ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 08-7057
DATE: 2012-10-02

B E T W E E N:

JULIET CLARKE, JUNIOR CLARKE, JAYLEN CLARKE, DANIELLE CLARKE AND DARREN CLARKE, minors under the age of 18 by their litigation guardian Juliet Clarke

Derek Wilson, Counsel for the Plaintiffs

Plaintiffs

• and -

DANIELLE ARENA, VINCENT GIAQUINTO, JOSEPH BRUCE BEGGS, ROBERT EVANS MCLEOD, SIRKKA PARTANEN, REINO PARTANEN, PETER DILLON, BRIAN ANDERSON, B&C ANDERSON HOLDINGS LTD., JOHN DOE, JANE DOE AND THE DOMINION OF CANADA GENERAL INSURANCE COMPANY

J. F. Fitzpatrick, Counsel for the Defendant The Dominion of Canada General Insurance Company / Moving Party
F. A. DeSantis, Counsel for the Defendant Joseph Bruce Beggs and Robert Evans McLeod / Responding Parties
No one else opposing

Defendants

HEARD: October 2, 2012

REASONS FOR RULING

Campbell J.

[ 1 ] This is a motion for summary judgment by the defendant, The Dominion of Canada General Insurance Company (Dominion) dismissing all claims and cross-claims against it and for costs. The defendants Joseph Bruce Beggs and Robert Evans McLeod (Beggs) oppose the motion. No other party opposes.

[ 2 ] This proceeding arises as a result of a multi-vehicle M.V.A. that occurred on the 401 on November 24, 2006. The accident ultimately involved five vehicles (or six, if Beggs is to be believed) and was precipitated by the plaintiff’s Lexus being hit from behind by another vehicle, then spinning out of control and striking the other vehicles.

[ 3 ] The issue for this motion is whether the first contact between two of the vehicles occurred as a result of Mr. Beggs hitting Ms. Clarke from behind as he was changing lanes or whether, as he asserts that a mystery vehicle (that none of the other five witnesses agree existed) was the primary at-fault vehicle which hit the Clarke Lexus, thus causing her to hit him and three other vehicles.

[ 4 ] Although there are certainly discrepancies in some of the evidence that all of the other witnesses offer (including, for example, some disagreement or vagueness regarding the color of certain vehicles involved), it is incontrovertible that four of the five witnesses identify Mr. Beggs as the driver and his car (a white Pontiac Grand-Am or other such model) as the vehicle that initially rear-ended Ms. Clarke’s Lexus, thus setting in motion the events that caused the injuries and the damages that ensued.

[ 5 ] Only Mr. Beggs’ disagrees that it was not him or his vehicle that was at fault. Only Mr. Beggs saw the unidentified, mystery car that he says is at fault. However, he cannot identify the make, model, color, shape or type (sports car / SUV / pick-up / sedan / van / etc.), nor can he help with the description of the driver or whether anyone else occupied the unidentified vehicle or any particulars whatsoever – other than his self-serving assertion that the white car / Pontiac that all of the other drivers directly or indirectly implicate was not him or his vehicle. Some of the witnesses positively identify him as the driver of the white Pontiac. Others identify his vehicle as the at-fault vehicle. His vehicle had damage to the front of his vehicle only, which damage is consistent with the other four witnesses’ evidence.

[ 6 ] Although one witness recalls (four years after the event) that the damage to the Beggs vehicle was to the right front, as opposed to the left front (as it is now established was the location of the actual damage), I am not persuaded that that obvious error is sufficient a discrepancy to allow this action to go to trial against the insurer of the unidentified John / Jane Doe alleged driver(s) of the Beggs’ ‘mystery car’.

[ 7 ] I have considered that amendments to Rule 20 (in force since 2010) and the case law that has been decided since then, including:

Valemont Group Ltd. V. Philmor Goldplate Homes Inc., 2010 ONSC 1685 (S.C.J.) at para. 30

Healey v. Lakeridge Health Corp., 2010 ONSC 725 (S.C.J.) at para. 23

Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (C.A.) at para. 36

[ 8 ] I am encouraged by various portions of the Combined Air decision ( supra ) to consider when exercising my discretion, whether a trial of this liability issue is required in the interest of justice. As that case directs, I am to decide whether the “full appreciation” of the evidence and issue(s) that is required to make dispositive findings can be achieved by way of summary judgment or can that “full appreciation” only be achieved after a trial.

[ 9 ] In this case, all relevant parties and witnesses have been examined under oath and many have also sworn affidavits which also offer their evidence. No new evidence from these essential witnesses would be forthcoming at trial and such a trial may be months or years hence.

[ 10 ] Counsel have been very thorough in their preparation of this motion (and the two other motions heard and decided simultaneously today), I have all of the evidence specific to Mr. Beggs’ version of the event and the unanimous evidence that rebuts his story from the four other primary witnesses. Thus, the motion record(s) offer all that the court needs and that a trial judge would receive and is/are more than a sufficient basis from which a “full appreciation” of the evidence and issue can be gleaned.

[ 11 ] The case law allows that I may weigh all of the evidence before me, evaluate credibility and draw reasonable inferences that flow from the extent of the evidence.

[ 12 ] On balance and after allowing for the (small) discrepancies in some of the evidence from all five primary witnesses (Clarke / Beggs / Arena / Dillon and Partanen), I am satisfied that Mr. Beggs’ rendition of the event and his denial of any involvement in the initial precipitating event has very little, if any, chance of being believed or accepted by any trier of fact, be it a jury or a justice of this court. (See Guarantee Co. of North America v. Gordon Capital Corp., 1999 664 (SCC) , [1999] 3 S.C.R. 423 (S.C.C.), at para. 27 ; New Solutions Extrusions Corp. v. Gauthier, 2010 ONSC 1037 (S.C.J.) at para. 12 )

[ 13 ] I find that Mr. Beggs’ version of events, in the face of the mountain of relatively internally consistent evidence identifying him and his vehicle as the at-fault-vehicle is too incredible or unbelievable to require a trial of this issue (ie. his liability for causing the accident chain of events). A trial of whether he was involved at the outset of the accident is entirely unnecessary and would consume resources, time, effort and finances that could be better directed to other deserving issues in this case or causes of action.

[ 14 ] I find that if I were to have allowed this particular issue to proceed to trial, the result is predictable, inevitable and a waste of scarce court facilities and personnel. There is no question in my mind that Mr. Beggs would be found at least 1% at fault for this accident. (See Libbetter v. Saieva et al. (1987) 1986 2743 (ON SC) , 57 O.R. (2d) 157)

[ 15 ] Accordingly, the motion is granted with costs to the moving party.

[ 16 ] If counsel cannot agree on the issue of costs, I will accept brief written submissions (less than 4 pages with the usual costs brief) from Mr. Fitzpatrick within 30 days herefrom. Mr. Desantis may briefly respond in less than 3 pages within 15 days thereof.

G. A. Campbell J.

Released: October 2, 2012

COURT FILE NO.: 08-7057
DATE: 2012-10-02

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: JULIET CLARKE, JUNIOR CLARKE, JAYLEN CLARKE, DANIELLE CLARKE AND DARREN CLARKE, minors under the age of 18 by their litigation guardian Juliet Clarke Plaintiffs - and – DANIELLE ARENA, VINCENT GIAQUINTO, JOSEPH BRUCE BEGGS, ROBERT EVANS MCLEOD, SIRKKA PARTANEN, REINO PARTANEN, PETER DILLON, BRIAN ANDERSON, B&C ANDERSON HOLDINGS LTD., JOHN DOE, JANE DOE AND THE DOMINION OF CANADA GENERAL INSURANCE COMPANY Defendants REASONS FOR RULING Campbell J. GAC // dm

Released: October 2, 2012