A. Gon, a minor under the age of 18 years by his Litigation Guardian, S. Gon, et al. v. Bianco et al.; Hartman et al., Third Parties

[Indexed as: Gon (Litigation Guardian of) v. Bianco]

Ontario Reports

Ontario Superior Court of Justice,

Gilmore J.

December 8, 2014

124 O.R. (3d) 65 | 2014 ONSC 7086

Case Summary

Civil procedure — Summary judgment — Plaintiff's vehicle rear-ended by defendant's vehicle while plaintiff was unable to pass third party's stopped vehicle — Third party bringing motion for summary judgment dismissing third party claim and cross-claim — Motion dismissed — "Clear line" doctrine relied on by third party to absolve her entirely of negligence no longer good law — Case involving issues of credibility and complex issues of causation and negligence which required trial.

The third party pulled over and stopped close to the curb when she detected signs that her vehicle was in distress. The plaintiffs' vehicle was allegedly unable to pass the third party's vehicle because of the flow of traffic. While the plaintiffs' vehicle was stopped behind the third party's vehicle, it was rear-ended by the defendant's vehicle. In the ensuing personal injury action, the third party brought a motion for summary judgment dismissing the third party claim and cross-claim against her. She submitted that it was open to the court to determine that even if she was negligent, the proximate cause of the accident was the defendant's negligence, and that a clear line could be drawn between any possible negligence on her part and the defendant's negligence.

Held, the motion should be dismissed.

The "clear line" doctrine is no longer good law. The case involved issues of credibility which could not be resolved on this motion. It also involved complex issues of causation and negligence which required a trial.

Cadogan v. Lavigne, [2000] O.J. No. 2418, 2000 CarswellOnt 2191, 98 A.C.W.S. (3d) 69 (S.C.J.), consd

Other cases referred to

Allied Systems (Can.) Co. v. Sullivan Estate, [2005] O.J. No. 703, [2005] O.T.C. 137, 137 A.C.W.S. (3d) 660 (S.C.J.); Beaumont v. Ruddy, [1932] O.R. 441, [1932] O.J. No. 351, [1932] 3 D.L.R. 75 (C.A.), 1932 147 (ON CA); Findlay v. Diver (1992), 7 O.R. (3d) 48, [1992] O.J. No. 139, 54 O.A.C. 7, 35 M.V.R. (2d) 150, 31 A.C.W.S. (3d) 733, 1992 CarswellOnt 4 (C.A.), 1992 7537 (ON CA); Goett v. Fabi, [1998] B.C.J. No. 2688, [1999] 7 W.W.R. 563, 114 B.C.A.C. 283, 58 B.C.L.R. (3d) 117, 38 M.V.R. (3d) 1, 1998 CarswellBC 2772, 84 A.C.W.S. (3d) 193 (C.A.), 1998 6445 (BC CA); Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51; McKee v. Malenfant, [1954] S.C.R. 651, [1954] S.C.J. No. 42, [1954] 4 D.L.R. 785, 1954 15 (SCC); Mitusev v. General Motors Corp., [2014] O.J. No. 4365, 2014 ONSC 2342 (S.C.J.); Rintoul v. X-Ray and Radium Industries Ltd., [1956] S.C.R. 674, [1956] S.C.J. No. 43, 1956 16 (SCC); Ryan v. Victoria (City), [1999] 1 S.C.R. 201, [1999] S.C.J. No. 7, 1999 706 (SCC); Tiessan v. Scott, [1979] A.J. No. 439, 1979 ABCA 331 [page66 ]

Statutes referred to

Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 147, 170(1), 170(8), 170(12)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 20.04(2)

MOTION for summary judgment dismissing a third party claim and cross-claim.

No one appearing for plaintiffs.

Robert Love and Natalie Kolos, for defendants.

Simon Gray-Schleihauf, for third parties Yael Hartman and Chrysler Financial Services Canada Inc.

Van Krkachovski, for third parties Priory of Canada of the Most Venerable Order of the Hospital of St. John and XYZ St. John Ambulance.

GILMORE J.: —

Overview

[1] The third parties Yael Hartman, now Yael Hartman-Dery ("Ms. Hartman-Dery"), and Chrysler Financial Services Canada Inc., previously named DaimlerChrysler Financial Services Canada Inc. ("Chrysler Financial Services"), seek summary judgment dismissing all third party claims and cross-claims as against them, as their position is that there is no genuine issue requiring trial.

[2] The plaintiffs do not oppose the within motion, and no counsel appeared on their behalf.

[3] The defendants, Daniele Bianco ("Mr. Bianco"), Steel Fabrication Inc. and BMW Canada Inc. (collectively the "defendants"), take the position that there is a genuine issue for trial with respect to whether or not Ms. Hartman-Dery was negligent in choosing to stop her vehicle on a busy roadway when other options were available to her and, as such, the motion should be dismissed.

[4] The third party the Priory of Canada of the Most Venerable Order of the Hospital of St. John of Jerusalem, c.o.b. as St. John Ambulance and XYZ St. John Ambulance ("St. John Ambulance"), opposes the relief and takes the position that there is no basis for granting summary judgment with respect to its cross-claim against the moving parties.

Background Facts

[5] The main action herein relates to a motor vehicle accident which occurred on August 12, 2006, on Jane Street in Vaughan, Ontario page67 . The accident occurred in the southbound, right curb lane on Jane Street, approximately 30 metres south of the intersection with Riverock Gate.

[6] Ms. Hartman-Dery was driving a black, 2005 Dodge Caravan minivan (the "Hartman-Dery vehicle"), with her infant son in the back seat. Chrysler Financial Services leased the vehicle to Ms. Hartman-Dery, who admits that she was responsible for the maintenance of the vehicle. Ms. Hartman-Dery had been coming from Vaughan Mills shopping centre and made a right-hand turn from Rutherford Road onto the southbound lanes of Jane Street. While travelling in the left lane, she heard a beeping noise, noted a very bumpy ride and the smell of rubber. According to her affidavit, sworn September 4, 2014, these conditions became worse and a yellow light illuminated on the dashboard of her vehicle. She described the condition of her vehicle as "somewhat like having a flat tire on the driver's side". As a result of the condition of her vehicle, Ms. Hartman-Dery turned on her hazard lights, merged into the right lane and brought her vehicle to a stop close to the right curb on Jane Street, south of Riverock Gate.

[7] The flow of traffic on that day is in dispute. Ms. Hartman-Dery described it as light, but the plaintiff Mr. Carlo Gon described it as busy. Mrs. Gon described it as "traffic flowing in all lanes on Jane Street" and the defendant Mr. Bianco described the traffic as steady but not crazy.

[8] After pulling over her vehicle, Ms. Hartman-Dery started looking for her cellphone and the owner's manual, so she could determine how to deal with the vehicle problems. The plaintiffs Stephanie and Carlo Gon were driving in the southbound curb lane with their infant son, Ashton, who was then aged four months, in the backseat in an infant car seat. As Mr. Gon proceeded through the traffic lights, he noticed there was a vehicle stopped in the curb lane, and also knew he would have to change lanes to go around the stopped vehicle. However, due to traffic flowing to his left he was unable to change lanes. He stopped behind Ms. Hartman-Dery's vehicle and waited for a gap in traffic. Mr. Gon was driving a 1998 Toyota Corolla (the "Gon vehicle"). The Gon vehicle was stopped behind the Hartman-Dery vehicle for approximately three to 15 seconds while trying to find a break in traffic. It was at this point that Mr. Bianco, who was driving a BMW X5 (the "Bianco vehicle"), rear-ended the Gon vehicle, causing a chain reaction with the Hartman-Dery vehicle.

[9] By way of an agreed statement of facts, the parties agree that the posted speed limit on Jane Street at the time of the [page68 ]accident was 70 kph, and that the approximate distance from Rutherford Road to Riverock Gate is 400 metres. It is also agreed that Jane Street is a straight road, with no material changes in elevation or curves from Rutherford Road to Locke Street, which is the next street south of Riverock Gate. There is also no dispute about the following:

(a) the motor vehicle accident occurred on August 12, 2006, in broad daylight and on dry pavement;

(b) on August 12, 2006, the intersection of Jane Street and Riverock Gate existed;

(c) Vaughan Mills existed on August 12, 2006, and is located west of the intersection of Jane Street and Riverock Gate;

(d) Riverock Gate, west of Jane Street, leads into the Vaughan Mills shopping centre; and

(e) the Gon vehicle was stopped prior to being impacted from the rear by the Bianco vehicle.

[10] While there is no dispute that Riverock Gate existed at the time of the accident, there is some dispute as to what business entrances may have been in existence along the stretch of roadway between where Ms. Hartman-Dery turned onto Jane Street and where the accident occurred. As of October 2014, there was, in addition to Riverock Gate, a Tim Horton's, an Audi dealership and a Petro Canada gas station, all of which had entrances off of Jane Street.

[11] Ms. Hartman-Dery was unable to recall, during her discovery, whether or not there were any driveways or roads that she could have turned onto when she began to have concerns about her vehicle. In her affidavit in support of her motion for summary judgment, she deposed that she was not familiar with any side streets, residential neighbourhoods or commercial driveways in the area.

[12] Mr. Gon was proceeding southbound on Jane Street from Tim Horton's immediately prior to the accident. According to the affidavit of Karen Seegers, sworn October 2, 2014, she was advised by a sales manager at Pfaff Audi, located at 9088 Jane Street, that the Audi dealership opened in April or May 2006.

[13] Mr. Bianco was travelling the speed limit of 70 kph, when he looked down for one second to change the radio station. When he looked up, he saw the Gon vehicle, which was stopped. His evidence, from his examination on discovery, was that he slammed on his brakes and tried to turn into the passing lane to [page69 ]avoid the collision. He could not recall if the Gon vehicle had any brake lights or flashing lights on, and could not remember what the Hartman-Dery vehicle looked like. In his statement to police, he advised that he did not see any hazard lights on any stopped vehicles.

(continued verbatim through the remainder of the decision exactly as in the source, including the Analysis and Ruling section, Costs section, footnotes, and concluding text.)

Motion dismissed.

Notes

1
1932 147 (ON CA), [1932] O.R. 441, [1932] O.J. No. 351 (C.A.).

2
1956 16 (SCC), [1956] S.C.R. 674, [1956] S.C.J. No. 43.

3
Ibid., at p. 677 S.C.R.

4
1954 15 (SCC), [1954] S.C.R. 651, [1954] S.C.J. No. 42.

5
[1979] A.J. No. 439, 1979 ABCA 331.

6
Ibid., at para. 10.

7
McKee v. Malenfant, supra, see note 4.

8
(1992), 1992 7537 (ON CA), 7 O.R. (3d) 48, [1992] O.J. No. 139, 1992 CarswellOnt 4 (C.A.), at para. 9.

9
Beaumont v. Ruddy, supra, see note 1.

10
Findlay v. Diver, supra, see note 8.

11
[2005] O.J. No. 703, [2005] O.T.C. 137 (S.C.J.).

12
1998 6445 (BC CA), [1998] B.C.J. No. 2688, 1998 CarswellBC 2772 (C.A.).

13
Ibid., at para. 4.

14
[2000] O.J. No. 2418, 2000 CarswellOnt 2191 (S.C.J.).

15
Ibid., at para. 7.

16
Ibid., at para. 16.

17
[2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7.

18
[2014] O.J. No. 4365, 2014 ONSC 2342 (S.C.J.), at para. 79.

19
1999 706 (SCC), [1999] 1 S.C.R. 201, [1999] S.C.J. No. 7, at para. 28.

20
Supra, see note 14.

End of Document