Harlow v. Yusopov, 2015 ONSC 3678
CITATION: Harlow v. Yusopov, 2015 ONSC 3678
COURT FILE NO.: CV-11-429212
DATE: 20150608
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DEBORAH LESLIE HARLOW
Plaintiff
– and –
ISRAEL YUSOPOV and LARA BLANCH
Defendants
COUNSEL:
No one appearing for the Plaintiff
M. Knez, for the Defendant Israel Yusopov
C. Whibbs, for the Defendant Lara Blanch
HEARD: June 5, 2015
REASONS FOR DECISION
FAIETA, J.
[1] The defendant Lara Blanch brings this motion for summary judgment to dismiss the plaintiff’s claim and the defendant Israel Yusopov’s crossclaim against her on the basis that there is no genuine issue requiring a trial.
[2] The plaintiff consents to this motion. The defendant Yusopov opposes this motion.
Background
[3] These proceedings arise from a motor vehicle accident that occurred on the morning of June 22, 2009. On that day the defendant Blanch was driving the plaintiff to York University. The plaintiff was seated in the front passenger seat. The defendant Blanch was travelling westbound on Steeles Avenue in the left-most lane, just west of Bathurst Street, in the City of Toronto, when her vehicle was struck from behind by a motor vehicle operated by the defendant Israel Yusopov. The plaintiff commenced this action for personal injuries that she suffered in this motor vehicle accident on June 22, 2011.
[4] The defendant Blanch submits that this Court should find that there is no genuine issue requiring a trial with respect to determining that the defendant Blanch is not responsible for this motor vehicle accident.
Motions for Summary Judgment
[5] A defendant may, after delivering statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim[^1].
[6] Rule 20.04 states, in part, that:
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of just for such powers to be exercised only at a trial.
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. [emphasis added]
[7] In Hyrniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada stated:
…In my view, a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
To that end, I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.
As the Court of Appeal observed, the inappropriate use of summary judgment motions creates its own costs and delays. However, judges can mitigate such risks by making use of their powers to manage and focus the process and, where possible, remain seized of the proceedings. [emphasis added]
[8] The following two-step analysis must be applied on a summary judgment motion.
[9] First, a judge is to determine, based solely on the evidence before her, whether there is a genuine issue requiring a trial. If not, then summary judgment should be granted. There will be no genuine issue requiring a trial when the written record:
(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 proportionate, more expeditious and less expensive means to achieve a just result[^2].
[10] Second, a judge may consider whether a trial can be avoided by using the powers granted under Rules 20.04(2.1) and (2.2) to weigh the evidence, evaluate credibility, draw reasonable inferences and call oral evidence. These discretionary powers are presumptively available unless it is in the interest of justice to exercise them only at trial[^3].
Is There A Genuine Issue Requiring a Trial?
[11] The parties agree that “…when one car runs into another from behind, the fault is in the driving of the rear car, and the driver of the rear car must satisfy the Court that the collision did not occur as a result of his negligence.”[^4]
[12] This principle was recently confirmed by the Ontario Court of Appeal in Iannarella v Corbett[^5]:
In my view, the driver of the rear vehicle might well have an excuse for the collision that satisfies the jury that the accident did not occur as a result of his or her negligence. Nonetheless, the duty to provide that explanation rests on the defendant, not the plaintiff. To put it differently, once the plaintiff has proven that a rear-end collision occurred, the evidentiary burden shifts from the plaintiff to the defendant, who must then show that he or she was not negligent. This analysis would apply event where an emergency situation is alleged, as in this case.[^6] [emphasis added]
[13] In Swain v Gorman[^7] the plaintiff submitted that the collision was caused by the defendant applying her brakes too quickly. In granting summary judgment the Court stated:
There is no evidence that Sherry Gorman had to brake hard in order to avoid a collision with the vehicle in front of her, or that she was travelling at excessive speed or was a distracted driver. The duty was on the plaintiff, as a following vehicle, to ensure that the collision did not occur as a result of her negligence. There is no evidence that Sherry Gorman was not exercising the standard of care that is to be expected of an ordinary, reasonable and prudent person in the same circumstances....[^8] [emphasis added]
[14] The parties adduced the following evidence on this motion:
(a) Affidavit of Lara Blanch, sworn November 17, 2014; Affidavit of Marta Wrzala, sworn November 6, 2014; Affidavit of Cary Schneider, sworn January 6, 2015; Affidavit of Israel Yusupov, sworn February 16, 2015;
(b) Excerpts from the transcript of the Examination for Discovery of the Plaintiff, dated May 22, 2013;
(c) Excerpts from the transcript of the Examination for Discovery of the defendant Blanch, dated March 11, 2014;
(d) Transcript of the Examination for Discovery of the Defendant Yusupov, March 31, 2015
[15] The defendant Yusupov submits that the motor vehicle accident occurred because the defendant Blanch “slammed” on her brakes and that he heard tires “screeching”. However his recollection of the events on that day are not corroborated by any other evidence submitted on this motion. In fact, a charge of careless driving was laid against the defendant Yusupov under Highway Traffic Act[^9] however he does not recall what became of those charges.
[16] The plaintiff states that she did not remember the defendant Blanch driving in a manner that was erratic or out of the ordinary that day. She recalled that the Blanch vehicle was stopped at a traffic light when the collision occurred. The Blanch vehicle had been stopped for “seconds” prior to the collision. The plaintiff states that the force of the collision was heavy.
[17] The defendant Blanch states that traffic was heavy on Steeles Avenue at the time of the accident. She states that the vehicles in front of her vehicle were slowing and stopping. There was a red light at the intersection ahead. She gradually slowed her vehicle. Her vehicle came to a full and complete stop. She estimates that she was at a complete stop for about 10 to 20 seconds before being struck from behind by the Yusupov vehicle. The airbags in her vehicle did not deploy. Her vehicle was pushed forward by the impact of the collision however it did not hit the vehicle in front of her.
[18] Having weighed the evidence, I do not accept that the defendant Blanch “slammed” on her brakes or otherwise came to a sudden stop. Further, the defendant Yusupov has failed to discharge the onus upon him to show that the motor vehicle accident did not occur as a result of his negligence.
[19] Accordingly, I hereby dismiss the plaintiff’s claim and the defendant Yusupov’s crossclaim against the defendant Blanch.
[20] Costs of this motion are awarded to the defendant Blanch on a substantial indemnity basis. This motion should have been unnecessary. The defendant Yusupov rejected an offer to settle this matter. Having considered the submissions and the considerations under Rule 57.01 as well as Rule 1.04(1.1), and having the view that this motion should not have been opposed, it is fair and reasonable for the defendant Yusupov to pay the sum of $5,000 for costs of this motion to the defendant Blanch.
Mr. Justice M. Faieta
Released: June 8, 2015
[^1]: Rule 20.01(3). [^2]: Trotter v. Trotter 2014 ONCA 841, 122 O.R. (3d) 625, at paras. 72-75. [^3]: Trotter v. Trotter, at paras. 72-75. [^4]: Beaumont v. Ruddy 1932 147 (ON CA), [1932] O.R. 441 (C.A.) [^5]: 2015 ONCA 110, [2015] O.J. No. 726 (C.A.) [^6]: Para. 19 [^7]: [2014] O.J. No. 3822, aff’d [2015] O.J. No. 1440 (C.A.). [^8]: Para. 31. [^9]: R.S.O. 1990, c. H.8.