ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No: CV-11-436737
Date: 20140922
B E T W E E N:
Susanna LaFayette
Plaintiff
- and -
Carmelinda Occhipinti
Defendant
Aliza Karoly,
for the plaintiff, respondent in the summary judgment motion, S. Lafayette
Kathleen O’Hara,
for the defendant, applicant in the summary judgment motion, C. Occhipinti
Heard: September 22, 2014
WHITAKER J.
Reasons for Decision
[1] This is a summary judgment motion brought by the defendant, arising from a motor vehicle collision. The collision occurred on October 14, 2009 at about 8 P.M. The parties were both travelling southbound on the Don Valley Parkway in Toronto. The defendant was in front and the plaintiff was behind when the plaintiff rear-ended the defendant.
[2] The collision occurred just after the defendant came to a full stop. The defendant admits that traffic was moving ahead when she was struck.
[3] The police arrived at the scene and interviewed the parties and the defendant’s boyfriend. No charges were laid and the parties were sent to report at a Collision Centre. There are no independent witnesses.
[4] At the outset of the motion, counsel for the respondent argued that a package of documentary material filed by the applicant five days before the hearing should be disregarded. Following argument, I ruled that the material could remain before the court but that the respondent could reserve the right to make submissions as to any weight that should be attached to the material, while arguing the merits.
[5] The parties agree that summary judgment may be appropriate where the motion judge is confident that the relevant facts can be known and the appropriate legal principles may be relied upon to dispose of the motion.
[6] Once the evidentiary burden of the moving party has been met, the onus shifts to the responding party to defend the motion. The parties are expected to put their best and most reliable material before the motion judge. There is no expectation that material subsequently produced may be more probative than that put before the court on a summary judgment motion.
[7] I have reviewed the material filed by both parties, including documentary, affidavit and transcript material.
[8] The respondent has not rebutted the presumption of liability where the respondent has rear-ended the applicant (see Beaumont v. Ruddy s 1932 CarswellOnt. 101 at para. (On CA).) The respondent has not proven on the existing record that the defendant was negligent and/or causally connected to the collision.
[9] On the contrary, I am satisfied that the material filed before me permits me to conclude that the respondent is responsible for the collision. The respondent admitted that she was traveling over 65 km per hour with a space of only half a car length in between vehicles. At the time of the collision the respondent was following the applicant too closely. The respondent was driving and not paying attention to other vehicles surrounding her car. The plaintiff was not diligent.
[10] The plaintiff claims to rely on nine different areas of factual disputes. With respect these are either minor points and/or a variety of terminology repeating the same core issues. This assertion is not a bar to summary judgment.
[11] In these circumstances, the motion for summary judgment is allowed. The plaintiff’s claim is struck.
[12] I heard the parties’ submissions as to costs. The defendant/applicant is entitled to her costs inclusive of taxes and interest, fixed at $15,000, payable forthwith.
[13] Order accordingly.
WHITAKER, J.
DATE: September 22, 2014
COURT FILE NO: CV-11-436737
DATE: 20140922
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Susanna LaFayette
Plaintiff
- and -
Carmelinda Occhipinti
Defendant
REASONS FOR DECISION
WHITAKER J.
Released: September 22, 2014