ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-400553
DATE: 20120717

BETWEEN:

Kevin Sousa Plaintiff – and – Harshavardhan Jahagirdhar and Telly Lengkey and Robby Kuhon and Unifund Assurance Company Defendants

D. Himelfarb and B. Lui , for the Plantiff

A. Feldbloom and E. Kim, for the Defendants, Telly Lengkey and Robby Kuhon
J. Shaw, for the Defendant, Unifund Assurance Company
Harshavardhan Jahagirdhar, Self- Represented Defendant

HEARD: June 27, 2012

J.S. O’Neill

REASON ON MOTION

[ 1 ] For the reasons which follow, I would allow the summary judgment motion of the Defendant Unified Assurance Company and dismiss the Plaintiffs claim and all crossclaims against this Defendant.

[ 2 ] I have reviewed carefully the transcript evidence of the Plaintiff and of the Defendant Telly Lengkey. Mr. Sousa was behind the said Defendant at the intersection in question. He described the movement of Harshavardhan Jahagirdhar’s vehicle as it proceeded south towards the intersection.

[ 3 ] The answers to question 722, 723, 766 and 767 establish that from the Plaintiff’s perspective, Harshavardhan Jahagirdhar’s vehicle gave no indication that it was going to stop at the intersection and that the vehicle was moving quickly.

[ 4 ] The question to, and answers given by the Defendant Telly Lengkey at paragraphs 21 to 26 of her transcript, in particular, establish those facts as set out and summarized at paragraphs 1-9 of the Moving Party’s Factum.

[ 5 ] Harshavardhan Jahagirdhar was not examined for discovery and did not appear on the motion. In his Statement of Defence he has pleaded that he traveled with caution through an amber light.

[ 6 ] The rules of the road governing the actions of the Defendant Harshavardhan Jahagirdhar and the Defendant Telly Lengkey are set out in the Highway Traffic Act . They are, more particularly, s. 141(5), s. 142(1) and s. 144(18) of the HTA.

[ 7 ] In accordance with the summary judgment rules, the parties on the motion before me have filed all the necessary documents to enable this court to make a full and knowledgeable assessment of the case, and of the issue before the court.

[ 8 ] The principles set out in the decision Combined Air Mechanical Service Inc v. Flesch 2011 ONCA 764 are applicable here. In my view, a full trial, at the cost of added delay and expense, is not necessary to determine whether, in this accident, the Defendant Telly Lengkey is at least 1% responsible for the collision and resulting damages.

[ 9 ] The right of way that this Defendant enjoyed ought not to have been asserted by her on the basis of solely an assumption. She was aware of the presence of the oncoming south bound vehicle before it entered the intersection. In particular, she was not certain whether this vehicle would “try to cross the red light”, and it occurred to her that “...that car might not stop at the intersection.”

[ 10 ] I am not able to conclude, despite the able submissions of her counsel, that this was such a case of emergent circumstances, or such agony of the moment, that Telly Lengkey had no time or opportunity to take evasive or other actions. This argument is more particularly set out at paragraphs 42 and 43 of the Defendant’s Factum.

[ 11 ] On the basis of the evidence given under oath, after a series of numerous questions put to the Plaintiff and to the Defendant Telly Lengkey, I am satisfied that her decision to commence her actual left hand turn, under the circumstances in question, establishes at least some fault as against this Defendant.

[ 12 ] She had a heavy onus to assure herself that before turning into the path of approaching traffic, despite the presence of a red light facing the south bound driver, she could do so in safety. This she failed to do in this case.

[ 13 ] Accordingly, for these reasons, the within summary judgment motion is granted, and the Plaintiff’s action again the Defendant Unifund Assurance Company, and all applicable or related crossclaims are dismissed with costs.

[ 14 ] The Moving Party is entitled to its costs of the motion on the partial indemnity scale. If the parties cannot agree on these costs, they shall forward costs submissions (not to exceed 15 pages in length, inclusive of a bill of costs) to the Trial Coordinator at Parry Sound by August 3, 2012. The Trial Coordinator can be faxed at 705-746-6189.

[ 15 ] Order accordingly.

Justice J.S. O’Neill

Released: July 17, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Kevin Sousa Plaintiff – and – Harshavardhan Jahagirdhar and Telly Lengkey and Robby Kuhon and Unifund Assurance Company Defendants REASONS on motion Justice J.S. O’Neill

Released: July 17, 2012