Court of Appeal for Ontario

Date: 2017-01-26 Docket: C61965

Judges: Doherty, Brown and Roberts JJ.A.

Between

Michelle Brown Plaintiff (Appellant)

and

Antonio Dalessandro, Chris Hall, Meter Mix Concrete Ltd., Robert Vansteeg (also known as "Bob Vansteeg"), John Doe and Trillium Mutual Insurance Company Defendants (Respondent)

Counsel

Chris Nicolis, for the appellant

Michelle Packer and Erika Webb, for the respondent

Bryan M. Hicks, for the defendant, Trillium Mutual Insurance Company

Heard and released orally: January 26, 2017

On appeal from: the order of Justice Alissa K. Mitchell of the Superior Court of Justice, dated March 9, 2016, with reasons reported at 2016 ONSC 1724.

Endorsement

[1] The appellant, Michelle Brown, appeals the summary judgment dismissing her motor vehicle action against the respondent, Antonio Dalessandro. The motion judge dismissed the summary judgment motion brought by the other defendants, Meter Mix Concrete Ltd. and Chris Hall, the alleged owner and driver of the cement truck.

[2] The appellant drove her car into the respondent's pickup truck at the intersection of Eleanor and Florence Streets in London, Ontario. At that location, Florence is a four-lane through-street; stop signs on two-lane Eleanor control traffic proceeding onto or across Florence.

[3] At the time of the collision, the respondent was driving westbound along Florence. As he approached the intersection with Eleanor, he was driving in the curb lane. At the intersection, a cement truck was stopped on Florence, in the inside, westbound lane, awaiting an opportunity to turn left onto Eleanor. The appellant was stopped at the stop sign in the northbound Eleanor lane. She proceeded to drive straight across Florence, in front of the cement truck. The appellant struck the respondent's pickup truck, pushing it off the road. There is a dispute as to whether the cement truck driver gestured to the appellant to proceed across his path.

[4] The motion judge held the respondent was not speeding at the time and was unable to see the appellant's vehicle because the cement truck was blocking his view. The appellant does not challenge those findings. Indeed, the appellant submits the material facts in this case are not in dispute.

[5] However, the appellant submits the motion judge erred in failing to address whether the respondent "should have been mindful of the stopped vehicles to his left and the necessity of proceeding with caution." She argues the motion judge failed to address and follow the decision of this court in Nash v. Sullivan (1974), 1 O.R. (2d) 133 (C.A.), a case she contends is almost identical to the present one.

[6] We do not accept this submission. Although the motion judge did not refer to the Nash decision in her analysis of the respondent's liability, she expressly considered the principle discussed in it – i.e. depending upon the particular circumstances, a driver with the right-of-way may have an obligation to slow down and take extra care to look out for other drivers. The motion judge found, at paras. 24 and 25:

By virtue of the state of the traffic and what he was able to observe while travelling westbound on Florence Street at the posted speed limit, Dalessandro would not have been alerted to a situation of impending danger imposing on him a duty to reduce his speed and take other steps to avoid an accident with the plaintiff's vehicle.

There is no evidence to support a finding by a jury that the plaintiff should have reduced his speed to avoid a collision with the plaintiff's vehicle – a collision he could not have anticipated or predicted in these circumstances.

[7] The appellant has not demonstrated the motion judge made any palpable and overriding error in so finding. The appeal is dismissed.

[8] The appellant seeks leave to appeal the motion judge's cost decision. We grant leave, but dismiss her costs appeal. The appellant has not persuaded us the motion judge made any error in principle in exercising her discretion to award costs.

[9] The respondent is entitled to his costs of the appeal fixed in the amount of $8,000, inclusive of HST and disbursements.

"Doherty J.A."

"David Brown J.A."

"L.B. Roberts J.A."