COURT FILE AND PARTIES

COURT FILE NO.: CV-10-395160
DATE: 20120704
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Aspasios Hatzitrifonos, Plaintiff

AND:

Luis Marzan and Maneeemaran Chidhamparanathan, Defendants

BEFORE: Carole J. Brown J.

COUNSEL: Altaf M. Khan , for the Plaintiff

Bahareh Kazemi , counsel for the Defendant Luis Marzan

Peter Yoo, counsel for the Defendant Maneemaran Chidhamparanathan

HEARD: June 11 and 12, 2012

ENDORSEMENT

[ 1 ] The co-defendants, Luis Marzan (“Marzan”) and Maneeemaran Chidhamparanathan (“Chidhamparanathan”), bring this motion for summary judgment pursuant to Rule 20 as against the plaintiff, Aspasios Hatzitrifonos (“Hatzitrifonos”), on the ground that there is no genuine issue requiring a trial.

[ 2 ] The action arises out of a rear-end collision initiated by the plaintiff which occurred in the westbound lanes on Eglinton Avenue East just west of the intersection with Leslie Street in Toronto, on January 18, 2008 at approximately 1:00 a.m. The vehicle driven by Chidhamparanathan was followed by the vehicle driven by Marzan, and third in line behind Marzan was the vehicle driven by the plaintiff, Hatzitrifonos.

The Facts and Evidence

[ 3 ] The evidence adduced by the co-defendants, upon which the plaintiff also relied, included the police report and field notes of the police regarding the accident, the Motor Vehicle Accident Report, transcripts from the Highway Traffic Act trial of the plaintiff, Hatzitrifonos, held December 17, 2009, the pleadings, and the transcripts from examinations for discovery of the parties.

[ 4 ] The evidence relevant to this action and motion is as follows. The Motor Vehicle Accident Report indicates that the vehicle of Chidhamparanathan, which was the first vehicle in the line, was changing lanes from the middle lane to the right lane, the vehicle of Marzan was behind that of Chidhamparanathan in the middle lane and the vehicle driven by Hatzitrifonos was last in the line of cars. The Report further indicates that the portion of Eglinton East where the accident occurred widened from two lanes to three lanes, including a left turning lane, at approximately the position of the middle vehicle, and that the posted speed was 60 km/h. The police synopsis of the motor vehicle accident indicated that the vehicle of Chidhamparanathan was pulling over to the right lane pursuant to the direction of the police officer who was waving him to the side, the middle vehicle stopped behind the first vehicle to allow it to pull over and the vehicle of the plaintiff rear-ended the vehicle of Marzan. The Report further indicates that the plaintiff "failed to stop for traffic" and was charged with careless driving pursuant to the Highway Traffic Act , section 130.

[ 5 ] The police notes indicate that PC Baton was setting up to conduct highway enforcement when he "observed a vehicle westbound in the centre lane with one headlight not working". He "directed that vehicle (driven by Chidhamparanathan) to pull over. He notes that "as the vehicle was slowing to pull over, a van in the same lane behind the first vehicle (driven by Marzan) slowed down almost to a stop to allow the first vehicle to pull to the right". He "then noticed a red vehicle, traveling at a high rate of speed hit the rear of the second vehicle (van). The red vehicle was also traveling westbound and did not stop".

[ 6 ] PC Jimenez arrived on the scene and took over the investigation of the motor vehicle accident while PC Baton resumed highway enforcement. His notes indicate that he obtained statements from the co-defendants, charged the plaintiff with careless driving pursuant to Highway Traffic Act , section 130, and that no statement was taken from the plaintiff. The notes further indicate that the brake lights of both co-defendants' vehicles were checked by the police and found to be functioning. The police notes indicate that the roads were clear and that it was rainy, but that the visibility was good. This is not disputed by any of the parties.

[ 7 ] The Collision Notes include statements by Chidhamparanathan and Marzan. I note that neither of the co-defendants first language was English. However, both were sufficiently conversant with English to be able to understand and respond to questions asked. Marzan’s statement was as follows:

"I coming this way. Police car is on the right side. I already changed to the left lane. That's when I see the police car and the police stop my car by hand. I put the right turn signal on and take the right lane and stopped the car."

[ 8 ] He further confirmed that he was traveling westbound on Eglinton Avenue East at approximately 50 to 55 km/h, that he did not see the accident behind him, that his car was not hit and that he was wearing his seatbelt.

[ 9 ] The statement of Marzan is as follows:

"I see that car in front of my van. He slowed and I slow down too. And then I don't know what happened. Someone hit me in the back and I shock. That's it."

[ 10 ] The notes further indicate that Marzan thought he was traveling westbound on Eglinton East, that he was traveling between 45 and 50 km/h, that he identified the vehicle that rear-ended him as a red Honda, that he was traveling in the middle lane, wearing his seatbelt, and that his vehicle sustained damages.

[ 11 ] At the examination for discovery of the plaintiff, Hatzitrifonos, he testified that he was traveling westbound on Eglinton Avenue East in the left lane, driving at the speed limit, 60 km/h, that at the time of impact, he applied the brakes and was therefore going at less than 60 km/h on impact, but that he was unable to stop his car because there was not enough space between his vehicle and that of Marzan. He testified that the weather was quite good that particular night. He described the weather as not that bad, a little wet, a little drizzle but nothing major. He further testified that his windshield wipers were not on. He further confirmed, in his examination for discovery of January 24, 2011, that, in the area of the accident, "there's three lanes" (question 372), although this was contested by his counsel at the motion.

[ 12 ] The plaintiff testified that he first saw the two vehicles of the co-defendants when he was going up the hill after passing Leslie on Eglinton. He stated that when he first saw the vehicle in front of him (driven by Marzan) "it was probably – – it was probably 2 to 5 feet away." (Transcript, January 24, 2011, question 462.) He confirmed this several times thereafter. He stated that he was "three quarters up the hill" before he saw the vehicle (driven by Marzan). He testified that he "didn't know if that green car was moving or stopping". He testified that he did not see the green car until he was 2 to 5 feet away from it, "I didn't pick it up until at the last minute" (question 567). He testified that he saw rear lights on the vehicle in front of him but "I don't know if they were brake lights. I don't know if they were hazard lights. I didn't know what was going on." And "I don't know if it was moved or stopped. I had no idea what was going on." He testified that when he saw the green vehicle, he was 2 to 5 feet away from it, tried to apply his brakes but "I couldn't – – I couldn't apply them in time. I didn't have the reaction enough in time to apply the brakes" (Question 672). The plaintiff testified that he did not have the opportunity to honk his horn, use his emergency brake or to take other action, as "I didn't have much time to react".

[ 13 ] The testimony of the co-defendants was consistent with the police notes and Motor Vehicle Accident Report. Chidhamparanathan, the first vehicle in line, testified that a policeman on the right side of the road waved him over to stop, he applied his right signal, changed to the right lane, and slowed. He went into the right lane and stopped in front of the police car, at which time he put on his emergency lights. His headlights were on, he was traveling between 50 and 55 km/h, there were three lanes at the site of the accident, with the left lane a turning lane, the police vehicle was close to the right curb, the policeman waved him over, the policeman was standing close to his police cruiser. Chidhamparanathan slowed down to pull over as directed by the police officer and when he was slowing down, put on his right signal and applied the brakes. He saw the vehicle behind him and felt that he could safely move over to the right lane. It was only after he stopped his vehicle at the right side of the road that he realized there had been an accident. He did not view the accident.

[ 14 ] The transcripts of the examination for discovery of Marzan, the second in line, who was rear-ended by the plaintiff, are also consistent with the police report and collision notes. His evidence was given through an interpreter. Marzan testified that he was traveling westbound on Eglinton Avenue East, that there were three lanes in the vicinity of the accident, the left lane being a turning lane. His vehicle was in the middle lane behind that of Chidhamparanathan. He stated that he was not stopped on the highway prior to the accident, but was moving when he was hit from behind. He testified that there was a car in front of him (that driven by Chidhamparanathan), that the car in front of him was not stopped in his lane, that the car was moving normally before it started to slow down, that it was pulled over by the police, who was standing near the right curb, that the vehicle in front of him put on its directional signal to turn right, and that Marzan slowed down and turned a bit to the left in order to avoid hitting the vehicle driven by Chidhamparanathan. At no time prior to being rear-ended, did he think he would be hit.

Positions of the Parties

Position of the Plaintiff

[ 15 ] It is the position of the plaintiff that the accident was caused by the co-defendants. He states that, but for the nonfunctional headlight of the vehicle driven by Chidhamparanathan, Chidhamparanathan would not have been pulled over by the police officer, the vehicle driven by Marzan would not have had to slow down and the accident would not have occurred. He maintains that the vehicle driven by Marzan was not slowing but was stopped in front of him without any hazard lights having been put on. He maintains that the first vehicle in the line, driven by Chidhamparanathan, was also stopped in the left lane. He further maintains that both vehicles were in violation of the Highway Traffic Act and that both were speeding. The plaintiff states that he knows this to be the case, as he had a telephone conversation the day after the accident with PC Jimenez, who advised him of the fact. There is no affidavit from PC Jimenez nor from PC Baton adduced in evidence to support this contention. I note that PC Jimenez did not arrive on the scene nor investigate the accident until after it had occurred. Accordingly, this statement by the plaintiff regarding a telephone conversation with and information obtained from PC Jimenez pursuant to that telephone conversation is hearsay or, as submitted by the co-defendants, double hearsay, and not admissible.

[ 16 ] The plaintiff argues that there is a genuine issue for trial with respect to the negligence of the co-defendants. Counsel for the plaintiff submits that there is no onus on the plaintiff to establish that there is a genuine issue for trial. With respect to the presumption of negligence on the part of the vehicle which rear ends another, counsel for the plaintiff submits that only a scintilla of evidence is required to dispel that presumption. Counsel for the plaintiff cites no caselaw in support of this assertion. Counsel for the plaintiff maintains that the Highway Traffic Act trial of his client was dismissed against his client based on the evidence adduced at the trial, and this provides the scintilla of evidence necessary to rebut the presumption of negligence on the part of his client. It is the position of the co-defendants that the Highway Traffic Act trial was dismissed due to a procedural default on the part of the police, namely that the police officer failed to properly identify Hatzitrifonos, prior to giving him a ticket. A reading of the transcript from the trial is consistent with the defendants’ positions.

[ 17 ] Counsel for the plaintiff argues that this is a very complex case, that there are significant factual issues in contention, conflicting evidence and issues of credibility which militate against summary judgment being granted. He argues that the process of examination for discovery was unfair, and that the co-defendants colluded in their evidence, which should not be accepted. There is no evidence of collusion before me. Counsel for the plaintiff confirms that he did not bring any motions on the basis of his allegations of an unfair examination process, nor with respect to any objections to answering questions raised by the defendants. Moreover, I have read the transcripts of examinations for discovery and do not find the plaintiff's assertions regarding the examination for discovery process to be established.

Position of the Defendants

[ 18 ] It is the position of the defendant, Marzan, that the accident was caused by the plaintiff, who rear-ended the vehicle of Marzan. It is further his position that the plaintiff's testimony and admissions on examination for discovery clearly indicate that he was following too closely to respond to traffic in front of him, which was the cause of the accident. It is Marzan's position that the plaintiff has not met the onus of establishing that the subject collision did not occur as a result of his negligence and that he has failed to establish any negligence on the part of Marzan. Marzan therefore submits that there is no genuine issue requiring a trial involving Marzan and, accordingly, summary judgment should be granted.

[ 19 ] It is the position of the defendant, Chidhamparanathan, that there was only one impact arising from the subject accident, which involved the vehicles operated by the plaintiff and Marzan, there was no contact made between his vehicle and the vehicle operated by the plaintiff and that operated by Marzan, and that his actions did not cause the accident between the plaintiff and Marzan. With respect to any “but for” argument made by the plaintiff, counsel for Chidhamparanathan submits that, in this case, there was an intervening cause which broke the chain of causation and that the “but for” test can only be argued by Marzan as against Chidhamparanathan. It is the position of Chidhamparanathan that such an argument is not applicable in the circumstances of this case, based on the evidence.

Issue

[ 20 ] The issue on this motion for summary judgment is whether there is a genuine issue requiring a trial with respect to the liability of either or both of the co-defendants, Chidhamparanathan and/or Marzan.

Law and analysis

[ 21 ] Rule 20 provides for summary judgment where there is no genuine issue requiring a trial with respect to a claim or defence. The judge hearing a motion for summary judgment is required to take a hard look at the evidence adduced by all parties in order to determine whether there is, or is not, a genuine issue requiring a trial. The onus of establishing that there is no genuine issue requiring a trial is on the moving party. Where the moving party satisfies that onus, the onus shifts to the responding party to establish that there is a genuine issue requiring a trial.

[ 22 ] In order to defeat a motion for summary judgment, a responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party may not rest on the mere allegations or denials of the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. The court may, where appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. The motion judge is entitled to assume that the record contains all the evidence that would be introduced at trial. It is not sufficient for a responding party to say that more or better evidence will or might be available at trial. The responding party to a summary judgment motion must "lead trump or risk losing".

[ 23 ] A summary judgment motion cannot be defeated by vague references to what may be adduced in the future, if the matter is allowed to proceed to trial. Such a proposition would undermine the rationale of Rule 20. The motion must be judged on the basis of the pleadings and materials actually before the judge, not on suppositions about what might be pleaded or proved in the future. The requirement that the parties put their "best foot forward" goes together with the requirement that the motion judge "take a hard look at the merits of the action at this preliminary stage" to determine whether the moving party has succeeded in establishing that there is no genuine issue for trial.

[ 24 ] The Court of Appeal has recently provided guidance with respect to application of Rule 20 in Combined Air Mechanical Services Inc.et al v Flesch et al , 2011 O.J. No. 764 . The Court of Appeal observed that a judge, faced with a summary judgment motion, must focus on whether the case is one which does not require the trial process in the "interest of justice" and in a way that permits a fair and just adjudication of the dispute. The Court observed that "the motions judge must ask the following question: 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 trial? We think this "full appreciation test" provides a useful benchmark for deciding whether or not a trial is required in the interest of justice.

[ 25 ] The Court observed that, in some cases, it may be appropriate to determine the issues on a motion for summary judgment because the motion record is sufficient to ensure a just result can be achieved without a full trial. In others, it may be found that the record will not be adequate despite the specific tools now available to a motion judge hearing a summary judgment motion, including weighing the evidence, evaluating the credibility of the deponent, and drawing any reasonable inferences from the evidence.

[ 26 ] Where the evidence presented by the moving party prima facie establishes that there is no genuine issue for trial, a responding party to a summary judgment motion has an evidentiary burden to respond with evidence setting out specific facts that show there is a genuine issue requiring a trial and that the claim is one with a real chance of success if the responding party wishes to preclude the granting of summary judgment. Furthermore, even in circumstances where there is a factual controversy, a summary judgment may be granted where the controversy is not material.

[ 27 ] The Court, in Combined Air , supra. , described three categories of summary judgment motions. The first is where the parties agree that it is appropriate to determine an action by way of a summary judgment motion.

[ 28 ] The second category of summary judgment motions involves circumstances where a claim or defence has no possibility of success through lack of merit. The case of Canada (A. G.) v. Lamerman, 2008 SCC 14 , [2008] 1 S.C.C. 372, considered the importance of weeding out claims that have no chance of success. The Supreme Court of Canada held as follows:

The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims having no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial.

[ 29 ] The third category involves cases where it can be shown that there is "no genuine issue requiring a trial". This phrase reflects the aim of the civil justice system to provide a just result in disputed matters through a fair process. The motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case.

Negligence and liability

[ 30 ] Negligence and liability are in issue in this action. The defendants argue that the plaintiff is presumptively negligent for the accident and has done nothing to rebut that presumption, nor to establish negligence on the parts of either co-defendants. The plaintiff argues that the co-defendants are jointly and severally liable for the accident.

Negligence

[ 31 ] The definition of negligence was set out in the case of Ryan v Victoria (City), 1999 706 (SCC) , [ 1999] 1 S.C. R. 201, as follows:

Conduct is negligent if it creates an objectively unreasonable risk of harm. 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. The measure of what is reasonable depends on the facts of each case, including the likelihood of unknown or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.

[ 32 ] A plaintiff who sues for damages for personal injury allegedly caused by the negligence of the defendant, has the burden of proving the following: (i) that the defendant owed the plaintiff a duty of care; (ii) that the defendant fell below the standard of care required by law as a result of a foreseeable and unreasonable risk of harm created by the defendant’s act or omission; (iii) that the defendant's alleged negligent conduct, act or omission caused the injury to the plaintiff, and (iv) that such injury was not too remote a consequence of the breach so as to render the defendant not liable for its occurrence: Lawrence v Prince Rupert (City) and BC. Hydro & Power Authority, 2005 BCCA 567 .

[ 33 ] The elements of a breach of duty and of causation are separate issues of fact. Even if the plaintiff could prove that the defendant breached a duty of care, the plaintiff must still establish, on a balance of probabilities, that the defendant's breach caused or contributed to the plaintiff's damages.

[ 34 ] The plaintiff is not entitled to recover compensation under apportionment legislation in circumstances where his or her own negligence was the sole real cause of the accident. In these circumstances, the element of causation would be lacking: Lawrence v Prince Rupert (City) and BC Hydro & Power Authority, supra.

Relevant Statutes

[ 35 ] Statutory considerations under the Highway Traffic Act (‘the Act ) applicable to this matter are as follows.

[ 36 ] Pursuant to section 130 of the Act , every person who drives a vehicle without due care and attention or without reasonable consideration for other persons using the highway is guilty of an offense of driving carelessly.

[ 37 ] Section 158 of the Act stipulates that the driver of a vehicle must not follow another vehicle more closely than is reasonable and prudent having due regard for the speed of the vehicle, the traffic and the conditions of the roadway.

[ 38 ] As regards Chidhamparanathan, section 216 (1) of the Act provides that the driver of a motor vehicle that is signaled or requested to stop by a police officer, must immediately come to a safe stop, and that if the driver fails to do so, he or she is guilty of an offense.

[ 39 ] Canadian jurisprudence clearly indicates that when one vehicle strikes another from behind, the fault rests with the driver of the rear vehicle, and the driver of the rear vehicle has the onus of proving that the collision did not occur as a result of his/her negligence: Beaumont v Ruddy , [1932] O.J. No 51 (Ont.C.A.)

[ 40 ] In Ruez v Goetz, [1955] O.J. No. 296 , the Ontario Court of Appeal stated as follows:

When one motor vehicle is following another, there is not only a duty in law on the following vehicle to exercise reasonable care, but if he collides with the leading vehicle, there is an onus of proof resting on him which has been correctly described in Beaumont v Ruddy, [1955] OJ No 296 (Ont CA) .

[ 41 ] In Kosinski v Snaith , 1983 2130 (SK CA) , [1983] S.J. 663 (Sask. C.A.), the Saskatchewan Court of Appeal adopted the above reasoning, and went on to hold:

There is a clear and well defined standard of care imposed upon the driver of a vehicle which follows another. He must keep a reasonable distance behind the vehicle ahead; he must keep his vehicle under control at all times; he must keep an alert and proper outlook; and he must proceed at a speed which is reasonable relative to the speed of the other vehicle. He must anticipate that, for whatever reason, the vehicle ahead may stop. He need not anticipate the reason. He must proceed with that care which will enable him to avoid colliding with it.

[ 42 ] In Pryndik v Manju , 2001 BCSC 502 , the Court held that:

The operator of a motor vehicle, following other vehicles, should keep his vehicle under sufficient control at all times to be able to deal with emergencies such as the sudden stopping of a vehicle in the line of vehicles ahead and the telescope effect that results, as each successive driver attempts to bring his or her vehicle to a halt.

[ 43 ] The defendant submits that the facts raise a presumption of negligence on the part of the rear-ending plaintiff and that the documentary evidence, including the transcripts, fully satisfy the presumption and the plaintiff’s attempts to rebut the presumption. It is the position of the co-defendants that in order to dispel the presumption of negligence on the part of the plaintiff who rear-ended Marzan, the plaintiff must establish that he was not negligent in rear-ending the vehicle of Marzan and that the vehicles of Marzan and Chidhamparanathan, which were in front of him caused the motor vehicle accident. The plaintiff contests this and indicates that he need only establish a "scintilla of evidence" to displace the presumption of negligence.

[ 44 ] Counsel for the plaintiff asserts that there is a real issue for trial in respect of liability for the accident. I note that the plaintiff has not adduced any evidence other than the Motor Vehicle Accident Report and police Collision Notes, the transcripts of the Highway Traffic Act trial of his client, and the pleadings. He indicates that a motor vehicle accident re-construction report or engineering report would be provided at trial. Moreover, he has provided no evidence with respect to injuries allegedly sustained by the plaintiff, including medical and other reports, nor any evidence of damages suffered, although the Statement of Claim alleges that his client has not been able to work since the date of the accident. There is no evidence before me with respect to this allegation, nor any evidence to establish any issue for trial in this regard. With respect to the presumption of negligence, counsel for the plaintiff asserts that the presumption is rebutted by virtue of the fact that his client was not found guilty of the Highway Traffic Act charge.

[ 45 ] It is the position of counsel for Marzan that the plaintiff has not met the onus of establishing that the subject rear-end collision did not occur as a result of the plaintiff’s negligence as the party that rear-ended the vehicle in front of him. Furthermore, the plaintiff has failed to establish any negligence on the part of Marzan regarding the accident. Accordingly, counsel for Marzan asserts that there are no genuine issues that would require a trial involving Marzan and that summary judgment should properly be granted dismissing the plaintiff's claim as well as any cross-claims against Marzan.

[ 46 ] Counsel for Chidhamparanathan submits that in order for the plaintiff to be successful at trial, he must show on a balance of probabilities that the subject accident was caused not by the plaintiff in rear-ending Marzan, but was caused by the negligence of Marzan and Chidhamparanathan. Chidhamparanathan submits that there is no evidence to support the plaintiff's allegations and that all of the evidence adduced demonstrates that Chidhamparanathan acted in a lawful, reasonable and prudent manner. Chidhamparanathan asserts that on the whole of the evidence, the plaintiff has not proven on a balance of probabilities that Chidhamparanathan was negligent, nor has he proven that Chidhamparanathan caused or contributed to the subject accident. Counsel for Chidhamparanathan further submits that the plaintiff has also not met his onus of establishing that the subject accident did not occur as a result of his own negligence. Accordingly, Chidhamparanathan submits that there can be no genuine issue requiring a trial with respect to his involvement in the lawsuit, that there is no evidence to suggest that the subject accident occurred as a result of the negligence of anyone other than the plaintiff and that summary judgment should be granted and the plaintiff's claim and any cross-claims as against Chidhamparanathan should be dismissed.

Conclusion

[ 47 ] I am satisfied, based on all of the evidence adduced by the defendants, and relied on by the plaintiff, that the accident occurred as a result of the plaintiff following the vehicle of Marzan too closely to be able to respond to and deal with any emergencies or sudden stopping of vehicles ahead of him. He did not keep his vehicle under sufficient control in order to be able to stop when the vehicle of Marzan slowed to permit the first vehicle driven by Chidhamparanathan to pull over to the side of the road as directed by the police officer. Indeed, although the vehicle driven by Marzan did proceed with sufficient care and control to be able to respond to the slowing of the vehicle of Chidhamparanathan in front of him without colliding with it, Hatzitrifonos was unable to respond in sufficient time to avoid a violent impact with the car in front of him. He admitted that he did not “pick it up” until he was 2 to 5 feet from it and did not have the time to respond.

[ 48 ] I am satisfied, based on all of the evidence and the transcripts, that the co-defendants actions were proper, reasonable and necessary in the circumstances which confronted them. Their evidence was consistent with one another, with the Motor Vehicle Accident Report and police notes, and with the evidence given at the Highway Traffic Act trial. It was the failure of the plaintiff to maintain a reasonable distance, to remain vigilant with respect to the traffic in front of him and the potential for sudden stopping of the vehicles in front of him which caused the accident. He admitted in sworn testimony at examinations for discovery that he was unable to stop and avoid hitting the vehicle of Marzan as he was only 2 to 5 feet away from the vehicle ahead of him and was unable to apply his brakes in enough time to stop. He admitted that he did not have the time to react. Despite the fact that he testified that he saw the vehicles ahead of him when he was approximately three quarters of the way up the hill, and, as he approached, saw rear lights, but did not know whether they were brake lights, hazard lights or something else, he failed to apply his brakes in time or to slow down when he did see the lights in front of him and was unable to discern what they were or what situation confronted him. I am satisfied that the plaintiff was the author of his own misfortune. I am further satisfied that the plaintiff has failed to rebut the presumption of negligence against him as the car which rear-ended the vehicle ahead and caused the accident, and has failed to establish any negligence on the part of either of the co-defendants.

[ 49 ] I have considered all of the evidence adduced, the transcripts, and the guidance provided by the Court of Appeal decision in Combined Air, supra. A full appreciation of this matter can be had on the basis of the evidence before me and does not require the full machinery of a trial in order to make dispositive findings. I do not accept the plaintiff’s submissions regarding the complexity of the issues, conflicting evidence, or credibility. I accept the co-defendant’s submissions that the issues involved in this case are not complex, the evidence of the co-defendants is consistent with that of the Motor Vehicle Accident Report, the collision report and the police notes and that, while the plaintiff denies all of this evidence, including the correctness of the police reports and notes, a full appreciation of the case can be obtained from the documentary evidence and the transcripts of the parties without the need of the full machinery of a trial. I find that there is no genuine issue requiring a trial in all of the circumstances.

[ 50 ] I order that the motion for summary judgment be granted and the claims and cross-claims of the plaintiff be dismissed.

Costs

[ 51 ] The parties each submitted their bills of costs with respect to this matter. Taking in consideration rule 57.01 and the guidelines set forth therein for fixing costs, I award the co-defendants their partial indemnity costs, as submitted, for the co-defendant, Marzan, partial indemnity costs in the amount of $25,501.58 and for the co-defendant Chidhamparanathan, partial indemnity costs of $19,334.25. I note that the bill of costs submitted by the plaintiff in the total amount of $45,765, and, accordingly, the combined costs of the two defendants were within the reasonable expectation of the plaintiff. These amounts are to be paid by the plaintiff to the defendants within 60 days of the date of this decision.

Carole J. Brown J.

Date: July 4, 2012