ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-CV-399005
DATE: February 6, 2012
BETWEEN:
Christopher Broomfield, Meghan Broomfield, a minor by her Litigation Guardian, Christopher Broomfield, Justin Broomfield, a minor by his Litigation Guardian, Christopher Broomfield, Keanna Broomfield, a minor by her Litigation Guardian, Christopher Broomfield, Shannon Wiens, Carl Weins and Carol Weins
Plaintiffs
- and -
Rodger Doidge, Litigation Administrator of the Deceased Dawn Suzanne Kernaghan, John Vadeboncoeur, 9105-0609 Quebec Inc. and Trans-Luthi Inc.
Defendants
COUNSEL:
• Ari C. Krajden for the Defendant Rodger Doidge, Litigation Administrator of the Deceased Dawn Suzanne Kernaghan
• David S. Young for the Defendants Vadeboncoeur, 9105-0609 Quebec Inc. and Trans-Luthi Inc.
HEARING DATE: January 25, 2012
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[ 1 ] In this motor vehicle fatal injury case, the defendant Rodger Doidge, the Litigation Administrator of the Deceased Dawn Suzanne Kernaghan alleges that the co-defendant, John Vadeboncoeur was negligent. It this is true, then the defendants 9105-0609 Quebec Inc. and Trans-Luthi Inc. would be vicariously liable as the owners of the vehicle driven by Mr. Vadeboncoeur.
[ 2 ] Mr. Vadeboncoeur, 9105-0609 Quebec Inc., and Trans-Luthi Inc. deny any liability, and they bring a motion for a summary judgment dismissing the claim and the crossclaim. They submit that there is no genuine issue for trial about Mr. Vadeboncoeur’s innocence from wrongdoing.
[ 3 ] The Plaintiffs Christopher Broomfield, Shannon Wiens, Carl Wiens, and Carol Wiens and the minor Plaintiffs Meghan, Justin, and Keanna Broomfield do not oppose the dismissal of their action against Mr. Vadeboncoeur, 9105-0609 Quebec Inc., and Trans-Luthi Inc.
[ 4 ] The opposition comes from the crossclaiming defendant, Mr. Doidge, the litigation administrator for the late Mrs. Kernaghan. He submits that there are genuine issues for trial and that a jury could reasonably find that Mr. Vadeboncoeur was negligent.
[ 5 ] For the reasons set out below, I disagree, and, therefore, I grant summary judgment dismissing the action and the crossclaim against Mr. Vadeboncoeur, 9105-0609 Quebec Inc., and Trans-Luthi Inc.
B. FACTUAL BACKGROUND
[ 6 ] There is no genuine issue for trial about certain facts that are uncontested.
[ 7 ] On January 13, 2009, Mr. Vadeboncoeur was travelling northbound on County Road 28 in the Township of Cavan-Monoghan in the County of Peterborough, Ontario. The road conditions were bad. The pavement was icy, snowy, and slippery. There were strong gusts of wind.
[ 8 ] Mr. Vadeboncoeur was driving a 2007 International tractor with attached trailer owned by the Defendants 9105-0609 Quebec Inc. and Trans-Luthi Inc. Although the road conditions were bad, Mr. Vadeboncoeur was familiar with the road, and he was having no difficulty controlling his vehicle. He was travelling between 60 and 70 kilometres per hour, which was below the designated speed limit of 80 kilometres per hour.
[ 9 ] About 300 feet behind Mr. Vadeboncoeur’s tractor-trailer was a van driven by Kent McIImoyle, in which Justin Lywood was a passenger. The McIImoyle vehicle was, in turn, being followed by a vehicle driven by Kevin R. V. Casteels, who was about 984 feet (300 metres) behind the tractor-trailer.
[ 10 ] Messrs. McIImoyle, Lywood, and Casteels all signed witness statements after the accident.
[ 11 ] While Messrs. Vadeboncoeur, McIImoyle, Lywood, and Casteels were travelling northbound on Road 28, Mrs. Kernaghan was travelling southbound in her 2006 Honda. Mrs. Michelle Broomfield was a passenger in the Kernaghan vehicle.
[ 12 ] Mr. Vadeboncoeur first noticed the Kernaghan vehicle at a distance of about 1,640 feet (500 metres) away, and he noticed that it was zigzagging within its lane. In his road trip, he had not observed any other vehicles having difficulty maintaining control, but Mr. Vadeboncoeur initially thought that the Honda was starting to go out of control, but then Mr. Vadeboncoeur thought that the driver had regained control.
[ 13 ] In any event, Mr. Vadeboncoeur took his foot off the accelerator, and the tractor-trailer, which was moving up a hill, slowed down.
[ 14 ] The vehicles continued forward, and both stayed in their respective driving lanes on the hill, until the gap between them was about 30 feet, when the Honda, which was coming down the hill, suddenly swerved into the tractor-trailer’s lane.
[ 15 ] Mr. Vadeboncoeur did not honk, but he swerved the tractor-trailer slightly to the right towards the shoulder of the road. This manoeuver was unsuccessful in avoiding a collision. There was a crash, after which Mr. Vadeboncoeur applied the brakes, but his vehicle went into the shoulder of the road and flipped onto its side. The Kernaghan vehicle went into the ditch on the other side or the road. Mrs. Kernaghan and Mrs. Broomfield died in the accident.
[ 16 ] Messrs. McIImoyle, Lywood, and Casteels all saw the accident, and they all stated that they observed the tractor-trailer attempting to avoid hitting the Honda. Messrs. McIImoyle and Lywood said that the tractor-trailer applied the brakes. Mr. Casteels stated that he did not observe the truck doing anything wrong. Mr. McIImoyle stated that the tractor-trailer did not have a chance.
[ 17 ] On March 12, 2010, Mrs. Broomfield’s husband Christopher, her children Meghan, Justin, and Keanna, her parents Carl and Carol Wiens, and her sister Shannon Wiens commenced this action.
[ 18 ] Mr. Vadeboncoeur, 9105-0609 Quebec Inc., and Trans-Luthi Inc. delivered their defence in July 2010.
[ 19 ] A statement of defence and counterclaim on behalf of the late Mrs. Kernaghan was delivered in September, 2010.
[ 20 ] Mr. Vadeboncoeur was examined for discovery in January 2011.
[ 21 ] Mr. Vadeboncoeur asked to be let out of the action. When Mr. Doidge refused the request, Mr. Vadeboncoeur brought this motion for a summary judgment dismissing the claim and the crossclaim.
C. DISCUSSION
[ 22 ] The Ontario Court of Appeal’s recent judgment in Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 about the summary judgment rule does not change the law that on a motion for summary judgment, the court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties respectively will present at trial: Dawson v. Rexcraft Storage & Warehouse Inc. , 1998 4831 (ON CA) , [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 814 (ON CA) , 18 O.R (3d) 481 (C.A.); Papaschase Indian Band No. 136 v. Canada (Attorney General) , 2008 SCC 14 , [2008] 1 S.C.R. 372 (S.C.C.) at para. 11 ; Saltsov v. Rolnick 2010 ONSC 914 at paras. 43-44 (Ont. Div. Ct).
[ 23 ] The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 255 (Gen. Div.) ; Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 7979 (ON SC) , 28 O.R. (3d) 423 (Gen. Div.), affd [1997] O.J. No. 3754 (C.A.) .
[ 24 ] In 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 1686 (ON CA) , 21 O.R. (3d) 547 at para. 35 (C.A.), Justice Osborne stated: “a respondent on a motion for summary judgment must lead trump or risk losing”. The responding party may not rest on the allegations or denials in the pleadings but must set out in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.
[ 25 ] Mr. Vadeboncoeur has presented evidence that suggests that he did not nothing wrong. Everybody agrees that he stayed in the northbound lane, where his vehicle had the right of way, and that it was Mrs. Kernaghan’s vehicle that suddenly went out of control and crossed into the wrong lane.
[ 26 ] In Hussain v. Uddin , [2005] O.J. No. 1466 (S.C.J.) , Justice Day noted at paras. 17-19 that there is a prima facie presumption that when a driver crosses over into another’s driving lane, the driver is negligent.
[ 27 ] In the case at bar, there is evidence of Ms. Kernaghan’s negligence but no evidence and only argument to support the allegation that Mr. Vadeboncoeur by act or omission did anything wrong. It is conceded that no additional witnesses or evidence will be provided at a trial and there is no suggestion that Mr. Vadeboncoeur is lying; nevertheless, Mr. Doidge, for the late Mrs. Kernaghan, submits that a jury might be persuaded that Mr. Vadeboncoeur was negligent if it heard the witnesses and had an opportunity to see Mr. Vadeboncoeur being cross-examined.
[ 28 ] The problem, however, with this submission is that it does not address the test for a summary judgment, which is whether there is an issue requiring a trial. The test is not whether the issue could be tried by a trial judge or trial jury. The test for granting a summary judgment focuses on whether as a matter of procedural fairness and substantive justice, the action should be tried by a trial judge or jury. That an issue could be decided by a jury does not mean that it needs to be tried by a jury.
[ 29 ] I see no need for a trial. Applying the full appreciation test from Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 , I can accurately weigh and draw inferences from the evidence presented on this motion for summary judgment without the ability to hear the witnesses speak in their own words and the assistance of counsel to understand the trial narrative.
[ 30 ] The argument on this very motion very quickly became a purely legal argument about similar cases where drivers found themselves in the circumstances of Mr. Vadeboncoeur. Mr. Doidge’s own argument approximated a cross-motion for summary judgment that the evidence showed or could show that Mr. Vadeboncoeur was negligent. I, however, disagree that that finding can be made on the evidence.
[ 31 ] Of the full appreciation test, the Court stated in Combined Air at paras 51-52:
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.
In contrast, in document-driven cases with limited testimonial evidence, a motion judge would be able to achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Similarly, the full appreciation test may be met in cases with limited contentious factual issues.
[ 32 ] I am satisfied that I can afford Mr. Doidge’s procedural fairness and do substantive justice for the parties by granting the motion for summary judgment.
D. CONCLUSION
[ 33 ] For the above reasons, I grant the summary judgment motion and dismiss the action and crossclaim against the Defendants Vadeboncoeur, 9105-0609 Quebec Inc., and Trans-Luthi Inc.
[ 34 ] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Mr. Vadeboncoeur’s submissions within 20 days from the release of these Reasons for Decision followed by Mr. Doidge’s submissions within a further 20 days.
Perell, J.
Released: February 6, 2012
COURT FILE NO.: 10-CV-399005
DATE: February 6, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Christopher Broomfield, Meghan Broomfield, a minor by her Litigation Guardian, Christopher Broomfield, Justin Broomfield, a minor by his Litigation Guardian, Christopher Broomfield, Keanna Broomfield, a minor by her Litigation Guardian, Christopher Broomfield, Shannon Wiens, Carl Weins and Carol Weins
Plaintiffs
- and -
Rodger Doidge, Litigation Administrator of the Deceased Dawn Suzanne Kernaghan, John Vadeboncoeur, 9105-0609 Quebec Inc. and Trans-Luthi Inc.
Defendants
REASONS FOR DECISION
Perell, J.
Released: February 6, 2012