BARRIE COURT FILE NO.: CV-10-001191
DATE: 20120315
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LORRAINE LEFEBVRE-JACKSON, NAOMI LEFEBVRE-JACKSON by her Litigation Guardian Lorraine-Lefebvre-Jackson and BRIANNA LEFEBVRE-EDDY by her Litigation Guardian Lorraine Lefebvre-Jackson, Plaintiffs
AND:
MATTHEW GORDON SALT, CHRISTOPHER N. BURTON and UNIFUND ASSURANCE COMPANY, Defendants
BEFORE: McDERMOT J.
COUNSEL:
J. Vigmond, for the plaintiff – not appearing
D. Dooley, for the Defendant, Christopher N. Burton
B. Murphy, for the Defendant, Unifund Assurance Company
HEARD: January 31, 2012
ENDORSEMENT
INTRODUCTION
[ 1 ] On March 7, 2009, the Plaintiff, Lorraine Lefebvre-Jackson, was a passenger in a motor vehicle driven by the Defendant, Christopher N. Burton. That vehicle was struck by another vehicle driven by Mr. Burton’s co-Defendant, Matthew Gordon Salt. Ms. Lefebvre-Jackson brings this action against both Mr. Salt and Mr. Burton for damages for injuries suffered by her in the accident. Mr. Burton and Mr. Salt have issued cross-claims against each other.
[ 2 ] Unfortunately, Mr. Salt was uninsured. The Defendant, Unifund Assurance Company (“Unifund”) is an OPCF 44-R carrier; they are only obligated to pay as excess insurer if no other insured party has at least one percent liability. Mr. Burton has liability insurance through the Co-operator’s General Insurance Company (“Co-operators”).
[ 3 ] Initially, competing claims for summary judgment were brought; Mr. Burton sought summary judgment against Mr. Salt based upon the police report and Mr. Salt’s payment of a traffic fine for running a red light when the accident occurred; Unifund sought summary judgment for a declaration that Mr. Burton was at least one percent at fault, which would have the effect of taking Unifund out of the action. Mr. Burton has now withdrawn his motion for summary judgment. Costs of the abandoned motion are now in issue as is Unifund’s summary judgment motion.
[ 4 ] Unifund also seeks a declaration that it is not liable for the first $200,000 of the damages herein, being the policy limits under the Co-operator’s policy.
[ 5 ] No relief was sought as against the Plaintiffs in this motion; they were not in attendance on the motion.
[ 6 ] For the reasons set out below, I have determined the following:
a) The motion of Unifund for summary judgment is dismissed;
b) Unifund shall have its costs of the abandoned motion;
c) As between Unifund and the Co-operators only, an order will go declaring that if the court finds that damages are in excess of $200,000, less all statutory deductions, Unifund will not have to pay any share of that first $200,000.
BACKGROUND FACTS
[ 7 ] Ms. Lefebvre-Jackson and Mr. Burton are friends and live in Kingston, Ontario. On March 7, 2009, Ms. Lefebvre-Jackson was a passenger in a vehicle owned by Mr. Burton; they were travelling south on King Street through the intersection at Princess Street in Kingston when they were struck by an east-bound vehicle driven by Mr. Salt.
[ 8 ] Both Mr. Burton and Ms. Lefebvre-Jackson indicate that the light was green when they approached and entered the intersection. The Motor Vehicle Accident Report indicates that “V1 [driven by Mr. Salt] runs red light and strikes V2 [driven by Mr. Burton]. V1 fails to remain.” Eventually, Mr. Salt paid the fines for the charges laid under the Highway Traffic Act [1] for failing to yield to the red light as well as an alcohol level beyond the license level allowed (Mr. Salt had a G2 license). He was also charged with failure to remain at the scene of an accident under the Criminal Code ; [2] presumably he pleaded guilty to those charges as well because he received a conditional discharge in respect of those charges.
[ 9 ] The Plaintiff, Ms. Lefebvre-Jackson, states that she suffered injuries in the accident. She struck her head during the accident and suffers from whiplash-like symptoms. She issued a Statement of Claim on November 3, 2010, naming both Mr. Salt and Mr. Burton as Defendants. As noted above, both Mr. Burton and Mr. Salt have defended the action and issued cross-claims against each other.
[ 10 ] Mr. Salt was uninsured; he had comprehensive coverage on his vehicle, but he did not have liability insurance. Mr. Burton is insured by Co-operators. Because Mr. Salt was uninsured, a motion was brought to add Unifund as a Defendant and amend the Statement of Claim; that was done by order dated September 15, 2011. By Statement of Defence and Cross-claim dated November 7, 2011, Unifund has defended the claim and cross-claimed against both Mr. Burton and Mr. Salt.
[ 11 ] In the meantime, counsel for Mr. Burton served a motion for summary judgment dismissing the cross-claim of Mr. Salt against Mr. Burton. That motion was originally returnable on November 8, 2011, although the date was adjourned at the request of Mr. Murphy as he was just being retained, and he wished to cross-examine Mr. Burton on his affidavit. Those examinations were scheduled for December 20, 2011 in Kingston, Ontario. Mr. Murphy also arranged, however, to examine Mr. Salt on November 4, 2011. Mr. Dooley on behalf of Mr. Burton was not advised of these examinations; nor was he present.
[ 12 ] It is apparent from the examination of Mr. Salt that he does not agree that he ran a red light as suggested in the Police Report noted above. He states that he had the green light. He also stated in his examination that he paid the ticket for the red light because he could not miss time from his military training and if he did, he would be removed from the course which he was taking at the time. He said that road conditions were “normal”. Notwithstanding his subsequent guilty plea to leaving the scene of the accident, he denies having done so; he says that his vehicle rolled away and came to a stop some distance from the accident.
[ 13 ] Mr. Burton in his cross-examination disagreed with Mr. Salt’s statement that the conditions were normal. He stated that he was driving slowly because he was concerned about black ice.
[ 14 ] In his cross-examination, Mr. Burton initially stated that there was one lane of traffic each way as shown in the police report. He stated that he would have had to be over the pedestrian walkway prior to seeing a vehicle coming towards him on Princess Street. He initially said that he was beside but not over the centre line on King Street; however, he later acknowledged that there was a left hand turning lane (making for three lanes rather than two lanes) and he was uncertain as to whether he went through the intersection in the right hand lane or in the left hand turning lane or straddling the two lanes.
[ 15 ] Mr. Murphy relies upon these inconsistencies and uncertainties in his submission that Mr. Burton is at least one percent at fault. As well, and resulting from the examination of Mr. Salt, Mr. Dooley received instructions from his client to withdraw his summary judgment motion; presumably this was because of the conflicting testimony regarding who had the green light when the accident occurred, resulting in credibility issues. Mr. Dooley originally requested consent to a withdrawal without costs; when that was not forthcoming, Mr. Burton’s summary judgment motion was abandoned by way of Notice of Abandonment dated (and presumably served) on January 26, 2012.
ANALYSIS
(a) Summary Judgment
[ 16 ] I will firstly deal with the summary judgment motion brought by Unifund. Once this is done, I will next deal with costs and finally with the issue of the declaratory relief sought by Unifund.
[ 17 ] As noted above, Unifund seeks summary judgment against Mr. Burton. It is common ground that, as an OPCF 44-R excess insurance carrier, Unifund will bear no responsibility to pay if Mr. Burton is found to be at least one percent at fault pursuant to the Negligence Act . [3] As such, if I make a finding on the summary judgment motion that Mr. Burton is partially negligent, even in a minor way, Unifund will be let out of the action.
[ 18 ] As stated, Mr. Murphy relies largely on his examination of Mr. Burton in this matter. Mr. Burton was cross-examined extensively on his recollection of the accident.
[ 19 ] Mr. Murphy focussed on the fact that there were inconsistencies in the evidence given by Mr. Burton in cross-examination regarding the accident. Mr. Burton initially stated that there were two lanes of traffic (as shown in the police report); he later admitted that there were actually three lanes as there were left hand turning lanes on King Street on either side of Princess Street. Mr. Burton also was uncertain as to where his vehicle was vis-a-vis the centre line; at one point he stated that he was close to the centre line; he later admits that he may have been in the left hand turning lane when crossing the intersection. Mr. Burton admits that the conditions were difficult insofar as he was worried about black ice; Mr. Murphy established in his cross-examination that Mr. Burton entered the intersection at about 30 km per hour; Mr. Murphy states that this was not prudent under the circumstances, especially where Mr. Burton also admits that he could not see vehicles on Princess Street until he reached the pedestrian cross-walk. He states that, considering the road conditions, the fact that Mr. Burton did not slow down or look both ways also constitutes negligence which would result in a finding of at least one percent fault in this matter.
[ 20 ] Mr. Murphy states that the issue is whether Mr. Burton acted in a reasonably prudent manner considering the road conditions when the accident occurred. If the answer is “no”, then there is some fault, and summary judgment should issue.
[ 21 ] This is a motion under Rule 20.01 of the Ontario Rules of Civil Procedure ; [4] Rule 20.04(2) and (2.1) contains the test for granting an order for summary judgment which reads as follows:
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
[ 22 ] This rule was recently amended, purportedly to increase the powers of a motions judge in granting summary judgment and no reading of the rule is complete now without an analysis of the Court of Appeal decision in Combined Air Mechanical Inc. v. Flesch , 2011 ONCA 764 . In that decision, the court held that the rule originally was applicable to two classes of cases, being either where the parties had agreed to deal with a matter by way of summary judgment or determination by motion, or alternatively where there was, “no merit” or “no chance of success”: see para. 40 to 44 inclusive. According to the Combined Air case, the rule now encompasses a third class of cases where “the interests of justice” require the case to be dealt with by way of motion rather than through a trial. It is to be noted that the latter two classes of cases are not mutually exclusive; there are overlaps from case to case: see para. 75 of the report.
[ 23 ] That being said, what appears to be new based upon the amendments to the rule is the “full appreciation test”, viz. , “can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?” (para. 50). In other words, can I fully appreciate the evidence based upon the written record before me, or does the fair disposition of the negligence issue require a trial? In the present case, I believe that the determination of whether Mr. Burton was partially negligent does require a trial.
[ 24 ] Counsel is requesting that I determine a single issue by way of summary judgment; accordingly at first glimpse this would seem to be within the class of cases where there are “limited contentious factual issues” which was a class of cases where summary judgment may be appropriate: see para. 52 of the report. However, the operative word in that phrase is “may” as, in some cases, the single issue of fact itself requires a trial. There are a number of reasons in this case why it would.
[ 25 ] It is acknowledged that the fact that whether the light was green for Mr. Burton is not, in itself, determinative of the matter: see Behmanesh v. Yokhana , 2011 ONSC 4950 . However, the fact that a driver might be negligent when they had the light in their favour does not necessarily mean that this driver was negligent, even to the extent of one percent as requested by Unifund. In Behmanesh , the fact that a driver might be negligent was the basis for dismissal of a motion to determine that the driver who went through the red light was 100 percent negligent; that is a negative finding which is completely different from Unifund’s request that I summarily make a positive determination that Mr. Burton bears some responsibility for the accident.
[ 26 ] The fact that I cannot do this is illustrated by the fact that there are differences in the cases in the determination of these types of issues. For example, in Behmanesh , the justice hearing the motion had sufficient doubt that he determined that a trial was necessary to determine the motion; in the words of the Court of Appeal in Combined Air , the “interests of justice” required it. However, in Rogerson v. Burridge , [2008] O.J. No. 981 (S.C.J.) as aff’d by 2008 ONCA 680 , the affidavits satisfied O’Connell J. that “the collision was caused solely by the negligence of the driver of vehicle number four resulting in a chain reaction for which the driver is solely responsible by reason of his negligence.” (para. 17). What is the difference between the two cases?
[ 27 ] The difference in my mind is not the nature of the findings, which appear to be inconsistent. The issue is whether a finding itself can be made without the necessity of a trial, or whether the interests of justice require a trial of that issue. A hint of where the difference is lies in the affirmation of the Court of Appeal of O’Connell J.’s decision, wherein the court stated that:
[t]he affidavits filed by the Respondents stated unambiguously that an unidentified driver was the sole cause of the accident. The appellant did not cross-examine the respondent and made no effort to examine the Plaintiff. (para. 1).
[ 28 ] That is different from the present case, where cross-examinations were held of both of the drivers of the vehicle. Those cross-examinations, as noted by Mr. Murphy, raise issues of credibility of both co-Defendants. Counsel noted in argument that there were credibility issues respecting Mr. Burton; he was admittedly unclear as to where his vehicle really was on the roadway while crossing Princess Street. There are also credibility issues respecting Mr. Salt, who stated that he never intended to leave the scene of the accident, but also pleaded guilty to those charges and also paid fines for going through a red light. Those credibility issues make it apparent that a trial is necessary to determine the issue of whether Mr. Burton is negligent, even to the limited extent requested by Mr. Murphy.
[ 29 ] This leads to a further ground which would make, in my view, a trial necessary in this matter. In Combined Air , the court notes that one crucial issue is order in which witnesses appear at trial and the evidence taken in this context; as stated at para. 48 of the decision:
The trial dynamic also affords the parties the opportunity to present their case in the manner of their choice. Advocates acknowledge that the order in which witnesses are called, the manner in which they are examined and cross-examined, and how the introduction of documents is interspersed with and explained by the oral evidence is of significance. This “trial narrative” may have an impact on the outcome.
[ 30 ] What Unifund’s counsel is asking me to do is to make a determination of negligence on evidence which is taken in a vacuum. He has examined Mr. Burton; his evidence may or may not lead to a determination of partial negligence, but this will depend upon the context and order in which that evidence is led. Those factors may very well significantly affect the outcome of that issue. They may also affect whether the trial judge or jury finds a certain witness credible or not. This is especially so where the determination of negligence or apportionment of negligence is, effectively, a mixed issue of fact and law.
[ 31 ] In sum, it is entirely foreseeable that a justice at trial or, in this case a jury, might make a determination that Mr. Burton was driving in a prudent manner under all of the circumstances and that he bears no fault in this matter. To make that determination, or indeed to make a determination that he is partially or wholly at fault, a full appreciation of all of the evidence requires a trial of the issue. No request was made to lead oral evidence in support of the summary judgment motion. The motion for summary judgment brought by Unifund is accordingly dismissed.
(b) Costs of the Abandoned Motion
[ 32 ] Where a motion is abandoned, there is a presumption that the responding party to that motion is entitled to costs: see Rule 37.09(3).
[ 33 ] Mr. Dooley argues that his client has acted responsibly; as soon as his client saw the transcript of the examination of Mr. Salt, he was instructed to offer a withdrawal of the motion without costs. It was the requirement of obtaining further instructions regarding abandonment and what that entailed which resulted in the late abandonment of the motion, just days prior to argument. He states that when he brought the motion, he was not in possession of the evidence of Mr. Salt, and as such the change in circumstances should result in a displacement of the presumption of costs.
[ 34 ] However, the determination of whether a motion for summary judgment should be brought rests upon a determination of whether the evidence supported such a claim at the time that the motion was brought: see Elliott v. Industrial Alliance Pacific Insurance Co. , 2011 CarswellOnt 2232 (S.C.J.) . It is to be noted that as soon as he went on the record, Mr. Murphy immediately arranged for examination of Mr. Salt and determined that there was some issue as to who went through the red light. I would have thought that Mr. Dooley could have easily done the same prior to bringing his motion; the evidence was certainly available, and Mr. Salt was apparently cooperative. There was no evidence as to whether Mr. Dooley attempted to contact Mr. Salt or examine him prior to bringing the motion. Alternatively, Mr. Dooley could have waited until examinations were complete prior to bringing his motion.
[ 35 ] Unifund will have its costs of the abandoned motion for summary judgment. I am not going to determine the range of costs until I have reviewed the Costs Memoranda filed by counsel as part of the general costs determination of this motion.
(c) Declaration
[ 36 ] Unifund requests a declaration pursuant to s. 97 of the Courts of Justice Act [5] that “Co-operators must contribute, whether at fault or not, in priority up to the first $200,000 in damages pursuant to s. 265 on (sic.) the Insurance Act ” [6] .
[ 37 ] Mr. Dooley takes exception to this request; he notes that Co-operators has not been named as a Defendant in this proceeding and as such no declaration can be made determining Co-operator’s liability in these proceedings.
[ 38 ] He takes no exception to a declaration on a contingent basis as requested in paragraph 2(b) of the motion so long as other statutory deductibles such as CPP are also accounted for.
[ 39 ] Counsel agreed that this issue lies between Co-operators and Unifund only and, as the Plaintiff’s counsel was not present, it does not affect overall liability or the Plaintiff’s rights of collection in this matter.
[ 40 ] Accordingly, and as between Unifund and the Co-operators only, there shall be an order for a declaration that if the court determines at trial that damages are in excess of $200,000, net of all statutory deductions, Unifund will not have to pay any share of that first $200,000 which amount will be treated as a legal deductable for Unifund.
ORDER
[ 41 ] Therefore, there shall be an order to go as follows:
a) Unifund’s motion for summary judgment is dismissed.
b) Unifund shall have its costs of Co-operator’s summary judgment motion to be determined as set out below.
c) There shall be an order for a declaration that, as between Unifund and the Co-operators only, if the court determines at trial that damages are in excess of $200,000, net of all statutory deductions, Unifund will not have to pay any share of that first $200,000 which amount will be treated as a legal deductable for Unifund.
[ 42 ] The parties may make written submissions for costs including the quantum of costs of the abandoned motion noted above, which costs submissions are not to exceed 5 pages in length not including offers to settle or costs memoranda. Co-operators and then Unifund shall provide their costs submissions on a 10 day turnaround from the date of release of the within endorsement.
McDERMOT J.
Date: March 15, 2012
[^1]: R.S.O. 1990, c. H.8
[^2]: R.S.C. 1985, c. C-46
[^3]: R.S.O. 1990, c. N.1
[^4]: R.R.O. 1990, Reg. 194
[^5]: R.S.O. 1990, c. C.43
[^6]: R.S.O. 1990, c. I.8