COURT OF APPEAL FOR ONTARIO
CITATION: Martin-Vandenhende v. Myslik, 2015 ONCA 806
DATE: 20151124
DOCKET: C58650
MacPherson, Epstein and Roberts JJ.A.
BETWEEN
Janice Martin-Vandenhende
Plaintiff (Appellant)
and
Peter Myslik and Edward Myslik
Defendants (Respondents)
Nicolas M. Rouleau, for the appellant
David M. Miller, for the respondents
Heard: June 9, 2015
On appeal from the judgment of Justice Terrence L.J. Patterson of the Superior Court of Justice, dated March 19, 2014.
Epstein J.A.:
OVERVIEW
[1] Late in the afternoon on New Year’s Eve 2001, the appellant, Janice Martin-Vandenhende, left her place of work and drove her Toyota Camry south on Erie Street, a two-lane roadway in the town of Ridgetown. The respondents, Peter Myslik and his father, Edward Myslik, were behind her in a GM pickup truck. Peter Myslik was driving. His father was in the passenger seat.
[2] Ms. Martin-Vandenhende realized she had left something behind. She decided to turn left into a private driveway to turn around and go back to work to retrieve the item. As she started the turn, the Myslik vehicle came up from behind and collided with the left side of the back of her car.
[3] Ms. Martin-Vandenhende was injured and taken to hospital. No charges were laid.
[4] The amount of damages has been settled. Liability remains in issue.
[5] During the 14 years since the accident, two trials have taken place to determine responsibility for the collision. The first trial judge, Thomas J., held that Peter Myslik was 100 percent at fault. The Mysliks appealed. The appeal was allowed and a new trial ordered. The second trial judge, Patterson J., apportioned 50 percent liability to both parties.
[6] Ms. Martin-Vandenhende appeals. She asks this court to overturn the trial judge’s finding of contributory negligence against her on the grounds that she neither breached the standard of care nor caused the accident. Alternatively, Ms. Martin-Vandenhende seeks to reduce her degree of responsibility to between five to ten percent.
[7] Based on the following analysis, I would allow the appeal. I would set aside the judgment and hold Peter Myslik 90 percent responsible for the collision and Ms. Martin-Vandenhende 10 percent responsible.
THE CIRCUMSTANCES SURROUNDING THE COLLISION
[8] The posted speed limit on Erie Street where the accident took place was 60 k.p.h. Each of the two paved lanes was just over 11 feet wide. There was evidence that at the location where the collision took place, the gravel shoulder was approximately two to three feet wide and sloped sharply away from the road. The centre line was a single solid yellow line.
[9] Driving conditions were not good. It was snowing heavily on the day of the accident. The roads were slippery. Snow was blowing, impairing visibility. The centre line could not be seen, although the shoulder remained discernible.
[10] The evidence differed as to the circumstances surrounding the collision.
[11] Ms. Martin-Vandenhende’s evidence was that due to the weather and road conditions, she was traveling below the speed limit. Since she could not see the centre line, she was driving on the right side of the lane so she could use the shoulder to help her determine her position on the road.
[12] Ms. Martin-Vandenhende described her actions after identifying the driveway where she could turn around, as follows.
[13] She applied her brakes, reduced her speed to approximately 20 to 30 k.p.h., and activated her left-turn signal approximately 75 feet before the accident site. She then started to make a gradual left turn. Ms. Martin-Vandenhende testified that she could not recall whether, before the impact, she looked in her mirrors or checked her blind spot to determine whether there was any traffic approaching from behind. Her evidence was that because of the weather conditions, she was focusing on the driveway and what was ahead.
[14] According to Ms. Martin-Vandenhende, as she angled her car left toward the centre line, the back of her car was hit by another vehicle. When the accident took place, the front of her car was near, but not over, the centre line of Erie Street. The impact of the collision was severe.
[15] Peter Myslik testified that as he was driving southbound on Erie Street, he saw a Camry about 200 to 300 yards ahead. He was driving about 50 to 60 k.p.h. and was catching up to it.
[16] According to the Mysliks, when the two vehicles were about 100 yards apart, the driver of the Camry signaled right and moved to the right shoulder. The Camry slowed down to the point of almost stopping.
[17] Peter Myslik testified that based on the movement of the Camry, he concluded that the driver intended to let him pass. He therefore decided to go out and around the car, to the left. However, when he was about 60 to 90 feet behind the Camry, and while the right turn signal of the car remained activated, the driver of the Camry turned left, directly into his path.
[18] Peter Myslik braked hard and attempted to steer the pickup truck toward the right but was unable to avoid a collision. The front left corner of the pickup hit the back left corner of the Camry. The Camry spun around and landed in the ditch on the east side of the roadway.
[19] Peter Myslik agreed that he did nothing to warn the driver ahead that he intended to pass, such as honk his horn or activate his left-turn signal.
[20] Both Peter and Edward Myslik testified that before the collision, the farthest left the pickup truck traveled in the southbound lane was that its left wheels were somewhere close to the centre line.
REASONS FOR JUDGMENT
[21] In his brief reasons, the trial judge first reviewed the parties’ evidence concerning the circumstances leading up to the collision.
[22] He acknowledged the testimony of accident reconstruction and perception reaction time experts, but found, at para. 21, that they “could not assist in determining how the accident took place having regard to the conflicting evidence of the parties.”
[23] The trial judge then relied on Beaumont v. Ruddy, 1932 147 (ON CA), [1932] O.R. 441 (C.A.), in which this court observed that generally, in a rear-end collision, the rear driver is at fault and must prove that his or her negligence did not cause the collision.
[24] The trial judge also noted two sections of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”): s. 158.1, which makes it an offence to follow another vehicle too closely, and s. 142(1), which provides that:
The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.
[25] In the following four paragraphs, the trial judge made the findings he considered relevant and determined that Peter Myslik and Ms. Martin-Vandenhende were each 50 percent responsible for the collision:
[25] I am not sure whether [Ms. Martin-Vandenhende] signaled to turn right but if I accept that she signaled to turn left, in my opinion she did so too late, having regard to the weather conditions to turn left safely. This is especially so because she did not check to see if anyone was approaching from the rear.
[26] I acknowledge that there are two competing issues. Peter [Myslik] is required to explain that he was not negligent when he ran into the rear of [Ms. Martin-Vandenhende] and [Ms. Martin-Vandenhende] is required to explain that she made a left turn safely.
[27] In my opinion both parties are equally responsible for the accident with 50 percent liability on each party. Peter Myslik should have been in control of his vehicle and because of the snow conditions should have been driving less than the speed limit. Further he should have been more cautious approaching a vehicle going more slowly than he on the road ahead. As a result he is 50 percent negligent regarding the accident.
[28] In regard to Ms. Martin-Vandenhende she slowed up significantly below what was less than highway speed on a snowy day, signaled too late to make a left turn and did not check in her rear-view mirror before she made a left turn to see that she could do so safely. As a result she is 50 percent negligent regarding the accident.
ISSUES
[26] The Mysliks have not cross-appealed the trial judge’s finding that Peter Myslik was 50 percent responsible for the accident. The issues in this appeal are therefore as follows:
Did the trial judge err in finding Ms. Martin-Vandenhende negligent?
If Ms. Martin-Vandenhende was negligent, did the trial judge err in concluding that her negligence was causally connected to the accident and in assigning 50 percent of the responsibility to her?
If the trial judge erred in concluding that Ms. Martin-Vandenhende’s negligence was causally connected to the accident and in assigning 50 percent of the responsibility to her, what is the appropriate remedy?
ANALYSIS
1. Did the trial judge err in finding Ms. Martin-Vandenhende negligent?
[27] At trial, the Mysliks relied on two arguments in support of their position that Ms. Martin-Vandenhende was negligent and bore some of the responsibility for the collision.
The Primary Argument – Improper Lane Change
[28] According to the Mysliks, the evidence demonstrated that before starting her turn, Ms. Martin-Vandenhende veered right and pulled onto the right shoulder. Their primary argument was that by jumping back into the southbound lane, Ms. Martin-Vandenhende made an unsafe lane change.
[29] I agree with Ms. Martin-Vandenhende that the trial judge did not hold her negligent based on this argument. This argument depended on the trial judge’s finding that when Ms. Martin-Vandenhende veered to the right, she moved out of the southbound lane and onto the shoulder. The trial judge made no such finding.
The Secondary Argument – Failure to Ensure the Left Turn Could be Made Safely
[30] The Mysliks’ secondary argument was that the evidence supported a finding that Ms. Martin-Vandenhende did not check her mirrors or blind spot and did not activate her left-turn signal before she started to turn left. By failing to determine that she could safely turn and to signal her intention to turn, Ms. Martin-Vandenhende breached s. 142(1) of the HTA and fell below the standard of care.
[31] Paragraph 28 of the reasons, set out above, shows that this was the basis for the trial judge’s conclusion that that Ms. Martin-Vandenhende was negligent.
[32] Ms. Martin-Vandenhende’s position is that the trial judge erred in finding her liable based on a breach of s. 142(1) of the HTA because, in the circumstances, the section does not apply.
[33] She argues that, based on the wording of the provision, s. 142(1) of the HTA makes it an offence for a driver to fail to check to see if he or she can turn in safety and signal an intention to turn, only in circumstances where the turn involves a lane change. Here, says Ms. Martin-Vandenhende, the trial judge found there was no lane change. She submits that the trial judge made this finding in para. 8 of his reasons, where he describes where she was hit, saying that “[Ms. Martin-Vandenhende] was still in her lane but with her front driver’s side tire at or about the centre line of the road.”
[34] In support of her position that s. 142(1) does not apply in these circumstances, Ms. Martin-Vandenhende relies on the decision in Ottawa Brick v. Terra Cotta Co. Ltd. v. Marsh, 1940 4 (SCC), [1940] S.C.R. 392, a case in which the Supreme Court found a rear driver entirely responsible for negligently passing the car ahead – for failing to ensure that he could safely pass the car ahead.
[35] Ms. Martin-Vandenhende points to one of several concurring opinions in Ottawa Brick, in which Hudson J. says, at p. 405:
I do not think that the argument based on [the improper left turn provision of] the Highway Traffic Act applies to the facts here. The defendant [the car making the left turn] had not yet started to make the turn contemplated by the statute.[^1]
[36] Ms. Martin-Vandenhende submits that this passage supports her argument that the requirements set out in s. 142(1) of the HTA only impose an obligation on drivers to check and to signal once they start a turn in which they actually change lanes.
[37] For the following reasons, I do not agree.
[38] I begin with the findings of fact upon which this argument depends.
[39] The first is whether Ms. Martin-Vandenhende looked in her mirrors or checked her blind spot to see if her intended turn might interfere with another vehicle.
[40] In my view, the trial judge erred when, at para. 19, he said that Ms. Martin-Vandenhende “testi[fied] that she did not check her rear-view mirror or side mirrors or her blind spot to see if there was any traffic coming from the rear prior to her making her left turn.” The transcript indicates that Ms. Martin-Vandenhende’s evidence was that she could not recall if she checked her mirrors before the impact.
[41] That said, I am of the view that the record supports a finding that Ms. Martin-Vandenhende did not check to see if she could turn left safely before initiating her turn. If she had, she would have seen the Myslik vehicle, a sizable truck, a short distance behind.
[42] The second requirement of s. 142(1) of the HTA is that a driver, before turning, should signal his or her intention if another driver may be affected by the movement. There was a conflict in the evidence as to whether Ms. Martin-Vandenhende activated her left-turn signal. She testified that she did; the Mysliks’ evidence was that they saw no such signal. The trial judge made a finding on this issue. As can be seen from para. 28, he found that she did signal but that she “signaled too late to make a left turn”.
[43] It is clear that Ms. Martin-Vandenhende did not comply with the requirements of s. 142(1) of the HTA as “before turning” she did not check that she could turn safely. But did the requirements of the section apply to her given that she remained in the southbound lane at all times?
[44] In my view, they did. In my view, s. 142(1) means what it says. Before turning, a driver must check to see if the turn can be done in safety and signal the turn if another vehicle may be affected by the movement. I see nothing in the wording of the section that supports the limitation Ms. Martin-Vandenhende suggests – that the section only applies in cases where the offending driver actually changes lanes.
[45] I do not read the Ottawa Brick decision as standing for the proposition advanced by Ms. Martin-Vandenhende. The facts in that case were very different. Among other things, the defendant (the driver of the car making the left turn) clearly signaled his intention to turn. Significantly, in the passage set out above upon which Ms. Martin-Vandenhende relies, Hudson J. found that the comparable section of the Highway Traffic Act, R.S.O. 1937, c. 288, did not apply, not on the basis of a limited application of the provision, but on the basis of a finding that the defendant “had not yet started to make the turn contemplated by the statute” (emphasis added).
[46] Here, there was a finding that Ms. Martin-Vandenhende had started her left turn when the accident took place. I refer to para. 15, where the trial judge held that Peter Myslik braked hard “[w]hen [he] became aware that [Ms. Martin-Vandenhende] was turning left in front of him”. He concluded, at para. 28, that Ms. Martin-Vandenhende “did not check in her rear view mirror before she made a left turn to see that she could do so safely.”
[47] The evidence, including evidence from Ms. Martin-Vandenhende herself, supported this finding. When asked to describe the position of her car at the time the accident took place, she responded as follows:
Q. And in terms of your left turn, what, your turn to go left into the driveway, what stage were you at in making your left turn?
A. I was just doing a gradual turn so like an – you mean on an angle?
Q. Yeah.
A. What angle, probably 30-40.
[48] In cross-examination, she stated that “[she] was getting prepared to turn. [She] had not turned at all yet.” She further clarified:
Q. All right, so I thought you said you were making a gradual turn?
A. That’s what I meant by preparing to turn. I was making a gradual turn.
[49] The record supports the findings that Ms. Martin-Vandenhende had started her turn to the left when the accident took place and that she did not check her mirrors or blind spot “before turning”. It follows that she violated s. 142(1) of the HTA. Ms. Martin-Vandenhende failed to ensure that she could turn safely before initiating her turn. Her conduct fell below the standard of care.
[50] I would therefore not give effect to Ms. Martin-Vandenhende’s argument that the trial judge erred in finding her negligent based on her failure to comply with s. 142(1) of the HTA.
2. If Ms. Martin-Vandenhende was negligent, did the trial judge err in concluding that her negligence was causally connected to the accident and in assigning 50 percent of the responsibility to her?
[51] I now turn to the issue of causation.
The Causal Connection Requirement
[52] The Mysliks bear the burden of proving the defence of contributory negligence on a balance of probabilities: Nance v. British Columbia Electric Railway, 1951 374 (UK JCPC), [1951] 2 All E.R. 448 (J.C.P.C.). The contributory negligence complained of must be causally related to the plaintiff’s loss: Koeppel v. Colonial Coach Lines Ltd., 1933 11 (SCC), [1933] S.C.R. 529; see also Zsoldos v. Canadian Pacific Railway, 2009 ONCA 55, 93 O.R. (3d) 321, at para. 56, leave to appeal refused, 400 N.R. 384.
[53] Ms. Martin-Vandenhende submits that the trial judge erred in failing to evaluate whether her negligence caused or contributed to her loss. She argues that, on this basis alone, the finding that she is partially responsible for the accident must be set aside.
The Standard of Review
[54] Appellate courts rarely interfere with a trial judge’s apportionment of liability since the test is an “exacting one”: Ault v. Canada (Attorney General), 2011 ONCA 147, 274 O.A.C. 200, at para. 56. As held by the Supreme Court in Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298, at para. 57, the trial judge’s apportionment should not be interfered with “unless there is demonstrable error in the trial judge’s appreciation of the facts or applicable legal principles” (citations omitted).
The Trial Judge’s Failure to Consider Causation
[55] I agree with Ms. Martin-Vandenhende that there is no indication that the trial judge considered whether there was any causal connection between her negligence and the collision. It was a demonstrable legal error to find Ms. Martin-Vandenhende contributorily negligent without considering the critical issue of causation.
[56] It follows that the trial judge’s apportionment of liability is not entitled to the deference it would normally attract.
3. If the trial judge erred in concluding that Ms. Martin-Vandenhende’s negligence was causally connected to the accident and in assigning 50 percent of the responsibility to her, what is the appropriate remedy?
[57] In the circumstances of this case, a new trial should be avoided if possible. The accident took place almost 14 years ago. Memories will be stale. And, the parties deserve to be protected from yet more cost, financial and otherwise. Simply put, a new trial would clearly not be in the interests of justice.
[58] In my view, on this record, yet another trial can be avoided. The record is sufficient to allow for a determination of causation and, if necessary, apportionment of liability.
[59] There is a heavy onus on the driver of a vehicle attempting to pass another from the rear to excuse himself from liability for a collision with the car ahead: Ottawa Brick, per Hudson J., at p. 405. The Court of Appeal for British Columbia clarified in Samograd v. Collison (1995), 1995 708 (BC CA), 17 B.C.L.R. (3d) 51, at para. 68, that this heavy onus is due to the passing vehicle’s greater opportunity to see the potential for a collision rather than due to a “legal duty, statutory or otherwise.”
[60] It is clear that on the facts of this case, Peter Myslik must be held primarily responsible for the collision. He was 16 years old at the time. The road was slippery and snow-covered. Visibility was limited. He was driving faster than he should have been given those conditions.
[61] It was in these circumstances that Peter Myslik, an inexperienced driver, assumed that by veering slightly to the right and by slowing down, Ms. Martin-Vandenhende was inviting him to pass.
[62] Peter Myslik was in the best position to judge the situation. He misjudged it. He played a major role in causing the accident.
[63] That said, I have also concluded that Ms. Martin-Vandenhende was negligent in failing to check to see that she could turn left safely before doing so, and in failing to give Peter Myslik adequate warning of her intention to turn left.
Did Ms. Martin-Vandenhende’s Negligence Cause the Collision?
[64] But what are the consequences of her negligence? Did her negligence cause the collision? If so, to what extent?
[65] The basic test for determining causation is the “but for” test: Clements v. (Litigation Guardian of) Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8. The plaintiff must show that “but for” the defendant’s negligent act, the injury would not have occurred. Only if “special circumstances” make it impossible to prove “but for” causation and if applying the test “would offend basic notions of fairness and justice” will the “material contribution” test apply: Hanke v. Resurfice Corp., 2007 SCC 7, [2007] 1 S.C.R. 333, at paras. 24-25; Clements, at paras. 27-28.
[66] Since there is no suggestion that the “but for” test could not be applied in this case, I will consider the issue whether Ms. Martin-Vandenhende’s negligence caused the accident using a robust and common sense approach to this test repeatedly sanctioned by the Supreme Court in Clements, at paras. 9, 28 and 49.
[67] My review of the evidence of the parties, the investigating officer, and the accident reconstruction experts, supports a conclusion that Ms. Martin-Vandenhende’s failure to check her mirrors or her blind spot and her failure to give timely warning of her intention to turn had a causal connection to the accident.
[68] Ms. Martin-Vandenhende testified that she was not aware that the Myslik vehicle was following her. When she left work and turned onto Erie Street, she did not see any oncoming vehicles. She was focused on what was ahead. Significantly, she testified that when she began to angle her car to the left to turn into the driveway, she maintained her focus on what was ahead. She did not consider what may be happening behind her.
[69] Ms. Martin-Vandenhende admitted that if she had checked her mirrors, she would have seen the Myslik vehicle. But Ms. Martin-Vandenhende did not look. She did not see the Myslik vehicle behind her. She proceeded to turn left. She signaled a left turn but did so “too late”.
[70] Peter Myslik concluded that Ms. Martin-Vandenhende was inviting him to pass her. He saw that the Camry was turning left. He saw the car veer to the left. Too late he saw the left-turn signal. Peter Myslik was committed to a course of action. A collision was inevitable. All he could do was try to limit the impact by turning sharply to the right.
[71] These are the circumstances that caused the pickup truck to hit the left side of the back of the Camry.
[72] The record supports the following conclusions. If Ms. Martin-Vandenhende had complied with her duty to check her mirrors before turning left, she may not have turned. If Ms. Martin-Vandenhende had activated her left-turn signal earlier, Peter Myslik may not have misread Ms. Martin-Vandenhende’s actions. If Ms. Martin-Vandenhende had complied with her statutory obligations, the events of the late afternoon of December 31, 2001 may have been different.
[73] I conclude that, by not checking her mirrors and not signaling in time to warn Peter Myslik of her intention to turn left until it was too late, Ms. Martin-Vandenhende was negligent, and her negligence contributed to her loss.
If Ms. Martin Vandenhende’s Negligence Caused the Collision, what is her Degree of Responsibility?
[74] The final issue is the apportionment of liability.
[75] Apportionment of liability under s. 3 of the Negligence Act, R.S.O. 1990, c. N.1, is based on the degree to which each party departed from the standard of care and not the degree to which each party’s fault caused the plaintiff’s loss.
[76] In all the circumstances, I find that Peter Myslik should be held 90 percent responsible for the accident and Ms. Martin-Vandenhende 10 percent responsible.
[77] This apportionment is not the product of precise calculation. It comes from a common sense consideration of the facts, including the fact that Peter Myslik was driving too fast for the road and weather conditions, that he decided to try to pass Ms. Martin-Vandenhende despite, at a minimum, being uncertain about her intentions, and that the collision occurred entirely within the southbound lane. For Ms. Martin-Vandenhende’s part, she contributed to her loss by failing to conduct herself in accordance with the requirements of s. 142(1) of the HTA, thereby depriving both drivers of the opportunity to alter their course.
[78] In coming to the conclusion that these circumstances support an apportionment of liability that Peter Myslik is 90 percent responsible for the accident and Ms. Martin-Vandenhende 10 percent responsible, I have employed the pragmatism endorsed by the Supreme Court in Clements. In my view, this practical approach is particularly warranted in this case, having regard to the resources the parties have expended as they turned to the courts for assistance in resolving the issue of liability.
DISPOSITION
[79] For these reasons, I would allow the appeal, set aside the judgment below, and replace it with a judgment in accordance with these reasons.
[80] I would award Ms. Martin-Vandenhende her costs of the appeal, fixed in the amount of $20,000, including disbursements and all applicable taxes.
Released: November 24, 2015 (JM)
“Gloria Epstein J.A.”
“I agree J.C. MacPherson J.A.”
“I agree L.B. Roberts J.A.”
[^1]: There is no material difference in the provision referred to by Hudson J. and what is now s. 142(1) of the HTA.