Tran v. Arezes, 2015 ONSC 1326

COURT FILE NO.: CV-13-473825

DATE: 20150227

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: NGOC PHU MY TRAN, Plaintiff

AND:

DANIEL MARTINS AREZES, JOSE AREZES, PATRICIA BERNARDINO, RUI DA ROCHA and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendants

BEFORE: Stinson J.

COUNSEL: Roseanna R. Ansell-Vaughan, for the defendants Patricia Bernardino and Rui Da Rocha, moving parties

Matthew C. MacIsaac, for the defendants Daniel Martins Arezes and Jose Arezes, responding parties

No one appearing for the plaintiff

No one appearing for defendant State Farm

HEARD at Toronto: February 13, 2015

ENDORSEMENT

[1] This decision concerns a motion for summary judgment brought by some of the defendants in this motor vehicle accident lawsuit. They ask the court to dismiss the action and the cross-claim as against them. The plaintiff, who initially sued the moving defendants, does not oppose the motion and is prepared to discontinue the action against them, without costs. The motion is opposed, however, by the other personal co-defendants, who have a cross-claim against the moving parties. They take the position that the motion should be dismissed because it is premature.

Facts

[2] The facts of the accident are relatively simple. It occurred on June 29, 2012 at approximately 1:00 p.m. It was a so-called “chain reaction” collision among three vehicles. The three vehicles were in a left turn lane, at a signalled intersection, all headed in the same direction, intending to turn left. The front-most vehicle (which I will refer to as “Vehicle 1”) was driven by the defendant Bernardino and owned by the defendant Da Rocha – collectively “the Bernardino Defendants”. The plaintiff was a passenger in the second or middle vehicle (“Vehicle 2”). Vehicle 2 was owned by one Oriana Aloi and driven by one Ricardo Morfea. Passengers in Vehicle 2 included the plaintiff Tran, the driver, Ricardo Morfea, Michela Morfea and Vincenzina Aloi. The third or rear-most vehicle (“Vehicle 3”) was driven by the defendant Daniel Arezes and owned by the defendant Jose Arezes – collectively “the Arezes Defendants”.

[3] According to the motor vehicle accident report completed by the investigating police officer, the accident occurred when Vehicle 1 was stopped at the intersection waiting to make a left turn and Vehicle 2 was stopped behind it. Vehicle 3 collided with the rear end of Vehicle 2, pushing it forward into the rear end of Vehicle 1. The driver of the Vehicle 3, Daniel Arezes, was charged with careless driving under the Highway Traffic Act, R.S.O. 1990, c. H.8.

Procedural History

[4] The plaintiff Tran commenced this action by issuing a statement of claim on February 8, 2013, more than two years ago. She sued the driver and owner of Vehicle 3 – collectively the “Arezes Defendants”, the driver and owner of Vehicle 1 – collectively the “Bernardino Defendants” and her no-fault carrier (State Farm). She did not sue the driver of the car in which she was a passenger, Ricardo Morfea. In due course, statements of defence were filed and cross-claims asserted as between the Arezes Defendants on the one hand and the Bernardino Defendants on the other. Pleadings were closed by June 2013.

[5] In March 2014, a second proceeding was commenced (Court File No. CV-14-499429) against the Arezes Defendants arising from the same accident. The plaintiffs in that action were the other occupants of Vehicle 2, Vincenzina Aloi, Michela Morfea and its driver Ricardo Morfea. The statement of defence in that action was served on March 22, 2014. The Bernardino Defendants were not sued in that proceeding, nor were they added as third parties by the Arezes Defendants.

[6] The examination for discovery of Tran in relation to liability issues took place on April 28, 2014. On that occasion, she was examined by counsel for the Arezes Defendants, by counsel for Bernardino Defendants, and by counsel for State Farm. Also present during the course of that examination was counsel for the plaintiffs in Action No. CV-14-499429.

[7] The examination for discovery of the defendant Daniel Arezes also took place on April 28, 2014. On that occasion, he was examined by, among others, counsel for the plaintiff Tran, counsel for the Bernardino Defendants and counsel for the plaintiffs in Action No. CV-14-499429.

[8] At her examination for discovery, Tran was asked if she possessed any knowledge, information or belief that any negligent conduct on the part of the defendant Bernardino (the driver of Vehicle 1) caused the accident. She replied in the negative. Her counsel was asked if he possessed any knowledge information or belief that any negligent conduct on the part of Bernardino caused the accident. He replied in the negative.

[9] At his examination for discovery the defendant Daniel Arezes (the driver of Vehicle 3) admitted that he struck Vehicle 2 (the vehicle in which Tran was a passenger) from behind. He was asked if he possessed any knowledge, information or belief that any negligent conduct on the part of Vehicle 1 caused the accident. He replied in the negative. His counsel also confirmed that he was not as yet aware of any conduct on the part of the Bernardino Defendants that may have caused or contributed to the accident. He qualified his answer by saying “anything that’s been produced through the discovery process or will come to light during the discovery process is all I will be relying upon for any allegations against the [Bernardino Defendants]”. He confirmed that as of that time he was unaware of any facts, knowledge, information and belief that the conduct of Bernardino Defendants had caused or contributed to the accident. There is no evidence that the answer has been changed or corrected.

[10] By way of the foregoing answers to questions posed on the examinations for discovery of the parties adverse to them, as of the end of April 2014 the Bernardino Defendants had procured admissions that none of their adversaries had any knowledge or facts to support their allegations that the accident was caused or contributed to by any negligence on their part. Based upon those admissions, they decided to bring a motion for summary judgment seeking the dismissal of the action and the cross-claim. They therefore scheduled a Motions Scheduling Court appearance to fix a date for the summary judgment motion. The Requisition for the appearance in Motions Scheduling Court is dated September 17, 2014. The actual Motions Scheduling Court appearance took place on October 24, 2014, and resulted in February 13, 2015 being fixed as the date for the argument of the motion.

[11] In advance of the Motions Scheduling Court appearance, counsel for the Arezes Defendants booked a Master’s Motion date for a rule 30.10 motion seeking disclosure of the police investigation file relating to the accident. Ultimately, that motion was not heard and decided until January 8, 2015. Although the order was granted, as of February 13, 2015, when the summary judgment motion was argued, the police file had not been received.

[12] Additionally, on February 6, 2015, one week prior to the return date of the motion for summary judgment, the Arezes Defendants issued a new statement of claim against Bernardino, Da Rocha and Oriana Aloi (respectively the driver and owner of Vehicle 1 and the driver of Vehicle 2). That action seeks indemnity for any amounts for which the Arezes Defendants may be liable to the plaintiffs in Action CV-14-499429. I was told by counsel for the Arezes Defendants that this new action was initiated to protect against the potential expiry of the limitation period for the Arezes Defendants to initiate a third party claim as against Bernardino, Da Rocha and Aloi in Action CV-14-499429.

Issues and analysis

[13] In support of their motion seeking dismissal of the action and the cross-claim, the Bernardino Defendants point to the established line of authority that, in circumstances where a vehicle collides with another in a rear end collision, generally speaking the striking vehicle is at fault: Rintoul v. X-ray and Radium Industries Ltd, 1956 CanLII 16 (SCC), [1956] S.C.R. 674 at para. 8; Kosinski v. Snaith, 1983 CanLII 2130 (SK CA), [1983] S.J. No. 663 (Sask. C.A.) at para. 20. The moving defendants further point to the settled law in Ontario that, once it is established that the accident involved a rear end collision, the evidentiary burden shifts to the colliding party to prove that he or she was not acting negligently: see Beaumont v. Ruddy, 1932 CanLII 147 (ON CA), [1932] O.R. 441, [1932] O.J. No. 351 (C.A.) at p. 2 and Ruetz v. Goetz, [1955] O.W.N. 879, [1955] O.J. No. 296 (C.A.). See also MacNeil v. Black, (1998) 1998 NSCA 48, 166 N.S.R. (2d) 127, (N.S.C.A.) at para. 8.

[14] In view of the foregoing legal principles, and in the absence of any evidence disclosed by either the plaintiff or the co-defendants that they were in any way at fault for the accident, the Bernardino Defendants seek an order for dismissal.

[15] In response to the motion for summary judgment, the plaintiff has agreed to consent to a dismissal without costs or a discontinuance. The Arezes Defendants, however, resist the motion and argue that it is premature. They assert that the investigation and discovery process is not yet complete and the evidence that would be adduced at trial has yet to be gathered. They therefore ask me to stay or dismiss the motion.

[16] In support of their position, the Arezes Defendants argue that relevant evidence has not yet been obtained. They point to the fact that the police file has not yet been forthcoming. They also point out that the examination for discovery of the driver of Vehicle 2, Ricardo Morfea and its owner, Oriana Aloi, have not yet taken place. They therefore contend that it is premature to expect them to put their “best foot forward”.

[17] Relying upon Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at para. 58, Hryniak v. Mauldin, 2014 SCC 7 at para. 72 and Business Development Bank of Canada v. Nap Corp., 2013 ONCA 608 at para. 11, the Arezes Defendants argue that their request for a stay is well-founded because it is important to ensure that an appropriate evidentiary record is available after discovery.

[18] The heart of the Supreme Court of Canada decision in Hryniak is found at para. 49 which reads as follows:

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.

The submission of the Arezes Defendants is that the record in the present case is not sufficiently developed to enable me to make the necessary findings of fact and to reach a fair and just determination on the merits.

[19] For the reasons that follow, I do not accept that submission.

[20] First of all, I note that this accident occurred in June 2012, more than two and a half years ago. The present action was initiated over two years ago. The Arezes Defendants have had more than ample time to conduct a thorough investigation of the circumstances surrounding the accident. The plaintiff Tran, who initiated the litigation, has had even more time and has reached the conclusion that there is no basis to assert fault as against the Bernardino Defendants.

[21] Secondly, on the examinations for discovery that were conducted in April 2014 of the key participants, there was no evidence or information offered by anyone to suggest that there was any basis for liability on the part of the Bernardino Defendants. Since that date, no party has proffered additional evidence to alter that state of affairs.

[22] Thirdly, the driver and occupants of Vehicle 2 have commenced their own action against the Arezes Defendants. Significantly, they have not commenced an action against the Bernardino Defendants. It is logical that if they believed there was some basis for such a claim they would have included the Bernardino Defendants in their action. As the middle vehicle in the chain reaction collision, they would have been best positioned to know if there was any conduct on the part of the Bernardino Defendants that might have caused or contributed to the accident. Plainly, they concluded there was none.

[23] Fourthly, the police accident report has been in hand for a long time. It confirms everyone’s understanding of the accident. While it is not, admittedly, the full police investigation file, there is nothing at all in that document to suggest that any further information to change the outcome might be forthcoming once the police file is produced. Moreover, the Arezes Defendants have had many months to obtain the police file. It is complete speculation to suggest that its contents may somehow alter the current understanding of the events in question, such that it can assist rebutting the presumption of fault on the part of Daniel Arezes.

[24] The Arezes Defendants have had ample time to assemble the information and evidence necessary for them to put their best foot forward. They have had more than two and a half years to investigate the accident and to determine whether there is any evidentiary basis for their allegations of negligence against the Bernardino Defendants. They have conducted examinations for discovery of the key players. The suggestion that there may somehow be evidence, not yet discovered, that will form some basis for establishing liability against the moving parties has no air of reality. In my view, there is no realistic prospect that, given additional time, the Arezes Defendants would be able to adduce additional evidence that would bear on the question of liability on the part of the Bernardino Defendants. In the circumstances, I do not consider this motion to be premature as that notion was discussed in the cases cited by the Arezes Defendants.

[25] As commented by Justice Karakatsanis in Hryniak at para. 5, “summary judgment rules must be interpreted broadly, favoring proportionality and fair access to the affordable, timely and just adjudication of claims.” I believe that I am in a position to reach a fair and just determination on the merits of this motion and that, on the basis of the record, I can make the necessary findings of fact.

Conclusion and Disposition

[26] Based on the evidence proffered, I conclude that there is no proof that any conduct on the part of the Bernardino Defendants caused or contributed to the accident. It is beyond the scope of this motion to determine the questions of liability as between the plaintiff Tran and the Arezes Defendants and State Farm. Indeed, at this stage the only determination I am asked to make is whether there is any basis for a finding of liability against the moving parties. I conclude there is none and, on this basis, I grant their motion and dismiss the action and the cross-claim as against them.

[27] In relation to costs, I invite the parties to reach agreement. If they are unable to do so, I direct as follows:

(a) The Bernardino Defendants shall serve their bill of costs on the Arezes Defendants, accompanied by written submissions, within fifteen days of the release of these reasons.

(b) The Arezes Defendants shall serve their response on the Bernardino Defendants within fifteen days thereafter. I invite the Arezes Defendants to submit the bill of costs they would have submitted, had they prevailed on the motion.

(c) The Bernardino Defendants may, but are not obliged to serve a reply, within ten days thereafter.

(d) In all cases, the written submissions shall be limited to three double-spaced pages, plus bills of costs.

(e) I direct that counsel for the Bernardino Defendants shall collect copies of all parties' submissions and arrange to have that package delivered to me in care of Judges' Administration, Room 170 at 361 University as soon as the final exchange of materials has been completed. To be clear, no materials should be filed individually: rather, counsel for the Bernardino Defendants will assemble a single package for delivery as described above.

Stinson J.

Date: February 27, 2015