Court File and Parties
COURT FILE NO.: CV-16-563242 DATE: 20190228 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: FRANCO (FRANK) PASSARELLI, Plaintiff – and – THE PERSONAL INSURANCE COMPANY and JOHN DOE, Defendant
BEFORE: E.M. Morgan J.
COUNSEL: Derek Smith, for the Plaintiff Karman Dhuga and Anna-Marie Musson, for the Defendant
HEARD: February 28, 2019
Reasons for Judgment
[1] The Defendant, The Personal Insurance Company, moves for summary judgment pursuant to Rule 20.04 of the Rules of Civil Procedure. Its counsel submits that there is no evidence in support of the Plaintiff’s claim and that as a consequence the claim should be dismissed.
[2] The action relates to an automobile accident which occurred on December 7, 2014 near the intersection of Finch Avenue and Highway 400 in Toronto. The Plaintiff rear-ended a vehicle belonging to Giovanni Morra while Mr. Morra was at a complete stop. Mr. Morra is not a defendant in this action and the Plaintiff never commenced any other action against him. Although a John Doe has been named as party in the Statement of Claim, no John Doe has been located or identified.
[3] The claim in the matter before me is pursuant to the uninsured provisions of the Plaintiff’s insurance policy. He claims that the accident was caused by the actions of an unidentified person driving an unidentified vehicle. The Statement of Claim alleges that this unidentified driver came suddenly out of nowhere and “made unexpected manoeuvres, including U-turns, reversing, etc., which caused some emergency braking manoeuvres by said vehicle(s) in front of the Plaintiff’s vehicle, eventually resulting in the collision described herein.” The vehicle in front of the Plaintiff’s vehicle was, as indicated, that of Mr. Morra.
[4] Mr. Morra has provided affidavit evidence in this motion and was cross-examined on his affidavit. He indicated that he was at a complete stop on Finch Avenue westbound when the collision occurred. His evidence is that he had not come to a sudden stop but rather had been stopped for at least 10 seconds when he was hit from behind, that traffic was at a standstill ahead of him, that he did not observe any vehicle weaving in and out of the lane in front of him or beside him, that there were no other witnesses to the accident, and that he called the police and heard the Plaintiff tell the officer that the accident was his own fault.
[5] Immediately following the accident Mr. Morra attended at the Collision Reporting Centre and reported the damage to the rear of his car. His report states that he was at a standstill in his car waiting for traffic to commence westbound on Finch when he was hit from behind.
[6] The Plaintiff spoke with the police officer at the scene of the accident and also attended at the Collision Reporting Centre immediately thereafter. He did not mention any unidentified vehicle or driver either time. The police officer’s notes indicate that the Plaintiff reported the cause of the accident as being that he was following too closely behind the car in front of him.
[7] The Plaintiff reported to the Collision Reporting Centre that he could not stop in time to avoid hitting the car in front of him as he was following too closely. In his affidavit filed in support of this motion, he conceded that he was not wearing a seat belt and that when he braked his foot slipped off the brake pedal causing him to collide with the car ahead of him. This same narrative was relayed to the Defendant in his first phone call reporting the accident.
[8] Counsel for the Plaintiff makes much of the fact that when cross-examined Mr. Morra “changed” his evidence about how long he was stopped. That is, he at first said that he had been stopped for 30 seconds, but under cross-examination he said that was perhaps too long but that he was stopped for at least 10 seconds. Plaintiff’s counsel characterizes this exchange as raising an issue of credibility requiring a trial.
[9] With respect, I do not see Mr. Morra’s testimony as raising any issue of credibility. Rather, I see it as the testimony of an honest and innocent witness trying to provide as accurate information as he can. Mr. Morra has never been sued and has no tactical or any other reason to misstate the truth. He has no interest in the outcome of this case or any other case involving the Plaintiff.
[10] In any case, whether Mr. Morra was stopped for 10 seconds or 15 seconds or 30 seconds makes no difference to this case. The point is that Mr. Morra had stopped because the traffic in front of him stopped, while the Plaintiff was unable to stop due to his own faulty driving.
[11] There is a “clear and well defined standard of care imposed upon the driver of a vehicle which follows another. He must keep a reasonable distance behind the vehicle ahead”: Kosinski v Snaith, , [1983] SJ No 663 (Sask CA). The Supreme Court of Canada has observed that when it comes to rear end collisions, the moving driver will have a difficult time pinning the fault on anyone else.
There can be no doubt that, generally speaking, when a car, in broad daylight, runs into the rear of another which is stationary on the highway and which has not come to a sudden stop, the fault is in the driving of the moving car…
Rintoul v X-Ray Radium Industries, , [1956] SCR 674, at para 8.
[12] I hasten to add that it is not a hard and fast rule that the following driver is always at fault in a rear end collision. However, “[t]he basic burden on the defendant is to leave enough room to stop in safety given the speed and circumstances”: Hew v Sharman, [2017] OJ No 1105. It is clear from the Plaintiff’s own evidence that he did not meet that standard.
[13] Section 265(1)(a) of the Insurance Act provides that every motor vehicle liability policy must include coverage when the insured would be “legally entitled to recovery from the owner or driver of an uninsured or unidentified automobile”. In order to succeed in an action under this section, the Plaintiff must meet the burden of proving that he was actually injured by an ‘unidentified motorist’. The matter will not proceed to trial if the evidence does not exist that would allow him to meet that burden: Shapiro v Doe, 2016 ONSC 2956, at para 19.
[14] The record here shows that the Plaintiff had purchased the additional rider for coverage of over $200,000. That clause, which is contained in ss. 1.5(c) and (d) of OPCF 44R, requires that the claimant’s evidence of the involvement of an unidentified vehicle “must be corroborated by other material evidence”. The “other material evidence” can be either another independent witness or physical evidence, but it must be evidence “indicating the involvement of an unidentified automobile”. It cannot be merely evidence of an accident having occurred, or evidence that the following driver failed to stop in time: Chmielewski v Pishchak, , at paras 7-8.
[15] Counsel for the Plaintiff contends that the speedometer connected to the airbag that deployed in the Plaintiff’s automobile at the time of the accident provides the requisite corroborating evidence. That measuring device establishes that the Plaintiff’s car was travelling at 14 km/hour at the moment of the collision.
[16] The airbag device does indeed demonstrates that the Plaintiff had slowed down as he approached the rear of Mr. Morra’s vehicle. Plaintiff’s counsel takes that mean that some distracting thing – like an unidentified third vehicle – must have intervened to cause the accident. With respect, however, the airbag speed measurement establishes no such thing.
[17] In the first place, this argument “overlooks the fact that dozens of ‘rear ender’ accidents occur daily due to the inattention, excess speed and following too closely, rather than by the involvement of an unidentified vehicle”: Chmielewski, at para 8. This evidence speaks to a typical two-car accident and does nothing to point to the existence of a third car. Moreover, the airbag speedometer reading does little more than to corroborate the Plaintiff’s own admission that he was slowing down but that his foot slipped off the brake pedal. It is not corroboration that satisfies the requirements of OPCF 44R. It is therefore clear that the Plaintiff cannot recover over $200,000 from the Defendant. The only evidence of an unidentified vehicle contributing to the accident is that of the Plaintiff himself speculating about that prospect.
[18] The record likewise does not contain sufficient evidence to establish the Defendant’s liability for under $200,000. While there is no specific requirement of corroborating evidence for a claim of less than $200,000, the Plaintiff nevertheless must bring sufficient evidence to establish a triable issue.
[19] I note that although the Plaintiff has pleaded that there was an unidentified John Doe that caused, or partially caused, the accident, this is not a case where there was a single rogue driver. That would be understandable, and might give rise to a triable issue with respect to the Plaintiff’s own credibility as the only witness who saw that driver. As Firestone J. observed in Sobh v RBC General Insurance, [2016] OJ No 6679, at para 24, “[w]hen a vehicle takes sudden, abrupt, unlawful and unsafe action and swerves in front of another vehicle, it would be unreasonable and an affront to common sense to expect the vehicle that has been cut off to anticipate this action.” If the Plaintiff’s evidence of an unidentified driver is uncorroborated, it is this kind of evidence that is called for – a distinguishable vehicle that was itself doing something identifiable that would lead to liability.
[20] As Plaintiff’s counsel explains, that is not what the Plaintiff says took place. The Plaintiff deposes that there was a traffic jam ahead of Mr. Morra’s car, perhaps caused by a police RIDE checkpoint that had been set up further west. The Plaintiff says that he saw many cars changing lanes in order manoever around the police spot check, and that any one of them may have been the second cause of his accident.
[21] There is no suggestion in any of this that a specific driver might be found to have engaged in dangerous or substandard driving; the evidence is merely that a lot of cars in the traffic jam ahead were changing lanes. Not one of them can be identified and, as Plaintiff’s counsel concedes, none are likely to be found for trial. We are left with nothing beyond speculation as to whether any one of the many vehicles ahead of the Plaintiff’s vehicle might have been driving negligently.
[22] In other words, there is no real evidence of an unidentified driver whose actions were such that he or she represents an independent cause of the accident. As is well known, parties to a summary judgment motion must put their “best foot forward”: Transamerica Life Insurance Co. of Canada v Canada Life Assurance Co (1996) , 28 OR (3d) 423 (Gen Div). If this is the Plaintiff’s best foot, his case is bound to stumble. In response to a summary judgment motion, I would need to see something more indicative of an alternative cause of the accident than the Plaintiff’s observation that there were a lot of cars ahead and some were changing lanes.
[23] Under the circumstances I conclude that I have in the record before me the evidence required “to fairly and justly adjudicate the dispute”: Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at para 66. I find that there is no genuine issue requiring a trial.
[24] The action is dismissed.
Costs
[25] Counsel for the Plaintiff and counsel for the Defendant have each submitted a Costs Outline. The two sides are not far apart in their requests. Defendant’s counsel seeks just over $13,000, all inclusive, on a partial indemnity scale; Plaintiff’s counsel would seek just over $20,000 on a partial indemnity scale. Accordingly, neither side’s request should take the other by surprise for a motion of this size: see Rule 57.01(1)(0.b) of the Rules of Civil Procedure.
[26] I will exercise my discretion under section 131 of the Courts of Justice Act to round down the figure sought by the Defendant. The Plaintiff shall pay the Defendant costs in the total amount of $13,000, inclusive of all fees, disbursements, and HST.
Morgan J.