ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-383220
DATE: 20120822

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NASH WOODBURY, a minor by his Litigation Guardian, Tracy Lillico and TRACY LILLICO Plaintiffs (Responding Party) – and – ROBERT WOODBURY and LANCE FRASER HAMILTON Defendants (Moving Party)

Stacey Stevens, Counsel for the Plaintiffs

Philip Polster, Counsel for the Defendant, Lance Fraser Hamilton

HEARD: August 21, 2012

ENDORSEMENT

ELLIES, J.

Overview

[ 1 ] Mr. Hamilton moves for summary judgment dismissing the plaintiffs’ claims against him for damages resulting from a tragic boating accident which occurred on August 11, 2007. On that date, nine-year-old Nash Woodbury was riding on an inner tube being pulled behind a boat which was being operated by the other defendant, Robert Woodbury, when the tube crashed into the side of a boat being operated by Mr. Hamilton. Mr. Hamilton had three adult passengers in his boat, namely his wife and another couple by the name of Mr. and Mrs. Witherspoon. When the accident occurred, the Hamilton boat had just drawn a tow rope tight to which was attached a tube upon which three children were waiting to go for a ride.

[ 2 ] Mr. Woodbury has been noted in default of delivering a statement of defence, thereby admitting the allegations of negligence made against him, pursuant to the Rules of Civil Procedure. There is no doubt that Mr. Woodbury is responsible for this accident. The issue in this motion is whether it can be said that Mr. Woodbury is entirely responsible. Mr. Hamilton argues that there is no evidence before this court of any negligence on his part.

Issues

[ 3 ] This motion raises the following issues, in my view:

(a) What is the evidentiary basis upon which the motion is to be decided?

(b) On that evidence, is this a case where there is no chance of success at trial?

(c) If not, is this a case where a trial is not required in the interests of justice?

[ 4 ] For the following reasons, I would dismiss the motion and require the matter to proceed to trial.

Upon what evidence is the motion to be decided?

[ 5 ] In support of the relief requested, Mr. Hamilton has filed a sworn affidavit, together with attachments to which I will refer again shortly, as well as affidavits sworn by Mr. and Mrs. Witherspoon. In response, the plaintiff has filed a brief affidavit on the part of an expert, Duane MacInnis, a professional engineer and the founder of a forensic engineering firm by the name of “MEA Forensic Engineers and Scientists”.

[ 6 ] No examinations for discovery have yet been conducted in this action and none of the affiants referred to above were cross-examined on their affidavits.

[ 7 ] Appended to Mr. Hamilton’s affidavit are the following documentary attachments:

(a) A copy of the “Technical Marine Collision Investigative Report” prepared by the Ontario Provincial Police. This report was generated as a result of the accident. It includes copies of the investigating officer’s notes, witness statements, and photographs. The report also contains a conclusion that the accident occurred as a result of Mr. Woodbury operating his vessel in a careless manner. This conclusion led to a charge against Mr. Woodbury, contrary to section 43 of the Canada Shipping Act .

(b) A copy of the transcript of what occurred at the trial of that charge (the “OCJ trial”). The transcript contains the sworn evidence of the investigating police officer, Mr. Hamilton and Mr. Witherspoon. The transcript reveals that the charge was dismissed on the basis of weak identification evidence, after the presiding justice of the peace refused to allow the prosecutor to call a witness, who was in attendance for the defence, for the purpose of identifying Mr. Woodbury as the operator of the Woodbury boat.

(c) Photographs of the scene, marked by Mr. Hamilton with an “X” to show the location of the tube which was attached to his boat at the time of the accident and the general vicinity in which the collision occurred.

[ 8 ] In my opinion, the marine collision investigative report has no evidentiary value on this motion. None of the statements in it are sworn and none of the people expressing opinions in it have filed affidavits. Therefore, I have not considered the investigative report in arriving at my conclusion with respect to this motion.

[ 9 ] The transcript of the trial, however, stands on a different footing. Pursuant to section 5 of the Evidence Act, an original of the transcript is admissible in these proceedings. Although the attachment to Mr. Hamilton’s affidavit is not an original, I am prepared to accept it as an authentic copy.

[ 10 ] Lastly, I turn to the MacInnis affidavit. In that affidavit, Mr. MacInnis expresses his opinion that the accident could have been avoided if Mr. Hamilton either let his boat drift or put it into neutral. However, I am satisfied on the evidence before this court that the boat was in neutral at the time of the collision.

[ 11 ] It is my view that the MacInnis affidavit has evidentiary value on the motion only with respect to the issue of causation, in the sense of providing some evidence that, had Mr. Hamilton reversed his boat, the Woodbury tube may not have hit it. The report does not address the issue of whether Mr. Hamilton should have done that, and rightly so, as Mr. MacInnis is an engineer, not a boating expert. Therefore, the MacInnis affidavit is of no value with respect to the issue of negligence.

[ 12 ] For these reasons, I base what follows on the contents of the sworn affidavits filed by the moving party, the photographs attached to the affidavit of Mr. Hamilton, and the trial transcript.

Is this a case where there is no chance of success at trial?

[ 13 ] In Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 , our Court of Appeal identified two types of cases where summary judgment may be appropriate, in addition to those where the parties agree to having the case decided in that fashion. The first type are cases where there is no chance of success. These are the kinds of cases that were weeded out under Rule 20 as it read prior to the amendments made on January 1, 2010 pursuant to which judges were not permitted to weigh evidence, evaluate credibility, or draw inferences.

[ 14 ] In my view, this is not such a case. There is a significant inconsistency between the sworn evidence given by Mr. Hamilton in the affidavit submitted to this court and the sworn testimony he gave before the justice of the peace in the OCJ trial. In his affidavit, Mr. Hamilton swore that, once the children were into the tube behind his boat, he slowly moved the boat “parallel to the shoreline (to the north) to tighten the rope before departing” (see paragraphs 9 and 24). If this is true, Mr. Hamilton’s boat would have been aligned in an east-west direction, parallel to the dock used by the children to get onto the tube.

[ 15 ] At the OCJ trial, however, Mr. Hamilton swore that he moved his boat in a “straight north” direction and that his boat would have been as far out into the bay as the length of dock that extended from the shore, combined with the length of the tether rope attached to his boat.

[ 16 ] This inconsistency is significant, in my view, because, on the version given during the trial, the Hamilton boat would have been driven further into the bay in which this accident occurred, rather than remaining as close as possible to the dock from which the children got on to the tube. By pointing his boat north, if that is what he did, Mr. Hamilton put his boat further into the path of any boat using the bay.

[ 17 ] Mr. Hamilton also testified at the OCJ trial that he had been boating on Rice Lake for two years and that the bay in which this accident occurred is used a lot for tubing because it is a nice bay. Based on the evidence he gave at trial, Mr. Hamilton knew that the bay is not a particularly big one. He estimated that it was 1000 feet across from east to west, and that the bay extended no more than 2000 feet from the shore north towards the middle of the lake.

[ 18 ] In my view, on the evidence adduced in the motion, it would be open to a judge or a jury at trial to find that Mr. Hamilton was negligent in either moving his boat towards the centre of the bay or in failing to notice the Woodbury boat earlier, or both. The question now becomes, is a trial necessary to make that determination. In my view, it is.

Is a trial necessary in the interests of justice?

[ 19 ] The second type of case identified by the Court of Appeal as appropriate for summary judgment are those in which the motion judge can fully appreciate the evidence such as to be in a position to make findings that dispose of the litigation. Where this is the case, the motion judge may then weigh evidence, make findings of credibility and draw reasonable inferences from that evidence. Regrettably, I do not feel I am in a position to do that.

[ 20 ] There is no doubt that Mr. Hamilton and the other adults in his boat did everything they could possibly do to bring their presence to Mr. Woodward’s attention. I would not find Mr. Hamilton liable for failing to put the engine into reverse when there were children on a tube in the water behind it. However, I believe that the interests of justice require a trial in order to determine whether the Hamilton boat should have been where it was at the time of the collision and why the Woodbury boat was not noticed until a matter of seconds before the accident. A fuller appreciation of the circumstances existing at the time is required to arrive at a proper verdict in this respect.

Conclusion

[ 21 ] For these reasons, the motion is dismissed. However, I believe it was reasonable for Mr. Hamilton to bring the motion and my conclusion has not arisen from any shortcoming on his part with respect to the evidence adduced in support of it. For this reason, I would not award costs to either party.

Ellies, J.

Released: 20120822

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: NASH WOODBURY, minor by his Litigation Guardian, Tracy Lillico and TRACY LILLICO - and - ROBERT WOODBURY and LANCE FRASER HAMILTON REASONS ON MOTION Ellies, J.

Released: 20120822