Court File and Parties

COURT FILE NO.: 3901/11 DATE: 2016/09/22 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Judith Isaac as Estate Trustee of the Estate of Glen Michael, deceased, Judith Isaac in her personal capacity, Darren Isaac, Desiree Chretien, Alysha Bassinette by her litigation guardian Judith Isaac and Isabella Rose Wood by her litigation guardian Judith Isaac Plaintiffs

– and –

Ilona Irena Matuszynska, Jean Lafontaine and AXA Insurance (Canada) Defendants

– and –

State Farm Mutual Automobile Insurance Company Third Party

COUNSEL:

K. Egan, for the Plaintiffs G. Tillmann, for the Defendant Ilona Irena Matuszynska S. Fabiani, for the Third Party No one appearing for AXA Insurance (Canada)

HEARD: April 29, 2016, Written Submissions July 15 and August 5, 2016

RADY J.

Introduction

Introduction

1The defendant Ms. Matuszynska and the statutory third party move for summary judgment dismissing this Family Law Act claim for damages. They say there is no genuine issue requiring a trial and rely on the Trustee Act, the doctrines of volenti non fit injuria and emergency and/or they say the deceased was the author of his own misfortune. The plaintiffs counter that there are genuine issues that require a trial.

Background

Background

2This action arises from a motor vehicle accident that occurred on April 14, 2009. Jean Lafontaine was the driver of a 2001 Intrepid owned by Ms. Matuszynska. Mr. Lafontaine was accompanied by two passengers, Monica Turnbull and Tawnia Bailey.

3Glen Isaac was the owner of a 2004 Impala. He was a passenger in his vehicle with John Walker and Bonnie Shute. His vehicle was being driven by an individual known only as James.

4By way of overview which will be elaborated below, the two vehicles met at the rear of 652 Hale Street in London. I do not believe it is disputed that the reason for the meeting was to conduct a drug deal. The two vehicles left the Hale Street location and later had a rendezvous at the rear of a Crabby Joe’s restaurant at 1449 Dundas Street in London. Mr. Isaac exited his vehicle and entered the defendant vehicle. A dispute between Mr. Isaac and Mr. Lafontaine ensued, during which Mr. Isaac exited the vehicle. The two men continued to argue and there is evidence that Mr. Isaac reached into the vehicle and began to enter through the driver’s window. Mr. Lafontaine began to drive away. Mr. Isaac was holding the side of the car or was partly into the vehicle. The vehicle swerved and mounted a curb. Mr. Isaac fell, struck his head and died.

5Mr. Lafontaine was charged with driving while prohibited, breach of a recognizance and a drug offence but no other substantive criminal offences, such as dangerous driving causing death. This is consistent with the conclusion by the London Police Service that Mr. Isaac’s death was accidental.

6On April 13, 2011, Mr. Isaac’s mother, siblings and daughters commenced this action seeking damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3.

The Pleadings

The Pleadings

7The statement of claim alleges the following:

8. The Plaintiffs state that on April 14th, 2009 Jean LaFontaine was the operator of the motor vehicle bearing Ontario licence plate number BBXD 680 in the vicinity of 1449 Dundas Street in the City of London. When the said vehicle was in the parking lot located in 1449 Dundas Street, Glen was standing outside the driver’s window and leaning in over the driver’s seat when suddenly and without any warning, the Defendant, Jean LaFontaine drive from the parking lot at a great rate of speed onto Dundas Street heading in a north easterly direction to travel east on Dundas Street. The said vehicle mounted the south side curb of Dundas Street and as the vehicle hit the said curb Glen, who had been hanging on the outside of the vehicle, was launched from the vehicle up into the air. He then struck his head violently on a hard object with sufficient force to cause a hole in his skull and result in his death. The defendant Jean LaFontaine fled the scene.

9. The Plaintiffs state and the fact is that Glen sustained fatal injuries as a direct and foreseeable result of the actions and the negligence of the Defendant Jean LaFontaine for which the Defendant Ilona Irena Matuszynska is responsible in law. Particulars of the actions and negligence are as follows:

(a) he created a situation of danger and emergency from which Glen despite all reasonable efforts, could not extricate himself; (b) he made an unexpected manoeuvre without giving any proper warning; (c) he failed to exercise due skill in the management of the motor vehicle; (d) he operated the motor vehicle in a careless and reckless manner; (e) he failed to have the motor vehicle under proper control; (f) he was an incompetent driver lacking in reasonable skill, ability self-command [sic] and ought not to have attempted to operate a motor vehicle on the occasion in question; (g) he was operating a motor vehicle when his ability to do was affected by fatigue; (h) he was operating a motor vehicle while under the influence of intoxicants or drugs; (i) he was operating a motor vehicle when his ability to do so was affected by physical and mental impairments, disabilities, diseases, limitations or injuries; (j) he failed to exercise due care and skill in the management of the motor vehicle.

8I pause here to note that while the claim refers to Mr. Lafontaine’s “actions”, as well as his negligence, the action is framed exclusively in negligence, as the particulars make clear.

9On November 8, 2011, State Farm was added as a statutory third party. That same day, it delivered its statement of defence alleging that the deceased caused or contributed to any damages by his own negligence. It pleads:

(a) He approached the driver’s side window of the Defendant motor vehicle on foot, when he knew or ought to have known that in doing so, he would be putting himself in a position of danger; (b) He smashed the driver’s side window of the Defendant motor vehicle and attempted to rob the occupants of either drugs and/or money, thereby creating and perpetuating a situation of danger; (c) He leaned into the Defendant motor vehicle and assaulted the driver of the Defendant motor vehicle, creating and perpetuating a situation of danger from which the driver of the Defendant motor vehicle, despite all reasonable effort and precaution on his part was unable to extricate himself; (d) He forced the driver of the Defendant motor vehicle to quickly and suddenly drive away from the scene as his abusive actions and erratic behaviour had created a situation of imminent harm for both the Defendant driver and the passengers in the vehicle; (e) He created an emergency situation from which the Defendant driver, despite all reasonable effort and precaution on his part, was unable to extricate himself; (f) His ability to navigate and conduct himself in a prudent manner was impaired by drugs and/or alcohol; (g) He suddenly moved quickly and visibly into the path of the Defendant motor vehicle in such circumstances as a result of which the Defendant did not have any reasonable opportunity to avoid a collision; (h) He did not attempt to avoid collision when he saw or ought to have seen that a collision was likely to occur; (i) He had the last opportunity of avoiding a collision if he had exercised reasonable care; (j) He failed to maintain a proper lookout for his own safety; (k) Failing to yield the right-of-way to the Defendant motor vehicle; (l) He ran into the side of the Defendant motor vehicle; (m) His ability to navigate and conduct himself in a prudent manner was affected by impaired vision; (n) His ability to navigate and conduct himself in a prudent manner was impaired by fatigue; and (o) By his conduct, he created a nuisance on the roadway.

10The defendant, Ms. Matuszynska delivered a statement of defence on April 24, 2012. She denied that Mr. Lafontaine was driving with her consent. She alleges that Mr. Lafontaine was injured by reason of his own negligence, particulars of which are as follows:

(a) instigating a fight with the co-Defendant, Lafontaine; (b) failing and/or refusing to walk away from the fight when he had the chance; (c) escalating the fight by introducing a weapon into the altercation; (d) attempting to enter the vehicle by placing his body through the driver’s side front window; (e) failing to maintain a proper or any lookout for his own safety; (f) placing himself in a situation of danger; (g) moving quickly from a place of safety to a place of danger without taking reasonable precautions; (h) moving quickly and visibly into the path of the Defendant motor vehicle in such circumstances as a result of which the Defendant did not have any reasonable opportunity to avoid collision; (i) failing and/or refusing to attempt to avoid collision when he saw or ought to have seen that a collision was likely to occur; (j) standing on a roadway without due care and attention to vehicular traffic; (k) having the last clear chance to avoid the incident, and failing to avail himself of this chance; (l) failing to yield the right of way to the Defendant motor vehicle; (m) running into the side of the Defendant motor vehicle; (n) failing to make use of the pedestrian sidewalk; (o) his ability to navigate and conduct himself in a prudent manner was affected by drugs, alcohol, fatigue and/or impaired vision; (p) by his conduct, creating a nuisance on the roadway; and (q) such further and other negligence as counsel may advise.

11On July 26, 2012, Axa served its statement of defence. It too pleads that the deceased was negligent. It alleges:

a. instigating a fight with the co-Defendant, Lafontaine;; b. failing and/or refusing to walk away from the fight when he had the chance to do so; c. escalating the fight by introducing a weapon into the altercation; d. attempting to enter the vehicle by placing his body through the driver’s side front window; e. ingesting illicit drugs affecting his judgment for his own safety; f. failing to maintain a proper or any lookout for his own safety; g. placing himself in a situation of danger; h. moving quickly from a place of safety to a place of danger without taking reasonable precaution; i. failing to remove himself from the vehicle when it became apparent that the vehicle was beginning to accelerate; j. creating and perpetuating a situation of emergency and danger; and k. such further and other negligence as counsel may advise.

The Evidence

The Evidence

12The moving parties have delivered affidavits sworn by Ms. Emmett, a lawyer with Lerners’ office. Attached to her first affidavit sworn November 26, 2012 are the following:

• Motor vehicle accident report dated April 9, 2009. I pause here to note that the date on the accident report appears to be erroneous. All of the other documentation to which I refer records its date as April 14, 2009;
• London Police Service General Occurrence Hardcopy;
• Narrative Prosecution Summary prepared by David Proustie of the London Police Service;
• Mr. Lafontaine’s statement to the London Police Service dated April 21, 2009;
• Civilian Witness Statements from Bonnie Shute, Tawnia Bailey and Monica Turnbull.

13There is also an affidavit from Dennis Bannon, an investigator reporting on his interview of Tawnia Bailey on June 26, 2012.

14Ms. Emmett’s first supplementary affidavit dated August 27, 2013 attaches a transcript of the hearing when Mr. Lafontaine pleaded guilty to the offences charged as well as information from the Ministry of the Attorney General that resulted from an order made pursuant to Rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

15In her second supplementary affidavit dated November 27, 2013, she attaches the DVD copies of interviews conducted by the LPS, some of which she summarizes. In particular, she excerpts from the interviews of Mr. Lafontaine, Ms. Shute, Ms. Bailey and Ms. Turnbull and I do not believe that there is any dispute about the accuracy of the transcription of the portions of their statements excerpted.

16In her third supplementary affidavit dated August 27, 2013, she deposes that she has reviewed the London Police Service file, the DVD of the witness interviews, the transcript of Mr. Lafontaine’s guilty plea and Mr. Bannon’s affidavit. She expresses her belief in certain facts contained in those documents and in particular:

(a) On April 14, 2009, the deceased, Glen Isaac, was with the Defendant, Jean Lafontaine behind Crabby Joe’s located 1449 Dundas Street in London. (b) The purpose of the meeting was to purchase drugs. (c) An argument between Glen Isaac and Jean Lafontaine occurred. At this time, Jean Lafontaine was in his vehicle and Glen Isaac was outside Jean Lafontaine’s vehicle. (d) Jean Lafontaine rolled up the driver’s window of his vehicle. Glen Isaac smashed the driver’s side window of Jean Lafontaine’s vehicle. (e) Glen Isaac jumped into the driver’s side window of Jean Lafontaine’s vehicle. (f) The vehicle travelled from the parking lot behind Crabby Joe’s and went eastbound on Dundas Street. (g) There was a struggle between Glen Isaac and Jean Lafontaine while Glen Isaac was partially in the vehicle through the driver’s side window. (h) Glen Isaac grabbed the steering wheel of Jean Lafontaine’s vehicle during the struggle. (i) Jean Lafontaine was concerned for his and his passengers’ safety. (j) Glen Isaac fell from the window.

17The DVDs are also provided and marked as exhibits to her affidavit.

18Her fourth affidavit of February 12, 2016 outlines her office’s attempts to examine Ms. Bailey, Ms. Shute and Ms. Turnbull as non-parties. Ms. Bailey is deceased. She died on May 8, 2014. Ms. Shute did not attend her examination and a certificate of non-attendance was obtained. Ms. Turnbull did not attend her examination either but subsequently agreed to be interviewed on January 20, 2015 at offices of Lerner & Associates. She declined to sign an affidavit at that time, however.

19Ms. Emmett’s fifth and final affidavit dated March 21, 2016 describes her office’s extensive and unsuccessful attempts to locate Mr. Lafontaine.

20I have a transcript of Mr. Lafontaine’s cautioned interview of April 21, 2009 by Detective Paul Bastien with the London Police Service.

21Finally, an affidavit dated April 6, 2016 from Ms. Turnbull has been filed on behalf of the plaintiffs and a transcript of her cross-examination on April 14 and 18, 2016. Ms. Turnbull belatedly agreed to sign an affidavit following her attendance in court at the initial return of this motion for argument in response to a subpoena.

22Perhaps not surprisingly, the plaintiffs have filed no other material in response to the motion. Mr. Isaac, of course, cannot give his version of events and the plaintiffs were not witness to the events of that night. They rely on certain of the material filed by the moving parties, namely excerpts of Mr. Lafontaine’s cautioned police statement. They rely as well on Ms. Turnbull’s recent affidavit and her evidence on cross-examination.

The Parties’ Positions

The Parties’ Positions

23The moving parties submit that there is no genuine issue requiring a trial. As already noted, they rely on the concept of volenti non fit injuria and the doctrine of emergency. Finally, they submit that the deceased was the author of his own misfortune.

24The responding parties submit that there are inconsistencies in what the witnesses say about what happened, which they wish to explore at trial. They also say that while Mr. Lafontaine is an unreliable witness, they intend to rely on what they say are certain admissions he made against interest during his police interview.

25Consequently, they submit that a genuine issue respecting credibility exists that requires a trial for resolution.

The Law on Summary Judgment

26Rules 20.04(2)(2.1) and (2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provide as follows:

(2) The court shall grant summary judgment if, (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

27The evidence to be used on the motion is governed by Rule 20.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

(1) An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01(4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.

(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.

28The Rule was amended in 2010 to expand a motions judge’s power to weigh the evidence, assess credibility and draw inferences of fact. Jurisprudence prior to that time reserved those powers to the trial judge. The amendment overrules Court of Appeal decisions that prevented judges from making evidentiary determinations. See, for example, Aguonie v. Galion Solid Waste Material Inc. (1998), 156 D.L.R. (4th) 222 (Ont. C.A.).

29The leading authority considering the amended Rule is Hryniak v. Mauldin, 2014 SCC 7. The comments of the Supreme Court are instructive. The overarching issue to be answered is “whether summary judgment will provide a fair and just adjudication” [para. 50]. The court went on to say at para. 50 that “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” [Emphasis mine]

30The powers available under Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 are presumptively available. They only become unavailable where it is in the interest of justice for such powers to be exercised only at trial. The court noted at para. 56: “[t]he interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers – and the purpose of the amendments – would be frustrated.”

31The motion judge must engage in a comparison between the advantages of proceeding by way of summary judgment versus proceeding by way of trial. Such a comparison may include an examination of the relative cost and speed of each medium, as well as the evidence that is to be presented and the opportunity afforded by each medium to properly examine it. The court noted that, “when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so.” However, the inquiry must go further, and must also consider the consequences of the motion in the context of the litigation as a whole.

32The court suggested at para. 66 the following process to guide the motion judge’s approach:

1. The 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.
2. There will be no genuine issue requiring 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.
3. If there appears to be a genuine issue requiring a trial, 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) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
4. She may, at her discretion, use those powers unless it is against the interest of justice to do so. It will not be against the interest of justice if use of the powers 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.

33The full appreciation test requires a motion judge to determine whether the mechanics of a trial are necessary to enable her to properly adjudicate a case. The approach laid out by the Supreme Court advocates a “sea change” in the conduct of civil litigation and really underscores the twin edicts of Rule 1.04(1) and (2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

34However, the admonition remains that the responding party must “lead trump or risk losing”. In other words, it cannot rest on allegations but must set out the specific facts on which it relies to say that there is a genuine issue for trial, which is the thrust of Rule 20.02(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. It is entitled to rely on the moving parties’ evidence, however: Pereira v. Contardo (2014), 2014 ONSC 6894, 123 O.R. (3d) 271 (Div. Ct.).

35The parties cannot rely on the possibility that more favourable facts may develop at trial. The court is entitled to consider that the evidentiary record before it on the motion is what will be available at trial. This, it will be seen, is an important consideration in the disposition of the motion.

36The parties must demonstrate that the evidence they rely upon is admissible at trial: Cole v. Hamilton (City) (2002), 58 O.R. (3d) 584 (C.A.). See also Sanzone v. Schecter et al., 2016 ONCA 566 in which the court noted that the principles governing the admissibility of evidence on a summary judgment motion are the same that apply at trial, save for the limited exception permitting an affidavit made on information and belief found in Rule 20.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Preliminary Issue

Preliminary Issue

37The responding parties take issue with the evidentiary record filed on the motion. The plaintiffs submit that the statements to which Ms. Emmett refers are contradictory double hearsay made by witnesses with credibility problems. There are no circumstantial guarantees of reliability, it is suggested.

38I do not agree with the plaintiffs’ submissions for several reasons. First, if I were to decline to admit and consider the moving parties’ affidavits and exhibits, it follows that some of the evidence on which the plaintiffs propose to rely to demonstrate a genuine issue requiring a trial would be excluded (ie. Mr. Lafontaine’s statement). It would surely mean that they would be unable to meet their onus based only on Ms. Turnbull’s affidavit. Bluntly put, the plaintiffs cannot have it both ways.

39Second, as already noted above, statements of information and belief are expressly permitted by Rule 20.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 although an adverse inference may be drawn if appropriate. In this case, Ms. Emmett explains why those with firsthand information have not sworn affidavits. Moreover, the commentary to the Rule explains that “an adverse inference normally means assumption of a contrary position on the facts by reason of failure to call evidence in support of a party’s position. Here it must mean discounting evidence, if controversial, or ignoring it if countered with direct evidence”. I am not persuaded that an adverse inference should be drawn, for reasons that will become apparent.

40Furthermore, in Carvest Capital Inc. v. North Tech Electronics Ltd. (2010), 2010 ONSC 1290, 103 O.R. (3d) 231 (Div. Ct.), the court noted that statements made on information and belief from unidentified sources are not automatically excluded (although here the sources are identified). Importantly, however, the court said that statements related to contentious matters may be saved by Rule 1.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The court is also entitled to rely on the substance of the exhibits to the affidavit in evaluating the merits of the case.

41In my view, it is appropriate and necessary to consider all of the evidence filed, being mindful of the circumstances in which the police statements were given, for example, which may impact weight. One of the reasons is that one witness is dead and two cannot be located.

42In their factum, the plaintiffs review the business records exceptions in the provincial and federal Evidence Acts, presumably aimed at the police statements.

43It seems to me that the statements would not fall within the common law exception because two of the three requirements set down in Ares v. Venner, [1970] S.C.R. 608 because the declarants (ie. the witnesses) had no duty to record the act and they were not made contemporaneously.

44The statements are arguably business records under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 but for the purposes of this motion, that issue need not be decided.

45Fundamental to the disposition of this motion is the burden of proof on this motion and the ultimate burden if the matter were to proceed to trial. At the risk of repetition, if the moving parties demonstrate on the motion a prima facie right to summary judgment, the burden shifts to the responding party to demonstrate a genuine issue requiring trial: Toronto-Dominion Bank v. 466888 Ontario Ltd. (2010), 2010 ONSC 3798, 103 O.R. (3d) 502 (C.A.). Obviously, at trial the plaintiffs bear the evidentiary burden to prove their allegations on a balance of probabilities. They say they rely on and will at trial the so called admissions against interest of Mr. Lafontaine in his statement to police. However, they also say he (and the other witnesses) were making self-serving statements when criminal charges were reasonably in contemplation, their credibility is therefore suspect and deserving of little weight.

Admissions Against Interest

Admissions Against Interest

46I will begin by reviewing the law respecting admissions against interest.

47A helpful discussion of admissions against interest is found in David Paciocco and Lee Stuesser, The Law of Evidence 3rd ed. (Toronto: Irwin Law Inc. 2002) at p. 120 and following:

A party may introduce into evidence against an opposing party any relevant

• statement made by the opposing party;
• act of the opposing party;
• statement made by a third person which is expressly adopted by the opposing party or where it may be reasonably inferred that the opposing party has adopted it;
• statement by a person the opposing party authorized to make the statement, or where the statement was made by the opposing party’s agent or employee concerning a matter within the scope of the agency or employment, during the existence of the relationship; and
• statement made by a co-conspirator in furtherance of a conspiracy.

Admissions are acts or words of a party offered as evidence against that party. Professor Younger provides this rule of thumb: “Anything the other side ever said or did will be admissible so long as it has something to do with the case. Often the phrase “admission against interest” is used. Beware. The phrase invites confusion between an admission made by a party and the completely different hearsay exception for “declarations against interest” made by non-parties.

Most admissions take the form of statements – written or oral. These statements may be used to impeach the party by way of showing a prior inconsistent statement, and they are admissible for their truth. There is no need to comply with the dictates of K.G.B., which applies to prior inconsistent statements made by non-parties.

(footnotes omitted)

48The use to which admissions can be made is reviewed in Bryant, Sopinka and Fuerst, The Law of Evidence in Canada, 3rd ed. (Toronto: LexisNexis, 2009).

49The authors begin with a discussion of the theory of admissibility and in particular whether such evidence is an exception to the rule against hearsay. Quoting from R. v. Evans, [1993] 3 S.C.R. 653, they note at para. 6.396:

The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the un-reliability of his or her own statements. As stated by Morgan, “[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath” (Morgan, “Basic Problems of Evidence” (1963), pp. 265-66, quoted in McCormick on Evidence, supra, at p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases. [emphasis in original]

50For the purposes of this motion, I need not deal with the characterization of an admission against interest. In my view, it is admissible in whatever guise. Returning then to the text, the authors continue:

6.413 One word of qualification, however, is necessary. The whole of a statement which is alleged to be an admission must be put into evidence, and there may be parts thereof which are in fact favourable to the maker of the statement. Thus, if an admission contains statements both adverse and favourable to a party and if an opponent tenders it, he or she may thereby be adducing evidence both helpful and damaging to his or her cause. In Capital Trust Corp. v. Fowler, the plaintiff, who was seeking to prove that the defendant agreed to purchase certain shares in a company, tendered a letter in which the defendant stated that he had purchased the shares. Included in the letter, however, was a statement by him that there had been misrepresentations made to him in respect of the sale which supported his defence at trial. The Court held that the letter did constitute some evidence of misrepresentation in favour of the party against whom the letter was adduced. Such evidence, however, was not conclusive against the plaintiff tendering the admission, for he was at liberty to call qualifying evidence to rebut the unfavourable portion of the letter.

6.414 Another illustration is found in the case of Albert v. Tremblay. That was an action for the price of goods sold and delivered to the defendant and installed at the defendant’s premises. The defendant claimed that the materials were different from those that he bargained for. The plaintiff, in proving his case at trial, put in the entire examination for discovery of the defendant. Under the provincial rules of court, a party is permitted to read in at trial parts of the other party’s examination for discovery. Here, the plaintiff read into evidence the entire transcript of the defendant to put before the Court the admissions against the defendant’s interest that he had made on discovery. But the defendant had also stated on his examination for discovery that the materials he received were different from those that he contracted for. An examination for discovery is merely an admission made under oath and is the same as other admissions. The discovery in question contained not only admissions which were unfavourable to the defendant’s case, but also some statements which were helpful to his case. The Court held that the whole statement, including those parts favourable to the maker, was admissible into evidence. If a party uses an admission, he or she therefore may make it evidence for both his or her case and the opponent’s case.

6.415 The rationale for the principle that the whole of an admission is receivable is based on the fact that a party does not usually make a statement which is both damaging and helpful in the hope that he or she can get the favourable part before the court. The self-serving aspect of the admission is receivable in evidence only after the unfavourable part goes in. It is difficult to believe that an individual will make an incriminating statement in order to ensure that some self-serving evidence goes in as well. Moreover, if the opponent feels that the unfavourable portion does not outweigh the self-serving portion, he or she will not tender it as evidence. In any event, the part of the admission which is self-serving will, in all likelihood, receive less weight because of its nature.

6.416 The plaintiff in the Tremblay case, in tendering the admission which contained certain statements not necessary for his cause but in fact helpful to the other side, was permitted, however, to lead other evidence contradicting or qualifying those parts. The Court then weighed the contradictory or qualifying evidence with the statements contained in the admission in determining whether the admitted fact had been established.

(footnotes omitted)

51Case law considering admissions against interest is scarce in the civil context but several decisions offer assistance. In Min v. Min, [1992] O.J. No. 279 (Gen. Div.); affirmed at [1995] O.J. No. 2567 (C.A.), [a decision predating R. v. Evans, supra] the plaintiffs commenced an action based upon injuries suffered as a result of a motor vehicle accident. The driver of the plaintiffs’ vehicle was making a left turn and collided with a vehicle driven by the deceased, O, who proceeded straight through the intersection. The deceased O’s estate was named as a defendant in the action.

52During the course of the police investigation, O indicated that he had had one drink prior to the collision. O provided a statement to the police officer stating that when he drove into the intersection, the traffic light changed to amber. O further indicated in his statement that he was travelling at a speed of approximately 20 to 25 miles per hour.

53O died following the accident. At the trial of an action against O’s estate, counsel for O’s estate sought to introduce the statements made by O to the investigating officer into evidence during the course of his examination of the officer. Counsel contended that the statements were admissible as an exception to the hearsay rule.

54Justice Haines held that the statements given by O were inadmissible. Written or oral declarations of a person, since deceased, were admissible if they were in their totality against the pecuniary or proprietary interest of the deceased declarant. However, attention must be given to those portions of the declaration that were favourable to the deceased.

55He reasoned that there must be a foundation of trustworthiness to support the deceased’s declaration if it was to be ruled admissible. An admission against interest provided that foundation. The statements in this case given by O were not in their totality contrary to his interest. Accordingly, the statements were not admissible as an exception to the hearsay rule.

56I drew counsel’s attention to the Min decision and asked for submissions. Mr. Egan submits that the Min decision predates R. v. Evans and is no longer good law. I tend to agree – to a point. An admission against interest is admissible. However, in my view, Justice Haines is correct that the entire statement must be considered and evaluated, an issue to which I will return. This conclusion is also consistent with the literature referred to above. Suffice it to say here that context is important and the court must be satisfied that the alleged admission is properly considered to be such.

57The Newfoundland and Labrador Court of Appeal considered admissions against interest in a civil action more recently. In Performance Factory Inc. v. Atlantic Insurance Co., 2013 NLCA 11, at paras. 46-51 the Court wrote:

46…that there is only one civil standard of proof at common law and that is proof on a balance of probabilities, as confirmed by C. (R.) v. McDougall. In the present case the trial judge correctly concluded that, having raised the defence of arson, the respondent had the onus of proving on a balance of probabilities that Michael Hann and Wesley Hann had intentionally started the fire that destroyed the appellant’s property.

47The trial judge also correctly held that admissions by parties in civil actions are not subject to a voluntariness test before their entry into evidence but are properly entered as admissions against interest with the trier of fact determining the weight to be attached to them in the context of considering all the relevant evidence.

58What are the admissions on which the plaintiffs propose to rely? They are summarized in their factum as follows:

10. On the night in question, the Defendant, Jean Lafontaine had bought a half ounce of crack cocaine and consumed part of it prior to the encounter at the parking lot behind Crabby Joes’ on Dundas Street.
11. Mr. Lafontaine on behalf of Monica Turnbull and Tawnia Bailey made arrangements to meet up with Johnny Walker and Bonnie Shute in order to buy opiate narcotics. They met up with those individuals as well as Glen Isaac … and another individual outside of a building on Hale Street. Glen Isaac got into the vehicle which was driven by Mr. Lafontaine [the Intrepid] and sat directly behind him while he drove behind a Crabby Joes’ restaurant on Dundas Street. Mr. Lafontaine was at all times in the driver seat.
12. Glen Isaac was not wearing glasses. It was very dark in the parking lot. Mr. Isaac usually wore glasses.
13. Mr. Lafontaine admitted he believed that Glen Isaac was “high all the time pretty much”.
14. There was another car, in which Bonnie Shute, Johnny Walker and a male driver known as “James” were traveling. It was parked, on the passenger side of the car driven by Lafontaine, while at the back of Crabby Joe’s.
15. Mr. Lafontaine never turned the Intrepid off. It remained running the whole time.
16. Tawnia Bailey and Monica Turnbull each got out of the vehicle and went to the other car to buy drugs from Bonnie Shute, each then quickly returning to the vehicle driven by Mr. Lafontaine.
17. Glen Isaac went to the other vehicle on at least two occasions and spoke to the driver, James.
18. Bonnie Shute, by telephone, also told Mr. Lafontaine more than once to leave while Glen Isaac was talking to James but he did not do so.
19. Bonnie Shute also offered Jean Lafontaine money in exchange for the crack cocaine he had not yet consumed in order to resolve the dispute.
20. Mr. Lafontaine admits that the events were “pretty unnecessary” and that he (Lafontaine) was “pretty fucked up”. He could have just given Glen what he wanted and it would have solved it.
21. Mr. Lafontaine did close the window to about three quarters closed leaving a small crack at the top. It is not known if Glen, while not wearing his glasses, saw in the dark that the window was being raised. The Intrepid had power windows and did not require a cranking action.

59This latter appears to come from Ms. Turnbull’s affidavit rather than Mr. Lafontaine.

24. Glen Isaac was not at the vehicle when Jean Lafontaine raised the window.
25. Glen was at the other vehicle when Jean Lafontaine put the Intrepid in drive because Lafontaine “had a feeling something was going to be happening”.
26. There is no explanation as to why Lafontaine did not simply drive away when he had the clear opportunity and had a feeling something was about to happen. Instead he sat with the car in gear and his foot on the brake.

60I pause here to note that the latter is the plaintiffs’ editorial rather than a statement by Mr. Lafontaine. There are several other instances.

27. Neither Monica Turnbull nor Mr. Lafontaine actually saw the window shatter or any impact by Glen Isaac. Neither saw any object in his hand at any point.
28. Contrary to paragraphs 11 and 12 of the Moving Parties’ Amended Factum, at no point did Monica Turnbull yell that Mr. Isaac had a gun nor did she hear or believe that anyone else said that during the events. Mr. Lafontaine only heard talk of a gun “after the fact” [also editorial].
29. Almost immediately after the window broke, Mr. Lafontaine, having anticipated that something was going to be happening, admitted “I just took my foot off the brake and just pressed on the gas”. As Mr. Isaac leaned into the car, it flew out of the parking lot which left Mr. Isaac suspended partially inside the vehicle. The car accelerated very suddenly. Mr. Lafontaine admitted, “Oh I fucking floored it man” and “I don’t remember taking my foot off the pedal”. [editorial in part or Ms. Turnbull’s words].
30. Mr. Lafontaine indicated that Glen “held onto the window frame” at that point. Mr. Lafontaine did not say Mr. Isaac was holding onto the steering wheel while in the parking lot. [editorial in part].
31. Mr. Lafontaine described to the police that, when he turned the car onto Dundas Street, he lifted his left leg and kicked Glen Isaac in the face a couple of times. Mr. Lafontaine claimed that, at the same time, he (Lafontaine) was holding onto the steering wheel.
32. Mr. Lafontaine complained “Like, he just wouldn’t let go of that fucking side window. He just wouldn’t let go.”
33. Mr. Lafontaine was the only one who controlled the speed of the car as it flew out of the parking lot and along Dundas Street.
34. Ms. Turnbull was impressed throughout all the events at Mr. Lafontaine’s composure. He did not appear to be in a state of panic at any time. As he drove along Dundas Street, Mr. Lafontaine was composed enough to notice a transport truck in the Value Village parking lot and to make note that it was “unloading”. He also noticed a taxi driver in the same lot [editorial in part].
35. While driving on Dundas street, Mr. Lafontaine admitted “I was pretty much in the middle and all over swerving” – trying to “get him to let go”. He was also “slamming on the brakes, pressing on the gas, slamming the brakes”.
36. Although at q. 424, Mr. Lafontaine says he was swerving because Glen Isaac was reaching for the wheel and Lafontaine was “trying to keep the vehicle straight”, that assertion is completely contrary to his earlier one where he said he was swerving the car all over to try to get Mr. Isaac to let go of the car [editorial in part].
37. Just before leaving the road and mounting the curb, Lafontaine had his foot “pretty much on the floor” and the vehicle started accelerating pretty fast.
38. Eventually Mr. Lafontaine lost control of the car. It left the road and bounced over the curb, headed for a lamppost. The car suddenly swerved and Mr. Isaac was thrown from the vehicle. Mr. Lafontaine had grabbed the wheel with both hands, turned sharply and Mr. Isaac “wasn’t there anymore”. The maneuver “did the trick”.

61Also in my response to my request for additional submissions respecting the Min decision, Mr. Egan submitted that these are the salient admissions in summary:

… his consumption of crack cocaine in the time prior to the incident; then, driving a car to the scene in order to facilitate a drug deal; his failure to act on opportunities to leave the scene or otherwise resolve the issue when hostility arose; his failure to act on advice from Bonnie Shute that he should leave; his decision instead to put the car in drive and wait with his foot on the brake anticipating something was going to happen, and his behaviors while driving which were successfully designed to knock Mr. Isaac from the moving car.

62As I have said, it is necessary to review the entirety of Mr. Lafontaine’s cautioned interview in full to determine whether the so called admissions are in fact admissions against interest, particularly when all of his statement is considered. In my view, when one reads the entire statement, what Mr. Lafontaine says is not in its totality against his interest. I am not even persuaded that what the plaintiffs rely upon as admissions are in fact so. But in any event, much of what Mr. Lafontaine said assists him and is largely consistent with the evidence of Ms. Turnbull, Ms. Bailey and Ms. Shute in their police statements.

63Turning then to the statement, at the outset of the interview, Mr. Lafontaine confirms that he had an opportunity to speak to counsel after his arrest. He declines an opportunity to do so again when the charges are detailed to him at the outset of the interview.

64He recounts in considerable detail what occurred that night, a description that is repeated several times during the interview. Mr. Lafontaine speaks about Mr. Isaac being angry and that he wanted money or cocaine in Mr. Lafontaine’s possession to be returned to him.

65The essence of their encounter is captured in this passage:

I lifted the power window up and I just left a little crack … I turned around to look at Glen and the window of the car exploded. Then Monica and Tawnia just started screaming … and he was trying to get into the vehicle … Glen, into the driver’s seat. That’s when I put it in gear and stepped on the gas and tried to get away and he held onto the window frame and I was just trying to go … We were going, the [other vehicle] … started to follow me at the same time … and that’s when I was a bit swerving a little bit trying to get for him to let go and hitting him at the same time for him to let go and he managed to pull himself in pretty good. I thought he was going to get into the vehicle and that’s when I just sort of lifted my leg and kicked him in the face pretty, pretty, a couple of times.

66When one reviews the totality of the interview, Mr. Lafontaine’s essential version of events does not change in any significant way. There was an angry confrontation between Mr. Isaac and him; the driver’s side window was broken in some fashion; Mr. Isaac gained entrance through the window; the occupants of the vehicle were panicky; and Mr. Lafontaine reacted.

67Mr. Egan argues that aside from the alleged admissions to which reference has been made, Mr. Lafontaine’s statements are otherwise self-serving or unreliable. The difficulty I have with this contention is that it is entirely inconsistent. The plaintiffs say they can rely on certain aspects of the statement they consider favourable to them and essentially ignore or downplay the balance by submitting that they should be accorded reduced or less weight. In my view, they cannot “cherry pick”.

68Moreover, as described below, not only is there an internal consistency in Mr. Lafontaine’s statement to police, there is also a striking similarity between what Mr. Lafontaine says then when compared to the other witnesses and what were submitted as facts during the criminal proceeding.

69As already noted, Mr. Lafontaine pleaded guilty to offences pursuant to s. 5(3)(a) of the Controlled Drugs and Substances Act and ss. 145(3) and 259(4) of the Criminal Code. The London Police Service had concluded that Mr. Isaac’s death was accidental as evidenced by its General Occurrence Summary appended as an exhibit to one of Ms. Emmett’s affidavits. The plea was taken on August 28, 2009 and findings of guilt made, following a recitation of the facts, which Mr. Lafontaine admitted.

70I quote an excerpt from the Crown Attorney’s recountal most relevant to the case:

MR. HANDBIDGE: …Mr. Isaac and the defendant became involved in an argument over drugs. Mr. Isaac exited the vehicle he was in and the two continued arguing through the driver’s window of the vehicle that the defendant was occupying as the driver. Upon seeing this, Bailey returned to the vehicle which now left Bailey, Turnbull and Lafontaine in the Intrepid with Lafontaine being the driver, and Shute, Walker and an unknown male, James, in the Impala with this fellow by the name of James being the driver as I said.

Lafontaine closed the driver’s window at which point Mr. Isaac approached and is alleged to have smashed the window with some type of instrument thought alternatively to be either a knife sharpener or screwdriver. However, the occupants of the vehicle, the two females that I’ve made mention of, they thought that it was actually a firearm that was being used for that purpose and one of them uttered verbally in a very distraught fashion, the fact that she thought there was a firearm in the hand of Mr. Isaac. In any event, I can say parenthetically there never was a weapon that was ever discerned.

THE COURT: Well, do you know what broke the window:

MR. HANBIDGE: Our best estimate was that it was some sort of knife sharpener, something along that line.

THE COURT: All right.

MR. HANBIDGE: Something that normally wouldn’t be considered a weapon.

THE COURT: Right.

MR. HANBIDGE: Extraordinarily though – and this is where events got totally out of hand – Mr. Isaac opted to leap in through the now smashed window, the driver’s side….

THE COURT: Is the vehicle moving when this is happening?

MR. HANBIDGE: My ability to discern the answer to that from the various disjunctive interviews was that the vehicle was stopped at that point.

THE COURT: Oh, okay.

MR. HANBIDGE: But I believe that the driver, Mr. Lafontaine, had the vehicle in gear, he was merely stopping it with his foot on the brake mechanism.

Suffice to say – and our best information is that Mr. Isaac was endeavouring to get into that vehicle in order to retrieve some drugs that had just previously that morning been sold to Mr. Lafontaine and that was the purpose of his aggressive stance. Unfortunately, by doing what he did, it lead to him and the defendant getting into a serious physical struggle. And as I say, at that point, Ms. Turnbull, one of the other female occupants, had uttered words to the effect that she thought Mr. Isaac had a gun and that then spurred on the defendant, Mr. Lafontaine, to put the vehicle in motion and he drove the vehicle out of the parking lot and directly onto Dundas Street heading in an easterly direction. As you can well imagine the dynamics at that point…

THE COURT: Right.

MR. HANBIDGE: …here’s Mr. Isaac who’s leaped into the driver’s side window that had been shattered, struggling with the defendant and apparently the two were struggling over the direction in which the vehicle was to move because each were manhandling the driver’s wheel.

THE COURT: Right. Right.

MR. HANBIDGE: All the while, a huge struggle unfolding before anyone’s eyes including, as I understand it, Mr. Lafontaine trying to knee, using his knee to extricate Mr. Isaac from the situation at hand.

And this is where things go most tragically to a point where the ultimate form of sadness creeps into the summary. As they continue to struggle, Mr. Lafontaine drove the vehicle towards a driveway located at 1525 Dundas Street and as he and Mr. Isaac are tugging away at the driver’s wheel, the wheel eventually is pointed in a way towards that municipal address and obviously leaves the roadway proper, partially strikes the curb in the process, and it is at that point that Mr. Isaac is ejected from the vehicle and sadly either striking the road proper or a major signpost or lighting post that was by happenstance to be at that location, cause the fatal injury to his head.

71A plea of guilty is a formal admission in criminal proceedings. It has been said that formal admissions dispense with the need to prove a fact in issue and are binding on the party who makes them. See Watt’s Manual of Criminal Evidence, (Toronto: Carswell, 2013).

72The facts underpinning the pleas, to which Mr. Lafontaine agreed, align very closely with what he said in his cautioned statement. They are considered as proven beyond a reasonable doubt. I recognize that they are binding only on Mr. Lafontaine but they provide important corroboration for his earlier statement to police. They enhance rather than detract from his credibility.

73Turning then to the statements or evidence of the other witnesses, I will review Ms. Turnbull’s evidence first because she has sworn as affidavit for use on this motion. The moving parties have had an opportunity to cross-examine her. Ms. Turnbull swore her affidavit, which was prepared by Mr. Egan’s office and it is proffered by the plaintiffs to demonstrate that there is a genuine issue requiring a trial. The essence of her evidence is as follows:

• Mr. Lafontaine was her boyfriend at the time;
• she was high on cocaine and opiates that night, although she is now a recovering addict;
• she was high when she made her statement to police and was careful not to say anything that would cause trouble for her boyfriend;
• Mr. Lafontaine purchased half and ounce of cocaine that day and had consumed some of it;
• arrangements were made to purchase drugs from Mr. Walker and Ms. Shute;
• a meeting was arranged on Hale Street with Mr. Walker, Ms. Shute and Mr. Isaac and another person unknown to Ms. Turnbull and they were in one car;
• Mr. Isaac got into the vehicle operated by Mr. Lafontaine;
• the two vehicles drove to Crabby Joe’s;
• it was dark;
• Mr. Isaac was not wearing glasses and wore a hoodie with a front pocket;
• a drug deal was concluded by Ms. Bailey and Mr. Lafontaine with Ms. Shute;
• Mr. Isaac exited his vehicle and walked to Mr. Lafontaine’s vehicle;
• he repeatedly said to Mr. Lafontaine, “give me my shit”;
• he became increasingly agitated while Mr. Lafontaine remained composed and was laughing at him;

74I quote verbatim the following evidence from Ms. Turnbull’s affidavit:

16. During this time the window on the driver side was open. At a couple of points, I told Mr. Lafontaine to roll the window up and drive away.
17. Mr. Lafontaine had opportunities to move the car but it remained stationary. I do not know at what point Mr. Lafontaine put the car into drive.
18. The Intrepid had power windows and did not require a cranking action to close them. Mr. Lafontaine did close the window to about three quarters closed, leaving a small crack at the top. I do not know if Mr. Isaac saw the window being closed. I do know that Mr. Isaac was not wearing glasses and that it was very dark in that location.
19. At one point, I saw Mr. Isaac make a motion with his hand and almost immediately the window shattered. I did not see the actual impact but heard a very loud sound. At no time did I ever see an object in Mr. Isaac’s hand.
20. Mr. Isaac then appeared to lean in and reach inside the car in what may have been an attempt to turn the vehicle off or to grab something inside the vehicle. I did not see him grab for the steering wheel or grab Mr. Lafontaine.
21. At no point, prior to Mr. Isaac being thrown from the vehicle, did I yell that Mr. Isaac had a gun nor did I hear anyone else say that he did and I do not believe anyone did say that during the events.
22. Almost immediately after the window broke, the car took off and flew out of the parking lot with Glenn suspended partially inside the vehicle. The acceleration happened very suddenly…
23. I did not see Mr. Isaac’s hands on the steering wheel at any point.
24. Everything happened very fast and it was difficult to see what was going on between Mr. Lafontaine and Mr. Isaac.

75Ms. Turnbull also deposes that Mr. Lafontaine never appeared to be in a state of panic. She states that she has had no contact with Mr. Lafontaine since the incident except for a dated Facebook message to which she does not believe she now has access. She says that she has attempted to contact Mr. Walker and Ms. Shute with no success.

76Ms. Turnbull was cross-examined by the moving parties. Portions of the transcript are excerpted below:

145. Q. And you got a really feel, a really weird feeling right away? A. Yeah, yeah. Like, well like I said it, it just wasn’t sorta the norm. I used to purchase drugs off of Johnny Walker and Bonnie, or Blossom, very regularly and it was just, it’s just kind of weird the way things were happening that we had to go somewhere else. I felt very uncomfortable and, and Glen seemed nervous or agitated, I guess, and I just didn’t have a good feeling.

146. Q. And why did you think he was nervous or agitated? A. I can’t, I can’t say any, any reason for sure. Myself, I think the fact that I was high on cocaine probably didn’t help. I think that sort of added to the whole paranoia and just nervous feeling. I don’t, I don’t know why Glen was like that though.

147. Q. What was he doing that… A. Well he, just, just his demeanor. Just he was not comfortable. Like he, he had his, he had his hands in his pocket sort of and he was just sort of fidgeting a little bit, which knowing what I know now and that he was obviously using drugs as well, that was probably part of, of what was going on. But… yeah.

148. Q. And you mentioned that you thought that he was holding something in the hoodie pocket. Were you able to see what you thought was there? A. No, no. I never seen anything at any point.

149. Q. Okay. A. Yeah.

150. Q. His hands were just in the hoodie. A. Yeah, yeah. His hands, he just had both of his hands in the pockets, you know, in his front pocket.

151. Q. And you, you knew, or you thought that Glen had a knife or a gun or something in the hoodie pocket? A. Well, I didn’t know that because I, you know, I didn’t, I never saw anything, as I said. Now sort of looking back I, I’m sure a lot of it, like it definitely was sketchy, the situation for sure, but I think on top of that the fact that I was under the influence really didn’t help, you know.

152. Q. But at that time you thought that he had a gun or a... A. At the time…

153. Q. … knife or something? A. … I definitely felt like it was very weird that his hands were sort of in his pocket and I guess his demeanor, you know. But I didn’t actually see anything. That was just sort of my, the vibe or my sort of assumption, you know.

154. Q. So your assumption was that he had a knife or a gun or something like that? A. Yeah.

155. Q. In the hoodie. A. Yeah, yeah.

156. Q. And you don’t remember Jean saying that this wasn’t the time or the place to do this? A. I do remember… the only things that are sticking out that I know were said was, you know, Glen just saying, you know, give me my shit. And Jean sort of saying, like I don’t know what you’re talking about, and sort of almost laughing it off, you know. I don’t remember that being said for sure though.

157. Q. What’s he saying? A. All that I, like remember for sure is just him saying… there was some talking at first that I couldn’t make out and sort of by the time I got back in the vehicle from purchasing the stuff from Bonnie he was sort like a little bit more heated then. He was saying, you know, give me my shit back, I want my shit. And Jean said, like I don’t know what you’re talking about, I don’t have anything for you. And sort of kind of laughed, laughed it off a little bit, you know. Jean was kind of calm and Glen was, you know, just getting more upset, you know. That’s all that I really remember as far as, like dialogue. And at that point I got my pills, as bad as it sounds to say this, but I had my stuff, I felt uncomfortable and I was just saying, like let’s get out of here, just roll the window up and let’s go, you know.

158. Q. … confront… A. … just tell at this point that it’s not, you know, a normal discussion that somebody’s having. It’s just heated. Like he’s, yeah, he’s raising his voice a little bit and you can, I mean you can just tell when, you know, somebody’s upset. He, you know, he wasn’t like screaming and freaking out, but he, he was just upset, yeah.

159. Q. And as this back and forth is going on he’s getting more agitated? A. Yeah. Well he just kind of kept repeating the same thing, like just, you know, give me my shit back. You know, that’s what he kept saying.

160. Q. Said to who? Sorry. A. I said to Jean Lafontaine, just like let’s go, this is, you know, this is ridiculous, roll the window up and let’s go. That’s the only thing I really, guess I sort of remember, you know, being said. And yeah, I think that was when… we were sort of, like there was like a bit of a maybe a minute or two where I had already said to Jean, like let’s go, you know. So I, I don’t know why he didn’t, I don’t know why he didn’t go. He was very calm. I don’t, I don’t know. Maybe he thought that Glen was just gonna calm down or something. I didn’t know. But eventually after a couple minutes Jean rolled the window up and I just, I didn’t actually see Glen, you know, have anything, but I just sort of kind of through the corner of my eye seen the motion and the window just shattered, and… yeah. Am I going too fast? Sorry.

161. Q. But you saw the motion. What are you talking about? A. Like just sort of kind of… I don’t know why. I wasn’t looking directly there at the time, but I just sort of seen kind of through the corner of my eye like his, like an arm or something sort of just move, you know, like towards the window.

162. Q. Okay. And does, up until the time where Jean starts rolling up the window is Glen continuing to say, give me the stuff, give me… A. Like there was very, like the whole time wasn’t, it wasn’t a lot of time. There was a couple of times where I couldn’t really, like I didn’t make out what was being said, right. That was sort of the common thing that he was just saying over and over again. When he rolled up the window…

163. Q. And was Jean getting heated back? A. Jean was like very calm through the entire thing, you know, like very calm.

164. Q. By Bonnie, sorry. A. Yeah, yeah. I really think that’s what it was. I mean, if he, if his intention was to… like there was definitely something sketchy going on. If his intention was to just rob, like Jean or try to, I think it could’ve, could’ve been a little bit different than that I think. That’s when I say he, he was pretty convinced, I think directed by Bonnie or Johnny, that they had something of his, you know. So maybe they all sort of thought well…

165. Q. Like venting in terms of he was getting angry and venting his frustration. A. Like he was, he was upset but… yeah, he was angry. I don’t know. I just don’t, didn’t understand sort of the way you were saying it.

166. Q. I’m happy to rephrase it. MR. TILLMAN: When you say, he was angry, you mean Glen was angry? THE DEPONENT: Yeah, yeah. Like he was irritated, but like I said before, he, I mean he wasn’t, like he wasn’t, until he sort of just tried to stop the vehicle, I guess, if that’s what he was doing, at no point was he really overly aggressive, you know, or angry. He was clearly upset though, yeah.

167. MS. EMMETT: Q. He’s getting more confrontational though? A. Yeah, yeah.

168. Q. But as this is going on you’re, you have a really bad feeling. As the interaction between Glen and Jean is going on, you have a bad feeling? A. Yeah. Yeah, I did.

169. Q. And you told Glen, sorry, you told Jean to roll up the window and get out of there? A. Yes.

170. Q. What specifically did you say? A. That’s exactly what I said. Yeah. And I said it a few times actually.

171. Q. And you see, you don you don’t know what’s used to smash the window, but you see Glen’s hand move? A. Yeah. I sort of just see the, the motion. Like I said, I never, I never saw anything or saw him with anything but I, I seen the motion of his hand sort of swing by the window.

172. Q. And you couldn’t tell exactly what was in his hand because it all happened quickly. A. Yeah, yeah. Well, I didn’t even see his actual, like hand or anything hit the window, you know. I just sort of… it really happened fast, you know. I just sort of seen the motion through the corner of my eye and then the window broke. You know, I just remember it being, the sound of the actual window breaking being really loud, you know.

173. Q. Yeah. And you thought he had a gun? A. I remember me and Tawnia saying afterwards, like outside of the car after the situation, that, you know, the noise of the window breaking was so loud and we thought it was a gun. I mean we realized afterwards he obviously didn’t have one, you know, but my own thoughts, you know, at the time was the noise of it I thought that almost what it was, you know. But…

174. Q. You thought it was a gun shot? A. Yeah, yeah.

175. Q. And so the window smashes and… A. Yeah.

176. Q. … you scream? A. Probably. I don’t remember screaming, but I’m sure I did, yeah.

177. Q. And there was screaming in the car? A. Yeah. Tawnia was screaming for sure, yeah. I probably was too.

178. Q. Okay. And someone screamed that there was a gun? A. I don’t remember that.

179. Q. Okay. You don’t remember. It could happen, you just don’t have a specific recollection? A. No. I don’t think that… I’m, I’m basically sure that that wasn’t said in the car because I do remember the conversation afterwards. I remember after like me and Tawnia left and went to Hale Street and we were sort of like in shock on our way there. And we had said, like, you know, I thought that, I thought he had a gun, I thought, you know, like we thought… that was said afterwards outside of the vehicle after everything was sort of said and done.

180. Q. Okay. So you might not have said it but you thought the window had been shot out? A. I thought that, like to myself I thought that, yeah.

181. Q. Okay. So there’s screaming going on and, but you don’t specifically remembering, remember yelling he had a gun? A. Yeah, I didn’t… I, I remember saying that but it was a different time. I didn’t say that in the vehicle.

182. Q. And part of the, one of the other reasons why you thought that there was a gun was the way that he held it and the way that it smashed? A. Well, I didn’t see him holding anything. I never saw him holding anything. It was just because, kind of just that he had his hands in his pockets the whole time and it, and the whole thing was a little bit sketchy. So to myself I assumed as much, you know, but I never saw anything before or kind of during, or anything.

183. Q. Yeah. And I get this all happened in a very short… A. It is, yeah.

184. Q. … period of time. A. Yeah, yeah.

185. Q. There’s screaming. Do you remember anything that people were saying in the car? A. No. I thought, I remember Tawnia screaming. I really don’t think, I don’t know that any actual, like anything was said at that point. Like I, I, I’m pretty sure that nothing was said. It was really fast. The window broke and then… yeah.

186. Q. So the window broke and Glen jumped into the car? Or got, got himself partially into the… A. Yeah, yeah.

187. Q. It’s hard because we’re just having a discussion. But the window’s smashed now and Glen launches, or gets himself into the front driver’s window, correct? A. When the window broke…

188. Q. Yeah. A. So it broke and then Glen sort of reached in like… again, I can’t see anything. I assume that he was trying to like pull the keys out of the ignition, grab the steering wheel, you know, and that’s when Jean just sort of like flew out of there, out of the parking lot.

189. Q. But can you see how much of Glen’s body is in the car? Like is it to his chest? Is it to his hips? A. Yeah. It’s around, it’s around maybe like the, around the middle of his torso. Like maybe a little bit above his waist.

190. Q. So where you’re pointing to on your own body is around kind of towards the end of your rib cage. A. Yeah, yeah.

191. Q. Sorry, I should say the bottom of your rib cage. A. The bottom, yes.

192. Q. And you can’t see exactly what he’s reaching for? A. No. There seemed to be like, like a struggle from what I could see. So then Glen is trying, was trying to just grab the steering wheel, grab something and Jean was maybe either trying to like push him off or just trying to drive and get, and pull out, you know.

193. Q. So the vehicle starts to move once the window is smashed and Glen’s partially in the vehicle? A. Yes. Q. You, you knew that Frenchy never meant to hurt anyone. A. Well, I mean I don’t think he anticipated what was gonna happen to happen. But as I had mentioned in here, like there, there… we weren’t back there for a long time but there was a couple times where I think it could have been avoided, you know, where I had sort of said like, let’s go, and I don’t know why he didn’t’, you know. Like before things go t really heated there was a couple opportunities where he could’ve just driven away, you know.

194. Q. Okay. So the window smashes and then Glen jumps into the vehicle, you said? A. So, the window smashed and then from what I remember I think we, like that’s when Jean sort of… It, like it all happened really fast. So it, it smashed and then Glen sort of like flew in and then like within seconds Jean just, Jean Lafontaine just kinda flew outta there, so…

195. Q. As best as you can recall. A. Yeah. So, it, it smashes. Glen sort of reaches in. There’s like a bit of a, a struggle between Jean and Glen and, yeah, within sort of seconds of, of that going on then Jean flies out of there, out of the parking lot. And I think the sort of struggle stopped at basically like as soon as we went out towards, like between the two of the, towards Dundas and sort of that was almost the time when it, I realized that maybe Glen was stuck or the vehicle was just going to fast for him to let to or, or something. You know, at that point there was, Jean was, from what I could see Jean was just driving, sort of swerving and Glen was sort of just hanging there.

196. MS. EMMETT: Q. So just off the record you’ve had an opportunity to look at an email that you sent me February 23rd, 2015, which is Exhibit D of my affidavit sworn March 21st, 2016, when you say, “My memory is very foggy and I am remembering the events in a few different scenarios.” A. Yeah.

197. Q. And you also said, “Which leads me to…” Or sorry. “Which leads me to mistrust my initial memories of that night.” And you remember saying both of those things… A. Yeah.

198. Q. … to me? A. Yeah, and that was why I didn’t sign the affidavit. Because at that time, you know, I wasn’t comfortable with everything, which is why I’m here now, because now I am.

199. Q. Well, after that window smashes you said he came into the car. A. Yes.

200. Q. And as I understand it Tawnia was sitting in the front passenger seat. A. Yes, she was.

201. Q. And you’d agree with me that there would be nothing that would be blocking Tawnia’s view of what was happening in the front seat? A. Well, aside from Jean, but she definitely could more or less see, I would assume.

202. Q. Yes, okay. And there wouldn’t be anything that was blocking Jean’s view of what was happening? A. No, I don’t believe so.

203. Q. You were afraid? A. … said that. I was, yes.

204. Q. Okay. So, you believe that Glen broke the window of the car, don’t you? A. I, that’s my assumption, yeah.

205. Q. That’s an aggressive move, isn’t it? A. That movement is, yeah. I thought you said when he was standing outside of the vehicle, as in the time prior, you know, or leading up to that.

206. Q. All right. And then Glen puts his upper body into, into the vehicle, doesn’t he? A. Yes.

207. Q. That’s an aggressive move, isn’t it? A. Yeah.

208. Q. Yeah. You were scared. A. I was, yeah.

209. Q. Tawnia was scared. A. Yeah.

210. Q. She was screaming. A. Yes, she was.

211. Q. All right. You may have been screaming. A. I don’t remember, but it’s possible, yeah.

212. Q. [You’re] part of a class action against Elgin Middlesex Detention Centre? A. Yes, I am.

213. Q. And the lawyer for the class action is Kevin Eagan [sic]? A. Yeah, I believe. Yeah, yeah.

214. Q. Have you met with Kevin about that class action? A. No, never.

215. Q. And you’re hoping to receive compensation as part of that class action for… A. I actually have no idea what’s going on. I just had some really bad experiences and was told about it. So all I’ve done at this point is just put an application and I’ve never had any discussion one way or another, you know.

216. Q. Right. But you’re hoping to receive compensation for the, the bad way that you were treated at the Elgin Middlesex Detention Centre? A. That would be nice. I’m not really hoping anything, though.

77I have the impression that Ms. Turnbull’s recent affidavit attempted to downplay Mr. Isaac’s behaviour and to suggest that Mr. Lafontaine was not acting in response to an emergency situation and that he had an opportunity to leave. To the extent that this evidence might have raised a genuine issue, it is totally eliminated by her cross-examination. What she says at that time is very similar to what she said to police – Mr. Isaac’s aggression; the breaking of the window; the fear that Mr. Isaac had a weapon; the reaction of the passengers; Mr. Isaac coming into the vehicle through the broken window; the ensuing struggle; and Mr. Lafontaine’s response.

78Her police interview, which was videotaped, began at 17:06:49 and ended at 18:22:07. It was clearly a lengthy interview.

79I pause here to say that there is no reason why Ms. Turnbull’s interview is not admissible on the motion. She would undoubtedly be cross-examined on it if she were to give inconsistent evidence at trial.

80I paraphrase or quote as appropriate certain excerpts from her statement:

17:12:29: Ms. Turnbull and her boyfriend (later identified as Mr. Lafontaine), were to meet with Mr. Isaac to get her pills. They met at the apartment on Hale Street. Ms. Turnbull was sitting in a vehicle operated by Mr. Lafontaine. Mr. Isaac exited the vehicle that he arrived in and got into Mr. Lafontaine’s vehicle. From there, they went to Crabby Joe’s at Mr. Isaac’s request.

17:14:19: Ms. Turnbull had a really bad feeling. Mr. Isaac had a hoodie on and was holding something in his pocket. At 17:14:32, she said that he was holding something … in his pocket, like I knew he had a gun or knife or something.

17:14:55: He started saying something about that Jean sold him, some good stuff that belonged to somebody else and it wasn’t paid for and I didn’t know what was going on but Glen was getting more and more aggressive, like he was standing outside of the car at this point and he’s like you know I’m going to get my money one way or another.

17:15:55: I asked Jean, not Walker, but my Jean, I asked him, I just said roll the window up and drive away, I have a really bad feeling and he rolled the window up. As soon as he rolled the window up, Glen smashed the window … and he then started jumping and trying to attack Jean and Jean just drive, he just drove … And he was trying to climb in I swear to God he didn’t do anything … He was trying to climb in and we lost control of the car and lie, I’m just saw him fighting Jean at one point and then I just remember that he lost control of the car near like a big parking lot.

17:28:10: Like after it happened, like as soon as after, I thought that he had a gun just the way that he held it up, like it started … right behind Crabby’s … like right behind. Just the way he held it up and smash I just remember hearing the loud bang. Um, like I thought he was shooting at us.

Like, he, Jean was just trying to get him off and he kept attacking him.

17:31:48: The interactions between Mr. Lafontaine and Mr. Isaac were fine. As time passed, Mr. Isaac became more confrontational.

At 17:32:30: … he [Mr. Isaac] kept saying, “I’m not leaving here without any money”.

17:38:56: … He pretty much, he got out right away … He got out right away. And he, like I said he was like confrontational … like he was standing at the, standing at this window and, I mean, I think, Frenchy knew that they were going to try to rob him but he was just trying to keep the situation under like, under wraps.

17:40:31: I just remember Jean saying listen … this is not, you know, this is not the time or the place Glen, call me, call me when you are ready to actually sit down and figure something out … and he started to, just as he started to drive away that’s when he smashed the window.

17:44:33: Okay so, I thought he had a gun. I still to this day … I don’t know, I really I honestly thought that he was shooting … the way he was hitting with something.

17:45:00: I just remember as soon as I said Frenchy roll the window up and drive away something’s gonna happen. As soon as he rolled it up, I just saw him holding his hand out and I heard a big loud smash.

And like I remember thinking, like you know what this guy is doing, he’s fucking crazy like you know, he was still climbing and like trying to pull Frenchy out of the car while he was driving and we were flying down Dundas … like I couldn’t believe it, he wouldn’t let go and the Frenchy lost control of the car and I think that’s when he fell.

When he first went to go, like he had a, I saw him like holding something in his hand but it was too quick to actually see.

17:47:51: For it to smash like that, I was convinced like oh my god now he’s shooting and I was screaming, I was you know, Frenchy get him off the car like because I was scared for us, like I never ever imagined he would ever hurt himself bad.

17:49:15: Right away he jumped on Frenchy. Officer: What do you mean jumped on him? Like he tried to dive in and take control over the car, he was trying to pull Frenchy out of the car and Frenchy just started driving.

Officer: Okay. Were they saying anything to each other? They didn’t say anything. Just yelling and screaming.

Officer: Oh, okay. Well, like what? I don’t remember, like what I just remember yelling.

Officer: … And specifically, when Glen dove into the car and was trying to pull Frenchy out, tell me about that. Tell me about he was trying to do that. Like he tried to open the door first that was the first thing that he tried to do. I just remember the smash and then all of a sudden, I guess I tried opened the door and that’s when Frenchy started driving … and I remember thinking like a few times, like oh my God, like, like how was, like he was putting up such a fight, like he was trying to get in the vehicle, he was physically grabbing, physically grabbing him trying to get in.

81As already noted, many details in her statements mirror her subsequent affidavit and evidence on cross-examination and are quite similar to Mr. Lafontaine’s version of events, including:

• Mr. Isaac was aggressive, confrontational and increasingly so;
• Mr. Isaac smashed the window of the vehicle that Mr. Lafontaine was driving;
• everything happened fast;
• she thought there was a gun shot;
• there was screaming in the vehicle; and
• Mr. Isaac was coming into the vehicle.

82Clearly, that evidence also provides important corroboration of Mr. Lafontaine’s version of events in his police statement and the facts established in the subsequent guilty pleas.

83On April 16, 2009, Tawnia Bailey was interviewed by the London Police Service. The video of her interview began at 22:57:12 and ended at 23:46:07.

84I quote briefly from a relevant passage to capture what is essentially a recurring theme in her statement:

The black guy [Mr. Isaac] was just kind of yelling freaking out. I don’t know exactly what he was saying ‘cause it all happened fast … The window got smashed and someone was screaming ... in the back was screaming there was a gun. So Johnny kind of took off and when he stopped a bit I jumped out …

85As already noted, Ms. Bailey is now deceased. Is her statement to police (or to Mr. Bannon admissible)? The necessity requirement in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 is clearly satisfied.

86Is the statement sufficiently reliable to be admissible? A helpful discussion of the issue is found in Watt’s Manual of Criminal Evidence, supra at p. 580:

para. 28.03

Reliability is the equivalent of what Wigmore described as a circumstantial guarantee or probability of trustworthiness. The probability of accuracy and trustworthiness of a statement is practically sufficient, if not quite the equivalent of testing the statement in the usual manner. A variety of circumstances may serve as a practical substitute for, or the functional equivalent of, cross-examination.

As a general rule, the proponent who seeks to introduce hearsay evidence will satisfy the reliability requirement by demonstrating on the voir dire that there are no real concerns:

i about the truth of the statement because of the circumstances in which it was made; or ii about the offer of the statement as hearsay because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested by means other than contemporaneous cross-examination.

These two means of satisfying the reliability requirement are not mutually exclusive, rather assist in the identification of the factors that require consideration on the inquiry into admissibility.

A trial judge serves as a gatekeeper in making the preliminary assessment of threshold reliability, leaving the ultimate determination of the worth of the evidence to the trier of fact. But factors relevant on the inquiry into admissibility cannot be characterized in terms of threshold and ultimate reliability. What is required in deciding on reliability, is a consideration of all relevant factors including, in appropriate cases, the presence of supporting or contradictory evidence. Trial judges should adopt a more functional approach in determining admissibility, an approach that focuses on the particular dangers associated with the evidence proposed for admission, as well as on those attributes or circumstances relied upon by the proponent to overcome these dangers. Contextual considerations will determine whether certain factors, such as corroborating or conflicting evidence, relate only to ultimate reliability, or have a say on the admissibility inquiry.

When the reliability requirement is satisfied on the basis that the trier of fact has a sufficient foundation to assess the statement’s truth and accuracy, the trial judge need not inquire further into the likely truth of the statement. But where the proponent advances the claim for reliability on the ground that the statement is inherently trustworthy, the trial judge must inquire into those factors having to do with the truth or falsity of the statement.

87The police statement was not given under oath. Nor were the others. However, that is not fatal and to conclude otherwise would mean form trumps substance. It is a matter of weight only.

88I am satisfied that there are circumstantial guarantees of reliability. In particular, the statement contains many details that line up very closely to the evidence of Mr. Lafontaine, Ms. Turnbull, and as will become clear, that of Ms. Shute.

89These witnesses were interviewed independently of one another. The officer conducting the interview facilitates a free flowing dialogue and there is no evidence that he was suggesting answers to them through cross-examination or otherwise or was attempting to coach them. Some detail differs between witnesses, hardly surprising given their different vantage points and reaction to events and suggests an absence of collusion.

90Moreover, her statement matches in significant ways what she is recorded to have told Mr. Bannon in 2012. In particular, Mr. Bannon deposes:

11. … Blossom [Ms. Shute] had told Glen Isaac that the cocaine Jean Lafontaine had with him was Glen Isaac’s and that he had been “ripped off” by Jean Lafontaine. Glen Isaac wanted to get his cocaine back from Jean Lafontaine.
12. Glen jumped out of the bushes and came up to the driver’s side of the car that was being driven by Jean Lafontaine and stated “give me my fucking dope”. Jean Lafontaine wanted his money and Glen Isaac responded “what money, give me my dope”. They started to argue.
13. Glen Isaac had a gun and shot out the driver’s side window of the car. Ms. Bailey did not know the type of gun Glen Isaac had with him.
14. At that point, Jean Lafontaine started to drive away. Glen Isaac leapt into the car through the driver’s side window to stop Jean Lafontaine from driving away.
15. Following the accident, Ms. Bailey did not know what happened to the gun or where it went but someone got rid of it.
16. Ms. Bailey never told the police about the gun because of the hassle it would have caused if a gun was involved.

91For these reasons, Ms. Bailey’s statement satisfies the reliability test and is admissible.

92Finally, Ms. Shute was also interviewed by police. She is said to have spoken to a lawyer prior to the interview. Her interview, like the others, is lengthy. It began at 17:18:07 and ended at 19:21:36. It will be remembered that she was an occupant of the same vehicle as Mr. Isaac and so was not a part of Mr. Lafontaine’s group. The salient points of her statement are as follows:

I can see that it’s heated and the driver is getting right upset, Glen’s getting really upset.

When I see the driver rolled up his window and like within seconds of that happening Glen smashed the window open and like literally had his body dive, like dived, into the driver’s window, when immediately the car just sped off …

… I can hear Glen getting angry and raising his voice … that’s when I was watching Jean roll up the window on him …

I just heard him yelling and then I heard this loud crash …

But, I heard the crash and the crash was because I just watched him roll up the window. I had to assume it was his window. I didn’t visually see that but I looked over and I heard this loud crash and then watched him jump in the window …

… He had something in this hands ‘cause he grabbed something when he got out of the vehicle which to me looked like um, like one of those knife sharpeners, and, you know, like it’s a long silver knife sharpener.

93It is readily apparent that her evidence bears striking similarities to the evidence of the others.

94Therefore, when all of the evidence is considered, it persuasively demonstrates that Mr. Isaac was acting aggressively toward Mr. Lafontaine; he was agitated and angry; he confronted Mr. Lafontaine; the driver’s side window of the Lafontaine vehicle broke; the witnesses considered that Mr. Isaac had a weapon of some sort; he attempted to gain entry to the vehicle through the window; Mr. Lafontaine took evasive action; and Mr. Isaac fell from the car.

95Notwithstanding all of this, the plaintiffs say oral testimony at trial would produce the best record. That, respectfully, is not good enough. At the risk of repetition, I am entitled to consider that the record before me is what would be available at trial.

The Law

The Law

96Dealing first with the interplay between the Family Law Act and the Trustee Act, I do not believe that there is any dispute that the plaintiffs’ entitlement to damages is dependent upon Mr. Isaac’s entitlement to maintain an action himself, had he lived. See s. 38 of the Trustee Act and s. 61 of the Family Law Act. If Mr. Isaac had no entitlement, neither do the derivative claimants.

97The moving parties rely first on the doctrine of volenti non fit injuria. In my view, the doctrine does not apply. It is a legal principle that has been sharply circumscribed such that it is now rarely successful.

98A helpful discussion is contained in Crocker v. Sundance Northwest Resorts Ltd.. Much of the case focused on whether the defendant resort owed its impaired patron a duty of care when promoting what the court described as a dangerous sport. However, the court reviewed the defence of voluntary assumption of risk, quoting from Fleming in the Law of Torts, 6th ed. (Sydney: Law Book Co., 1983):

Obviously this defence bears much resemblance to contributory negligence. Most often, indeed, the two defences overlap: viz. whenever knowingly to assume a risk is also negligent, e.g. riding in a car with a drunk driver. But like intersecting circles, some cases support one defence without the other; thus to assume the risk may in some circumstances be perfectly reasonable or (per contra) the risk, though unreasonable, may not be fully appreciated.

As long as either defence defeated the plaintiff entirely, precise demarcation served only academic interest, but the introduction of apportionment for contributory negligence has posed a serious problem concerning the future role of voluntary assumption of risk as a complete defence. It seems rather odd that a plaintiff who is himself negligent might now fare better than one who is not, e.g. that an intoxicated passenger should stand a better chance against a drunk driver than a passenger who is sober. The judicial response to this dilemma has been to impose ever stricter requirements for the defence of volenti to the point where it is now but rarely successful.

Presumably the reason for not formally drawing the defence within the net of apportionment (or what would amount to the same, flatly abolishing it) is the feeling that people should remain free to agree to waive their legal rights, at least under conditions of free and informed choice.

99See also Dube v. Labar, [1986] 1 S.C.R. 649 where the court said:

Thus, volenti will arise only where the circumstances are such that it is clear that the plaintiff, knowing of the virtually certain risk of harm, in essence bargained away his right to sue for injuries incurred as a result of any negligence on the defendant’s part. The acceptance of risk may be express or may arise by necessary implication from the conduct of the parties, but it will arise, in cases such as the present, only where there can truly be said to be an understanding on the part of both parties that the defendant assumed no responsibility to take due care for the safety of the plaintiff, and that the plaintiff did not expect him to.

100The plaintiff must assume the physical and legal risk of harm. It is unlikely that Mr. Isaac assumed the legal risk of harm although he arguably assumed the risk of physical harm.

101However, I have concluded that the doctrine of emergency applies in this case. On the evidence, the only logical conclusion is that Mr. Lafontaine acted at a time when he reasonably feared for his safety and that of his passengers. He reacted as he did in a matter of seconds, in a time of panic and confusion, if not outright chaos. He is not to be held to a standard of perfection, judged with the acuity of perfect hindsight. The standard expected of him is that of an ordinarily prudent person acting in the stress of an emergency. See Canadian Pacific Ltd. v. Gill, [1973] S.C.R. 654 and Horsley v. MacLaren, [1972] S.C.R. 441, two dated authorities that still represent good law.

102In Stratichuk v. Cafik, [1989] B.C.J. No. 133 (S.C.) the Court quoted from the decision in Walls v. Mussens Ltd. et al. (1969), 11 D.L.R. (3d) 245 (N.B.C.A.). The court in Walls, in turn, quoted from Fleming supra as follows:

On the other hand, a person’s conduct, in the face of a sudden emergency, cannot be judged from the standpoint of what would have been reasonable behaviour in the light of hindknowledge and in a calmer atmosphere conducive to a nice evaluation of alternatives. A certain latitude is allowed when “in the agony of the moment” he seeks to extricate himself from an emergency not created by his own antecedent negligence. The degree of judgment and presence of mind expected of the plaintiff is what would have been reasonable conduct in such a situation, and he will not be adjudged guilty of contributory negligence merely because, as it turns out, he unwittingly took the wrong course.

103The plaintiffs parse the chronology of what occurred that night in minute detail, which ignores the dynamic and rapidly escalating situation that was unfolding. This is the very danger of judging the events of the night with perfect hindsight.

104Finally and as harsh as it may sound, Mr. Isaacs was the author of his own misfortune. By all accounts, he initiated the confrontation with Mr. Lafontaine. He acted angrily and aggressively. He broke the driver’s side window. The passengers thought he had a weapon. They were alarmed. He intruded through the broken window of the Lafontaine vehicle. His motive for doing so cannot be described as benign, even on the most generous view of the facts. Mr. Lafontaine took evasive action in a situation of panic, which unfortunately resulted in Mr. Isaac’s fall and death. However, in the circumstances, the only rational conclusion is he alone is responsible.

105It follows from these reasons that he could not successfully maintain an action against the moving parties. The derivative claims necessarily fall.

106For these reasons, there is no genuine issue requiring a trial. The motion is granted.

107If the parties cannot agree, I will receive brief written submissions on costs – not to exceed five pages. The moving parties’ submissions are due October 7, 2016. The plaintiffs’ are due October 21, 2016.