BARRIE COURT FILE NO.: CV-09-1676
DATE: 20140813
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARY SWAIN
Plaintiff
– and –
SHERRY GORMAN, ESTATE OF CLIFFORD ROSS, by the estate trustee Shirley Ross, and SHIRLEY ROSS, personally
Defendants
A. Tamir, for the Plaintiff
P. Omeziri, for the Defendant Sherry Gorman/Moving Party
R.V. Boucher for Defendants Clifford Ross and Shirley Ross
HEARD: August 1, 2014
HEALEY J.
NATURE OF THE MOTION
[1] This is a motion for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to dismiss the claim as against the defendant, Sherry Gorman.
TEST FOR SUMMARY JUDGMENT
[2] In Hryniak v. Mauldin, 2014 SCC 7 [“Hryniak”], the Supreme Court of Canada considered when summary judgment can be granted on the basis that there is “no genuine issue requiring a trial”, as per rule 20.04(2)(a). The Court also considered when it is against the interest of justice for the new fact finding powers in rule 20.04(2.1) to be used on a summary judgment motion.
[3] With respect to the issue of when summary judgment can be granted, the Court stated, at para. 49 of Hryniak, as follows:
[49] There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when 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.
[4] The powers available under rules 20.04(2.1) and (2.2) are presumptively available: Hryniak, supra, at para. 67. They only become unavailable where it is in the interest of justice for such powers to be exercised only at trial. At para. 56 of Hryniak the Court noted: “the interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers – and the purpose of the amendments – would be frustrated.”
[5] In terms of the approach to a motion for summary judgment, Hryniak directs at para. 66 that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact-finding powers. If there appears to be a genuine issue requiring a trial, she should then decide if the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2). These powers may be used by the motion judge in her discretion provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[6] Having heard the submissions of counsel and having reviewed the evidentiary record, I find that this is an ideal case for summary judgment, as such approach will provide a fair and just adjudication. The motion presents all of the evidence that would be available to a judge at trial, because the sworn testimony of the only three individuals involved in the accident is available (other than Mr. Ross, who is now deceased), the law can be applied to such evidence, and it saves the parties the more costly and time consuming process of proceeding through a lengthy personal injury trial.
FACTS
(a) Overview
[7] According to the Motor Vehicle Accident Report, the plaintiff was operating a yellow 2005 Ford FX5 bearing licence plate number AGHF728 (hereinafter the “Swain vehicle”). The defendant, Clifford Ross, was operating a blue 1997 Mazda MWG bearing licence plate number BASB086 (hereinafter the “Ross vehicle”), in which the defendant Shirley Ross was a front-seat passenger. The defendant Sherry Gorman was operating a silver 2002 Nissan Pathfinder bearing licence plate number ARCJ839 (hereinafter the “Gorman vehicle”).
[8] According to the Motor Vehicle Accident Report, the Gorman vehicle, the Swain vehicle, and the Ross vehicle were all travelling eastbound on Innisfil Beach Road in the municipality of Innisfil, County of Simcoe. The Gorman vehicle was leading, the Swain vehicle was in the middle, and the Ross vehicle was last. The Motor Vehicle Accident Report shows an unidentified vehicle, which had also been proceeding eastbound along Innisfil Beach Road in front of the Gorman vehicle, making a left-hand turn onto the 20th Sideroad. The investigating officer recounted the accident on the Motor Vehicle Accident Report as follows:
Gorman vehicle stopped behind unknown vehicle turning onto 20th Sideroad from Innisfil Beach Road. Swain vehicle rear-ends Gorman vehicle. Ross vehicle rear-ends Swain vehicle.
(b) Competing Versions of the Accident
[9] There are three competing versions of how this accident occurred.
[10] The plaintiff’s version is that she applied her brakes when she saw the Gorman vehicle stopped in front of her, was hit from behind by the Ross vehicle and then hit the Gorman vehicle in front of her.
[11] Shirley Ross’ version of events is that the unidentified car was stopped to make the left-hand turn onto Sideroad 20. After it had turned, the Gorman vehicle started to proceed. The Swain vehicle, following, moved forward and hit the Gorman vehicle, and bounced back into the Ross vehicle.
[12] Sherry Gorman’s version of events is that her vehicle was in the middle of the three vehicles, with the Swain vehicle in front of her and the Ross vehicle behind her. Her evidence is that she was rear-ended by the vehicle behind her, which pushed her into the vehicle in front of her.
[13] As there are three competing versions of events, a genuine issue for trial is raised regarding the liability of Gorman with respect to this accident. Accordingly, it is a case where the powers provided under rule 20.04(2.1) and (2.2) should be employed to determine whether this issue can be resolved short of a trial. For the reasons previously stated, this is an ideal case for summary judgment, and accordingly, it is not against the interests of justice to use such powers.
Evaluation of the Evidence
Mary Swain – The Plaintiff
[14] During her examination for discovery, Mary Swain testified that she had been travelling along Innisfil Beach Road behind a silver-coloured SUV. She testified that there was a vehicle travelling behind her, describing it as a pick-up truck and identifying its make as a Mazda.
[15] Mary Swain’s evidence regarding the accident is as follows:[^1]
- Q. Okay. So can you tell me a bit about what’s happening? So you’re driving along at 60 kilometres an hour and then what happens?
A. And then I – all of a sudden I see brake lights in front of me. I start – and this is going over the railroad tracks. I came over the railroad tracks and I’m braking and then all of a sudden I get hit from behind and I’ve been pushed into the woman in front of me.
- Q. So at the time that you’re hit from behind, is your vehicle still moving?
A. Yes.
- Q. And when you hit the car in front of you, is it still moving or had it come to a complete stop?
A. It came to a stop. My car shut off, my safety feature in the car.
[16] Her evidence continues:[^2]
- Q. So you go over the train tracks. You see a car stopped in front of you. You push on your brakes. You get hit from behind and then you hit the car in front of you. The impact to the car – at the back, was it a hard, medium or light impact?
A. It was hard.
- Q. What about the impact with the vehicle in front of you?
A. It was light.
[17] The plaintiff gave further evidence that the woman from the car in front of her got out of her vehicle and came to her passenger door, at which point the plaintiff tried to get to her purse to pass on her personal information to the woman in question. She overheard the woman saying that she was trying to get to a school to pick up her child.
[18] The plaintiff also provided evidence about the position of the unknown car:[^3]
- Q. Do you know why the car in front of you braked?
A. My – there was a car in front of her that was stopped.
- Q. Do you know why that car braked or it stopped?
A. I believe it was to turn on the 20th Sideroad.
- Q. To turn left, right?
A. It would be left.
- Q. And is that something you saw or is that something you were told afterwards?
A. No, I did see the car in front of her stopped.
[19] In summary, the evidence of the plaintiff regarding the order of the vehicles matches that in the Motor Vehicle Accident Report. She provides evidence that the vehicle in front of her, being the Gorman vehicle, was stopped as a result of another car in front of it, which had stopped. She came over the railway tracks and saw the brake lights, and was hit from behind. She also identified the driver and passenger in the vehicle following her as being “seniors”, which describes the Rosses. She described interacting with the driver of the lead car, into which she had been pushed as a result of the rear-end collision, following the accident.
[20] I am asked to infer from the evidence that, because Sherry Gorman was on her way to pick up a child, that she was travelling too quickly, was distracted, or was otherwise not paying attention to the road and the left-turning driver in front of her. The plaintiff’s counsel did not point the court to any evidence from the transcript of any witness that would support such a theory. The theory that Sherry Gorman applied her brakes too quickly as a result of either travelling too fast or not paying attention to the vehicle in front of her is also contradicted by the plaintiff’s own evidence of applying her brakes, as follows:[^4]
- Q. When you saw the vehicle in front of you with the brake lights on, you hit – did you slam on your brakes hard? What did you do exactly?
A. I just put my foot on my brake.
- Q. Did you push hard? Like did you brake hard or did you just push your foot on your brake?
A. I guess I could – brake hard.
[21] The preceding evidence does not lead the court to conclude that Gorman stopped abruptly, but rather that the plaintiff responded to the brake lights ahead of her in an ordinary manner. Significantly, the plaintiff’s evidence is that her own impact with the Gorman vehicle was caused by first being rear-ended by the Ross vehicle.
Shirley Ross
[22] Shirley Ross testified that the position of the vehicles was the same as described in the Motor Vehicle Accident Report. She testified that there was a car ahead of the Gorman vehicle that was making a left-hand turn. Her evidence regarding the mechanics of the accident was as follows:[^5]
- Q. The accident occurred at an intersection of Innisfil Beach Road and another road?
A. On Innisfil Beach Road there’s railroad tracks. And there’s reds – lights installed there now. So we were all stopped for the red light. When the light turned green we proceeded to go forward.
There was our van, and ahead of us was the Swain vehicle, and ahead of that was the Gorman vehicle. There was a car ahead of the Gorman vehicle, was making a left hand turn.
When that car – when it was safe for us to go – for that car to make a turn, there was a pick-up truck that came through from the opposite direction and it was loud, and the car made the left hand turn immediately.
The Gorman vehicle started to proceed, and then the Swain vehicle behind that. And I honestly believe that the roar of that truck, she thought the car was moving faster than it was.
And that’s when she hit the Gorman vehicle and it bounced back, and our vehicle was right there.
[23] Shirley Ross described the car that had been travelling in front of her, which she described as the Swain vehicle, as a medium-sized Ford vehicle, yellow in colour. When asked to describe the car that had been travelling in front of the Swain vehicle, Mrs. Ross testified that it was a “grey – greyish – beige … SUV, but a smaller compact vehicle”. This describes the Gorman vehicle.
[24] Mrs. Ross also testified that she was looking forward at the time of the impact. When asked to describe exactly what she saw in terms of how the vehicles moved, she responded as follows:[^6]
A. We all moved forward. The Swain vehicle hit the Gorman vehicle and pushed her on an angle. And she came back, the Swain vehicle came back, and that’s when we were right there.
Q. Okay, so you saw the Swain vehicle hit Gorman vehicle?
A. Yes, yes.
- Q. And both vehicles were moving at the time?
A. Yes.
Sherry Gorman
[25] Sherry Gorman’s evidence is relied on by the plaintiff to show that a trial is required to prove how the accident occurred. As previously indicated, Sherry Gorman’s evidence is that she was the middle vehicle of the three, which is contrary to the Motor Vehicle Accident Report.
[26] There are several reasons to reject this testimony in favour of the competing evidence from Mary Swain and Shirley Ross regarding the order of the vehicles. First, there is no evidence that damage was sustained to the front of the Gorman vehicle. The evidence provided by the repair estimate for the Gorman vehicle does not list any necessary repairs to the front of the vehicle. Further, she described the vehicle in front of her as a small vehicle, possibly a sedan hatchback, possibly red in colour, but no vehicle matching that description was identified at the accident scene. The only vehicle in front of Mrs. Gorman, according to all other evidence, is the unidentified left-turning vehicle. It stands to reason that, had Ms. Gorman collided with the unidentified left-turning vehicle, its driver would more likely than not have stayed at the scene of the accident. Finally, Gorman’s evidence is in complete contradiction to the Motor Vehicle Accident Report. Given the preponderance of evidence regarding the order of the vehicles, the court is satisfied in concluding that Gorman is mistaken in her evidence regarding the position of the vehicles at the time of the collisions, and is mistaken about the fact that the front of her vehicle collided with a vehicle positioned in front of her.
[27] Accordingly, an evaluation of the evidence and the reliability of the parties’ evidence leaves just two competing theories of how this accident occurred. Either – as propounded by the plaintiff – she was first struck in the rear of her car by the Ross vehicle after having applied her brakes in response to the brake lights from the Gorman vehicle in front of her, after which she collided with the Gorman vehicle, or, the alternate theory is – as propounded by Shirley Ross – the plaintiff first drove forward too quickly immediately following the left-hand turn of the unidentified driver, proceeded to collide into the back of the Gorman vehicle, and was pushed back into the Ross vehicle.
[28] On this motion, it is not the role of the court to determine which of these competing theories is correct. However, whichever version is proven at trial, neither allows for a finding of liability on the part of Gorman.
THE LAW
[29] The liability of a following vehicle was clearly stated by the Court of Appeal in Beaumont v. Ruddy, 1932 147 (ON CA), [1932] O.R. 441 (C.A.) at para. 8 as follows:
Generally speaking, when one car runs into another from behind, the fault is in the driving of the rear car, and the driver of the rear car must satisfy the court that the collision did not occur as a result of his negligence.
[30] Beaumont v. Ruddy has been applied by both the Ontario Court of Appeal and the Saskatchewan Court of Appeal in Rogerson v. Burridge, [2008] O.J. No. 981 (Ont. S.C.J.), appeal dismissed at Rogerson v. Burridge, [20008] O.J. No. 3851 (Ont. C.A.); Kosinski v. Snaitch, 1983 2130 (SK CA), [1983] S.J. No. 663 (Sask. C.A.) [“Kosinski”]. In Kosinski the Saskatchewan Court of Appeal elaborated on the duty of care owed by a driver who is following at para. 21:
… There is a clear and well defined standard of care imposed upon the driver of a vehicle which follows another. He must keep a reasonable distance behind the vehicle ahead; he must keep his vehicle under control at all times; he must keep an alert and proper lookout; and he must proceed at a speed which is reasonable relative to the speed of the other vehicle. He must anticipate that, for whatever reason, the vehicle ahead may stop. He need not anticipate the reason. He must proceed with that care which will enable him to avoid colliding with it.
[31] On either of the two competing theories of how the accident occurred, the Gorman vehicle was rear-ended. The plaintiff has provided no evidence that Sherry Gorman was acting negligently prior to her vehicle being struck. It is admitted by the plaintiff that Gorman had braked for the left-turning vehicle in front of her, which had come to a stop. It is the plaintiff’s evidence that she saw the brake lights of the Gorman vehicle only after coming over the rise of a railway track. There is no evidence that Sherry Gorman had to brake hard in order to avoid a collision with the vehicle in front of her, or that she was travelling at excessive speed or was a distracted driver. The duty was on the plaintiff, as a following vehicle, to ensure that the collision did not occur as a result of her negligence. There is no evidence that Sherry Gorman was not exercising the standard of care that is to be expected of an ordinary, reasonable and prudent person in the same circumstances, and accordingly, there is no evidence that her conduct is negligent within the definition set out in Ryan v. Victoria (City), 1999 706 (SCC), [1999] 1 S.C.R. 201 (S.C.C.), at para. 28.
[32] Accordingly, I find there is no genuine issue requiring a trial between the plaintiff and Gorman, as there is no evidence in support of any of the allegations against Gorman as set out in the Statement of Claim. The issue of Gorman’s liability is able to be resolved on the record before me and using the tools provided to a motions judge, and accordingly order that the claim against Sherry Gorman shall be dismissed.
[33] I have reviewed the Bill of Costs provided by the moving party, which outlines costs for the action on a partial indemnity basis in the amount of $15,035.76, or full indemnity basis in the amount of $23,162.50, plus disbursements. There is nothing about the conduct of the litigation that would justify an award of costs on a full indemnity basis. Having regard to the factors that this court is required to take into account pursuant to rule 57.07(1), and stepping back to consider what would be a fair and reasonable amount given the facts of this case, its complexity and importance to the parties, and the complete success of the defendant in eliminating the claim against her, the fees sought are reasonable. I also find the costs sought to be within the reasonable expectation of the plaintiff. Although her counsel submitted that she would be seeking $3,500 if successful on the motion, this cannot be an accurate reflection of the plaintiff’s reasonable expectation, and as no Costs Outline was prepared by plaintiff’s counsel prior to the motion as required, the court will not speculate on what it may have contained. A motion for summary judgment takes thorough preparation and often extensive expenditure of fees depending on the complexity, whether the party bringing or responding to the motion. Costs of only $3,500 would rarely be a reasonable reflection of a party’s expectation, and certainly are not in this case. This court orders that the moving party shall be paid costs of the action by the plaintiff, fixed in the amount of $17,000 inclusive of disbursements and HST.
HEALEY J.
Released: August 13, 2014
[^1]: Page 12 of the Transcript of the Examination for Discovery of Mary Elizabeth Swain taken on April 10, 2013 [^2]: Page 22 of the Transcript of the Examination for Discovery of Mary Elizabeth Swain, supra [^3]: Page 15 of the Transcript of the Examination for Discovery of Mary Elizabeth Swain, supra [^4]: Page 16 of the Transcript of the Examination for Discovery of Mary Elizabeth Swain, supra [^5]: Page 6 of the Transcript of the Examination for Discovery of Shirley Ross taken on September 27, 2013 [^6]: Page 15 of the Transcript of the Examination for Discovery of Shirley Ross, supra