Court of Appeal for Ontario

Date: February 23, 2018 Docket: C62869

Judges: Pepall, Lauwers and Huscroft JJ.A.

Parties

Between

Judith Isaac as Estate Trustee of the Estate of Glen Michael Isaac, 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 (Appellants)

and

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

Defendants (Respondent)

and

State Farm Mutual Automobile Insurance Company

added by Order pursuant to Section 258(14) of the Insurance Act, R.S.O. 1990 c. I.8, as amended

Third Party (Respondent)

Counsel

Kevin Egan, for the appellants

Gerard Tillmann, for the respondent Ilona Irena Matuszynska

Sonia Fabiani and Laura Emmett, for the respondent State Farm Mutual Automobile Insurance Company

Heard: May 24, 2017

On appeal from the order of Justice Helen A. Rady of the Superior Court of Justice, dated November 2, 2016, with reasons reported at 2016 ONSC 3617, and from the costs order dated November 2, 2016.

MAJORITY OPINION

Huscroft J.A.:

OVERVIEW

[1] On April 14, 2009, Glen Michael Isaac and Jean Lafontaine met at a London residence to arrange a drug deal. Lafontaine drove the two of them in a car owned by the respondent, Ilona Irena Matuszynska, to a darkened parking lot behind a bar in London to rendezvous with the drug dealers. There were two additional passengers in Lafontaine's car, Tawnia Bailey and Monica Turnbull.

[2] An argument ensued between Isaac and Lafontaine, and Isaac exited Lafontaine's car. At some point Isaac smashed the driver's side window of Lafontaine's car with an unknown object. He then reached inside Lafontaine's car and was attempting to open the car door and grab the steering wheel. The passengers in Lafontaine's vehicle thought that Isaac had a weapon of some sort.

[3] Lafontaine attempted to escape from the altercation and drove off in a panic, with Isaac holding onto and partly inside the car, apparently attempting to get in. Lafontaine attempted to dislodge Isaac by swerving his car and by kicking him. The car hit a curb and Isaac fell from the car. He hit his head on the curb and died.

[4] Lafontaine was charged with driving while prohibited, breach of a recognizance, and a drug offence, but was not charged with any offences relating directly to the accident, such as dangerous driving causing death. The police concluded that Isaac's death was accidental.

[5] Judith Isaac, the deceased's mother, commenced proceedings claiming damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3 ("FLA") against various defendants in her personal capacity and as estate trustee of her son's estate. The action was framed in negligence.

[6] The motion judge granted summary judgment dismissing the action at the request of State Farm Mutual Automobile Insurance Company (the statutory third party) and the respondent, Ilona Irena Matuszynska. The motion judge found Lafontaine feared for his safety and that of his passengers and reacted quickly in trying to escape. In these circumstances, the doctrine of emergency applied and Lafontaine was not to be held to a standard of perfection. The motion judge concluded that Lafontaine could not be faulted for his reaction to Isaac's actions, and that Isaac was the author of his own misfortune.

[7] The appellants submit that the motion judge erred in granting summary judgment. Specifically, the motion judge erred (i) in applying the doctrine of emergency to find that Lafontaine did not fall short of the standard of care expected of him; and (ii) in awarding costs against the FLA claimants.

[8] In my view, the motion judge made no such errors.

[9] I would dismiss the appeal for the reasons that follow.

THE MOTION JUDGE'S DECISION

[10] The motion judge set out and applied the test for summary judgment from Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 66. She considered the record before her using summary judgment powers under Rule 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which allowed her to weigh evidence, assess credibility and draw inferences of fact. The evidence on the motion included several affidavits from Ms. Emmett, a lawyer from the moving party's law firm.

[11] There were several attachments to the Emmett affidavits, including a motor vehicle accident report relating to the accident; a narrative prosecution summary prepared by London Police; Lafontaine's statement to the police; a transcript of the hearing in which Lafontaine pleaded guilty to offences relating to the accident; as well as civilian witness statements and police interviews from Tawnia Bailey and Monica Turnbull, passengers in the car driven by Lafontaine, and Bonnie Shute, one of the drug dealers and a passenger in the car owned by Isaac. By the time of the motion, Bailey had died and Lafontaine's whereabouts were unknown.

[12] The motion judge found that the essence of the encounter between Lafontaine and Isaac was captured in this passage of Lafontaine's statement to police:

I lifted the power window up and I just left a little crack … I turned around to look at Glen [Isaac] 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.

[13] The motion judge found that Lafontaine's essential version of events did not change in any significant way. He described "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."

[14] The motion judge quoted extensively from the agreed statement of facts that was taken when Lafontaine pleaded guilty to driving while prohibited, breach of a recognizance, and a drug offence. Among other things, the Crown Attorney reading the agreed statement noted that:

• Lafontaine closed the driver's window after the deceased left his car;
• the deceased allegedly smashed the driver's window with some type of instrument, thought to be a knife sharpener or screwdriver;
• the passengers in Lafontaine's car thought the deceased smashed the window with a firearm; however, no firearm was ever discovered;
• the deceased attempted to leap into the car through the smashed window in order to retrieve drugs, which led to a physical struggle with Lafontaine;
• one of the passengers, Ms. Turnbull, said she thought that the deceased had a gun;
• Lafontaine put the vehicle in motion as he fought with the deceased over the steering wheel; and
• Lafontaine attempted to use his knee to dislodge the deceased as the car sped off; the fight over the steering wheel continued, and the car veered off the road and struck the curb, dislodging the deceased from the vehicle.

[15] The motion judge noted that the facts underpinning Lafontaine's guilty pleas were very closely aligned with what Lafontaine said in his statement to the police. As agreed facts, they were taken as proven beyond a reasonable doubt and were binding on Lafontaine. The motion judge found that these facts provided important corroboration for his earlier police statement, and enhanced his credibility.

[16] The motion judge then reviewed the evidence of Ms. Turnbull, Ms. Bailey, and Ms. Shute, as provided in their interviews with police, affidavits, and statements to police, and found it was similar to and corroborative of the evidence of Lafontaine in the salient aspects. The motion judge summed up the evidence before her and her findings as follows, at para. 94:

[W]hen 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.

[17] The motion judge noted that it was not in dispute that the appellants' entitlement to damages was dependent on the deceased's entitlement to maintain an action himself, had he lived. If he had no such entitlement, neither did the derivative claimants.

[18] The motion judge rejected the moving parties' submission that the doctrine of volenti non fit injuria applied. However, she concluded that the doctrine of emergency applied in this case. She stated that "the only logical conclusion" on the evidence was that Lafontaine acted in a matter of seconds, in a time of panic and confusion, when he reasonably feared for his safety and that of his passengers. In these circumstances, Lafontaine was not to be held to a standard of perfection; the standard expected of him was that of an ordinarily prudent person acting in the stress of an emergency.

[19] The motion judge concluded that the deceased could not successfully maintain an action against the moving parties and that the derivative claims necessarily failed. There was therefore no genuine issue requiring a trial and the motion for summary judgment was granted.

[20] The motion judge awarded costs to both Matuszynska and State Farm and against all of the appellants, including the FLA claimants.

DISCUSSION

(1) The Standard of Review

[21] The motion judge's decision that there was no genuine issue requiring a trial is a finding of mixed fact and law that is subject to review for palpable and overriding error: Hryniak, at para. 81. The motion judge's application of the doctrine of emergency to define the standard of care owed by Lafontaine is an extricable question of law subject to review for correctness.

(2) Did the Doctrine of Emergency Apply?

[22] The appellants submit that the motion judge erred in law by not considering and applying the conceptual limitations on the availability of the doctrine of emergency.

[23] First, they submit that the doctrine applies only if the emergent situation is imminent and unforeseen and could not have been reasonably anticipated by the party alleged to have been negligent. The appellants argue that it was not available in this case because Lafontaine was "alert to the possibility of danger" prior to the deceased smashing his car window. Lafontaine "reasonably anticipated that Mr. Isaac was about to act negligently and expose himself to danger"; he "foresaw that Mr. Isaac was about to do something unreasonable and foolish," which is why he put his car into gear before the window was smashed. He could have left before anything happened, and was urged to do so by his passengers, but chose not to. Thus, there was no emergency and Lafontaine cannot rely on the emergency doctrine.

[24] Second, a person must still exercise the standard of care of a reasonable person notwithstanding an emergency situation. The appellants argue that Lafontaine failed to do so; a reasonably competent person would not have attempted to speed off when the deceased was climbing into the car through the window, driven erratically and kicked the deceased in an attempt to dislodge him from the moving vehicle.

[25] Third, the appellants argue that Lafontaine cannot take advantage of the emergency doctrine because his own negligence brought about or contributed to the emergency. This includes his admissions that "he had consumed crack cocaine before getting behind the wheel of a car; drove while prohibited from doing so; to a darkened parking lot late at night; brought his crack cocaine with him; engaged with a person who he knew usually to be under the influence of drugs, and; was there to buy drugs".

[26] I would reject these submissions.

[27] The emergency doctrine allows exigent circumstances to be taken into account in determining whether the standard of care was met. The question for the motion judge was whether the emergency doctrine applied in these circumstances.

[28] Two elements must be established in order for the emergency doctrine to apply. First, the harm must be imminent. Second, it must be unforeseen: G.H.L. Fridman, The Law of Torts in Canada 3rd ed. (Toronto: Thomson Reuters Canada Ltd., 2010), at p. 378. Put another way, the doctrine will not apply where the emergency could have been reasonably anticipated: Lewis N. Klar, Tort Law, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2012), at p. 360.

[29] The appellants argue that the second element was not established. In essence, they say that Lafontaine could have reasonably anticipated that Isaac was about to act negligently and expose himself to danger. The appellants point to the following evidence:

• he recognized that Isaac was increasingly agitated;
• he put the car in gear because he thought that something was going to happen;
• Tawnia Bailey and Monica Turnbull, the passengers in his vehicle, told him to leave but he chose not to do so.

[30] The difficulty with this submission is that all of this evidence was considered by the motion judge. It cannot be said that she failed to consider it in determining that the doctrine of emergency applied. It is implicit in her decision that she concluded that Lafontaine did not anticipate the aggressive action taken by Isaac – his sudden attack – that caused the emergency.

[31] Putting the appellants' case at its highest, Lafontaine had reason to believe that something might happen in the course of a drug deal, occurring in the middle of the night in an empty parking lot. The appellants assert that Lafontaine "foresaw that Mr. Isaac was about to do something unreasonable and foolish". But this does not come close to establishing that Lafontaine foresaw, or should have foreseen, what actually occurred: an attack by Isaac and an attempt to force his way into Lafontaine's car. This was confirmed by the only witness whose evidence was cross-examined, Monica Turnbull, who indicated that she wanted to leave, but added: "Well, I mean I don't think [Lafontaine] anticipated what was gonna happen to happen."

[32] The motion judge reviews Turnbull's evidence at para. 77 of her decision:

I 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. [Emphasis added]

[33] It was no error, much less a palpable and overriding error, for the motion judge to conclude that Lafontaine did not anticipate Isaac's actions. The appellants' submission is, in essence, an invitation to this court to reweigh the evidence that was before the motion judge and reach a different conclusion. That is not the role of this court on appeal.

[34] The principal case relied on by the appellants does not support their position. In Gellie v. Naylor (1986), 55 O.R. (2d) 400 (C.A.), this court was concerned with a claim of emergency by a motorist who struck a pedestrian on the Burlington Bay Skyway. The pedestrian had left his vehicle, which had run out of gas, and was attempting to cross the bridge to find an emergency telephone when he was hit by the defendant's truck. As he was driving towards the plaintiff, the defendant had seen the plaintiff's car on the shoulder and observed people standing behind it. In addition, he had seen the plaintiff attempt to cross the bridge, only to be pulled back by a passenger in his car. Nevertheless, the defendant proceeded without slowing down and struck the plaintiff as he made a second attempt to cross the bridge.

[35] This court held, at p. 402, that although it could be assumed that pedestrians as well as other motorists would not act unreasonably and foolishly,

[I]f the motorist is alerted, by the previously observed conduct of another person that there is a distinct possibility the other person may act negligently and expose himself to danger, then the assumption loses its justification. The anticipation of negligent conduct renders such conduct foreseeable and makes it incumbent on the motorist to take additional precautions….

[36] Thus, the court concluded that the trial judge misdirected the jury by failing to direct that the doctrine of emergency applied only if there was "no reason to anticipate that the plaintiff would not repeat his foolhardy attempt to cross the heavily travelled highway again."

[37] The anticipation of negligent conduct in Gellie concerned specific conduct – conduct the defendant had observed as he approached the scene of the accident. It is nothing like the circumstances in this case, in which Isaac suddenly attacked Lafontaine in the course of a drug deal.

[38] As for the actions taken by Lafontaine, the law is not so unreasonable as to hold people to a standard of perfection in determining the appropriate standard of conduct in an emergency: Canadian Pacific Railway v. Gill et al., [1973] S.C.R. 654, at p. 665. In this case, the motion judge considered all of the relevant circumstances and found that the respondent acted reasonably in the context of the emergency he faced. She considered and rejected the very argument the appellants reiterate on appeal, describing it as parsing the chronology of events in minute detail, "ignor[ing] the dynamic and rapidly escalating situation that was unfolding…the very danger of judging the events of the night with perfect hindsight."

[39] The motion judge found, specifically, that Isaac was solely responsible for what had occurred. She summarized her conclusion as follows at para. 104:

[A]s harsh as it may sound, Mr. [Isaac] 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.

[40] The motion judge's findings are supported on the record that was before her. There is no basis to interfere with them on appeal. The motion judge was entitled to conclude that there was no genuine issue requiring a trial and that summary judgment was appropriate.

(3) Did the Motion Judge Err in Awarding Costs Against the FLA Claimants?

[41] The motion judge awarded costs of $20,000 to State Farm and $12,500 to Matuszynka, inclusive of taxes and disbursements. The appellants are jointly and severally liable to pay these costs, in accordance with the normal practice.

[42] The appellants acknowledge that FLA claimants are not generally exempt from costs awards: see Winters v. Halimand (County), 2015 ONCA 98, 33 M.P.L.R. (5th) 1, at para. 22. However, the appellants submit that the motion judge failed to consider their submission that the FLA claimants should not be personally liable for costs in this case, as their claims were derivative of the Estate's claim and would not go ahead if the Estate's claim failed. They say the motion judge erred in stating in her costs endorsement that "the Plaintiffs recognize their liability for costs".

[43] The respondents submit that the motion judge's costs order was reasonable in all of the circumstances. They note that the FLA claimants advanced a claim that exceeded that of the Estate, and that the cost award was less than the already discounted costs outline that the respondents submitted.

[44] It is well established that costs orders are discretionary. This court will interfere with them only if the court below "has made an error in principle or if the costs award is plainly wrong": Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at p. 313.

[45] In my view, the costs order was reasonable and there is no basis to interfere with it on appeal.

CONCLUSION

[46] I would dismiss the appeal. I would grant leave to appeal the costs order but would also dismiss that appeal.

[47] The third party respondent is entitled to costs on appeal of $10,000, inclusive of taxes and disbursements. The respondent Ilona Irena Matuszynska is entitled to $2,000.

"Grant Huscroft J.A."

"I agree. P. Lauwers J.A."

DISSENTING OPINION

Pepall J.A. (dissenting):

A. Introduction

[48] Glen Michael Isaac died in an unfortunate motor vehicle accident on April 14, 2009. The appellant, Judith Isaac, is his mother. She instituted proceedings claiming damages against various defendants in both her personal capacity and as estate trustee of her son's estate. The remaining appellants are relatives of the deceased and Family Law Act, R.S.O. 1990, c. F.3 ("FLA") claimants. Summary judgment motions were successfully brought by the statutory third party, State Farm Mutual Automobile Insurance Company, and the respondent, Ilona Irena Matuszynska, the owner of the motor vehicle involved. The motions judge relied on the doctrine of emergency and granted summary judgment dismissing the appellants' action.

[49] My colleague would dismiss the appeal. With respect, I do not agree. I would allow the appeal, set aside the summary judgment dismissing the appellants' action, set aside the costs award payable by the deceased's mother, his two infant children, and his two siblings made in favour of State Farm and Ms. Matuszynska, and order that the action proceed to trial.

[50] In my view, the new and welcomed approach to summary judgment described in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 does not call for the granting of a judgment anchored on minimal factual findings made in the face of unresolved material inconsistencies in the evidence, dependent on an infrequently used and ill-defined doctrine of emergency absent any analysis of the elements of that doctrine, and based on a finding not actually made by the motions judge but determined by my colleague to be "implicit in her decision".

B. Facts

[51] The facts may be briefly summarized. The relevant events took place in London, Ontario. Jean Lafontaine, one of the defendants at trial, was the driver of the motor vehicle involved in the deceased's death. The vehicle was owned by the respondent, Ms. Matuszynska, who was not present during the events in question. Mr. Lafontaine was accompanied by two passengers, Tawnia Bailey and Monica Turnbull. The deceased was the owner of another motor vehicle in which he was a passenger. There were three others in that car: an unnamed driver and two drug dealers, Johnny Walker and Bonnie Shute. Travelling in their respective vehicles, the two men met late at night to conduct a drug deal.

[52] When the two vehicles arrived at a pre-determined rendezvous point, the deceased exited his vehicle and entered Mr. Lafontaine's vehicle. Mr. Lafontaine then drove his vehicle to a parking lot, where he was joined by the other vehicle and its passengers.

[53] Once they arrived in the parking lot, a dispute arose between the deceased and Mr. Lafontaine. The deceased got out of Mr. Lafontaine's vehicle, and the two men continued to argue. Based on Mr. Lafontaine's statement to the police, the deceased went to the other vehicle and Mr. Lafontaine spoke on the telephone with Ms. Shute who "said in a low voice to get out of here." The deceased returned to talk to Mr. Lafontaine and subsequently broke the driver's side window of Mr. Lafontaine's vehicle and, with his left hand, reached inside the car to either try to open the car door, grab something, get into the vehicle, or turn the vehicle off. The passengers in Mr. Lafontaine's vehicle, Ms. Bailey and Ms. Turnbull, considered that the deceased had a weapon of some sort. Mr. Lafontaine began to drive away while the deceased was holding the side of the vehicle or was partly into the vehicle. Mr. Lafontaine drove some distance out of the parking lot and on to Dundas St., where he continued driving. He was swerving and intermittently would slam on the brakes and then press on the gas. Eventually, the vehicle swerved and mounted a curb. The deceased fell, struck his head, and died instantly.

[54] In the statement given to the police prior to his conviction, Mr. Lafontaine admitted that he had taken crack cocaine before the accident, and was "pretty fucked up". He stated that he anticipated something was about to happen between him and the deceased. He was also aware that the deceased was likely high on drugs and he told police that the deceased looked "tense, didn't look himself", like he was "doing something he didn't want to do". Mr. Lafontaine himself "felt like something was wrong."

[55] Furthermore, as mentioned, Mr. Lafontaine admitted that Ms. Shute, who was a passenger in the other vehicle, called him on his cell phone to "warn[] him" and told him "to get out of here." When he turned around to look at her, "[s]he had an expression on her face that something wasn't right".

[56] Mr. Lafontaine ignored the warnings of others that he should leave the scene, as well as his own gut feeling that "something wasn't right", even as it was evident to him that the deceased was becoming increasingly "agitated" and was "getting angry". Instead, he kept the vehicle where it was, but shifted it into drive in response to the deceased's growing agitation.

[57] Mr. Lafontaine was charged with driving while prohibited, breach of a recognizance, and a drug offence. The London Police Service concluded that the deceased's death was accidental. Mr. Lafontaine was convicted of driving while disqualified in violation of s. 259(4) of the Criminal Code, R.S.C. 1985, c. C-46, and also pleaded guilty to the other offences with which he was charged.

[58] The deceased's mother, siblings, and two infant daughters commenced an action alleging, among other things, that Mr. Lafontaine had contributed to the deceased's death. They sought damages against Mr. Lafontaine and others pursuant to the FLA. State Farm was added as a statutory third party.

[59] Both State Farm and Ms. Matuszynska brought motions for summary judgment asking that the action be dismissed. The motions were heard on April 29, 2016, and the motions judge granted the motions on September 22, 2016.

C. Motions Judge's Decision

[60] The motions judge set forth the applicable test for summary judgment and then turned to the paper record before her. The evidence before the motions judge consisted of: six affidavits sworn by State Farm's lawyer; one affidavit from State Farm's investigator reporting on his interview with Ms. Bailey, who was the front-seat passenger in Lafontaine's car; an affidavit that was filed by the appellants and that was sworn by Ms. Turnbull, who was the back-seat passenger in Mr. Lafontaine's car; and a transcript of State Farm's cross-examination of Ms. Turnbull. The only evidence under oath of anyone who was at the scene was that of Ms. Turnbull, and she was the only witness at the scene whose evidence was tested under cross-examination. The motions judge did not hear any viva voce evidence.

[61] The record also included Mr. Lafontaine's statement to the police. At the time of the summary judgment, Mr. Lafontaine's whereabouts were unknown and Ms. Bailey had passed away.

[62] The motions judge's reasons reproduced excerpts from the evidence, reciting at length the contents of the affidavits of State Farm's lawyer and also reproducing nine and one half pages from the transcript of Ms. Turnbull's cross-examination.

[63] There was an issue as to the admissibility of the statements Mr. Lafontaine made to the police due to hearsay and credibility concerns. The motions judge addressed this issue, quoting at length from the exchange of counsel and the court at Mr. Lafontaine's criminal proceeding. However, nowhere did the motions judge make any findings at this stage.

[64] The motions judge then reviewed Ms. Turnbull's affidavit and portions of the transcript of her cross-examination. As she noted, in that cross-examination, Ms. Turnbull had testified that the deceased seemed nervous or agitated, and that she was uncomfortable and did not have a good feeling. Ms. Turnbull also indicated that the deceased was obviously using drugs, and that she did not know whether the deceased had a knife or gun in his pocket as she never saw anything, but that he kept his hands in the front pocket of his hoodie. She responded affirmatively when counsel for State Farm asked whether it was her assumption that "he had a knife or a gun or something like that" in the hoodie pocket.

[65] Ms. Turnbull further testified that, when the two vehicles arrived in the parking lot, she went to the other car to purchase her "stuff" from Bonnie Shute and when she got back, the deceased was a little more heated and getting more upset. She said to Mr. Lafontaine: "let's get out of here" and "let's go". Specifically, she stated: "there was like a bit of a maybe a minute or two where I had already said to [Mr. Lafontaine], 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." She reiterated later in her cross-examination that Mr. Lafontaine "was like very calm through the entire thing, you know, like very calm", even though she agreed she "ha[d] a really bad feeling" and continued to press Mr. Lafontaine to leave. Commencing at question 315 in the transcript, she was asked and answered the following questions:

Q. And you told [the deceased], sorry, you told [Mr. Lafontaine] to roll up the window and get out of there?

A. Yes.

Q. What specifically did you say?

A. That's exactly what I said. Yeah. And I said it a few times actually.

[66] Later, at question 356, she stated:

Well, I mean I don't think he anticipated what was gonna happen to happen. But there was a couple of 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 got really heated there was a couple opportunities where he could've just driven away, you know. [Emphasis added.]

[67] Although the motions judge failed to make note of this, Ms. Turnbull's observation that the deceased's death could have been avoided accorded with Mr. Lafontaine's own statement to police that the events were "pretty unnecessary".

[68] The motions judge also recited from Ms. Turnbull's police interview, concluding that this evidence provided important corroboration of Mr. Lafontaine's version of events in his police statement and the facts outlined in his subsequent guilty pleas. In considering the admissibility of Ms. Turnbull's statement, the motions judge held that that there was no reason it was inadmissible. Despite several material inconsistencies between the statement and Ms. Turnbull's sworn testimony, the motions judge reasoned at para. 79 that Ms. Turnbull would "undoubtedly be cross-examined on [the statement] if she were to give inconsistent evidence at trial." However, the statement was not put to Ms. Turnbull in cross-examination.

[69] Apart from four paragraphs at the commencement of her reasons, the motions judge's actual findings are, for the most part, confined to one paragraph.

[70] At para. 101, the motions judge determined that the doctrine of emergency was applicable to Mr. Lafontaine's conduct. She concluded that the only logical conclusion was that Mr. Lafontaine acted at a time when he reasonably feared for his own safety and that of his passengers. He reacted in a matter of seconds, in a time of panic and confusion, if not outright chaos. He was not to be held to a standard of perfection. Relying on Walls v. Mussens et al. (1969), 11 D.L.R. (3d) 245 (N.B.C.A.), she noted at para. 102 that a party will not be adjudged guilty of contributory negligence merely because, as it turns out, he unwittingly took the wrong course.

[71] The motions judge concluded at para. 104 that the deceased "was the author of his own misfortune." He initiated the confrontation with Mr. Lafontaine, acted angrily and aggressively, and broke the driver's side window. He attempted to gain entry to the vehicle through the window. The witnesses considered that he had a weapon of some sort. She found that Mr. Lafontaine took evasive action in a situation of panic, which unfortunately resulted in the deceased's fall and death. In the circumstances, the only rational conclusion was that the deceased alone was responsible.

[72] As such, she decided that the appellants, including the derivative claimants, could not successfully maintain their action. There was therefore no genuine issue requiring a trial and the motions for summary judgment were granted.

D. The Appeal

[73] The appellants submit that the motions judge erred in her treatment of the doctrine of emergency in finding that Mr. Lafontaine bore no responsibility in this case, and in her conclusion on contributory negligence. The appellants argue that the motions judge failed to consider the deceased's behaviour that put Mr. Lafontaine on notice of the possibility of danger.

[74] I agree with the appellants that the motions judge erred in her treatment of the doctrine of emergency. At no time did the motions judge consider the elements of the doctrine of emergency. Nor did she attempt to justify her conclusion in the face of conflicting evidence from Ms. Turnbull – the only person at the scene of the accident who provided affidavit evidence and was cross-examined – that Mr. Lafontaine was not in a panic and that she had repeatedly told him to leave, as had Ms. Shute. The motions judge failed to consider whether the confrontation could have reasonably been anticipated by Mr. Lafontaine, and therefore fell into reversible error. As stated in Hryniak at para. 84:

[W]here the motion judge applies an incorrect principle of law, or errs with regard to a purely legal question, such as the elements that must be proved for the plaintiff to make out her cause of action, the decision will be reviewed on a correctness standard. [Citation omitted.]

[75] In tort law, emergencies may arise in a variety of contexts. In certain intentional torts, for example, assault or trespass to property, the defences of self-defence or necessity may be available and in that way, consideration of an emergency may be appropriate. In contrast, with negligence, an emergency does not amount to a defence; rather it informs the standard of care.

[76] In this case, the appellants' claim is framed in negligence.

[77] To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable, and prudent person in the same circumstances. What is reasonable depends in part on the likelihood of a foreseeable harm: Ryan v. Victoria (City), [1999] 1 S.C.R. 201, at para. 28. In an emergency, a person is not to be held to a standard of perfection. As the Supreme Court stated in Canadian Pacific Ltd. v. Gill et al., [1973] S.C.R. 654, at p. 665, "[i]t is trite law that faced with a sudden emergency for the creation of which the driver is not responsible he cannot be held to a standard of conduct which one sitting in the calmness of a courtroom later might determine was the best course." See also: Horsley v. MacLaren, [1972] S.C.R. 441. In this way, the doctrine of emergency demands an analysis of the applicable standard of care.

[78] However, to constitute an emergency in a legal sense, the emergent situation must be imminent and unforeseen: G.H.L. Fridman et al, The Law of Torts in Canada, 3rd ed. (Toronto: Thomson Reuters Canada Ltd., 2010), at p. 378.

[79] The CIVJIl Jury Instructions, 2nd ed, 2017 Update [February 2017], at §8.04.1, put it this way:

A person who, without negligence on his or her part, is suddenly and unexpectedly confronted with an emergency arising from either the actual presence or the appearance of imminent danger to self or to others is not expected or required to use the same judgment and care that is expected of him or her in calmer and less hurried moments. Such a person is not required to exercise extraordinary care and control. His or her duty is to exercise only the care that an ordinary, prudent person would exercise in the same situation. The test in such a case is not whether a better course of action was open, but whether what was done was what an ordinary prudent person might reasonably be expected to do in such an emergency. [Emphasis added.]

[80] As described by Lewis N. Klar, in Tort Law, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2012), at p. 360, the doctrine will not apply where the emergency could have been reasonably anticipated. This was explained by this court in Gellie v. Naylor et al. (1986), 55 O.R. (2d) 400 (C.A.). In that case, the trial judge failed to properly instruct the jury because he had not instructed them that, in the particular factual circumstances of that case, they could find that the antecedent conduct of the plaintiff factually negated the existence of an emergency in its legal sense. This court stated at p. 402:

[I]f the motorist is alerted, by the previously observed conduct of another person that there is a distinct possibility the other person may act negligently and expose himself to danger, then the assumption loses its justification. The anticipation of negligent conduct renders such conduct foreseeable and makes it incumbent on the motorist to take additional precautions: see generally Fleming, The Law of Torts, 6th ed. (1983), at pp. 115-6:

Liberty to act on an expectation of non-negligence in others ceases as soon as there are indications that they are, or are likely to be, acting imprudently. The ever present possibility of negligent behaviour demands constant scrutiny in every direction whence danger may loom, and the greater the risk the more tentative must be the assumption that others will conduct themselves with reasonable care.

[81] Similarly, as explained in Holizki Estate v. Alberta (Public Trustee), 2008 ABQB 716, 462 A.R. 85, at para. 173:

The case law establishes limitations on when this doctrine can be invoked. First, the defence is only applicable if the emergent situation is imminent and unforeseen and could not have been reasonably anticipated by the reacting driver. If the defendant driver anticipates a dangerous situation and has sufficient opportunity to apply his brakes or take other evasive action to avoid the collision, but does not, then the doctrine is not applicable and the defendant driver will be held contributorily liable for the resulting damages.

[82] The duty arises when the possibility of danger first becomes apparent: Holizki, at para. 175.

[83] The motions judge did not turn her mind to the elements of the doctrine of emergency. She did not consider whether the evidence of an emergent situation was imminent, unforeseen, or unanticipated, and failed to consider the applicable law as set out in Gellie. There was evidence in the record before her that might support such a finding, but the motions judge did not consider the elements of the doctrine. Examples of evidence on which a finding of imminence and foreseeability might be based include the following:

• The passenger in the deceased's vehicle, Ms. Shute, called Mr. Lafontaine on her cell phone and repeatedly urged him to drive away;
• Mr. Lafontaine himself had a "gut feeling something wasn't right". This feeling of unease was echoed by Ms. Turnbull;
• Mr. Lafontaine noted the way the deceased was just standing with his hands in the pockets of his hoodie, appearing "tense", and that he just kept looking at the other driver, getting increasingly agitated. Ms. Turnbull similarly observed that the deceased was nervous and agitated;
• Mr. Lafontaine had already put the car in drive because he "had a feeling something was going to be happening";
• Mr. Lafontaine knew the deceased was "high all the time pretty much", knowledge again shared by Ms. Turnbull;
• As the argument escalated, the deceased's voice was a bit threatening and he was getting angry;
• Mr. Lafontaine rolled up the window at some point during the argument as it got more heated;
• Ms. Turnbull had repeatedly told Mr. Lafontaine to leave. She testified that there was a minute or two between the times she told him to do so;
• Mr. Lafontaine drove some distance intermittently "slamming on the brakes, pressing on the gas, slamming on the brakes" before the deceased was flung off of the car. As Mr. Lafontaine told the police, his passengers were "screaming at the top of their lungs, like telling me to stop, like stop the vehicle and I didn't want to stop the vehicle";
• Mr. Lafontaine kicked the deceased in the face trying to dislodge him; and
• When asked by the police how he felt about what happened, Mr. Lafontaine responded: "It was – I'd say it was pretty unnecessary. I was pretty fucked up." This reflected Ms. Turnbull's observation that the outcome "could have been avoided".

[84] The motions judge failed to consider whether the evidence of antecedent conduct rendered the subsequent events imminent and reasonably foreseeable. If it was reasonably possible for Mr. Lafontaine to anticipate negligent conduct, he should not be able to rely on the doctrine to escape any liability. Having failed to consider the elements of the doctrine of emergency, the motions judge erred in granting summary judgment against the appellants on that basis. Having failed to consider these factors, the motions judge's determination was not available to her.

[85] My colleague also states that the motions judge did not err because she considered the evidentiary record and that "it is implicit in her decision that Lafontaine did not anticipate the harm that gave rise to the emergency."

[86] I disagree with this analysis for three reasons.

[87] First, contrary to my colleague's reasons, the motions judge did not consider the record as she should have. It is not enough to simply reproduce all of the evidence and then say it has been considered; there has to be some analysis. This is particularly true given the motions judge's clear preference for the witness statements over the sworn testimony of Ms. Turnbull, and her failure to resolve material inconsistencies between the two.

[88] When asked about some of these inconsistencies on cross-examination, Ms. Turnbull explained that she knew significant parts of Ms. Bailey's witness statement were fabricated – for example, Ms. Bailey lied about consuming and purchasing drugs on the day of the events. Despite her preference for the police statements of other witnesses over Ms. Turnbull's sworn testimony, the motions judge did not wrestle with the credibility issues engaged by the differing accounts.

[89] Nor did the motions judge grapple with Ms. Turnbull's own admission on cross-examination that, at the time her police statement was made, she was high on narcotics, living a lifestyle where she was "okay with lying to police", and was trying to protect Mr. Lafontaine, her-then boyfriend. In contrast, Ms. Turnbull's affidavit was made after three years' sobriety from narcotics, when she was no longer involved with Mr. Lafontaine and had no further impetus to protect him. However, the motions judge did not explain why, in the face of these factors, she nonetheless treated Ms. Turnbull's police statement as more reliable than her subsequent sworn testimony.

[90] Second, the key evidence that was given by Ms. Turnbull and contradicted by no one was that she repeatedly told Mr. Lafontaine to leave and there was time to do so. He had also received the same advice from one of the passengers in the other car, Bonnie Shute. The motions judge did not consider this evidence or wrestle with it.

[91] Third, the question is not just what Mr. Lafontaine actually did, as my colleague suggests, but whether a reasonable and prudent person in those circumstances would have acted differently.

[92] I reject my colleague's contention that this appeal was simply an invitation by the appellants for this court to reweigh the evidence. This was not a case where Mr. Lafontaine was nervous because he was engaged in a drug deal in the middle of the night in an empty parking lot as my colleague asserts. Both cars were present in the lot, as were all of the passengers. The operation was not described by the motions judge – or indeed anyone else – as covert or hasty. The evidence of Ms. Turnbull was that Mr. Lafontaine was calm. In addition, both Ms. Turnbull and Mr. Lafontaine were clearly anticipating an altercation, as they both shared a feeling of unease. At a minimum, the appellants were entitled to expect that the motions judge would consider whether Mr. Lafontaine exercised the care that an ordinary, prudent person would exercise in the same situation. That expectation was not met in this case.

[93] Hryniak ushered in a new approach to summary judgment. This was at least in part a response to the need to provide for greater access to justice. Superior Court judges have answered the Supreme Court's entreaty with a huge degree of professional commitment and diligence. This is to be lauded. A major goal of summary judgment is costs savings. However, the goal is not summary judgment at all costs. There will still be some cases that ought to go to trial. Some caution must be used. This is particularly so in a case such as this that involves a largely unexplored area of the law and which would benefit from the full record that a trial provides.

[94] Moreover, this summary judgment was anchored on minimal first hand evidence, unresolved contradictions in the evidence, and no recourse to viva voce evidence. In my view, it should be set aside.

E. Disposition

[95] For these reasons, I would allow the appeal, set aside the summary judgment dismissing the appellants' action, and order that the action proceed to trial.

[96] On the issue of costs of the appeal, I would order the respondents to pay on a joint and several basis the costs of the appeal fixed in the amount of $12,000 inclusive of disbursements and applicable taxes. On the issue of costs of the summary judgment motion, I would set aside the motions judge's costs award of $20,000 in favour of State Farm and $12,500 in favour of Ms. Matuszynka against the appellants and remit the costs to be fixed by the trial judge.

Released: February 23, 2018

"S.E. Pepall J.A."