COURT FILE NOS.: 04-CV-263151CM3
03-CV-255717CM1
DATE: 20121221
ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 04-CV-263151CM3
B E T W E E N:
KATHLEEN DUBOIS by her Litigation Guardian Jacques Dubois, JACQUES DUBOIS, MAUREEN DUBOIS and GINETTE DUBOIS
Plaintiffs
- and -
FORD CREDIT CANADA LEASING LIMITED and FORD CREDIT CANADA LEASING COMPANY
Defendants
Troy H. Lehman, for the Plaintiffs
Ian A. Mair and Colin M. Chant, for the Defendants
COURT FILE NO.: 03-CV-255717CM1
AND BETWEEN:
KATHLEEN DUBOIS by her Litigation Guardian Jacques Dubois, JACQUES DUBOIS, MAUREEN DUBOIS and GINETTE DUBOIS
Plaintiffs
- and -
DAVID WEAVER; GIPHTON GUNN; LAURI TOTHE-PARKER, carrying on business as THE RED DOG by her Trustee in Bankruptcy PADDON & YORKE Inc.; station hotel (acton) LIMITED and royal & sun alliance insurance Company of Canada
Defendants
Troy H. Lehman, for the Plaintiffs
Amir Fazel, for the Defendant Giphton Gunn
HEARD: November 13, 2012
SPENCE J.
REASONS FOR DECISION
[1] The moving defendants, Ford Credit Canada Leasing Limited, Ford Credit Canada Leasing Company and Giphton Gunn (collectively "the Gunn Defendants" and separately "Ford" and "Gunn"), seek an order for summary judgment under Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the basis that there is no genuine issue requiring a trial with respect to the claim of the plaintiff that Gunn was negligent in the motor vehicle accident that caused the damage for which she claims against the defendants.
[2] The plaintiff submits that there is a genuine issue for trial because the determination whether Mr. Gunn was negligent requires findings on a number of disputed facts in the face of conflicting evidence and these findings cannot be made without a trial and the full appreciation of the evidence which a trial will allow.
Overview
[3] On September 23, 2001, at dusk, Gunn was driving his leased Ford Ranger pick-up truck eastbound around a curved section of Highway 7. Another pick-up truck, a Ford F-150 operated by the defendant Weaver, travelling in the opposite direction, crossed over the centre line into Gunn's lane and sped toward Mr. Gunn. Gunn braked and steered left to avoid a collision, but at about the same moment, Mr. Weaver swerved right toward his proper lane and the two pick-up trucks collided, head-on.
[4] The plaintiff was a passenger in Mr. Gunn's vehicle, and sustained serious personal injuries in the collision, including a brain injury. Mr. Weaver was convicted of impaired driving causing bodily harm.
Summary of the Facts
[5] The motor vehicle accident occurred at about 7:35 p.m., or two or three minutes earlier, on September 23, 2001 on Highway 7 near Guelph, Ontario. The Plaintiff was a passenger in a Ford Ranger SUV being driven eastbound by Gunn, when Weaver, who was travelling westbound in his Ford F150 pickup truck, crossed the center line and collided with Gunn's vehicle.
[6] Cynthia Woods ("Ms. Woods") was travelling in the eastbound lanes of Highway 7 ahead of Gunn's vehicle just prior to the accident. As she came around a bend in the road, she saw Weaver's westbound vehicle approaching "quite fast" and veering over the centre line into her eastbound lane. Ms. Woods steered her vehicle to the right and Weaver passed "within a hair" of her vehicle, which, by that time, had moved halfway onto the unpaved shoulder. Ms. Woods further states that Weaver was continuing to veer further into the eastbound lanes at the time it narrowly missed her. A very short time thereafter, within seconds, Ms. Woods heard the impact between the Weaver and Gunn vehicles behind her. Ms. Woods stopped at the scene of the accident.
[7] The following additional facts are not in dispute as between the parties or their experts:
(a) that the accident occurred on a gradual horizontal 90 degree curve in the highway, which was a curve to the left in Gunn's eastbound path of travel and a curve to the right in Weaver's westbound path of travel;
(b) that Weaver had earlier been further into Gunn's lane, having forced Ms. Woods onto to the paved shoulder seconds before the accident;
(c) that there is no evidence that Gunn was driving in anything but an appropriate manner prior to being faced with the emergency posed by Weaver's vehicle; and
(d) that the accident occurred after the sun had set, but before it was completely dark, during a period commonly known as "dusk" and referred to in the experts' reports as "civil twilight".
[8] Expert evidence was provided by Mr. Williamson, an engineer, for the plaintiff, by Mr. Bigelow, an engineer, for Mr. Gunn and by Mr. Hrycay, an engineer, and Dr. Smiley, a human factors expert.
The Test on a Rule 20 Motion for Summary Judgment
[9] Rule 20.04(2)(a) provides that summary judgment shall be granted if the court is satisfied that there is "no genuine issue requiring a trial" with respect to a claim or defence. In determining whether there is a genuine issue requiring a trial, the court is to consider the evidence submitted by the parties and the judge may exercise any of the following powers for that purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
(1) Weighing the evidence;
(2) Evaluating the credibility of a deponent; and
(3) Drawing any reasonable inference from the evidence. (Rule 20.04(2.1))
[10] In Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, [2011] O.J. No. 5431 at paras. 40-44 ("Combined Air"), the Ontario Court of Appeal developed the approach to be taken in applying Rule 20.
[11] In cases where summary judgment is sought and it is contended that the trial process is not required in the interest of justice, the Court of Appeal, in Combined Air, supra, at paras. 50-51, developed the "full appreciation test":
In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion 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. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the "interest of justice" requires a trial.
[12] In deciding whether to grant summary judgment, the motion judge must consider if the case is one where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless a full appreciation of the evidence and issues is attainable on the motion record, the judge cannot be satisfied that the issues are appropriately resolved on a motion for summary judgment.[^1]
[13] The advantages and attributes of the trial process must be considered in applying the full appreciation test. The risk that a judge might misread or overlook evidence is far greater on a motion than at trial:
The trial judge is a trier of fact who participates in the dynamic of a trial, sees witnesses testify, follows the trial narrative, asks questions when in doubt as to the substance of the evidence, monitors the cut and thrust of the adversaries, and hears the evidence in the words of the witnesses...the trial judge is in a "privileged position" The trial judge's role as a participant in the unfolding of the evidence at trial provides a greater assurance of fairness in the process for resolving the dispute. The nature of the process is such that it is unlikely that the judge will overlook evidence as it is adduced into the record in his or her presence.[^2]
[14] In cases where there are divergent expert opinions and the credibility of the experts and their opinions is at issue, a trial will generally be required in order to fully appreciate the evidence. Di Tomaso J. made the following comments on a summary judgment motion heard earlier this year:
Upon my review of the record regarding the issue of liability, and upon application of the "full appreciation" test, I find that a genuine issue requiring a trial exists in this case. There is a divergence of expert opinion as to what type of signal pole would have been appropriate for the intersection....The divergence of expert opinions on this issue cannot be resolved by way of dispositive findings on a summary judgment motion.
...I come to the conclusion that the City has not satisfied its onus in proving that there is no genuine issue requiring a trial on liability. This issue requires a trial particularly where the credibility of [experts] on this crucial issue cannot be determined on a motion for summary judgment.[^3]
[15] The bar on a motion for summary judgment is high. The moving defendants bear the evidentiary burden of proving there is "no genuine issue requiring a trial".[^4]
The Admissibility of the Animation prepared by Ford
[16] The Plaintiff submits that it is apparent from the evidence of Dr. Smiley that "Mr. Hrycay's animation is far too dark and is misleading on the crucial issue of when Gunn should have been able to tell that Weaver was in the wrong lane".
[17] The Plaintiff also submits that "Weaver did not have to be nearly as far into Gunn's lane as Hrycay's analysis shows".
[18] The Plaintiff submits that the animation would be inadmissible in evidence at trial.
[19] Ford disputes the position taken by the Plaintiff. For the reasons set out below, the determination whether there is a genuine issue requiring a trial can be made without deciding whether the animation is admissible.
The Dispute about the Test for Negligence in Emergency Circumstances
[20] The Gunn Defendants submit, in essence, that the accident occurred in an emergency and that the law with respect to such an accident is such that, even if Gunn's turning left into the opposing lane was arguably not the best thing to do, he cannot be held to be negligent.
[21] The Plaintiff submits, in essence, that even if the accident occurred in an emergency, the applicable law requires the court to consider a number of contentious facts in this case which cannot properly be determined on this motion.
Whether the Accident Occurred in an Emergency
[22] The accident probably occurred two or three minutes after 7:30 p.m. Based on the report of Dr. Smiley from her field work on October 7, 2012, no more than a fraction of a second more than 4.17 seconds would have elapsed from the time Gunn should have seen Weaver in his lane until the impact of the collision.
[23] That period is the maximum time Gunn would have had to perceive the threat, to react to it by considering his options and to take evasive action. Less than that maximum time might have been available because of the effect of the curve in the highway.
[24] That means that he was compelled to take immediate evasive action, indeed virtually instantaneous action. That situation must constitute an emergency of the most extreme kind.
The Test for Negligence in an Emergency; the "Agony of Collision" Principle
[25] The submissions and the cases referred to identify different formulations of the test for negligence in an emergency.
[26] One formulation of the test is whether the driver was driving with the skill and care expected of a reasonable driver at the time and place in issue: Adams v. Cargill (2000), 109 A.C.W.S. (3d) 670 (Ont. S.C.J.), at paras. 23 and 24.
[27] The concluding phrase of that formulation should be taken to refer to all the circumstances of the emergency situation.
[28] The second formulation is set forth in the italicized portion of this passage from the decision Hogan v. McEwan (1975), 1975 643 (ON SC), 10 O.R. (2d) 551 (H.C.J.) at para. 29:
In reaching this conclusion I find that the emergency and the resulting accident were created by the dogs running onto the highway; the emergency was not created or contributed to by McEwan. In the circumstances he owed a duty to extricate himself and his passengers from the situation with safety if he could. Acting in such a situation not created by himself, his conduct is not to be judged by the standards involving deliberation and opportunity for careful and conscious decision. He is not negligent in such circumstances if he fails to adopt the best course in the light of hindsight ...
[Emphasis added] [Citations omitted]
This formulation expresses or reflects the "agony of collision" principle.
[29] The third formulation is set forth in Haase v. Pedro (1970), 1970 205 (BC CA), 21 B.C.L.R. (2d) 273 (B.C.C.A.), at para. 28:
If driver A so drives his car that it becomes out of control and goes on to the wrong side of the highway when a car driven by B in the opposite direction is approaching on its proper side and collision results, if A seeks to cast any portion of the blame upon B, A must establish that after B became aware, or by the exercise of reasonable care should have become aware of the danger created by A, B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and in such circumstances any doubts should not be resolved in favour of A, whose unlawful conduct was fons et origo mali.
[Emphasis original]
[30] This formulation is adopted in the Haase decision as a paraphrase of what the decision states is "the principle...stated by Cartwright J. in Walker v. Brownlee", which is cited in the decision as reported at 1952 328 (SCC), [1952] 2 D.L.R. 450 (S.C.C.).
[31] These formulations require comment. The second one, as stated in Hogan, is formulated in the negative: a course of action is not negligent because it is not "the best course of action". This might be regarded as a "relaxed" standard of care. But, viewed that way, it begs the question: how relaxed, how far short of the best is not negligence? The tenor of paragraph 29 of the decision does not suggest that since less than the best is required, the requirement for reasonable action ceases to apply.
[32] A fuller version of this formulation is expressed in McPhee v. Lalonde (1946), O.W.N. 373 (H.C.J.) at paragraph 1, as follows:
What I told the jury seems to me to be substantially in accordance with the following passages from the authorities:
Mere failure to avoid the collision by taking some extra-ordinary precaution does not in itself constitute negligence: the plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances. Per Viscount Hailsham in Swadling v. Cooper [1931] A.C. 1 at 9.
[33] The qualifying clause "unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances" indicates that the standard being enunciated here is not different from the one in the first formulation; it simply draws attention to the fact that in emergency circumstances the reasonably careful person may, without failing to be reasonably careful, not take the course that a reasonably careful person might take in circumstances that did not require a virtually immediate response.
[34] The third formulation, requires doubts about the reasonability of the action of the reacting driver to be resolved, in effect, against the driver whose unlawful conduct gave rise to the emergency.
[35] This statement of the test has been given in cases where the reacting driver and the other driver are the parties to the dispute. This is important because that is not the case on this motion. Weaver, the driver whose unlawful conduct gave rise to the emergency, is not a plaintiff; he is a defendant. The plaintiff is a person who was a passenger of the other defendant, Gunn.
[36] Consequently, if a doubt as to the reasonability of the conduct of Gunn were to be resolved in his favour simply because his conduct did not initiate the emergency, that would be adverse to an innocent party, the plaintiff.
[37] That fact raises a doubt about the fairness of applying this formulation in the present case.
[38] This fairness issue could be important with respect to the decision of Gunn to turn left into the westbound lane. It was not addressed by counsel in the hearing of this motion. While the fact that the plaintiff was a passenger of the reacting driver and was not the initiating driver was clear on the materials before the Court, no particular attention was drawn to it. If this case were tried, this fact might well be made salient in a way that has not happened on the hearing of this motion.
[39] The conclusion to be drawn from the above analysis is that the test to be applied is properly set out in the first formulation on the understanding that, as emphasized in the second formulation, a driver in the "agony of a collision" generated by an emergency, may properly be considered to have acted reasonably even though his conduct might not be considered reasonable if it had occurred in circumstances that offered a reasonable time for decision.
The Application of the Test
[40] The submissions of counsel refer to over 20 decided cases. The Tucker decision (see below) refers to about 10 more cases which it summarizes.
[41] Only one of the decided cases referred to, Greiss v. Roy Estate, [1998] O.J. No. 1019, is a summary judgment case.
[42] At paragraphs 14 and 15 of the decision, the Court said:
¶14 This is a matter for a trial judge to determine after he or she has heard all of the evidence. There is a genuine issue for trial as to the material fact whether an emergency situation existed at the time the third party Garas left the travelled portion of the road. The evidence of Ms. Dalrymple and her two statements will have to be weighed and considered.
¶15 In my view this is a genuine issue for trial that cannot be resolved by way of a summary judgment motion.
[43] For the reasons set out above, there is no issue for trial whether there was an emergency in the present case. That leaves the task of considering the features of the emergency situation and the accident itself which are relevant to the application of the test to the conduct of Gunn.
[44] As noted, the Gunn Defendants submit that the evidence about the relevant circumstances that is before the Court is sufficient for the Court to determine that there is no genuine issue requiring a trial.
[45] The Plaintiff's submission is to the contrary. In the Plaintiff's Factum at paragraph 78 on page 22, the plaintiff sets out what are said to be "many contentious issues [that need] to be determined in assessing Gunn's negligence".
[46] The Plaintiff submits that there is a genuine issue requiring trial relating to the claim against Gunn because there are many contentious facts to be determined, including issues arising from a conflict between the experts. Based on the reasons expressed by the Court of Appeal in Combined Air and by Di Tomaso J. in McHardy (Litigation Guardian of) v. Ball, 2012 ONSC 1095, [2012] O.J. No. 730 (S.C.J.), at para. 64-65, it is submitted that a trial is required because the credibility of the experts and the reliability of their opinions cannot be fully appreciated otherwise.
Evidence of the Gunn Defendants' Experts
[47] The experts for the Gunn Defendants all knew or ought to have known that the collision occurred during civil twilight. Nevertheless, they all initially offered opinions under the mistaken assumption that it was completely dark when the collision occurred, without taking any steps to analyze the lighting conditions.
[48] In his second report, Mr. Hrycay prepared an animation (or visualization) of the collision. He prepared the animation with a black sky. A still image from the animation shows that the animation would likely leave the viewer with the impression that the collision occurred at night.
[49] Until the final report of Dr. Smiley, the experts for the Gunn Defendants employed 3.5 seconds as the maximum lapsed time from the moment when Gunn should have perceived the Weaver vehicle in his lane to the point of impact. Mr. Williamson, the expert for the Plaintiff, accepted the time as determined by the Gunn Defendants. Mr. Williamson did not receive an opportunity to react to the final report of Dr. Smiley so the extent to which his evidence might have changed cannot be determined.
The Turn to the Left
[50] All of the defence experts comment on the reasonableness of Gunn's turn to the left.
Gunn Motion Record, Tab 3D, Report of Neil Bigelow dated March 30, 2009, p. 7 ("Gunn responded to the driving hazard created by the Weaver vehicle in a reasonable and prudent manner").
Ford Credit Motion Record, Vol. II, Tab 4C, Report of James Hrycay dated August 15, 2011, p. 9 (Gunn's decision was reasonable).
Ford Credit Motion Record, Vol. II, Tab 5B, Report of Dr. Alison Smiley dated January 5, 2011, p. 10 ("Mr. Gunn did as well as could be expected from a reasonably alert driver").
[51] Only Mr. Bigelow agreed on cross-examination that this was not something an expert should comment on:
Q. As an engineer, do you consider your role to comment on whether a driver has acted in a reasonable and prudent manner?
A. No.
Q. If you're acting as an independent expert, you should simply conduct your analysis and let the judge or the jury determine whether the parties acted in a reasonable and prudent fashion?
A. Absolutely.
[52] The Gunn Defendant experts assumed the accident occurred in "the dark" or "at night" when it actually occurred at civil twilight.
[53] In Wood v. Paget, (1938), 1938 212 (BC CA), 4 D. L. R. 325 (B.C.C.A.), the plaintiff turned to his left on a sharp curve to avoid a head-on collision with the defendant who was travelling on the wrong side of the road. At the same instant, the defendant turned out to his proper side of the road, with the result that the cars collided.
[54] The trial judge applied the "agony of collision" rule in favour of the plaintiff, and found the defendant solely liable for the accident. On appeal, Sloan J.A. found that the plaintiff's conduct was justified in the circumstances: Ford, in its Factum, quoted the following excerpt from the decision:
[I]n the agony of impending collision, he did the only thing he considered was left for him to do; swung his car to the clear side of the road. In my opinion the respondent cannot be held at fault if, at that moment, the appellant turned out to his proper side of the road. From the time both cars began to turn out the learned trial Judge has found, and I believe rightly so, that the accident was inevitable.[^5]
[55] The excerpted portion does not include the immediately preceding clause in the sentence from which the excerpt is taken. That clause states that the respondent (the plaintiff) "concluded the appellant was going to continue his course on the wrong side of the road" and the clause connects to the quoted excerpt with the words "and so", as set out in the next paragraph.
[56] The entire text of paragraph 25 is as follows:
When the two cars were approximately 30 feet apart it is my opinion, taking into consideration the circumstances of this case, that the respondent was not negligent at that point in not applying his brakes, for it is manifest to me that at that point he concluded the appellant was going to continue his course on the wrong side of the road and so, in the agony of the impending collision, he did the only thing he considered was left for him to do; swung his car to the clear side of the road. In my opinion the respondent cannot be held at fault if, at that moment, the appellant turned out to his proper side of the road. From the time both cars began to turn out the learned trial Judge has found, and I believe rightly so, that the accident was inevitable. [Emphasis added]
[57] In the present case, it is not the position of any party that Gunn had made such a decision about Weaver.
[58] In McPhee v. Lalonde (1946), O.W.N. 373 (H.C.J.) at para 1, the defendant was driving north when he observed the Plaintiff's automobile coming towards him in the opposite direction, "zigzagging" on the wrong side of the street. The defendant slowed, and at the last moment turned to the left to avoid the plaintiff's car. As he did the plaintiff's car swung to its right, and the cars collided at the centre line of the street.
[59] At trial, the jury apportioned liability at 20 per cent for the plaintiff, and 80 per cent for the defendant. The jury's decision was overturned on appeal, and the plaintiff's claim was dismissed. Writing for the High Court, LeBel J., at paragraph 5, held that:
... [T]here were no facts from which it might fairly and reasonably be inferred that Dr. Lalonde did wrong in the sense which creates legal liability... It is true that if the defendant had not turned left there would have been no accident, but the crux of the situation seems clearly to lie in the presence of the plaintiff's car on the wrong side of the road and in the failure of the plaintiff's driver to observe the defendant's car until the last moment. Dr. Lalonde could not then foresee that the plaintiff's car would suddenly veer to its right, and he was justified in making the move that he did in an effort to avoid a collision. If he were not so justified, then he must be excused because he was then in the agony of collision, or in the very short interval of time which precedes it.
[60] it is important to note that in the McPhee case, the vehicle which initiated the emergency was the vehicle of the Plaintiff. In the present case, the Plaintiff was a passenger in the vehicle of the reacting driver, so there is an issue that needs to be addressed whether the fairness consideration mentioned above in Haase and Walker can properly be invoked against her.
[61] The same observation applies with respect to the applicability of the decision in Neufeld v. Landry (1974), 1974 1271 (MB CA), 55 D.L.R. (3d) 296 (Man. C.A.) where the same fairness consideration was invoked against a party who was the initiating driver.
[62] The Plaintiff submits that Holizki Estate v. Alberta, [2008] A.J. No. 1360 (Q.B.) is a case in which a driver has been found to be negligent for steering left (into the wrong lane) in an attempt to avoid a head-on collision.
[63] The head note of the decision discloses there were material facts in that case that are not present on this motion. The following excerpt from para. 186 of the decision highlights that fact:
Even if this was an unusual situation, not of his own creation, the "mistake of going to the left was not a mere error of judgment, excusable in the circumstances. The actions of Ron McCabe are negligent and do not meet the standard required of any driver, let alone that of a professional driver. I have found that Mr. McCabe had two reactions to Andrew Fischer's presence in his lane; pulling off to the right as is the standard and then he changed his mind and pulled sharply to the left....A person's reaction to an emergency must continue to meet the standard of care of a reasonable and prudent driver in the circumstances which Mr. McCabe did not.
[64] There is no evidence in the present case that either driver was a "professional driver" or that Gunn "had two reactions...pulling off the right as is the standard and then he changed his mind and pulled sharply to the left".
[65] The Plaintiff submits that in Broadhead v. Ponich, 1948 567 (AB KB), [1948] A.J. No. 23 (S.C.), a driver who steered left in response to an opposing driver encroaching into his lane argued agony of collision but was found to be negligent, in part, for "turning to the left of the centre line". However, the Court found the reacting driver had ample time to avoid collision.
[66] In Tucker v. Asleson, [1991] B.C.J. No. 954 (S.C.), a defendant who steered to the left to avoid a vehicle encroaching into his lane was found to be negligent despite arguing agony of collision.
[67] In the decision of the Court of Appeal on the appeal of the other driver, the defendant Asleson, the decision of the Court below against Asleson was overturned: Tucker (Public Trustee of) v. Asleson (1993), 1993 2782 (BC CA), 78 B.C.L.R. (2d) 173 (C.A.). The Court of Appeal said that he had pulled over to his right. It appears he did so after an initial momentary steer to the left.
[68] Southin J.A., for the majority of the Court, identified the following options that were open to the defendant, who was in his own lane, confronting an oncoming driver who had crossed from the opposite lane:
- (i) to jam on his brakes, a manoeuvre which can cause a tractor-trailer to jack-knife;
(ii) to move into the south-bound lane, [i.e. to his left, across the line];
(iii) to drive off the road over the bank on his right;
(iv) to take, based on an assessment of where [the plaintiff] was going, evasive action and to slow down.
[69] Southin J.A. continued as follows:
The first manoeuvre, if the truck remained on the north-bound lanes, might well have endangered other north-bound vehicles travelling behind Mr. Asleson.
The second would have endangered other south-bound traffic ─ and Mr. Asleson could not know whether there was any other south-bound traffic ─ as well as caused a collision with Mrs. Tucker if she managed to regain her proper lane. I do not know how he was supposed to know that she could not or would not move to the right.
The third might well have caused him great injury. While that might be thought by some to be a noble act of self-sacrifice, I know of no authority requiring a law abiding driver to so act.
The fourth was the course he adopted.
[70] For the present case, what is important is the statement of Southin J.A. at paragraph 53, that, "The second [i.e. the option to pull to the left, into the southbound lane] would have endangered other south-bound traffic ─ and Mr. Asleson could not know whether there was any other south-bound traffic...", etc.
[71] In view of that comment, the circumstances of Gunn with respect to the option which he had (and took) of turning to the left needs to be considered in further detail.
[72] The turn to the left would have endangered westbound traffic if there was any. There is no suggestion that there was any westbound traffic. But whether Gunn could know whether there was any such traffic is the factor that is important for the purpose of determining whether the left turn was reasonable. Unless he could know there was no such traffic, he had reason to know that a left turn could create a danger. In the absence of submissions on this point, there is no evident way to make any inference about it.
[73] Gunn's turn to the left would foreseeably result in a collision with Weaver, if Weaver turned right, i.e. into the lane Gunn turned into. Gunn had no way to know whether Weaver would turn to his right, as opposed to continuing ahead without a swerve, or instead turning to his left. Gunn would reasonably have known that Weaver ought to turn right according to the Highway Traffic Act, R.S.O. 1990, c. H.8 and that he might do so.
[74] On the above analysis, Gunn had reason to know that if he turned to the left, that would create a risk of a collision.
[75] While he had reason to know that a turn would create the risk of a collision that does not determine the question whether, in the approximately 4.17 seconds available to him, he ought to have realized that that was so. This question is addressed below.
The Alternative: To Turn Right
[76] A turn to the right would have complied with the Highway Traffic Act, which the turn to the left did not.
[77] A turn to the right would not have created a danger of collision with anyone except Weaver, and then only if Weaver turned to his left. Prior to his swerve into the westbound lane, Weaver had moved toward the fogline of the eastbound lane. For this reason, it might be wondered whether he was seeking to go off the eastbound lane with a turn to his left. If he had done this, and Gunn had turned right, it is most likely that they would have collided.
[78] However, on the evidence, it cannot be concluded that Gunn had any greater reason to expect that Weaver would turn in one direction rather than the other.
[79] That means that the danger of collision that Gunn created by turning left was greater than the danger he would have created by turning right. The reason why that is so is the possibility of a collision with oncoming vehicles in the westbound lane.
The Terrain
[80] To the left of Gunn were the two lanes on the westbound side of the highway, and the northern shoulder of the highway.
[81] To the right of Gunn was the remainder of the lane he was in, which was slightly wider toward the side road to the south and the southern shoulder.
[82] If Gunn turned his mind to these facts, he could well have concluded reasonably that the terrain to the left looked safer than the terrain to the right because it allowed more paved space to receive the turn. However, such a conclusion would not have taken into account the risk of collision with oncoming vehicles in the westbound lane.
[83] Nothing in the evidence referred to by counsel suggested that Gunn might have formed a view of the terrain without also taking into account the collision risk in the westbound lane. Counsel did not raise the issue. That does not mean that counsel for Gunn would be precluded from arguing at trial that the Court ought to make an inference that that is what Gunn probably did. But without submissions on the point, there is no basis for such an inference in this motion.
Other Factual Disputes
[84] The analysis above addresses the following circumstances:
(a) the time that elapsed between the time when Gunn ought to have perceived Weaver in his lane and the time of impact;
(b) the comparative safety of a left turn and a right turn with respect to other vehicles; and
(c) the comparative safety of the terrain to the left of Gunn and the terrain to his right.
[85] The Plaintiff submits that there are many factual disputes that must be decided for the motion to be determined. The principal factual disputes raised by the Plaintiff are addressed above. It is not necessary to consider the other allegedly disputed factors. None of the other factual disputes would assist the Court in determining the question before the Court, in view of the analysis set out above of the circumstances that have been considered. The analysis shows that the issue to be resolved is whether Gunn was negligent in making the more dangerous turn to the left in the approximate 4.17 seconds available to him.
The Role and Powers of the Court in a Summary Judgment Motion under Rule 20.04
[86] Under Rule 20.04, the Court is required to grant summary judgment "if it is satisfied that there is no genuine issue requiring a trial with respect to [the claim of the Plaintiff]". (Rule 20.04(2)(a); emphasis added.)
[87] To make that determination, the Court is required to consider the evidence submitted by the parties.
[88] In making that determination, the judge may exercise the powers in Rule 20.04(2.1) unless it is in the interest of justice for that exercise to be done at trial.
[89] If "the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly" (Rule 20.04(4); emphasis added.). Rule 20.04 uses the word "may" in some places and "shall" in others, so "may" must be permissive, meaning that the court is to take all appropriate circumstances into account in deciding whether to exercise the powers.
Application of Rule 20.04
[90] Since Gunn had time to decide to turn left, he had time to decide to turn right.
[91] The issue that has been left unresolved in the above analysis is whether Gunn ought reasonably to have realized in the approximately 4.17 seconds he had available to perceive, react to and take action to avoid the oncoming vehicle, that if he turned left he would be creating a greater danger than he would by turning right. If not, he was not negligent and there is no issue that requires a trial.
[92] Whether Gunn ought to have realized the greater danger a left turn would create must depend in part on whether he would have been able to do so in the approximately 4.17 seconds available. The latter question is a question of fact.
[93] In preparing her report, Dr. Smiley relied on "path intrusion" studies, including a path intrusion study prepared by a researcher named Mazzae and others. In that study, a path intrusion was initiated 2.5 to 3 seconds prior to the point of impact. The drivers in this study had less time than Gunn to detect the path intrusion and react to it. Sixty percent of these distracted drivers were able to avoid the collision. These studies examined driver response to vehicles pulling out in front of them from an intersection to the driver's right. Dr. Smiley relied on these studies because there were no studies analyzing driver response to path intrusions on a curve. She concluded, based on the three path intrusion studies, that the perception-reaction time to respond to a path intrusion ranged from 1.0 to 2.0 seconds.
[94] This evidence suggests that Gunn would have been able, in the time available, to realize the greater danger a left turn would create.
[95] However, there is a further factor that might well be considered relevant and it is not necessarily well reflected in this path intrusion study. That further factor is the duress created by natural human fear in a real life situation such as Gunn faced (the "agony of collision") and the effect of that duress on the exercise of reasonable judgment. This point is important to the factual question whether Gunn, in such circumstances, would have been able to realize the greater danger a left turn would create.
[96] In the absence of further evidence in this latter regard, it is obvious that judgments made about that question could differ, but that does not make this factor irrelevant.
[97] If the claim of the Plaintiff in this case were to be determined at a trial, the trier of fact, whether a judge or a jury, would have the responsibility to determine the question of Gunn's ability in all of the circumstances.
[98] However, this motion is not a trial. The task of the motion judge is different. It is not to make findings of fact; it is to determine whether the Court is satisfied that there is no genuine issue requiring a trial.
[99] In view of the limited evidence on the factual question identified above and having regard to the different functions of a summary judgment motion and a trial, the interests of justice make it doubtful that this Court should draw an inference to determine this question. Consequently, I am not able to say that the Court is satisfied that there is no genuine issue requiring a trial.
[100] This conclusion is reinforced by the fact that there is a jury notice. There is no suggestion this case could be taken away from the jury at trial. That reinforces the view that to do so at this stage, considering the above analysis, would not be in the interests of justice.
[101] The rules relating to summary judgment have been carefully designed to protect the integrity of the judicial process, in which determination of issues by trial, where appropriate, is an essential feature. At trial, the facts may take on a different complexion through the sifting of the evidence during the trial process.
Conclusion
[102] For the reasons set out above, the Court is not in a position to grant summary judgment and the motion is therefore dismissed.
[103] Counsel may make written submissions about costs if that is necessary. In that event, the responding Plaintiff should make the first submissions within 30 days of the release of these reasons, with any responding submissions from the moving Defendants to be made within 15 days after the Plaintiff's, and any reply submissions within 15 days afterwards. It would be helpful if a copy of any submission could be sent by e-mail to my assistant.
Spence J.
Released: December 21, 2012
COURT FILE NOS.: 04-CV-263151CM3
03-CV-255717CM1
DATE: 20121221
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KATHLEEN DUBOIS by her Litigation Guardian Jacques Dubois, JACQUES DUBOIS, MAUREEN DUBOIS and GINETTE DUBOIS
Plaintiffs
- and -
FORD CREDIT CANADA LEASING LIMITED and FORD CREDIT CANADA LEASING COMPANY
Defendants
AND BETWEEN:
KATHLEEN DUBOIS by her Litigation Guardian Jacques Dubois, JACQUES DUBOIS, MAUREEN DUBOIS and GINETTE DUBOIS
Plaintiffs
- and -
DAVID WEAVER; GIPHTON GUNN;
LAURI TO THE-PARKER, carrying on business as THE RED DOG by her Trustee in Bankruptcy PADDON & YORKE Inc.; station hotel (acton) LIMITED and royal & sun alliance insurance Company of Canada
Defendants
REASONS FOR DECISION
Spence J.
Released: December 21, 2012
[^1]: Combined Air, supra, at para. 55 [^2]: Combined Air, supra, at paras. 47-48 [^3]: McHardy (Litigation Guardian of) v. Ball, 2012 ONSC 1095, [2012] O.J. No. 730 (S.C.J.), at paras. 64-65; Paul v. Oliver Fuels Ltd., [2012] O.J. No. 540 (S.C.J.), at para. 44 [^4]: Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11 [^5]: Wood v. Paget (1938), 1938 212 (BC CA), 4 D.L.R. 325 (B.C.C.A.) at para. 25