McDonald v. Doe et al.
[Indexed as: McDonald v. Doe]
Ontario Reports
Ontario Superior Court of Justice,
Dunphy J.
April 24, 2015
126 O.R. (3d) 211 | 2015 ONSC 2607
Case Summary
Civil procedure — Summary judgment — School bus spinning out of control and crossing two lanes of traffic before coming to rest — Drivers of two vehicles immediately behind bus making emergency stops and avoiding collision — Plaintiff's vehicle colliding with second vehicle and propelling it into first vehicle — Plaintiff suing unknown owner and driver of school bus and also suing his own automobile insurer under unidentified motorist coverage in policy — Insurer's motion for summary judgment dismissed — Plaintiff establishing prima facie case of negligence on part of bus driver — Plaintiff's failure to stop in emergency situation not giving rise to presumption that he was sole cause of accident — Plaintiff having served jury notice — Motion judge declining to use powers in rule 20.04(2.1) as doing so would deprive plaintiff of opportunity to have jury draw inferences and make findings of credibility — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 20.04(2.1).
The plaintiff was involved in a motor vehicle accident. For reasons unknown, a school bus began to weave, and then spun out of control and crossed two lanes of traffic before coming to rest. The drivers of the two vehicles that were immediately behind the bus made emergency stops and avoided a collision. The plaintiff's vehicle collided with the second vehicle and propelled it into the first vehicle. The plaintiff sued the unknown owner and driver of the school bus. He also sued his own automobile insurer under the unidentified driver coverage in his policy. The insurer brought a motion for summary judgment dismissing the action.
Held, the motion should be dismissed.
The plaintiff had established a prima facie case of negligence on the part of the bus driver. The fact of spinning out of control and crossing two lanes of traffic called out for an explanation. No non-negligent explanation had been offered. It could not be concluded that, simply because two other drivers managed to stop in time to avoid a collision, the plaintiff had to have been negligent in failing to do so. On the evidence, it could not be found that the plaintiff was the sole cause of the accident. The plaintiff had served a jury notice. It would be inappropriate for the motion judge to use the expanded powers under rule 20.04(2) of the Rules of Civil Procedure where to do so would deprive the plaintiff of the opportunity to have a jury draw inferences and make findings of credibility.
Gauthier & Co. v. Canada, 1945 40 (SCC), [1945] S.C.R. 143, [1945] S.C.J. No. 1, [1945] 2 D.L.R. 48; Mitusev v. General Motors Corp., [2014] O.J. No. 4365, 2014 ONSC 2342 (S.C.J.), consd
Other cases referred to
El Dali v. Panjalingam (2013), 113 O.R. (3d) 721, [2013] O.J. No. 208, 2013 ONCA 24, 35 C.P.C. (7th) 42, 302 O.A.C. 44, 225 A.C.W.S. (3d) 278; Fontaine v. British Columbia (Official Administrator), 1998 814 (SCC), [1998] 1 S.C.R. 424, [1997] S.C.J. No. 100, 156 D.L.R. (4th) 577, 223 N.R. 161, [1998] 7 W.W.R. 25, J.E. 98-715, 103 B.C.A.C. 118, 46 B.C.L.R. (3d) 1, 41 C.C.L.T. (2d) 36, 34 M.V.R. (3d) 165, 78 A.C.W.S. (3d) 203; [page212] 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, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 95 E.T.R. (3d) 1, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 21 B.L.R. (5th) 248, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641
Statutes referred to
Canadian Charter of Rights and Freedoms
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108 [as am.]
Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 130 [as am.], 142, 148
Insurance Act, R.S.O. 1990, c. I.8, s. 265 [as am.], (1), (b)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20.04, (2), (2.1)
MOTION for summary judgment dismissing an action.
Joshua Goldberg, for plaintiff.
Thomas Hughes, for defendant State Farm Mutual Automobile Insurance Company.
[1] DUNPHY J.: — This is a motion for summary judgment brought by the defendant insurer who seeks to argue that, on the materials before me, there is no issue requiring a trial on the matter of liability of an unidentified owner and driver in this motor vehicle case.
[2] The facts are largely undisputed. Where there is dispute concerns the discrepancies in the story told by the plaintiff who, counsel for the plaintiff frankly submits, has told inconsistent versions of events not from any intention to deceive but because by reason of his age, frailties, including memory loss both pre-existing and as exacerbated by the accident, has simply got the problems he has in recalling and accurately describing the incident.
[3] On February 19, 2010, there was a collision in the eastbound collector lanes of Highway 401 near Neilson Avenue in Toronto. The undisputed evidence is as follows.
[4] A small school bus was proceeding eastbound in the middle lane of the collectors. For reasons unknown, the school bus began to weave or zigzag. It then spun out of control, eventually coming to rest on the right shoulder of the road without itself suffering any injury that is known.
[5] Behind the school bus was a car driven by the defendant Mr. Min. Mr. Min came to an emergency stop and managed to avoid colliding with the school bus. Behind Mr. Min was a car driven by the defendant Mr. Williams. He too came to a hard stop and avoided colliding with Mr. Min in front of him -- at least at first. The third car in the line was that of the plaintiff. The plaintiff's car collided with the rear of Mr. Williams' car, which in turn propelled Mr. Williams' car forward into collision with the rear of Mr. Min's car. Neither Mr. Williams nor Mr. Min [page213] suffered any serious injury and their cars were only relatively lightly damaged. The plaintiff suffered more severe damage to his car although more serious symptoms of injury and damage did not manifest themselves until the following days and weeks.
[6] Emergency responders attended the scene of the accident. Police attended the scene and arranged for the three automobiles to be towed to the collision reporting centre where all three drivers of the damaged cars made self-reports of the accident which were taken down by an OPP officer. The three car drivers all indicated in their examinations for discovery that the school bus remained at the scene at least until the emergency responders arrived. Mr. Williams alone spoke to the driver but learned nothing beyond verifying that nobody on board the school bus was hurt. The driver did not respond to his question about what had happened.
[7] The plaintiff has told a number of different versions of this story. The principal difference between his stories has to do with the question of whether he had executed a lane change at the time of the accident in an effort to avoid collision with the bus. His contemporary self-report makes no mention of a lane change although, to be fair, it does not exclude it either. Other reports have been inconsistent about what lane he was in, what lane the other vehicles were in and the whole issue of whether the plaintiff changed lanes to avoid a collision or had changed lanes prior to the collision.
[8] The plaintiff has filed medical reports from which his counsel seeks to argue that the inconsistent stories are a function of medical disabilities including, but not limited to, memory loss. The plaintiff was in his 70s at the time of the accident (now more than five years ago) and was suffering from diabetes and memory loss at the time, which symptoms have been aggravated by chronic pain, insomnia and other physical complaints. These have impaired his ability to recall accurately the events of the accident, which occurred in a flash of time, leading to the inconsistent stories.
[9] Following examinations for discovery of the other defendants (drivers of the two other cars), the claims against them were settled. The only remaining claim is the claim of the plaintiff against Jane or John Doe as owner and driver of the school bus on the theory that the negligence of the school bus driver contributed to the accident of the plaintiff. The plaintiff has also sued his own insurance company (State Farm Mutual Automobile Insurance Company) under unidentified motorist coverage of his policy pursuant to s. 265 of the Insurance Act, R.S.O. 1990, c. I.8 since no record of the name of the school bus driver or owner of the school bus has been found. [page214]
[10] No charges were laid as a result of the accident.
[11] The first issue that arises is why this claim is brought against Jane and John Doe. The school bus and driver remained at the scene of the accident for a period of time according to Mr. Williams at least. The plaintiff claims to have asked for the police investigation file, but all that has been produced is the report of the officer at the OPP collision reporting centre to which the cars were towed after the accident. The undisputed evidence is that emergency responders, including police and either or both of fire and ambulance, attended at the scene and that the school bus and driver remained at the scene at least for a time. There is no evidence that any of these emergency service responders were contacted to determine whether they spoke to the school bus driver or even recorded its plate number. The plaintiff claims to have been in shock and too dazed to have done so and I have little hesitation in accepting that. However, the failure to at least perform enough due diligence even after the fact when the claim was commenced in order to determine what notes if any were made or retained by the emergency responders at the scene remained unexplained. Whether the unidentified vehicle could have been identified, it was not and the suit against Jane and John Doe was filed instead.
[12] The moving party defendant's position is simple and direct. Mr. Hughes submits that the plaintiff has the onus of proving negligence of the school bus was a cause of the accident. Under the contract of insurance and s. 265(1) (b) of the Insurance Act, the only claims that State Farm is obliged to pay are for amounts that the plaintiff "is legally entitled to recover from the owner or driver of an uninsured motor vehicle or unidentified automobile as damages . . . resulting from an accident involving an automobile". He submits the plaintiff can prove no claim of negligence against the school bus and thus has no claim under s. 265(1)(b) of the Insurance Act. This is so both because the plaintiff has no evidence whatsoever that the spinning out of control of the school bus arose from negligence of the driver (which, he argues, cannot be inferred or presumed) and because the plaintiff's failure to stop was entirely a matter of his own negligence for, among other things, following too closely and failing to leave himself enough room or time to react to the situation that developed before him (as the cars before him did react). In either event, the plaintiff could not recover any sum from the driver or owner of the school bus and thus cannot make a claim under his policy against State Farm.
[13] The plaintiff argued that the negligence of the school bus is a matter of res ipsa loquitur. The school bus spinning out of [page215] control was a clearly unusual, unforeseen and unforeseeable emergency. The fact that other drivers were able to react to it without collision while the plaintiff was in a collision is not determinative. The law does not impose too harsh a judgment in hindsight of the reactions of drivers to an emergency. Further, the plaintiff submits, the court need only establish that the plaintiff did not bear all of the responsibility for the accident to dismiss the motion. The jury should be allowed the opportunity to assess the degrees of responsibility and thus the level of contribution, if any, of the plaintiff. There is evidence upon which a jury properly instructed could find liability and the court ought not to take the matter out of the jury's hands.
[14] Following argument, Mr. Goldberg brought to my attention the case of Fontaine v. British Columbia (Official Administrator), 1998 814 (SCC), [1998] 1 S.C.R. 424, [1997] S.C.J. No. 100, which treated the maxim of res ipsa loquitur as expired and the case of El Dali v. Panjalingam (2013), 2013 ONCA 24, 113 O.R. (3d) 721, [2013] O.J. No. 208 (C.A.), where the Court of Appeal found that a case of prima facie negligence not answered by the defendant could be sufficient grounds for overturning a jury verdict notwithstanding the "expiry" of the res ipsa loquitur maxim found in Fontaine. I shall refer to El Dali further below.
[15] Having heard and considered the able argument of counsel, it seems to me that there are three issues which I must determine on this motion: (a) does the existence of a jury notice affect in any way the manner in which rule 20.04(2) and (2.1) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] are to be applied; (b) has the plaintiff established circumstances permitting an inference of prima facie negligence on the part of the school bus driver; and (c) has the moving party satisfied me on the balance of probabilities that the accident occurred solely due to the negligence of the plaintiff?
Negligence of Jane and John Doe
[16] The plaintiff's claim against State Farm is based upon its claim against Jane Doe and John Doe as owner and driver of the school bus. Pursuant to s. 265(1) of the Insurance Act, the plaintiff may only succeed against State Farm if he can establish that he has a claim as against Jane Doe or John Doe as owner or driver of the school bus.
[17] It has been said that the Lord helps those who help themselves. In this case, unfortunately, the plaintiff has not helped himself much. There is no evidence before me that any efforts were expended in locating the notes or even names of the emergency services personnel who attended on the scene. The only [page216] accident report produced is that of the OPP officer who took the self-reports made by the three drivers at the collision reporting centre after the accident. It may be that no such notes or reports exist or it may be that after five years they can no longer be located. All I do know is that a motion for judgment calls for the plaintiff to put its best foot forward and the plaintiff has offered the court no assistance whatsoever in locating Jane Doe or John Doe.
[18] Absent any evidence from Jane Doe or John Doe and given the fact that none of the eyewitnesses to the accident (the three drivers -- Mr. Min, Mr. Williams and the plaintiff) had any information to offer as to what led to the school bus spinning out of control, the court has limited evidence to work with in assessing whether the plaintiff has satisfied the burden of proof upon him. The task is not to assess the case that might have been, however, but the case that is. I must work with the clay I have to see whether the plaintiff can fashion a case that survives summary judgment.
[19] I think the key to unlocking this case is to be found in the case of Gauthier & Co. v. Canada, 1945 40 (SCC), [1945] S.C.R. 143, [1945] S.C.J. No. 1. In Gauthier, a military vehicle (a sten gun carrier) skidded along the road and, in so doing, the rear portion of the vehicle entered the lane of oncoming traffic, where it entered into collision with an ambulance headed in the opposite direction.
[20] The moving party seized upon the comment of Kellock J., writing for the majority in Gauthier, that "[s]kidding of a vehicle on a highway by itself is a 'neutral fact' equally consistent with negligence or no negligence" (at p. 152 S.C.R.). Mr. Hughes submitted that the skidding of the school bus here is similarly a neutral fact from which no assumption of negligence can be derived. That appears to me to be a quite selective reading of the case.
[21] In Gauthier, Kellock J. found (at p. 149 S.C.R.) that the appellant had established a prima facie case of negligence as against the respondent since the driver of the military vehicle whose rear part crossed the middle line had violated a statutory duty to cede the right of way on half of the road surface to oncoming traffic. Having found a breach of statutory duty on the facts, the onus then shifted to the defendant to throw off the rebuttable presumption of negligence that flowed from that finding.
[22] Mr. Hughes argues that there is no evidence of a breach of statutory duty in this case. I don't take Gauthier as requiring a breach of statutory duty to create as being the only path to finding the existence of a rebuttable presumption of negligence. Rather, it is but an instance of a circumstance where breach of duty, in that case statutory, gave rise to a rebuttable presumption which the defendant had not disproved. Not every duty [page217] need be a statutory one. It is true that there appears to be no particular provision of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA") that obliges a driver of an automobile to exercise due care at all times so as to keep the automobile under control and able to be operated safely at all times. Such a duty is arguably implicit in the offence of careless driving under s. 130 of the HTA, which makes it an offence to drive "without due care and attention or without reasonable consideration for other persons using the highway".
[23] If a breach of statutory duty need be established in order to apply the common-sense reasoning underlying Gauthier, the plaintiff need not, in my view, go so far as proving a case of careless driving. The evidence establishes that the school bus spun out of control and, in so doing, proceeded to spin from the middle lane to the right hand shoulder of Highway 401. There is no evidence that the driver of the school bus took the time to signal a safe lane change as he was spinning out of control and I do no violence to the evidence by assuming he did not. It is thus safe to conclude that the school bus made at least two lane changes without proper signals in breach of the driver's duty under s. 142 of the HTA.
[24] I find the reasoning to be artificial if quite defensible. I would prefer instead to conclude what I believe any juror would conclude: the fact of spinning out of control in this fashion calls out for an explanation failing which negligence is the evident assumption. Were Jane or John Doe before the court and defending the case, the onus would be on them to provide an explanation for the school bus' actions that does not entail negligence. There may be innocent or non-negligent reasons to explain it. Just as in Gauthier the plaintiff discharged his burden of proof and made a prima facie case for negligence by showing that the driver of the military carrier crossed the centre line, so in this case the plaintiff has made a prima facie case by leading evidence that the school bus lost control and crossed two lanes of traffic before coming to a rest on the shoulder. That evidence does not end the inquiry -- in Gauthier or here. It does, however, shift the burden of proof.
[25] While a skid may be a neutral fact, losing of control of an automobile proceeding at highway speed on a 400-series highway resulting in a school bus literally spinning out of control to end up two lanes away on the shoulder is not. An explanation is called for where that incident bears an obvious and tangible causative link to the accident that followed. There is an inference from that fact which a jury could readily make and which I do make that negligence of the driver of the school bus was [page218] involved. It is a rebuttable inference only, but an inference which silence cannot remove. There may be non-negligent explanations, but none have been offered and the circumstance (particularly in light of the lack of any observed cause by the following drivers) is such as to make negligence the ordinary and natural assumption.
[26] No forbidden recourse to retired Latin maxims is needed to employ ordinary common sense.
[27] The defendant cited the case of Mitusev v. General Motors Corp., [2014] O.J. No. 4365, 2014 ONSC 2342 (S.C.J.). At para. 93 of Mitusev, Edwards J. found that, "While res ipsa loquitur may be seen as a doctrine to have outlived its useful life, there can be no dispute that circumstantial or indirect evidence can, in an appropriate case, lead to the conclusion that the plaintiff's injury was caused by the defendant's negligence." While Edwards J. was examining a product liability case with disputed evidence concerning the party responsible for the particular part of the automobile whose failure was the cause of the accident, his comments are applicable to the present case.
[28] The three facts before me here are (i) that the out of control condition involving the unidentified automobile (i.e., the school bus) and driver actually occurred; (ii) that the emergency braking of the three following cars ensued as a result; and (iii) that none of the three following drivers perceived any apparent cause for the school bus' actions on a clear road in daylight. I can find no basis to avoid drawing the inference that this is circumstantial evidence of the negligence of the school bus and driver which resulted in the injury to the plaintiff. If that inference is to be rebutted, it is for the defendant to do so.
[29] Finding the existence of a rebuttable presumption of negligence on the facts as proved by the plaintiff in this case is not tantamount to resurrecting a retired doctrine. It is simply the drawing of inferences from facts -- precisely what judges and juries have ever done and will necessarily continue to do. Nothing in Fontaine ordains otherwise.
[30] The present case has significant parallels with the Court of Appeal decision in El Dali. In El Dali, the plaintiff pulled over to the side of the road to avoid the defendant vehicle which had lost control and was crossing the centre line of the highway. The defendant's vehicle nevertheless struck the plaintiff's car. The defendant did not testify at the trial. The jury answered no to the question of whether the defendant was negligent, leading to the appeal on the basis that the verdict was unreasonable.
[31] As in the present case, the defendant in El Dali argued that the plaintiff could have taken steps to avoid the accident [page219] and was thus 100 per cent liable. Laskin J.A. found that by losing control and crossing the centre line contrary to s. 148 of the HTA, "on this circumstance alone, a prima facie case of negligence was made out, and it became incumbent upon the respondent to explain that the accident could not have been caused by the exercise of reasonable care. The explanation need not come from the defendant driver, but it must come from someone" (at paras. 18-19).
Negligence of the Plaintiff
[32] The moving party sought to argue that the evidence establishes that the sole cause of the accident was the negligence of the plaintiff. With all respect to Mr. Hughes, who made a convincing argument, I think the argument must fail.
[33] The plaintiff's evidence regarding how the accident occurred is quite unreliable. He has given differing accounts of, among other things, what lane he was in and whether a change of lanes was involved. The plaintiff has produced medical evidence which goes at least some reasonable part of the way in explaining to me why the plaintiff's evidence is as inconsistent as it is.
[34] I cannot simply conclude that because two cars managed to stop in time to avoid the school bus that a third must necessarily be negligent for having failed to do so. It is true that the plaintiff has claimed that he was only two car lengths behind the car in front of him (Mr. Williams). This might suggest following too closely and negligence. However, he also claimed to be going only about 40 km/h on Highway 401, where other drivers claimed 100 km/h, and he made (inconsistent) claims of having changed lanes to avoid the accident.
[35] The moving party cannot have it both ways. If the plaintiff's evidence is unreliable for some purposes, I am not going to treat it as the gold standard of reliability for others. The plaintiff's cognitive capacities are clearly impaired to some degree. To what degree, I cannot now say and am increasingly convinced that a trial is the right forum to make that assessment. However, what can be said is that a car travelling at 40 km/h or even 50 km/h (per the plaintiff) is not going to stay only two car lengths behind a car travelling 100 km/h (per Mr. Williams and Mr. Min) in traffic for long. The plaintiff may be -- and on the evidence I would go so far as to say is -- a poor judge of distance and speed, at least when relying on his memory. Mr. Williams did not report the plaintiff's vehicle as tailgating him prior to the accident. I infer from the evidence that the plaintiff was travelling at or about the speed of traffic and the more reliable witnesses (Mr. Williams and Mr. Min) place that at or near the [page220] speed limit of 100 km/h. I also infer from the evidence that the plaintiff was travelling at an unremarkable distance behind the car in front of him before the collision since Mr. Williams did not remark upon the plaintiff as being especially close. I would not be inclined to give much weight to the plaintiff's estimates of speed or distance given his evident unreliability on other points.
[36] On this evidence, I cannot find that the sole cause of the accident was the plaintiff. The answer would defy common sense. Clearly, there was an emergency situation of sorts created by the loss of control of the school bus. The plaintiff's reaction to that situation, judged with the benefit of hindsight, may have been deficient or possibly negligent. However, I cannot possibly conclude that his alleged negligence can be inferred as night follows day to be the sole cause of the accident by the mere fact two cars managed to stop and he did not. I cannot now judge what to make of the plaintiff's explanations that he was in the midst of changing lanes. However, whatever conclusion one can draw on this evidence, the conclusion that the plaintiff alone was responsible for the action is not one of them. Further inquiry may fix some of the blame upon him or it may absolve him entirely. All I need determine for present purposes is that the scenario of sole responsibility of the plaintiff argued for by the defendant is not made out.
[37] Failure to stop in an emergency situation with the same reaction time as two other drivers closer to the emergency does not, in my mind, give rise to a presumption against the plaintiff. Perfection in the face of an emergency situation is not required of any driver. Reasonable attention and skill is. I cannot find on this evidence that the plaintiff was the sole cause of the accident. A trial will be able to determine whether he was a contributing cause and, if so, to what degree.
Trial by Jury and Rule 20.04(2.1)
[38] The question of an outstanding jury notice raises at least a question in mind regarding motions for summary judgment under rule 20.04 of the Rules of Civil Procedure. The right to a trial by jury is a substantive right and should not be lightly interfered with. It is of course not an absolute right nor is it a Canadian Charter of Rights and Freedoms-protected right in the civil context.
[39] In my view, this case is one where the plaintiff's claim would survive the first level of analysis required of courts considering summary judgment motions pursuant to the judgment of Karakatsanis J. in Hryniak v Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7. There is a genuine issue requiring a trial on the matter of liability having regard only to rule 20.04(2) [page221] of the Rules of Civil Procedure since the plaintiff's testimony, if accepted, would suggest a version of events pursuant to which he would bear no responsibility for the accident and the unidentified driver is solely responsible. He claims that his circumstances were different from those of the two cars before him who avoided collision in time because he sought to avoid the school bus by changing lanes. While his reaction to the emergency of the out-of-control school bus may be open to armchair quarterback criticism, that is not the standard by which negligence is measured. His credibility -- or lack thereof -- in recounting the lane change story will depend in significant measure on an appreciation of his evidence as it is given at a hearing and in the context of the medical evidence which offers at least some explanation for the evident frailties in his evidence.
[40] This court might conceivably be able to resolve the matter by employing the "toolbox" of rule 20.04(2.1) of the Rules of Civil Procedure to draw inferences or make findings of credibility. Ought the court to employ those tools when to do so might deprive a party of their substantive right to a jury? Stated differently -- if the court could not take the matter of liability away from the jury once the trial has begun, can it be invited to do by way of a summary judgment motion that which it could not do once the jury is in place?
[41] In the case of Mitusev cited by the plaintiff, Edwards J. clearly took the view that the existence of a jury notice ought to be considered before opening the toolbox of rule 20.04(2.1). He found (at paras. 90-91):
I have considered whether in the context of this case and this motion for summary judgment whether I should exercise my expanded fact finding role. In doing so I have also considered the guidance given by Hryniak in the context of this being a jury trial[.]
Juries are told every day that they may draw reasonable inferences from the evidence event though there is no direct evidence on a particular point. On a motion for summary judgment, while it is clear that the motion judge is required to determine whether there is no genuine issue for trial -- even in the face of a Jury Notice, where the motion judge is unable from the evidence filed to make findings of fact, and to thereafter apply the law, it seems to me that it would be the exceptional case that the motion judge would exercise the expanded fact finding allowed by Rule 20.04(2.1) and (2.2) to effectively usurp the fact finding role of the jury.
[42] Rule 20.04(2.1) empowers a judge hearing a motion under rule 20.04(2) to exercise the power to weigh evidence, evaluate credibility or draw reasonable inferences "unless it is in the interest of justice for such powers to be exercised only at a trial". The application of the "toolbox" of rule 20.04(2.1) is not automatic but must be done as a result of a conscious, two-step process. [page222] If and only if there is a matter requiring a trial under rule 20.04(2) without use of the toolbox, the matter of opening the rule 20.04(2.1) toolbox may be considered. Before deciding to open the toolbox and engage in the second level of analysis, however, the judge must determine whether the interests of justice require a trial and in which case no resort may be had to the toolbox. Edwards J. in Mitusev considered the existence of a jury notice to be a relevant factor in that consideration and so do I. That does not mean it is conclusive, but it clearly is a factor.
[43] Given the evidence the plaintiff wishes to lead regarding the cognitive capacity of the plaintiff as a witness -- evidence which I can certainly grasp the gist of but have not had the advantage of a full hearing and airing of opinions -- am I highly confident that I am better situate today than a jury will be then to consider this evidence? Is it in the interests of justice that I should deprive a party of the substantive right to have that process undertaken by a jury as trier of fact?
[44] For better or for worse, all judges have experiences of juries coming to verdicts which are different than the ones they might themselves have delivered were they the triers of fact. The right to a jury is sufficiently important that the legislature has chosen in its wisdom to retain it in the circumstances not excluded under s. 108 of the Courts of Justice Act, R.S.O. 1990, c. C.43. I think it is incumbent upon me in exercising my jurisdiction under rule 20.04(2.1) to give due consideration and deference to that factor.
[45] I do not conclude that the existence of a jury notice is a bar to proceeding with summary judgment motions requiring rule 20.04(2.1). However, I do think it is incumbent upon the court to give due consideration to the right to a jury trial and other relevant factors in considering whether the interests of justice require the rule 20.04(2.1) toolbox to remain unopened.
[46] In this case, I have determined that I ought to refrain from exercising the powers I am given under rule 20.04(2.1) in the interests of justice. The plaintiff's story may be compelling if told in its proper context in a trial setting. Whether my concern is cast as a matter of deference to the right of the plaintiff to have a jury as his trier of fact or whether it reflects my own conclusion that the conflicting evidence requires a trial to be sorted through is perhaps a moot point since both lines of reasoning take me to the same place.
Disposition
[47] I must in conclusion dismiss this motion, ably argued though it was. The plaintiff is entitled to his costs of the motion [page223] on a partial indemnity basis. I have received costs outlines of both parties. I will allow the plaintiff $9,000, including fees and disbursements.
Motion dismissed.
End of Document