ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-453695
DATE: 20141003
BETWEEN:
SETARHA FIDDLER
Plaintiff
– and –
JAMES VASILAKOS
Defendant
– and –
MOURICE ASHLEY
Third Party
No one appearing for the Plaintiff
Esther Kim for the Defendant
P. Christopher Scotchmer for the Third Party
HEARD: October 2, 2014
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] The Plaintiff Setarha Fiddler was a passenger in a vehicle driven by the Third Party Mourice Ashley. The vehicle was involved in an accident with a vehicle driven by the Defendant James Vasilakos. Pursuant to the rules for a simplified procedure, Ms. Fiddler sued Mr. Vasilakos, and he brought third party proceedings against Mr. Ashley for contribution and indemnity.
[2] Mr. Ashley now brings a motion for summary judgment to have the third party claim dismissed. For the reasons that follow, I grant the motion.
B. FACTUAL AND PROCEDURAL BACKGROUND
[3] On May 15, 2010, at around 5:35 p.m., Mr. Ashley was driving southbound on Keele Street in the City of Toronto. Ms. Fiddler was seated in the front passenger seat, and his friend Natasha Reid was seated in the rear passenger seat.
[4] As Mr. Ashley was proceeding southward toward the intersection of Keele Street and Denbigh Crescent, Mr. Vasilakos was in a vehicle stopped on Keele Street facing northbound in the left-hand lane.
[5] The intersection of Keele and Denbigh Crescent is a T-intersection with Denbigh on the west side of Keele Street. There is no traffic control at this intersection.
[6] After stopping, Mr. Vasilakos made a left turn toward Denbigh Crescent. His evidence was that the cars in the southbound left lane had stopped to allow him to make the turn.
[7] Mr. Vasilakos testified that there were two vehicles behind the lead stopped vehicle and the second of these; i.e. the third vehicle of the column (Mr. Ashley’s vehicle) pulled out from the left lane and moved into the curb lane, passed the stationary vehicles, and entered the intersection, where it was struck by Mr. Vasilakos’ vehicle in the process of attempting to complete the left turn.
[8] In the result, the front of Mr. Vasilakos’ vehicle struck the front driver-side wheel well and door of Mr. Ashley’s vehicle.
[9] Mr. Ashley deposed at his examination for discovery that he had not made a lane change just before the accident and that he was already in the curb lane proceeding southbound. He said he saw the Defendant’s vehicle before it started turning when it was stopped in the northbound passing lane.
[10] Mr. Vasilakos deposed at his examination for discovery that before he made his left turn, he saw Mr. Ashley’s vehicle proceeding southbound on Keele Street.
[11] Ms. Fiddler deposed at her examination for discovery that Mr. Ashley changed lanes from the passing lane to the curb lane when his vehicle was about four to five cars before the intersection.
[12] At around 5:42 p.m., Officer Fitkin of the Toronto Police Service attended at the scene of the accident. The notes of Officer Fitkin indicate that Mr. Ashley gave a statement: “I was coming from the flea market going [southbound] on Keele [Street] in the far right lane going towards Wilson. All of a sudden, a vehicle was turning left and came out in front of me. I had no time to hit my brakes.”
[13] The notes of Officer Fitkin indicate that Mr. Vasilakos gave a statement: “[I was] going northbound on Keele [Street] making a left turn at Denbigh [Crescent]. The vehicle in the middle lane stopped to let me through. I proceeded to make a left turn. The vehicle behind him pulled out to pass him and that is when this accident happened. I was already almost done making my turn when he came out.”
[14] Officer Fitkin, after hearing from both drivers, noted that “V1 [James Vasilakos] was turning left onto [Denbigh Crescent] from [Keele Street] in left turning lane. V2 [Mourice Ashley] was southbound [on Keele Street] in [the right-hand lane]. V1 turned striking V2.”
[15] Mr. Vasilakos was charged with breaching s. 142(1) of the Highway Traffic Act, c. H.8 (unsafe left turn).
[16] On April 27, 2011, Mr. Vasilakos pled guilty to the lesser charge of an unsafe move.
C. DISCUSSION AND ANALYSIS
[17] Mr. Ashley submits that there is no genuine issue for trial in the third party proceedings and that the claim for contribution and indemnity should be dismissed.
[18] Mr. Vasilakos opposes the motion for a summary judgment on the ground that there is a genuine issue requiring trial given the conflicting testimonies of the parties as to whether or not Mr. Ashley pulled out from behind a column of vehicles that had stopped to allow Mr. Vasilakos to make a left-hand turn.
[19] As a matter of procedure, rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.”
[20] In Hryniak v. Mauldin, 2014 SCC 7, a unanimous Supreme Court of Canada introduced a robust approach to granting summary judgment. In paragraphs 49 and 66, the Court stated:
There will be no genuine issue requiring a 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.
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, 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.
[21] Thus, in Hryniak v. Mauldin, the Supreme Court of Canada held that on a motion for summary judgment under rule 20.04, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the new fact-finding powers.
[22] In the case at bar, based only on the evidence in the motion record and without using the new fact-finding powers, in my opinion, there is no genuine issue for trial that proceeding southbound on Keele Street, Mr. Ashley made a lane change from the left lane into the curb lane and entered into the Keele and Denbigh intersection. I accept the evidence of Mr. Vasilakos and of Ms. Fiddler. Accepting Mr. Vasilakos’ evidence, I find that there is no genuine issue for trial that Mr. Vasilakos has any claim for contribution and indemnity from Mr. Ashley.
[23] In other words, I disagree with Mr. Vasilakos’ submission based on his own evidence of what occurred being found to be true, that there is a genuine issue for trial that Mr. Ashley bears some responsibility for causing the collision.
[24] The standard of care required of Mr. Ashley in proceeding into the intersection is that of a prudent and reasonable driver, and the evidence shows that he met that standard. The evidence does not establish a finding that Mr. Ashley was the author of his own misfortune and shares some responsibility for being involved in a collision of automobiles.
[25] There is no evidentiary basis for concluding that Mr. Ashley ought to have anticipated what Mr. Vasilakos has admitted was an unsafe move or that Mr. Ashley could have done anything to avoid the collision that would not have occurred but for Mr. Vasilakos’ attempted turning manoeuver.
[26] Mr. Vasilakos argues, however, that Mr. Ashley violated s. 150(1) or s. 154(1) of the Highway Traffic Act which state:
Passing to right of vehicle
- (1) The driver of a motor vehicle may overtake and pass to the right of another vehicle only where the movement can be made in safety and […]
Where highway divided into lanes
- (1) Where a highway has been divided into clearly marked lanes for traffic,
(a) a vehicle shall be driven as nearly as may be practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety;
[27] Mr. Vasilakos submits that Mr. Ashley changed lanes before the accident without ascertaining that the movement could be made in safety and thus breached sections 150(1) and 154(1) of the Highway Traffic Act. Based on the evidentiary record, there is, however, no evidence that Mr. Ashley made an unsafe lane change. Based on the evidentiary record, it cannot be found that Mr. Ashley’s changing lanes had anything to do with causing an accident where his vehicle had the right of way.
[28] The evidence does not show that Mr. Ashley did anything unlawful or negligent or that he was acting unreasonably, imprudently, or rashly in proceeding through the uncontrolled intersection or that he had any opportunity to avoid the collision. While I agree that Mr. Ashley did not have an unfettered right to proceed through the intersection regardless of the circumstances, he did have the right of way, he was keeping a lookout, and I see no negligence in his driving in the circumstances of this case.
[29] The case at bar is not a case like Nash v. Sullivan, 1973 785 (ON CA), [1973] O.J. No. 2139 where a driver of a motorcycle approached an intersection hidden from the view of motorists making left turns and was found 50% liable because he was negligent in failing to slow his motorcycle and to keep a proper lookout when he saw the cars in the line of traffic to his left had stopped for those making a left turn. Mr. Vasilakos admits that he saw Mr. Ashley before the collision. Unfortunately, he apparently saw him too late to complete the turn safely.
[30] On a motion for summary judgment, each party is presumed to have put its best case forward. I have accepted Mr. Vasilakos’ version of the events, and, in my opinion, that version does not show a basis for claiming contribution and indemnity as against Mr. Ashley.
[31] There are no genuine issues requiring a trial in the third party claim, and it should be dismissed.
D. CONCLUSION
[32] For the above reasons, I grant Mr. Ashley’s summary judgment motion, and I dismiss the third party claim with costs.
[33] I fix the costs on a partial indemnity basis for the motion and the action at $10,000, all inclusive of disbursements and applicable taxes.
Perell, J.
Released: October 3, 2014
COURT FILE NO.: CV-12-453695
DATE: 20141003
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SETARHA FIDDLER
Plaintiff
– and –
JAMES VASILAKOS
Defendant
– and –
MOURICE ASHLEY
Third Party
REASONS FOR DECISION
PERELL J.
Released: October 03, 2014