COURT FILE NO.: C-2346/13
DATE: 20131021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BRIANNA GLOVER by her Litigation Guardian, Jody Livingstone-Glover and JODY LIVINGSTONE-GLOVER personally
Plaintiffs
– and –
ALEXANDRE GORSKI, GUY G. MORIN, WILLIAM DAY CONSTRUCTION LIMITED, JESSE J. VALYEAR and WASTE MANAGEMENT OF CANADA CORPORATION
Defendants
James M. Ross, for the Plaintiffs.
Zlatina Georgieva, for the Defendants Jesse J. Valyear and Waste Management of Canada Corporation.
No other parties appearing.
HEARD: October 17, 2013
gauthier, j.
Overview:
[1] The Defendants Jesse J. Valyear and Waste Management of Canada Corporation (“the WM Defendants”) seek an Order for summary judgment, dismissing the action as against them pursuant to Rule 20.01(3).
[2] The Defendants Gorski, Morin, and William Day have taken no position on the motion.
Facts:
[3] There are few if any facts in dispute, and I have borrowed liberally from the Factum of each party in this recitation of the facts.
[4] The action arises out of a pedestrian-vehicle collision which occurred on Highway 144, involving Brianna Glover, on January 11, 2011.
[5] Brianna Glover was attempting to cross the road at the time of the collision, to get to her school bus stop.
[6] Highway 144 at or immediately preceding the site of the collision has three lanes: an eastbound lane, a westbound lane, and a centre turning lane. When she was struck, Brianna Glover was in the centre lane.
[7] The WM vehicle was stopped on the north side of the road, to collect waste from 14 Main Street. The front bumper of the WM vehicle was aligned with the western edge of the driveway to 14 Main Street. The WM vehicle was occupying a portion of the westbound lane.
[8] Brianna Glover was struck by a tractor-trailer driven by Alexandre Gorski as that vehicle drove by the WM vehicle in the centre turn lane.
[9] At the time of the accident, WM was performing its waste collection duties, pursuant to a contract between itself and the City of Greater Sudbury whereby WM would provide waste collection services for the City.
The Test for Summary Judgment:
[10] Summary Judgment shall be granted if the court is satisfied that there is “no genuine issue requiring a trial”.
[11] The court must be satisfied that “full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record-as may be supplemented by the presentation of oral evidence under rule 20.02(2.2)”. See Combined Air Mechanical Services Inc. v. Flesch, (2011), 2011 ONCA 764, 108 O.R. (3d) 1, [2011] O.J. No. 5431 (Ont.C.A.)
WM’s Position:
[12] The only issue relating to the alleged liability of WM is whether those Defendants were contributorily negligent in causing the accident. In order to be successful in establishing liability against WM, the Plaintiffs have to prove that the WM vehicle was stopped in a negligent manner, which contributed to the accident.
[13] There are no disputed facts with regard to WM’s involvement in the accident: the position of the WM vehicle at the relevant time, and the statement of Brianna Glover that “there was only one vehicle involved in this accident, I was struck by one vehicle”, are undisputed.
[14] The Defendant Gorski violated the Rules of the Road by moving past the WM vehicle by way of the centre lane and striking Brianna Glover.
[15] The WM Defendants met their standard of care. The WM vehicle was stopped at the only reasonable location possible so as to execute their duties in picking up the waste, and did not create any risk or danger for other drivers.
[16] As well, it was not possible for the WM vehicle to be stopped in any other position than it was at the time of the accident, in order to carry out the waste collection responsibilities.
[17] In carrying out their duties under the contract with the City, the WM Defendants were “acting under the instructions of an officer and/or employee of the City, and were agents of the City themselves. Thus, the WM Defendants are immune from the present suit under s. 448(1) of the Municipal Act. The WM Defendants’ conduct arose from ‘an act done in good faith in the performance or intended performance’ of duties under the Municipal Act, or by-laws passed under it.” See paragraph 24 of the moving parties’ Factum.
[18] Given the above, there is no genuine issue requiring a trial and the WM Defendants are entitled to summary judgment dismissing the Plaintiffs claim and all cross-claims against them.
The Plaintiff’s Position:
[19] The motion is premature and should be either dismissed or stayed until the ordinary discovery process has been completed.
[20] To date, no Affidavit of Documents has been filed by the WM Defendants or the other Defendants. Oral discoveries as between the parties have yet to be held. The Plaintiffs have not been provided with any statement that Gorski might have made about the events around the accident. The case requires full production and oral discoveries to meet the full appreciation test.
[21] In responding to the motion without the above steps having been taken, the Plaintiffs are unable to “put their best foot forward” as required on such a motion.
[22] The Highway Traffic Act provides for a reverse onus in this case; WM and the other Defendants have the burden of establishing that their conduct did not cause or materially contribute to the accident and alleged damages of the Plaintiff.
[23] The section of the road where the collision occurred is a part of the King’s Highway and its use is regulated by the Highway Traffic Act. There are two posted signs in the vicinity of where the collision occurred: one prohibits passing and the other prohibits stopping. The WM vehicle was stopped in contravention of the Highway Traffic Act.
[24] Insofar as the suggestion that the WM Defendants are immune from liability by virtue of the Municipal Act, the Plaintiffs respond that the WM Defendants were independent contractors and therefore s. 448 of the Municipal Act does not apply.
[25] Additionally, the WM Defendants contracted out of any protection afforded to them by virtue of the Municipal Act. By virtue of the contract, WM assumed responsibility for damages for any neglect, misfeasance or nonfeasance on the part of WM and agreed to indemnify the City for any claims against the City in consequence of WM’s performance of the work under the contract.
[26] The negligence relates to the WM Defendants’ breach of the Highway Traffic Act standards and not to their waste collection.
Analysis:
[27] A summary judgment motion requires both parties to “put their best foot forward” to show that there are no issues in dispute that require a trial, or that there are issues in dispute that require a trial.
[28] The Summary Judgment Rule provides that a responding party may not rest solely on the allegations or denials in its pleadings, but must set out specific facts showing that there is a genuine issue requiring a trial. Rule 20.02(2).
[29] At this stage of the action, the Plaintiffs do not have any evidence available to them from the Defendant Gorski, the driver of the vehicle that struck Brianna Glover. This means that they do not have such information as (a) why the Gorski vehicle entered the centre turn lane, from the westbound lane, (b) what Gorski’s line of sight was when he moved into the centre turn lane, (c) what, if any, obstruction of his view was caused by the placement of the WM vehicle, or, put another way, whether the placement of the WM vehicle obstructed Gorski’s view of any pedestrians possibly moving from the north shoulder of the roadway, across the westbound lane, into the centre turn lane, in order to cross all three lanes of highway, and (d) when did Gorski become aware of Brianna Glover’s presence on the roadway.
[30] I accept the Plaintiffs’ submission that, without the opportunity of examining Gorski and obtaining the information outlined above, they are not in a position to “put their best foot forward” as required by the Rule.
[31] That being the case, it is reasonable to suggest that the motion is premature.
[32] The onus on a summary judgment motion is on the moving party to satisfy the Court that the interests of justice do not require a trial of any genuine issue.
[33] In this case, there is the additional burden of disproving negligence, by virtue of the provisions of section 193(1) of the Highway Traffic Act:
When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.
[34] Depending on the evidence of Gorski, it is possible that the WM Defendants may be found partially liable for the accident and the damages sustained by Brianna Glover. If Gorski’s line of vision was obstructed by the WM vehicle, while it was parked in contravention of the No Stopping sign, such a finding is possible.
[35] The suggestion that there was no other way for the WM Defendants to discharge their duties under the waste removal contract but to park the vehicle as Valyear did, does not mean that there is no issue about a possible risk to other users of the highway being caused by the manner in which the vehicle was parked.
[36] Turning to the Municipal Act arguments, I am not able to determine the applicability of the Act with certainty on the record before me.
[37] Firstly, the immunity provided for in Section 448(1) depends on the existence of a master-servant relationship between the City and WM. While the WM Defendants argue that they acted as agents for the City and for this reason are shielded from liability (s. 448 of the Municipal Act), there is a real issue about whether those Defendants were agents as opposed to independent contractors.
[38] The determination of whether a contractor will legally be considered an “agent” for liability purposes is a factual determination that will depend on the degree of control exercised by the municipality over the contractor, among other factors. See Eisert v. Rural Municipality of Martin No. 122, and Rural Municipality of Silverwood No. 123, [1955] S.J. No. 63.
[39] The WM Defendants did not provide evidence or arguments for what kind of control the municipality exercised over their activities. They simply stated that they were acting on the instructions of a City officer or employee.
[40] There is no evidence to establish that the City directed WM on how to park its vehicles when picking up waste.
[41] Actually, the evidence on this point is that there is a Waste Management Policy whereby trucks are to be parked so as to “maintain control of the lane”. Affidavit of Jesse J. Valyear, paragraph 10.
[42] The conduct complained of does not relate to the discharge of the waste collection duties in furtherance of the contract between WM and the city, but rather to the manner in which the WM Defendants breached their duty of care under the Highway Traffic Act. The vehicle was stopped or standing, in contravention of clearly posted No Stopping or No Standing sign.
[43] The party claiming the benefit of a statutory exemption or exception, must establish clearly that the party comes within the terms of the exemption. See Sullivan’s Construction of Statutes.
[44] Even if the immunity provision applies to the WM Defendants, they contracted out of it: they willingly assumed the risk of liability to third parties when they accepted the contractual terms of responsibility for damage and for indemnification.
Conclusion:
[45] I am unable to conclude that the Plaintiffs have no chance of success on the issue of possible partial liability as a result of the manner in which the WM vehicle was parked, nor, that the Plaintiffs have no chance of success in showing that the WM Defendants are not immunized from any civil liability which would ordinarily flow from their negligent conduct by virtue of section 448(1) of the Municipal Act. There is a genuine issue requiring a trial.
[46] Accordingly, the motion for Summary Judgment is dismissed. If the parties are unable to agree on costs, they are to communicate with the Trial Coordinator, within twenty (20) days of this Ruling, to set a date and time to argue costs, failing which there shall be no order as to costs. The costs hearing, if any, can be by way of teleconference call.
Madam Justice L. L. Gauthier, J.
Released: October 21, 2013
COURT FILE NO.: C-2346/13
DATE: 20131021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BRIANNA GLOVER by her Litigation Guardian, Jody Livingstone-Glover and JODY LIVINGSTONE-GLOVER personally
Plaintiffs
– and –
ALEXANDRE GORSKI, GUY G. MORIN, WILLIAM DAY CONSTRUCTION LIMITED, JESSE J. VALYEAR and WASTE MANAGEMENT OF CANADA CORPORATION
Defendants
RULING ON MOTION FOR
SUMMARY JUDGMENT
GAUTHIER, J.
Released: October 21, 2013