult to tell if actual contact was made.”

[12] In addition to the parties’ versions, P.C. Cannella obtained information from five other individuals.

[13] The plaintiff’s friend emailed her statement to P.C. Cannella the next day corroborating the plaintiff’s version of events. Her affidavit for this motion was sworn March 25, 2015 and she was cross-examined by defence counsel April 30, 2015.

[14] The defendant was employed at the restaurant on the northwest corner of Bellair and Cumberland to the extent she worked one shift per week. The closing manager of the restaurant, B.A. spoke to police at the scene. P.C. Cannella noting B.A. was on her way to work from the nearby subway station when she saw the plaintiff “throwing herself on the ground”, yelling for police and calling for help. B.A. also observed her throwing her purse and a shopping bag on the ground. Other bystanders were telling her to get up because nothing had happened to her.

[15] This individual executed an affidavit sworn March 20, 2015 on which she was cross-examined April 30, 2015. It does not appear she learned it was the defendant operating the vehicle until after she initially spoke to P.C. Cannella.

[16] Similarly, another co-worker, S.S. (who worked in a different section of the restaurant than the plaintiff) emailed his statement to P.C. Cannella stating having observed two females standing in the path of the defendant’s vehicle screaming at the driver while hitting the car with their fists, “then for no apparent reason the woman threw herself to the ground in front of the blue car” which was “stationary at this point and did not touch either woman.” The woman on the ground got up which permitted the car to reverse and drive off. This version was elaborated on in an affidavit sworn February 27, 2015 and cross-examination was held April 30, 2015.

[17] P.C. Cannella has notes of being told by G.B. that he had been on the sidewalk when he observed the plaintiff and her friend crossing Bellair eastbound without “looking for cars” and either texting or using a cell phone. G.B. saw a northbound vehicle stop about 12 inches away from them and its operator honked the horn. The two individuals walked around to the side of the vehicle and began yelling and banging on the glass. The plaintiff then walked to the front of the stopped vehicle and “dropped to the ground as if putting on a big show”. The officer’s notes state G.B. advises “there never was any contact” due to the vehicle being stopped. The plaintiff eventually got up and the vehicle then had enough space to move forward and left the scene. This witness caught up to the vehicle at the stop sign (presumably at the corner) and gave his contact information to the driver. The officer notes the witness states “It was quite clear” the defendant “was terrified – her hands trembling & had a difficult time inputting” information into her cell phone.

[18] This witness, B.G., emails a more detailed version to P.C. Cannella, swears an affidavit February 27, 2015 and was cross-examined by plaintiff’s counsel April 30, 2015.

[19] Finally, on May 5, 2015, a sixth individual K.T., emails an unsworn statement from Calgary, where he now resides, to counsel for this defendant observing the defendant heading northbound on Bellair at a rate of speed consistent with the posted speed limit. The plaintiff and her friend were crossing eastbound “but without any concern for oncoming traffic”. The vehicle slowed and stopped several feet from the two women. One of the women began shouting at the driver of the car and hitting the hood of the car as well as the driver’s side window. He continued to watch as the driver tried to inch her way north. The plaintiff then positioned herself in front of the car, raised her arms in the air and fell backwards onto the road for no apparent reason. She lay prone on the ground and then jumped up shouting “I’ve been hit”. K.T.’s reaction is that he was “determined to wait as long as necessary and give my version of events to the attending police knowing full well that this woman was never hit by the car and sustained no injuries”. Counsel for the plaintiff correctly noted reliance on this statement must be limited as it is unsworn and unlike the balance of the evidence, there was no opportunity to cross-examine on it.

[20] In support of the plaintiff’s claim of injury, she tendered the following evidence:

a) Rouge Valley Health Centre emergency records of attending on December 23, 2012 at 11:21 p.m. complaining of bilateral knee and low back pain as a result of being hit by a vehicle. She left at 12:35 a.m. without being seen by a doctor;

b) the clinical note of her family doctor dated December 24, 2012 that records her complaining of pain in both knees from having been hit by a motor vehicle while crossing the street in the downtown area;

c) MRI reports for each knee conducted January 3, 2014 (12 months and 12 days after the incident) that show intact ligaments, three and four centimetre Baker’s cysts in each knee and an “increased linear signal at the apex of the posterior horn of the lateral meniscus consistent with a very small radial tear” in the right knee;

d) attending physiotherapy in January 13, 2013 until her auto insurer declined to pay for further treatment and she discontinued as the cost “was too prohibitive for me to continue”.

[21] The plaintiff deposes being employed full time as a mobile administrator working 40 hours per week and being off work until January 7, 2013. She also worked part time, about 20 hours per week, as a realtor and has been unable to continue with that work. The plaintiff lives with her parents and her two children at the time of the accident and was unable to return to her pre-accident housekeeping and caregiving duties following the accident without providing additional details.

Issue

[22] Is this an appropriate case to determine on a motion for summary judgment? That is, is there no genuine issue for trial or, as described by Justice Karakatsanis in Hryniak v. Mauldin et al., 2014 SCC 7, [2014] 1 S.C.R. 87 (paragraph 49), is the judge able to reach a fair and just determination on the merits? Following the roadmap or approach outlined in this decision, I conclude it is not necessary to go beyond this stage. That is, it is not necessary to address whether the enhanced fact-finding power granted to motion judges under Rule 20.04(2.1) of the Rules of Civil Procedure requires me to decide this matter at this time.

[23] I have considered whether I am able to have or make the requisite “full appreciation” of the evidence and the issues as required in order to make dispositive findings or can this only be achieved by way of a trial.

Analysis

[24] In my view, the contradictory evidence requires findings of credibility in this matter. Either the plaintiff was struck as she and her friend assert and the remaining witnesses are mistaken or, the plaintiff and her friend, in the circumstances, are not being truthful about what actually happened.

[25] The parties have chosen that if the action proceeds to trial, it do so before a jury. Addressing the dilemma of making a conclusion on credibility without actually hearing the witnesses is problematic. As stated in the instructions given to a jury at the outset of a trial, they are to pay close attention to the evidence as is introduced in order to judge the accuracy, completeness and truthfulness as part of determining what weight or value to give that evidence. The jury is also instructed to watch for any particular bias exhibited by a witness, or any particular interest he or she may have in the outcome of the case or any inconsistencies in the testimony.

[26] Similarly, in the concluding charge to the jury, they are specifically told about how to weigh evidence, what questions to ask themselves in considering the evidence and that it is not the number of witnesses but the relative force or strength of the evidence of a witness. To that end, they may believe one witness against many. They may also accept all, part or none of what a witness has said. I, as the motions judge, am clearly not able to do this on the material before me.

[27] As part of her reasons, Justice Karakatsanis cited access to justice as “the greatest challenge to the rule of law in Canada today” and that most Canadians cannot afford to sue or defend themselves. This appears to be a basis for her concluding a change in the approach to summary judgment and that a cultural shift was required in order to provide timely and affordable access to the civil justice system.

[28] However, for over forty years, the Compulsory Automobile Insurance Act, R.S.O. 1990 c.C. 25, has required owners of motor vehicles to have liability insurance with minimum third party limits and indemnity for all legal costs that a Court assesses against the policy holder.

[29] Counsel and firms specializing in representing injured victims have increasingly resorted to mass media advertising of their services, many of whom promise their prospective clients they will not have to pay until or when money is recovered on their behalf. This is, in my view, related to the availability of contingent fee arrangements as permitted by the profession’s governing body, the Law Society of Upper Canada. Further, it is becoming increasingly common and available for injured victims to pay a premium for legal expense insurance, thus insulating themselves from an award of legal costs against them. In fact, counsel and firms can purchase such insurance for all of their cases as part of conducting their profession.

[30] The conclusion is these types of disputes may not be subject to the threat identified by the Supreme Court of Canada. In this case, it appears the parties have followed the requirement of putting all of the evidence that will be available to me at the trial or as it is sometimes described, putting their best foot forward. I have before me the initial statements to the investigating officer, his field notes outlining his efforts to obtain and his review of any video of the incident. This has been added to by formal and subsequent statements of the parties and witnesses with affidavits sworn and cross-examinations conducted.

[31] It is not a situation such as that faced by Justice Lederer in Yusuf v. Cooley, 2014 ONSC 6501, another motor vehicle personal injury case where a pedestrian is struck by a vehicle where there was no dispute that the pedestrian had been struck while crossing the road. But there, as here, there was a concern that credibility was important and there was reliance on the statement made by Justice Lauwers in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 at paragraph 44 where, “Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.”

[32] This is also not a situation such as that faced by Justice Mew in Abuagina v. Haval, 2015 ONSC 7938 where the defendant sought summary judgment in, again, a matter where the defendant was operating a vehicle and the plaintiff was struck and injured as a pedestrian. In this matter, like the one before me, there is an independent witness with observations contrary to the plaintiff’s version of events supplied by affidavit evidence upon which there has been cross-examination. However, Justice Mew had a variety of concerns or unanswered questions (detailed in paragraphs 28-32 of his Reasons) that he concluded would assist in evaluating the credibility of the witnesses, particularly in the face of the irreconcilable differences between the version of events advanced by the plaintiff and defendant respectively.

[33] This does not appear to be the situation in this matter. Both parties appear to have been thorough in placing before the Court substantially all of the evidence likely to be available at the trial. Both parties have the resources to proceed to have the dispute determined by a jury trial. What is missing in a summary judgment such as this is the ability to evaluate the credibility of the witnesses tendering that evidence. This type of motion should not be encouraged.

[34] However, in reviewing the cross-examination of G.B., not only did he maintain his version of events but the absence of possible obstructions to his line of sight, difficulties with his vision or being distracted. Plaintiff’s counsel was unsuccessful in challenging or undermining his evidence in the cross-examination. Plaintiff’s counsel made no cogent submissions before me why this evidence would not likely be accepted at trial, particularly given the similar observations by all others except the plaintiff and her friend. Thus, it would be shocking if a jury did not rationally accept the version of the witness with no interest in the outcome, that is G.B.

[35] As a result, this appears to be the very exceptional case where the paper record is sufficient to reach a fair and proportionate conclusion. The defendants’ motion is granted and the action is dismissed.

Costs

[36] Counsel for the plaintiff submitted a claim for $13,501.73 inclusive of fees, HST and disbursements on a partial indemnity basis. A 2006 year of call, plaintiff’s counsel sought recovery at the rate of $275 per hour. He was assisted by a junior associate called to the Bar in 2014 claiming a rate of $175 per hour and a law clerk at $90.00 per hour.

[37] Counsel for Ms. Vandelden did not have a Costs Outline available contrary to Rule 57.01(6) of the Rules of Civil Procedure and advised, given his employment by the insurer of his client, that no time dockets were kept. Having reviewed the appropriate amount of time spent (including cooperation with opposing counsel in the attendance at Motion Scheduling Court and the relevant disbursements), counsel did not object to a partial indemnity claim by defence counsel of $7,154.44 subject to it being reduced on the basis of the assistance provided to defence counsel in moving the matter ahead efficiently and whatever development this matter brings to the state of the law.

[38] Given my conclusion the motion is successful, the defendant Vandelden is entitled to her costs which are fixed at $3,500 given the factors detailed above.

Mr. Justice G. Dow

Released: April 22, 2016