SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-09-383723

DATE: 2013-09-30

RE: ANNA CUCULLO, Plaintiff

v.

EMILIO BASSO, Defendant

BEFORE: CHIAPPETTA J.

COUNSEL:
A.F. Longo and R.K. McCartney, for the Plaintiff

Ashley P. Richards, for the Defendants Usselman

HEARD: September 17, 2013

ENDORSEMENT

Overview

[1] The Defendants Bruce Usselman and B.F. Usselman Management Specialists Inc. (the “Usselman defendants”) bring this motion for summary judgment pursuant to Sub-rule 20.04 of the Rules of Civil Procedure, RRO 1990, Reg. 194. They argue that there is no genuine issue requiring a trial in respect of the Usselman defendants’ liability. I disagree. For reasons outlined below I conclude it is not appropriate to exercise the powers in Sub-rule 20.04(2.1) to determine the issue of liability between the Usselman defendants and the defendant Emilio Basso (“Basso”). Rather, a full appreciation of the evidence and issues that is required to make dispositive findings on this issue can only be achieved by way of a trial, Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at para. 50.

Background

[2] The plaintiff commenced this action in respect of a motor vehicle accident which occurred on November 10, 2008 (the “Accident”). The accident involved four vehicles and was a chain-reaction rear-end collision. The first vehicle in the chain was driven by Basso. Mr. Usselman (“Usselman”) was the second vehicle in the chain. Mr. Yeum was the third vehicle and the plaintiff the fourth. The defendant Yeum have been released from the action.

[3] Basso was the only party charged pursuant to the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”). He pled guilty to the offence of failing to turn out to the left to avoid a collision contrary to s. 148(5) of the HTA. A $100.00 fine was imposed.

[4] Two personal injury claims were commenced arising out of the Accident; the within actions commenced by the plaintiff, Anna Cucullo and a second action commenced in Barrie by Usselman as plaintiff, Court File No. 10-0880. Basso is a defendant in both actions. By way of an order previously obtained, the actions are to be tried together.

[5] The plaintiff has taken no position in this motion for summary judgment. Basso opposes this motion. Basso has brought a motion returnable January 6, 2014 to amend his pleading and cross-claims against the Usselman defendants. The Usselman defendants will consent to the relief subject to their right to raise a limitation period defence.

Analysis

[6] The purpose of the amended Rule 20 is to eliminate unnecessary trials, not to eliminate all trials (Combined Air, supra, para. 38). In my view, given the record before me, the summary judgment process does not provide an appropriate means for affecting a fair and just resolution of the liability issues between Basso and the Usselman defendants.

[7] Considering the conflicting evidence and significant issues of credibility that present in this motion, for reasons set out below, I conclude that the interests of justice could only be served through the trial process.

[8] The Usselman defendants and Basso have conflicting statements in terms of how the accident occurred. Basso was only cross-examined in his affidavit’s in response to this motion. The conflicting statements support different theories of liability. The record lacks supporting evidence to sufficiently resolve the conflict.

[9] The conflict cannot be resolved in the written record, as may be supplemented by the presentation of oral evidence under Rule 20.04(2.2). I am therefore not satisfied that the issue of liability as between Basso and Usselman can be appropriately resolved on a motion for summary judgment. Usselman states that prior to the Accident he had turned left off Jane Street to Rutherford Road West into the left lane. After a short and safe period of time, he checked his rear view mirror, put his signal on, and moved into the middle lane where he stayed until the Accident occurred. He was travelling in the middle lane on Rutherford Road West for a quite a distance, approximately 20 to 30 seconds before the Accident occurred. He came to a full stop in front of a vehicle that was also at a full stop because the light at the intersection had turned red. He was at a full stop at the lights for at least two seconds up to ten seconds when he observed the Basso vehicle travelling at a high speed in the left lane of Rutherford Road West. The Basso vehicle then made an aggressive move to the right and made impact with the Usselman vehicle, causing the Usselman vehicle to be pushed into the plaintiff’s vehicle in front of him.

[10] Basso states that he had been travelling in Rutherford Road West for a couple of minutes in the middle lane. Usselman was driving beside him in the passing lane, talking on a cell phone, looking at some papers. Basso observed Usselman appearing to realize that he needed to make a lane change. As the Usselman vehicle passed him he made a fast lane change to the middle lane and cut him off, causing him to collide with the rear of the Usselman vehicle. When the impact occurred the traffic lights at the next intersection ahead of him were green. He does not know how long those lights had been green but does know that there was a Chinese gentleman in a car in front of the Usselman vehicle who was stopped. In his affidavit in support of this motion Usselman states that at no time during the approximately ½ km drive from where his journey began on Jane Street to just before the Accident was he talking on his cell phone.

[11] The Motor Vehicle Accident Report prepared by the investigating officer, P.C. Jeffrey Martin, placed the time of the accident at 13:58 p.m. The first page of the officer’s investigative notes, however, shows that he received the call regarding the Accident at 14:04 p.m. The Ambulance Call Report from the York County Hospital notes the ambulance crew received the call to attend the scene of this accident at 14:01 p.m.

[12] Usselman’s cell phone records from the date of this Accident show that at 13:56 p.m. he was on the phone. One minute later, at 13:57, he received a call. The duration is indicated to be one minute although the phone records appear to round the duration to the nearest minute. Three minutes later, Usselman received a further call, at exactly 14:00 p.m. If the evidence of P.C. Martin is accepted that the Accident happened at 13:58 p.m., then Usselman was on his cell phone in the minutes leading up to the Accident. This would corroborate in part Basso’s asserted observations of him and raise credibility concerns with Usselman’s theory of liability.

[13] Similarly, the record reflects credibility concerns with Basso’s sworn evidence. P.C. Martin’s notes record that Basso advised the police that a Porsche vehicle cut him off and that this Porsche left the scene. He did not identify the Porsche as Usselman’s at the time he was interviewed by P.C. Martin. Basso denies making this statement to P.C. Martin, however, at his examination for discovery and in his affidavit in response to this motion he states that the driver of the Porsche was later identified to him as Usselman.

[14] Usselman submits that Basso’s allegation that Usselman is liable is without merit and all of the necessary evidence in order to determine whether there could be any finding of liability on the part of the Usselman defendants is before this Court.

[15] I disagree. Basso’s allegation is only without merit if the Court accepts Usselman’s liability theory over Basso’s. The record before me indicates issues of credibility with Usselman’s evidence with respect to the use of his cell phone which, once determined, will impact the Court’s acceptance of his version of events. If Usselman’s credibility is successfully challenged, Basso may be successful in establishing that the collision did not occur entirely as a result of his negligence, independent of the fact that he struck Usselman from behind. The documentary evidence does not sufficiently satisfy the presumption of negligence against Basso. Usselman has failed to meet its burden that there is no genuine issue requiring a trial.

[16] Did Usselman cut Basso off? Was Usselman talking on his cell phone at any time prior to the accident? The answers to these questions are required to render a finding of liability but are not capable of being decided in the paper record before the Court. Nor would it be appropriate to exercise the power to order all evidence in the circumstances of this motion.

[17] In order to properly assess and experience the fact finding necessary to meet the full appreciation test referred to above, the Court would need to hear and observe firsthand the narrative evidence of Basso, Usselman, Mr. Yeum and P.C. Martin. The summary judgment would effectively become a trial on liability. This is outside of the discretion granted to me pursuant to Rule 20.04(2.2), Combined Air, supra, at para. 60.

Conclusion

[18] The paper record demonstrates issues of credibility for each of Usselman and Basso, sufficient to doubt the truthfulness of their respective theories of liability. While Usselman appears to have the stronger theory of liability upon consideration of the totality of evidence, I am unable to accept his affidavit evidence outright given the conflict on the record regarding his cell phone use.

[19] In my view, the trier of fact, upon hearing and observing the oral evidence of Basso and Usselman in the context of the trial process, will be “in a far better position than am I to resolve the credibility issues” and render a finding of liability, Daber v. Southbram Holdings Ltd., 2013, ONSC 5423, para. 31, 32.

Disposition

[20] The Usselman plaintiffs have failed to meet the onus upon them of demonstrating that there is no issue requiring a trial. The motion is therefore dismissed.

Costs

[21] The parties have agreed that the successful party shall be entitled to its costs of this motion, fixed at $7,500.00. Costs are therefore awarded to Basso, payable by the Usselman plaintiffs fixed at $7,500.00 payable forthwith.

CHIAPPETTA J.

Date: September 30, 2013