Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20241129 DOCKET: COA-24-CV-0415

MacPherson, Roberts and Wilson JJ.A.

BETWEEN

Steve Morales, Sonia Morales, Marcela Legaspi, and Alexander Legaspi, a minor by his Litigation Guardian, Steve Morales Plaintiffs (Appellants)

and

Ramses Laguardia, Marilyn Brito and Phillip Franchetto* Defendants (Respondent*)

Counsel: Daniel Wonkyu Lee and Nicole Elizabeth Walker, for the appellants Derek Vihvelin and Eric Levin, for the respondent

Heard: November 27, 2024

On appeal from the order of Justice R. Lee Akazaki of the Superior Court of Justice, dated March 14, 2024, with reasons reported at 2024 ONSC 1533.

Reasons for Decision

[1] The appellants commenced an action in the Superior Court of Justice arising from damages they alleged they sustained as a result of a motor vehicle accident that occurred on June 17, 2017. The action arises out of a head-on collision that occurred on Highway 9, east of Caledon King Townline in Caledon.

[2] The driver of one vehicle in the collision was the defendant Ramses Laguardia. In the car was the plaintiff Steve Morales and another man. The driver of the other vehicle was the defendant/respondent Phillip Franchetto. All five occupants of the two vehicles were injured.

[3] Mr. Franchetto was driving his wife to a rehabilitation centre. He was driving a Ford F150 pickup truck. He was going 89 km/hour in an 80 km/hour zone. A black SUV was in front of him and a Mazda CX5 was behind him. He was travelling westbound.

[4] At approximately 6:05 p.m., the vehicle being driven in the other direction by Mr. Laguardia drifted into the westbound lane. The evidence shows that he was asleep in the moments leading up to, and at the time of, the accident and that he was travelling at 102 km/hour.

[5] There is a factual dispute about how long Mr. Laguardia’s vehicle had been drifting and how far over the centre line the vehicle drifted at various times. However, it is undisputed that the impact happened after Mr. Laguardia’s vehicle had been drifting for a period of time prior to the impact. Further, it is undisputed that Mr. Laguardia and his two passengers were asleep at the time of the accident. As explained by the motion judge:

In the 24 hours before the horrific motor vehicle accident on June 17, 2017, passengers Steve Morales and Dominik Rezi had been partying all night and all day with Ramses Laguardia. They had consumed unknown amounts of alcohol and cannabis and had not slept during the same interval.

[6] It is also undisputed that Mr. Laguardia did not perform any emergency or evasive maneuvers to prevent or avoid the collision.

[7] It is common ground that Mr. Franchetto had only about five seconds to react to the urgent situation created by Mr. Laguardia. Mr. Franchetto did take evasive action. He testified that he saw the vehicle in front of him, a black SUV, swerve to avoid something on the road which he immediately recognized to be Mr. Laguardia’s vehicle drifting into the westbound lane (his lane). He immediately did what the vehicle in front of him did – steer his vehicle to the right to try to get onto the shoulder of the road. When he realized that the Laguardia vehicle was not changing its course, he steered the other way and “began pushing the brakes as hard as [he] could”. The head-on collision then occurred.

[8] Mr. Franchetto brought a motion for summary judgment seeking dismissal of the action against him. The motion judge granted the motion. He concluded:

I have concluded that no jury, properly instructed in the law, could reasonably find Franchetto liable in negligence to the plaintiffs.

Franchetto’s speed and response to the oncoming hazard were entirely normal and reasonable. They did not breach the standard of care of an ordinary driver.

[9] The appellants appeal from this conclusion. Importantly, they candidly recognize that they have a high hurdle to clear: the standard of review in a case involving questions of fact or mixed law and fact, which is clearly this case, is “palpable and overriding error”: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[10] The appellants submit that the motion judge erred in three respects. As expressed in their factum, the motion judge erred in both fact and law:

a. “… when determining there was no genuine issue requiring a trial;

b. … in interpreting and applying the law relating to the standard of care required of the Defendant, Franchetto; and

c. … in interpreting and applying the law relating to causation.”

[11] To dispose of the appeal, we need only address the first two points. We see no error in the motion judge’s conclusion that there was no genuine issue for trial or in his determination that Mr. Franchetto was not negligent. We are not persuaded by the appellants’ submissions that the motion judge effectively had to accept their expert evidence on standard of care or could not determine this issue on summary judgment where the expert evidence conflicted. It was open to the motion judge to reject the expert evidence and determine the reasonableness of Mr. Franchetto’s conduct on the basis of his or other evidence about the accident. The motion judge’s careful and clear reasoning is, in our own view, entirely persuasive.

[12] We begin by noting, as did the motion judge, that in Gill v. Canadian Pacific Railway, [1973] S.C.R. 654, the Supreme Court of Canada stated, at p. 665:

It 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.

[13] Against this backdrop, we set out the key components of the motion judge’s reasoning:

…Laguardia’s vehicle entry into the wrong lane prompted the driver ahead of Franchetto to avoid collision by going into the shoulder…That decision, as the plaintiffs’ experts concluded, cost him two seconds.

Here, Franchetto’s initial decision to slow down and head into the paved shoulder to allow the driver of the oncoming vehicle more space to correct trajectory was entirely reasonable. He was not to know that the GMC had no conscious driver. Next, when he noticed the vehicle was heading into the shoulder, Franchetto steered the other way and braked hard. Each decision was a reasonable exercise of split-second driving judgment.

No matter how valid the plaintiffs’ experts’ opinion that braking first would have been the only viable option, Franchetto’s reaction was not unreasonable from the perspective of an ordinary driver facing oncoming danger and the need to make a sudden exercise of judgment.

The moving party in this summary judgment motion, Franchetto, has satisfied me that there is no issue requiring a trial to conclude that his driving or response to the hazard constituted negligence. Moreover, the plaintiffs’ expert evidence, taken for what it is, does not raise Franchetto’s driving, either before or during the event, to a legal cause of the plaintiffs’ injuries. These technical conclusions to the Rule 20 analysis solidify the obvious and practical characterization of Franchetto – or any other driver in his place – as anything other than having been in the wrong place at the wrong time.

[14] We explicitly agree with this reasoning. It determines the appeal. The appeal is dismissed.

[15] The respondent is entitled to his costs of the appeal fixed at $14,000, inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“L.B. Roberts J.A.”

“D.A. Wilson J.A.”