ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Denis Gladu
Plaintiff
– and –
John Hearn and Michelle Klimosko
Defendants
(Responding Parties)
– and –
James Mason, for the Plaintiff
R. Truax, for the Defendants (Responding Parties)
Phillip Eugene Gladu
Third Party
(Moving Party)
I. Corneil, for the Third Party (Moving Party)
HEARD: December 4, 2013
DECISION ON MOTION FOR SUMMARY JUDGMENT
Overview
1The Defendant, John Hearn, and the Third Party, Phillip Gladu, were the drivers of vehicles involved in a car accident. The Plaintiff, Denis Gladu, was a passenger in the vehicle driven by his son, the Third Party, and brought action against the Defendant for damages he is said to have sustained. The Defendant initiated the third party claim, seeking contribution and indemnity for any amounts he is ordered to pay to the Plaintiff.
2The Third Party has brought a motion for summary judgment. He takes the position that there is no genuine issue requiring a trial and that the third party claim must be dismissed.
Background
3The accident in question took place on August 1, 2008 at about 5:30 in the afternoon, in Sudbury, Ontario. The Defendant was driving a 33 foot motorhome northbound on Barrydowne Road. Barrydowne Road has four lanes, with two lanes traveling south and two lanes travelling north. The Defendant was in the center northbound lane.
4The Defendant was beginning to change lanes into the curb lane when the motorhome came into contact with the vehicle driven by the Third Party. The only witnesses to the accident are the Defendant and his wife (who was in the passenger seat of the motorhome), and the Plaintiff and the Third Party. There are two dramatically different views of how the accident happened.
5The Plaintiff and Third Party say they were travelling beside the motorhome, such that the fronts of the car and the motorhome were side by side, when suddenly and without warning, the motorhome began to change lanes, hitting the car’s front left fender.
6The Defendant and his wife say they signalled to change lanes, checked beside and behind them to ensure it was safe to turn, saw no vehicles and began the lane change when they felt a bump like the motorhome had been struck at the back passenger-side fender. They say that the Third Party’s car then travelled east, bounced off the curb and hit the motorhome again, but this time on the front passenger-side fender. They say the Third Party admitted to them that he was speeding and said something like: “If you had waited one more fucking second I’d have been past you”.
Applicable Law
7The Third Party asks me to find that there is no genuine issue requiring a trial with respect to the claim for contribution and indemnity made against him by the Defendant.
8In Combined Air Mechanical Services Inc. et al. v. Flesch et al., 2011 ONCA 764, the Ontario Court of Appeal held that in deciding if the summary judgment powers should be used to weed out a claim as having no chance of success 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 motion or can this full appreciation only be achieved by way of a trial? The court went on to clarify that a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and issues posed by the case. In making this determination, the judge must consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability to hear the witnesses speak in their own words, and without the assistance of counsel as the judge examines the record in chambers.
Analysis
9Notwithstanding the contradictory nature of the evidence, the Third Party is of the view there is no genuine issue requiring a trial. He says the record before me is sufficient to allow a finding that the Defendant’s evidence is neither credible nor reliable and that the theory of the accident as propounded by him defies common sense and has no chance of success. Furthermore, he says that if the Defendant’s version of events is accepted, the Defendant would be completely without liability and there would be no basis for him to claim contribution and indemnity. The result, he argued, is that the Defendant cannot succeed with the third party claim.
10I do not agree.
11It is important to understand that there is no physical evidence and no independent witnesses to confirm or contradict the version of events propounded by either party.
12It is also important to understand that a trier of fact may accept all, some or none of the testimony of a witness.
13The version of events related by the Defendant does not necessarily defy logic or common sense. He is an experienced driver who says he checked carefully to ensure there were no vehicles in the curb lane before beginning his lane change. Once he began his lane change he says that he was struck on the back fender. Although he did not see the Third Party, he draws the inference that the Third Party was speeding, or did not see him signal for his lane change, or both, with the result that the third party tried to pass in the curb lane while the motorhome was changing lanes, thereby causing the accident.
14I recognize the difficulty with the Defendant’s evidence that the motorhome was still in its lane when the collision occurred. If this is accepted as true, one would also have to accept that for some unexplained reason the Third Party drove his car into the motorhome at the same time it was initiating a lane change. I agree that this is most unlikely. However, this evidence does not necessarily render the balance of his evidence unreliable or untrue. The Defendant may simply be mistaken on that aspect of his evidence.
15I have considered the inconsistencies in the Defendant’s evidence that were pointed out to me by counsel but I do not consider them to be of such significance that I can simply discount his evidence entirely. Put simply, the record before me is not sufficient to allow me to make the findings of credibility necessary to dispose of the Third Party Claim. In my view, it is necessary to hear the testimony of the witnesses and to have them face cross-examination in order to make the required findings of fact.
16Dealing with the second aspect of the Third Party’s argument, although I cannot reject the Defendant’s evidence outright, as argued by the Third Party, neither can I accept it outright so as to make impossible a finding of negligence against him that would sustain the third party action for contribution and indemnity. Because of the lack of independent witnesses and physical evidence, it is necessary to hear the witnesses testify in order to determine what, if any, part of their evidence will be accepted. That leaves the very real possibility of a finding of negligence against the Defendant, even if it is accepted that he checked and found the curb lane to be clear before he initiated his change of lanes. For example, the trier of fact may find that the Defendant contributed to the accident because he slowed practically to a stop in the centre lane before beginning his lane change, instead of merging while on the move. Or a jury might accept that he looked once, signalled his lane change, and then did not check again before starting the turn.
Conclusion
17The summary judgment motion of the Third Party is dismissed. In the event the parties are unable to agree on costs they may make written submissions to me within 45 days, not to exceed three pages plus attachments, each.
The Honourable Mr. Justice R.D. Gordon
Released: December 10, 2013
COURT FILE NO.: C-780-10/A
DATE: 2013-12-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Denis Gladu
Plaintiff
– and –
John Hearn and Michelle Klimosko
Defendants
(Responding Parties)
– and –
Phillip Eugene Gladu
Third Party
(Moving Party)
DECISION ON MOTION FOR SUMMARY JUDGMENT
R.D. Gordon J.
Released: December 10, 2013