ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NOS.: 800/10 & 801/10
DATE: 20130917
B E T W E E N:
Pamela Singh and Patricia Singh
William A. G. Simpson, for the Plaintiffs
Plaintiffs
- and -
Tanya Ann Tattrie, Kimberley Inniss and Patrick Dwyer
Caley Ross, for the Defendant, Tanya Ann Tattire
Crista L. Rea, for the Defendants, Kimberley Inniss and Patrick Dwyer
Defendants
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Graham Gerken
William A. G. Simpson, for the Plaintiff
Plaintiff
- and -
Tanya Ann Tattrie, Kimberley Inniss and Patrick Dwyer
Caley Ross, for the Defendant, Tanya Ann Tattire
Crista L. Rea, for the Defendants, Kimberley Inniss and Patrick Dwyer
Defendants
HEARD: July 24, 2013
LEITCH J.
[1] These two actions relate to a motor vehicle accident in which a vehicle driven by Ms. Tattrie made a left turn directly in front of a vehicle driven by Ms. Inniss which was owned by Mr. Dwyer.
[2] The defendants, Ms. Inniss and Mr. Dwyer bring a motion for summary judgment in each of the actions seeking orders dismissing the actions and cross-claims against them.
[3] The plaintiffs take no position on these motions provided costs are not sought against them. It was confirmed at the hearing that no costs were sought against the plaintiffs. Accordingly, the only opposition to the motion was by Ms. Tattrie who asserts that Ms. Inniss was also negligent and bears some liability for the accident.
Background Facts Relating to the Accident
[4] The vehicle driven by Ms. Inniss was proceeding through the intersection on a green light. Ms. Tattrie was in the process of moving her vehicle during a break from her employment at a nearby financial institution, was turning left at this intersection. According to her affidavit, filed in response to this motion, she observed two pedestrians crossing the intersection she was turning into as well as the Inniss vehicle as it approached the intersection from the opposite direction.
[5] Specifically, Ms. Tattrie, deposed in relation to the Inniss vehicle that she observed the front headlights of the Inniss motor vehicle “dip downwards” indicating to her that the vehicle was decelerating before reaching the intersection. As the Inniss vehicle neared the line where it normally would be required to stop, Ms. Tattrie described the headlights on the Inniss vehicle dipping down a second time. She deposed that this second dip was more pronounced than the first and that the Inniss vehicle came to a near stop, if not a full stop. She continued to wait for the Inniss vehicle to signal its intention and even gave it an extra few moments, as the operator seemed to be confused about whether she was making a turn or whether she was proceeding through the intersection.
[6] Therefore, according to Ms. Tattrie, the Inniss vehicle appeared to be either paused or possibly stopped, and she therefore commenced her turn at the intersection. The Inniss vehicle, however, subsequently collided with the rear quarter panel of the Tattrie motor vehicle.
[7] The two pedestrians crossing the intersection, Mr. Gerken and Ms. Pamela Singh, were struck by the Tattrie vehicle and they are plaintiffs in these actions.
[8] Ms. Tattrie was charged under s. 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 for failing to ensure her left hand turn could be safely made. That section provides as follows:
The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.
[9] Without consulting counsel, Ms. Tattrie subsequently pled guilty to a charge under s. 141(5) of the Highway Traffic Act which provides as follows:
No driver or operator of a vehicle in an intersection shall turn left across the path of a vehicle approaching from the opposite direction unless he or she has afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision.
The Applicable Law on this Motion
[10] These motions are pursuant to Rule 20.04(2)(a) which provides that a court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim.
[11] The Rules are now clear that in determining whether there is a genuine issue requiring a trial, the motions judge shall weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence.
[12] In Combined Air Mechanical Services Inc. v. Flesch (2011), 2011 ONCA 764, 108 O.R. (3d) 1 (C.A.), the Court of Appeal indicated that a motions judge must have a full appreciation of the evidence and issue before concluding that there is no genuine issue requiring a trial.
The Evidentiary Issues on the Motions
[13] Counsel for Ms. Tattrie appropriately noted that the moving defendants had provided only an affidavit from counsel and had not filed an affidavit from Ms. Inniss. The police report and witness statements from a third party, Ms. Inniss, and Ms. Tattrie, were appended as exhibits to counsel’s affidavit. As I indicated at the hearing of the motion, these unsworn statements can be accorded little weight.
[14] The motion record of the moving defendants raised another evidentiary issue because it contained the transcripts of the examinations for discovery of Ms. Inniss and Ms. Tattrie. Rule 39.04(2) prohibits a party from using his or her own examination for discovery as evidence on a motion, although a party may use the examination for discovery of an adverse party under Rule 39.04(1). The policy reason for this rule is particularly exemplified on a motion for summary judgment because a moving party seeking success in the action should not be insulated from cross-examination on their evidence: see Lana International Ltd. v. Menasco Aerospace Ltd., 2000 16845 (ON CA).
[15] Therefore, the moving defendants could not rely on the transcript of Ms. Inniss’ examination for discovery on these motions. I have not considered the excerpts from Ms. Inniss’ examination for discovery referenced in the factum of the moving defendants.
Position of the Moving Parties
[16] The moving defendants emphasize the heavy onus on a driver making a left-hand turn and the obligation to turn into the path of approaching traffic only after assuring the turn can be completed safely: see Payne v. Lane, [1949] O.J. No. 65 (Ont. H.C.J.), at para. 7.
[17] The moving defendants further note that the Supreme Court of Canada has stated that a driver is prima facie negligent if that driver’s vehicle is “in a position where it has no right to be” at the time of the accident: see Gauthier Co. v. Canada, 1945 40 (SCC), [1945] S.C.R. 143 as cited recently in Younes v. Nikzad, 2010 ONSC 2488 at para. 12.
[18] The position of the moving defendants is that Ms. Tattrie bears all liability for the accident and, accordingly, their summary judgment motions ought to be granted.
[19] Counsel for the moving defendants relies on the right of way afforded to Ms. Inniss by the green light; Ms. Tattrie’s guilty plea to the charge under s. 141(5); and, Ms. Tattrie’s evidence on discovery that she took a chance and made a turn in front of oncoming traffic based upon her impression that the Inniss vehicle appeared to be slowing because the headlights dipped.
The Position of the Responding Party – Ms. Tattrie
[20] Counsel for Ms. Tattrie asserted that the moving defendants have failed to put their best foot forward as required on a summary judgment motion by failing to file evidence from those with first hand knowledge.
[21] He addressed Ms. Tattrie’s guilty plea and suggested that her plea can be explained and that it should not prevent her from defending a negligence claim in these civil actions.
[22] Further, he asserted that a properly instructed jury may find some liability on Ms. Inniss. He referred to Ms. Tattrie’s observation of the dipping of the headlights of the vehicle driven by Ms. Inniss, suggesting that brakes were being applied and that the vehicle was slowing down or stopping as described in Ms. Tattrie’s responding affidavit.
[23] Counsel for Ms. Tattrie also pointed out that according to Ms. Inniss’ evidence on discovery, she did not see the Tattrie vehicle in the intersection waiting to make a left turn even though it was plainly visible:
- Q. And when you first saw this vehicle what specifically did you see?
A. I just saw this mass of dark vehicle directly in front of me. It was like it came out of nowhere.
- Q. And you at that point didn’t know whether it was a vehicle that had turned in front of you or a vehicle that had been going westbound on Queens?
A. My first impression was it was coming from Queens but it had run a red light but after when I noticed it had turned after the collision then I sort of pieced it together that it must have been making a turn.
[24] Referencing that evidence and the evidence of Ms. Tattrie, counsel for Ms. Tattrie contended that Ms. Inniss was negligent for failing to keep a proper lookout and for not anticipating that another vehicle may make a left turn should she hesitate or significantly delay in proceeding through a green light.
[25] Therefore, according to counsel for Ms. Tattrie, there is a genuine issue for trial with respect to the question of whether it was reasonable for Ms. Tattrie to turn in front of a vehicle that had come to a near stop.
Analysis and Conclusions
[26] Although Ms. Tattrie pled guilty to making an unsafe turn, for the purposes of these motions, I find that the fact that she is now denying liability in a civil action does not involve a re-litigation of the Highway Traffic Act offence such that an abuse of process would be occasioned: see Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Shah v. Becamon, 2009 ONCA 113, 308 D.L.R. (4TH) 80.
[27] An operator of a motor vehicle must exercise at all times the same manner of caution as might be expected in like circumstances of a reasonably prudent driver taking proper precautions to guard against such risks which might reasonably be anticipated to arise from time to time as she proceeds along the road.
[28] Before starting to turn left and while making the turn, Ms. Tattrie was required to use such precaution as would satisfy a reasonably prudent person acting under similar circumstances that the turn could be made safely.
[29] Counsel for Ms. Tattrie acknowledged the heavy burden placed on a driver making a left turn across the path of oncoming traffic. There is sworn affidavit evidence from Ms. Tattrie that she inferred that Ms. Inniss did not intend to proceed through the intersection given her observation of the Inniss vehicle slowing down to a near stop. Ms. Tattrie put her best foot forward in response to the summary judgment motions.
[30] In contrast, the evidence from the moving defendants is limited and in fact there is no evidence from Ms. Inniss. Rule 20.01(3) requires supporting affidavit material or other evidence when a defendant moves for summary judgment dismissing a claim. Rule 20.02(1) referencing r. 39.01(4) permits such an affidavit to be made on information and belief, if the source of the information and the fact of the belief are specified in the affidavit. Rule 20.02(1) also provides that the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.
[31] An associate with the law firm acting on behalf of the moving defendants filed the affidavits in support of these summary judgment motions. In several paragraphs of his affidavit, he simply stated that he was attaching the pleadings and the police report. In other paragraphs he outlined “evidence” of an independent witness, Ms. Inniss, and Ms. Tattrie, referencing a copy of each of their witness statements provided to the London Police that were attached as exhibits to his affidavit.
[32] This deponent had no firsthand knowledge of the accident. His expressions of belief were limited. He indicated that he was advised by counsel for the moving defendants and verily believed that Ms. Inniss attended at the hearing respecting the charges faced by Ms. Tattrie as required by a Summons to Witness, and that Ms. Tattrie pled guilty to the charge under s. 141(5) of the Highway Traffic Act. He also stated that he verily believed that neither of the moving defendants bear any liability for the accident; that notwithstanding best efforts, Ms. Inniss was rendered incapable of avoiding the accident by reason of the emergency caused by Ms. Tattrie making an unsafe left turn; and, that in admitting fault under section 141(5), Ms. Tattrie created an unreasonable risk of harm and failed to exercise due diligence in execution of a left hand turn.
[33] I am satisfied that the moving defendants have not met their legal burden of demonstrating that there is no genuine issue that requires a trial considering the evidence of Ms. Tattrie. Instead, I find there is a genuine issue requiring a trial – that is, whether Ms. Inniss contributed in any way to the accident. Putting it another way, I cannot conclude that there is no chance that a trier of fact will find that Ms. Inniss bears some responsibility for the accident.
[34] For the foregoing reasons, the motions for summary judgments are dismissed. If the issue of costs cannot be resolved, counsel may make brief written submissions on costs within the next 30 days.
“Justice L. C. Leitch”
Justice L. C. Leitch
Released: September 17, 2013