SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-CV-350358PD3
DATE: 20140530

RE: Ramnarace Madhai, Raggani Madhai, Roshini Madhai, Rohani Madhai, Reshma Madhai, Trisha Madhai, and Rishi Madhai and Vidya Madhai by their litigation guardian Ramnarace Madhai, Plaintiffs

– AND –

Dawn Marie Cox, Entesham A.R. Ahmed and Mohammed S. Ahmed, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL:
Sabrina Hussain, for the Plaintiffs

Ellie Persichilli, for the Defendants, Entesham A.R. Ahmed and Mohammed S. Ahmed

M. Sydney, for the Defendant, Minister of Finance acting in the name of the Defendant, Dawn Marie Cox

HEARD: May 29, 2014

ENDORSEMENT

[1] The Defendants, Entesham A.R. Ahmed and Mohammed S. Ahmed (the “Ahmed Defendants”), bring a motion for summary judgment seeking to dismiss the action as against them.

[2] At the outset of the hearing, counsel for the Plaintiffs advised me that her clients have just this week managed to locate the Defendant, Dawn Marie Cox, who has apparently been missing for quite some time. Counsel submitted to me an affidavit of the Plaintiff, Trisha Madhai, outlining the steps that the Plaintiffs have taken in attempting to locate Ms. Cox up until now. It is Plaintiffs’ counsel’s position that the matter must either adjourn to allow for Ms. Cox to be examined on the pending motion, or the matter must proceed to trial as Ms. Cox’s evidence is important to a proper determination of the action.

[3] The Minister of Finance acts on behalf of Ms. Cox pursuant to the Motor Vehicle Accident Claims Act, RSO 1990, c. M.41. Counsel for the Minister advises that the Minister does not oppose summary judgment dismissing the claim against the Ahmed Defendants.

[4] I am not prepared to adjourn the motion. The matter has already been adjourned once, in July 2013, and was scheduled for today at an attendance in motion scheduling court in August 2013. The Plaintiffs had a significant amount of time to find Ms. Cox, and it is not clear to me why she has only now been located.

[5] According to the affidavit handed up by Plaintiffs’ counsel at the hearing, Ms. Cox resides with her mother in Cochrane, Ontario. She works there in a hairdresser shop, which was her occupation prior to the car accident in issue. She has a Facebook page under her own name, which is how she was ultimately located by the Plaintiffs, and she does not appear to have been concealing her whereabouts. A brief inquiry among the Plaintiffs’ friends and a simple internet search turned her up this week, and doubtless would have turned her up any time over the past number of months.

[6] The action involves a tragic accident in which Ravi Madhai, a passenger in a car driven by Ms. Cox, was killed. The accident occurred on March 6, 2006, while Ms. Cox’s Ford was travelling westbound on the Gardiner Expressway. The evidence in the record establishes that Ms. Cox lost control of her vehicle and collided with a vehicle driven by the Defendant, Antesham A.R. Ahmed, and owned by the Defendant, Mohammed S. Ahmed. The Ahmed Defendants’ car, an Acura, was also travelling westbound on the Gardiner, two lanes over from the Cox car’s lane.

[7] The Ahmed Defendants have included in their Motion Record the Toronto police collision reconstruction report. This document verifies that the Cox car was in the middle lane of the westbound Gardiner, while the Ahmed car was in the right lane. Ms. Cox changed lanes sharply and erratically, striking the Ahmed car on its side. The Cox car was speeding while the Ahmed car was travelling at slightly under the speed limit.

[8] The investigating officer’s notes also contain a statement by Christopher Johnston, the driver of another car that witnessed the accident. Mr. Johnston states that he saw the Cox car speeding and out of control and swerving at the time of the collision.

[9] Likewise, the police officer’s notes contain a statement by David Latchana, who was Ms. Cox’s boyfriend at the time of the accident and was a passenger in the Cox vehicle. Mr. Latchana indicated that he thought the Ahmed vehicle may have hit the Cox vehicle, although that contradicts the unobscured perspective of Mr. Johnston who stated that the accident occurred while Ms. Cox was changing lanes to the right. Mr. Latchana has since deceased, and so the brief statement that he gave to the investigating officer is the only evidence that he will be able to provide.

[10] It is difficult to know how a collision that has been described in the reconstruction report as a side swipe could have been caused by the Ahmed car, which was going straight in its own lane and was struck on its side. Mr. Latchana’s statement does not accord with either Mr. Johnston’s account or with the physical evidence of how the collision occurred.

[11] Ms. Cox was charged with careless driving, and pleaded guilty pursuant to an agreed statement of facts. A sentencing hearing was held before Croll J. on September 18, 2009. At p. 4 of the transcript of that hearing, Croll J. stated that, “Ms. Cox’s manner of driving on March 6, 2006 reflected a marked departure from the standard expected of a prudent driver in Ontario, and further, that her alcohol consumption and the corresponding effect on her judgment, perception and reaction time was a contributing factor to the collision which caused Ravi Madhai’s death.”

[12] Croll J. summarized her conclusions on culpability on p. 7 of the hearing transcript, as follows:

The accident that caused Ravi’s death was caused solely by Ms. Cox who had been drinking. There were no external contributing factors such as, for instance, dangerous road conditions or problems with the car. As indicated, the Agreed Statement of Facts indicates that Ms. Cox was driving in excess of the speed limit.

[13] While I acknowledge that these findings were not made following a contested criminal trial, the agreed statement of facts and the police report leave little doubt as to what occurred at the time of the accident.

[14] Counsel for the Plaintiffs submits that it is still unknown whether there was anything Mr. Ahmed could have done to avoid the accident. It may be that there will never be 100% proof of precisely what happened during the moment or two in which the accident took place. However, the question on this motion is whether the Ahmed Defendants have established, on a balance of probabilities, that they are not liable for this accident.

[15] Ms. Cox gave a statements to a police officer at the time of the accident indicating that she was somewhat shocked by the accident and had only a clouded perception of what occurred. It is unlikely that Ms. Cox will have any evidence to contradict her agreed statement of facts and the conclusions drawn by Croll J. from that agreed statement; indeed, if Ms. Cox were to contradict her own agreed statement of facts, her evidence would certainly be less than reliable.

[16] In Hyrniak v Mauldin, 2014 SCC 7, at para 49, the Supreme Court of Canada stated that Rule 20 of the Rules of Civil Procedure requires that summary judgment be issued where the process “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.” In my view, all of these criteria have been met.

[17] The standard of care that is relevant to the claim against the Ahmed Defendants is that of a prudent and reasonable driver. The evidence is uncontroverted that Mr. Ahmed was travelling just below the speed limit, when he was without warning struck on the side by the Cox vehicle. There is no evidence of any negligence on Mr. Ahmed’s part.

[18] To the extent that the Plaintiffs have not been able to put forward any direct evidence from Ms. Cox, that is not something that weighs against the Ahmed Defendants. As indicated above, Ms. Cox’s evidence is unlikely to add anything to the Plaintiffs’ case, and the law on summary judgment has developed to the point where the Plaintiffs, as responding parties, are “no longer entitled to sit back and rely on the possibility that more favourable facts may develop at trial”: Transamerica Life Insurance Co. of Canada v Canada Life Assurance Co. (1996), 1996 7979 (ON SC), 28 OR (3d) 423 (Gen Div), at para. 29.

[19] Here, to the extent that it is the position of counsel for the Plaintiffs that there is an incomplete evidentiary record, it is not the type of thing that will improve with trial. Rather, it is simply a sign that the Plaintiffs have not put their “best foot forward” on the motion: Rutherford v RBC Dominion Securities Inc., 2011 ONSC 6002, at para. 9.

[20] I would therefore dismiss the action as against the Ahmed Defendants.

[21] Counsel for the Ahmed Defendants seeks costs of the entire action, including the motion. She has submitted a Bill of Costs on a partial indemnity basis for $10,685.25 for the motion and a total of $16,960.51 for the action. She submits that the delay caused by the lengthy adjournment of the summary judgment motion caused her to incur somewhat more costs than otherwise would have been the case. She also has included in her costs the time spent by a member of her law firm attending at the sentencing hearing of Ms. Cox.

[22] Fixing the quantum of costs is a discretionary power conferred by section 131 of the Courts of Justice Act, RSO 1990, c. 43. There are a number of factors listed in Rule 57.01(1) that may be taken into account in exercising this discretion, including “(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed”, as well as “(d) the importance of the issues”.

[23] There is little doubt that the issues here are very important to the parties. The case arises out of a serious accident, and the motion determined the action in its entirety for the Ahmed Defendants. In my view, given the circumstances of the proceeding the amount of costs sought by the Ahmed Defendants is well within what the Plaintiffs would reasonably expected to have to pay for a motion of this type.

[24] The Plaintiffs shall pay the Ahmed Defendants an all-inclusive amount of $16,960.51 in respect of the motion and the action. There are no costs awarded for or against the Minister of Finance.

Morgan J.

Date: May 30, 2014