COURT FILE AND PARTIES

COURT FILE NO.: CV-11-419888A

DATE: 20141211

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: PETER Alarcon, Plaintiff

AND:

SONIA YOGESH desai, Defendant

AND:

JULIO GUZMAN MOLINA, Third Party

BEFORE: Stinson J.

COUNSEL: Jennifer C. Vieira, for the Third Party

Joanne Witt, for the Defendant

HEARD at Toronto: December 11, 2014

ENDORSEMENT

[1] This is a motion for summary judgment brought by the third party Molina in this motor vehicle accident claim.

[2] At the outset of the hearing, counsel for the moving party requested an adjournment for purposes of remedying certain evidentiary deficiencies with the moving party’s materials. This request was opposed by counsel for the defendant. This date for the argument of the motion was fixed in March 2014, at the request of the third party. It included a generous timetable for the preparation and exchange of materials. Factums were exchanged one month ago. The deficiencies in the moving party’s material were highlighted in the factum filed by the defendant. No suggestion of an adjournment was made by the moving party until yesterday afternoon.

[3] Where a party wishes to engage the summary judgment process of the court, they are required to put their best foot forward. Late adjournments of long scheduled motions to enable parties to remedy deficiencies in their materials should be discouraged because the inevitable result will be restarting the process, requiring the opposing party to reconsider its response, and likely preparing fresh materials, including factums. The net result will be wasted time and expense, the very opposite of the underlying purpose of the summary judgment process.

[4] In this case, as I will explain below, much of the original evidence proffered by the moving party is inadmissible. This is something that should have been known to moving counsel and was certainly brought to their attention over one month ago. In these circumstances, there is an even further ground to decline any adjournment request. Both the court and opposing counsel spent time preparing to hear the matter today, which time would be completely wasted if the adjournment were granted. I therefore refused the adjournment request.

[5] The facts of the case may be summarized briefly. On February 15, 2009 the defendant, the plaintiff and the third party were all operating vehicles westbound on the Gardiner Expressway and were involved in a collision or perhaps more accurately a series of collisions. At the location where the accident occurred, there are three westbound lanes. The defendant was driving in the southern or left-hand lane, the third party was driving in the middle lane and the plaintiff was driving in the northern or rightmost lane.

[6] It is common ground that, immediately before the accident, the defendant steered her vehicle on to the left shoulder area and lost control. As a result, her vehicle spun across the three lanes of traffic, ending up at the far north side of the westbound expressway, with her vehicle facing east. Although the evidence on this point is not entirely clear, what appears to have happened is that as it crossed the middle lane, the defendant’s vehicle collided with the third party’s vehicle, which in turn caused the third party’s vehicle to collide with the plaintiff’s vehicle.

[7] A significant area of dispute, however, is the reason for the defendant swerving out of the leftmost lane onto the shoulder with the resulting loss of control, leading to the collisions. The basis of the third party claim is the assertion by the defendant that the actions of the third party were the underlying cause of the accident. In her statement to the police immediately following the accident, the defendant stated that the third party tried to change lanes into her lane; to avoid the third party the defendant swerved to the shoulder; she thereafter lost control and spun across the other lanes.

[8] In her affidavit responding to the motion for summary judgment, the defendant gave the following evidence:

a) I was driving in the leftmost lane on the Gardiner Expressway.

b) I saw a light-colored van in the lane to the right of me start to encroach into my lane of travel.

c) I steered my vehicle to the left onto the shoulder area, to avoid hitting the light-colored van.

d) The first time I saw the van it was through the windshield and it was encroaching into my lane near the right front corner of my vehicle.

e) The van may have been traveling beside my vehicle prior to that time but I had not noticed it.

f) The van was slightly ahead of my vehicle and I was unable to see the driver or the rear left corner of the van.

g) After I steered by vehicle to the left onto the shoulder to avoid the van, I lost control of my vehicle and it started to move back into the highway.

h) My vehicle spun and the next thing I remember was that I was facing eastbound in the westbound lanes in my vehicle was at the rightmost side of the highway.

[9] In her affidavit the defendant goes on to state that she provided a signed statement to the police at the time, including a diagram. Her evidence is that the statement contains details that she currently does not recall. She nevertheless adopts the statements she made in that document.

[10] The evidence filed in support of the motion did not include an affidavit from the third party. Rather, the supporting affidavit was sworn by a lawyer with the law firm that represents the third party. It is plain that the lawyer has no direct knowledge of the events in question. There is no indication as to why an affidavit sworn by the third party himself was not included in the motion materials. In large measure, the lawyer’s affidavit includes quotations from police reports and excerpts from transcripts of examinations for discovery, including the transcript of the examination for discovery of a third party.

[11] In my view, the evidence proffered by the moving party is deficient in several ways. Firstly, it purports to include excerpts from the examination for discovery of the third party. Rule 39.02(4) makes it plain that a party cannot rely on the party`s own examination for discovery transcript in support of a motion, save with the consent of the opposite party. Consent is not forthcoming in the present case.

[12] Secondly, rule 20.02(1) provides that an affidavit for use on a motion for summary judgment may be made on information and belief, but that the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. The principal contested fact here is whether, as asserted by the defendant, she lost control of her vehicle because the third party moved into her lane, causing her to swerve onto the shoulder and lose control. There is no direct evidence from the third party that addresses this point. While I am not called upon to make a finding against the third party, his failure to supply an affidavit weighs against accepting information and belief evidence from other sources.

[13] During the course of her submissions, counsel for the third party attempted to persuade me that the evidence proffered by the defendant regarding the manner in which the accident occurred should be discounted. She drew my attention to alleged inconsistencies between the defendant`s statement to the police, her diagram prepared at the time and her testimony on discovery. She also pointed out that the discovery evidence of the plaintiff – about which there is no dispute regarding admissibility – favoured the third party’s version of events and not that of the defendant.

[14] In my view, this contradictory evidence – especially in the absence of any direct evidence from the third party himself – underscores the nature of the dispute in this case. Ultimately, a trier of fact will need to decide whether, on a balance of probabilities, the defendant`s version of how she came to lose control of her vehicle should be accepted. I do not consider this is a case in which, through the exercise of the extended powers conferred upon me under rule 20.04, I could do justice to the parties in resolving that issue. Rather, in my view, it is in the interest of justice that the powers of weighing the evidence, evaluating the credibility of the witnesses and drawing reasonable inferences, should all be reserved to the conduct of the trial.

[15] In light of the evidence tendered by the defendant in response the motion for summary judgment, I agree with the defendant’s position that there is a genuine issue requiring trial whether the third party is at least partially liable for the accident. It therefore follows that the motion for summary judgment must be dismissed.

[16] Pursuant to rule 20.05(2)(h) I am authorized to direct that a party deliver within a specified time a written summary of the anticipated evidence of a witness. I therefore direct the defendant to provide a written summary of the anticipated evidence of the defendant’s husband, within the next 45 days. This will enable the parties to consider that further evidence when they proceed to mediation, which they are required to do by the end of February, 2015.

[17] In all the circumstances, I do not consider that this is a case where it would be advantageous to the parties for me to remain seized. The limited insights gained by me based on what I heard today will not materially contribute to future efficiencies in the conduct of this case. I therefore decline to seize myself of this matter.

[18] In relation to costs I order the third party to pay the defendant costs in the all-inclusive amount of $6,500. That sum shall be paid within 30 days.

Stinson J.

Date: December 11, 2014

Signed and released in open court on December 11, 2014