CITATION: Vynckier v. Brown and State Farm, 2015 ONSC 376
COURT FILE NO.: 4900/10 (Chatham)
DATE: 20150122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lindsey Vynckier
Plaintiff
– and –
Christopher Brown, 1002013 Ontario Inc., Michelle Stokley, Kingsway General Insurance Company Jevco Insurance Company, Kingsway Financial Services Inc. and Curtis Deley
Defendants
– and –
State Farm Mutual Automobile Insurance Company added by order pursuant to section 258(14) of Insurance Act, R.S.O. 1990, Chapter 1.8 as amended
Third Party
Jerry F. O’Brien, for the Plaintiff
Christopher Brown, acting in person
Mary-Joe Renaud, for the Defendants, 1002013 Ontario Inc., Michelle Stokley, and Curtis Deley
Michael Drake, for the Defendants, Kingsway General Insurance Company, Jevco Insurance Company, and Kingsway Financial Services Inc.
Robert W. Weisser, for the Third Party
HEARD: January 20, 2015
Gates J.:
[1] Before the commencement of this hearing the defendant Christopher Brown was paged on two occasions, three times each, with no response.
[2] While walking along the highway, on August 16, 2009, facing oncoming traffic, the plaintiff, Lindsey Vynckier, was struck from behind by the defendant, Christopher Brown (“Brown”). His motor vehicle crossed two lanes of traffic in order to strike her. At the time, she was walking approximately three feet on the shoulder, away from the travelled portion of the roadway. She was seriously injured.
[3] Because, the plaintiff says, there is no genuine issue which requires a trial herein, given the nature and manner in which this accident and the plaintiff’s injuries occurred, the court should grant summary judgment on the liability issues against the defendant, Brown, as well as the defendants, 1002013 Ontario Inc. (“1002”), Michelle Stokley (“Stokley”) and Curtis Deley (“Deley”), who have indicated through counsel, they are not opposing the plaintiff’s application. Furthermore, counsel for State Farm Mutual Automobile Insurance Company, which was added as a Statutory Third Party, pursuant to s. 258(14) of the Insurance Act, R.S.O. 1990, c. 1.8, did not appear.
[4] The plaintiff says that as a result of being struck, the 2006 GMC pick-up truck owned by Stokley and 1002 and operated by Brown ran over her right foot, crushing it and causing it to tear open which resulted in serious and permanent injuries. At the time, she was at the University of Windsor about to start her third year leading to a degree in Developmental Psychology. It was her intention after university, to ultimately become a physiotherapist. Because of her injuries, she is limited in her capacity to work, only being able to work part-time in a modified career.
[5] Brown and his co-defendants 1002, Stokley and Deley say that he is not negligent because at the time he had suffered a seizure.
[6] From the record, it would appear that at the time of this incident Brown, who was 20 years of age had just recently acquired a G1 licence (“GI”) which limited his ability to drive in that he had at all times to have a fully licensed adult driver accompany him and further was prohibited from driving with any amount of alcohol in his blood; this was a zero tolerance condition.
[7] The plaintiff says that Brown was in violation of both of these conditions and subsequently he was convicted of failing to comply with the conditions of his G1 licence.
[8] The plaintiff says that at the time he applied for his licence Brown falsely answered a question in his licensing examination as to whether he had ever had a history of seizures. In response, he answered the question “No”. However at his subsequent Examination for Discovery he admitted that this answer was false and he knew this when he filled out the application form. In fact he had a long-history of seizures before he applied for his G1, the first of which occurred in 2002. It would appear that he suffered 16 seizures before he applied for the licence, including two in the year of his application.
[9] The plaintiff also says that he failed to disclose his seizure history, in order to keep his licence and that he knew that he could only drive if he was seizure-free for one year but if he had an occurrence of one he would not be able to drive. The record would indicate that he had two seizures in the year 2008 and when he saw his treating doctor approximately four months before the collision, on or about April 1, 2009, his neurologist advised him that if he has had any reoccurrence of seizures he would not be able to drive.
[10] In fact, he had a seizure in May 2009 just three months before the collision in question, which would mean that he had a total of 17 seizures before this accident.
[11] His treating neurologist, following the assessment in April 2009 was of the view that his last seizure was probably triggered by excessive alcohol as well as lack of sleep and, the plaintiff says, that he was well aware there were factors or “triggers” which would increase the likelihood of a seizure. Additionally, the triggers also included the failure to take his seizure medication at the same time every day.
[12] The record would also indicate that the night before this incident Brown, together with two friends, including the defendant, Deley and one Ovens attended a concert at which time he admitted that he consumed a few beers both before and during the concert. Afterward, the three of them went to a local club in Chatham where more alcohol was consumed.
[13] At the accident scene, Brown admitted that he had been drinking at least about five beers and at his Examination for Discovery he admitted he was running a risk of having a seizure. When examined at the hospital about two hours later, his blood-alcohol reading was < 0.7 mml which confirmed therefore there was alcohol in his system when he operated the GMC vehicle.
[14] Furthermore, he admitted that he took his seizure medication too late, despite the inherent risks in doing so, on the day in question, and told the investigating police officer, P.C. Molnar, that the medication probably did not have time to take effect. The officer’s notes indicate that Brown admitted that he took the medication at around 12:15 p.m., only approximately two hours before the accident.
[15] Apart from Brown’s negligence as the operator, his co-defendant, Deley, who has been a life-long friend of Brown and who knew Brown had been suffering seizures since grade 9 in high school, also knew that Brown was on medication which he assumed was to treat his seizure condition.
[16] The day after the Chatham Airport (“Airport”) concert which preceded the accident, the GMC truck which Brown ultimately drove, had been left overnight at the Airport. The day of the accident the question arose as to how it was to be recovered. Therefore Deley asked Brown and one Ovens to accompany him as passengers in a Ford pick-up truck, to retrieve it.
[17] The question then arose as to which of the two would operate the GMC vehicle to return it to the owners’ possession.
[18] The plaintiff says that Deley knew full well of Brown’s history with seizures and that he and their group had been drinking all day long the day before, as well as at the concert at the Airport and further he was aware of the two restrictions on Brown’s G1 licence which he had only recently acquired. On the other hand Ovens had been a licensed driver for four years. Nevertheless Deley, for whatever the reason, decided to let Brown drive the GMC while Ovens rode with Deley in the Ford truck.
[19] At his examination Deley admitted that prior to giving the keys to Brown he did not ask to see Brown’s new licence; he did not ask Brown what kind of licence he possessed; he did not ask whether there were any conditions imposed on it nor had he had any discussions about Ovens accompanying Brown in the truck, as a licensed driver. Lastly, he did not ask Brown if and when he had last taken his seizure medication within the previous 24 hours.
[20] All things considered, the plaintiff says that in this matter there is no genuine issue requiring a trial with respect to the negligence of the defendant driver, Brown. Furthermore the owners, Stokley and 1002013 Ontario Inc. have admitted they are vicariously liable for his negligence, pursuant to s. 192 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”).
[21] Similarly the plaintiff says that there is no genuine issue requiring a trial with respect to the issue of the negligent entrustment, by Deley, of the GMC vehicle to Brown.
Test for Summary Judgment
[22] It is now well-established since the case of Hryniak v. Mauldin, 2014 SCC 7, 2014 S.C.C. 7 (para. 49) that a summary judgment shall be granted where the court is satisfied that there is no genuine issue requiring a trial, which represents a revision of the previous rule.
[23] Now, so long as the hearing judge is able to reach a fair and just determination on the merits on a motion for summary judgment, there will be no genuine issue which requires a trial.
[24] Accordingly, this permits the hearing judge to make the necessary findings of fact, and allows him/her to apply the law to the facts which is a proportionate and more expeditious and less expensive means to achieve a just result.
[25] The recent amendments to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, of rule 20.04(1) means that summary judgment shall be granted if the court is satisfied there is no genuine issue requiring a trial and that in determining this, a court shall consider the evidence submitted by the parties. Furthermore the hearing judge may weigh the evidence, evaluate the credibility of any deponent and draw any reasonable inference from the evidence in determining whether or not summary judgment shall issue.
[26] With this context, the plaintiff says that this is an appropriate matter for summary judgment in that it is not a complicated factual case, as it involves a single-car accident and the issues are confined to the negligence of Brown as the driver, the negligent entrustment by Deley to him of the motor vehicle owned by their co-defendants and, the vicarious liability of the owners of the vehicle, for the negligence of Brown.
[27] The record would clearly indicate that not only did Brown lie to obtain his licence but he lied in order to keep it; on the day in question he was driving unlawfully when he crossed the road and struck the plaintiff from behind; because he was driving alone and was not accompanied by a regularly licensed driver, he breached the terms of his G1 licence restriction and similarly, he breached the terms of his licence by having alcohol in his blood stream.
[28] In addition, he knew that he had a history of seizures and, as the record confirmed, there were 17 of them prior to the accident, the most recent of which occurred only three months in advance of it and, had he disclosed this to his treating neurologist, he would in all likelihood have been prohibited from driving.
[29] Brown knew what the seizure triggers were, namely, the consumption of alcohol and the failure to take his anti-seizure medication on a timely basis. He ignored both.
[30] He also failed to advise Deley of the significant conditions attached to his G1 licence nor did he advise Deley of the likely presence of seizure triggers involving alcohol and his untimely consumption of his anti-seizure medication. Furthermore the plaintiff says, Brown negligently failed to agree that Ovens, a fully licensed driver, operate the vehicle or at least agree that he accompany Brown if he was to drive.
The Law
[31] The Supreme Court’s decision in Hryniak has been described as a revolutionary call to arms against tradition of protracted litigation and unnecessary expense.
[32] The court ruled that the summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. (See: Hryniak, Karakatsanis J., at para. 4.)
[33] As she stated, at para. 8, the traditional approach to summary judgment has involved undue process and protracted trials with unnecessary expenses and delay to the litigants and often stood as a bar to the fair, just and timely resolution of disputes.
[34] Therefore the court urged that there ought to be a culture shift, away from the traditional preoccupation with process and the full trial model and that it should be instead, tilted toward the efficient and proportionate resolution of disputes.
[35] The proportionality principle demonstrates that the best forum for resolving a dispute is not always that with the most painstaking, expensive and protracted procedure. With this context therefore, the Supreme Court interpreted Rule 20 such that it urged motions judges to focus not on the necessity of a trial but whether it is only absolutely required and that this factor should be weighed against proportionality, timeliness, and affordability.
[36] The lesson to be learned from Hryniak, therefore, is that the court undertake an analysis to:
i) assume that the parties have placed before it all of the evidence that will be available for trial;
ii) determine on the basis of the record, whether it can make the necessary findings of fact, apply the law to those facts and achieve a fair and just adjudication of the case on its merits;
iii) if the court cannot grant judgment on the motion than it should decide those issues which can be decided in accordance with the principles enunciated in Rule 20 and identify the additional steps that might be required to complete the record and that lastly, the court should seize itself of the further steps required to bring the matter to a conclusion. (See: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 Corbett J., aff’d 2014 ONCA 878.)
[37] In Telfer v. Wright, [1978] O.J. No. 3675 (C.A.) the Court of Appeal held that the defendant who had previously experienced dizzy spells in the months before the accident in question was fully liable; a person’s unconscious state will not be a defence if that person had reasonable grounds to anticipate that it would occur.
[38] In that case the driver had previously suffered symptoms of dizziness similar to that which affected him just before the accident. Therefore, the onus rested on him to rebut the inference of a breach of duty and lack of reasonable care. Most often this is accomplished by demonstrating that there was no evidence of any prior disability or any foresight of probable harm.
[39] A motorist has the duty to make certain that he is in a proper state of health to operate a vehicle and he must not therefore expose other persons to the risk that he may suffer an attack of a kind that would impair his ability to control his vehicle, with the result that if he is aware that he suffers from a disability he is therefore under a heavy duty to take the necessary precautions to avoid the possibility that this disability would be the cause of an accident.
[40] The actual circumstances of the case at hand stand as a beacon to the context here where the record discloses that there were 17 seizures before the accident, the last one of which was approximately three months before, and Brown was fully aware of this; and he lied about his seizure history and ignored his obligation to take his anti-seizure medication on a timely basis.
[41] In the circumstances therefore, the plaintiff says that the defendant Brown is clearly liable for the accident and its consequences. Furthermore, she says that as the owners of the vehicle, the defendants, Stokley and 1002013 Ontario Inc., are vicariously liable, pursuant to s. 192 of the HTA. Their counsel acknowledges this. As well, Deley is similarly negligent because he was possessed through his long friendship with Brown of the knowledge that Brown had suffered seizures for years and that he had just recently obtained a G1 driver’s licence and he knew or he should have known that the licensing scheme for new drivers was a graduated one which forbid Brown from operating a vehicle without there being a fully licensed driver present. Furthermore he was to consume no alcohol.
[42] The plaintiff also says that Deley failed in the due diligence of inquiry previously referred to and he was negligent in allowing Brown to drive the vehicle unaccompanied, on the highway with his significant pre-accident seizure history, where he had consumed alcohol and failed to take his seizure medicine as prescribed.
[43] Deley’s liability is for negligent entrustment which arises as a result of the following:
i) He willingly turned the vehicle over to Brown;
ii) He knew or ought to have known that Brown was inexperienced, and he had restrictions on his driver’s licence yet allowed him to drive/operate the vehicle alone;
iii) He knew from prior personal knowledge of Brown’s serious medical seizure condition;
iv) In turning the vehicle over to Brown he created an appreciable risk of harm and therefore a duty of care on his part, to protect other users of the highway;
v) Brown’s negligence was the sole or proximate cause of the plaintiff’s injuries and damages. (See: Schulz v. Leeside Development Ltd.(1977), 3 C.C.L.T. 72, 1977 CarswellBC 485, at paras. 22-23.)
[44] I should also add that while the plaintiff served a Request to Admit on all the defendants, Brown did not respond and therefore by rule 51.03(2) he is deemed to admit the allegation of negligence against him.
[45] Similarly, the other defendants admitted paragraph 2 of the Request thereby confirming that Brown was operating the vehicle with the consent of Stokley and 1002013 Ontario Inc. as owners in a letter dated December 14, 2014.
[46] I also conclude from the Record before me that Deley who had absolute care and control of the GMC vehicle could easily have given the keys to Ovens to operate or at the least insist on him being in the vehicle as a licensed driver for Brown. Instead, he turned the keys over and allowed Brown to drive alone in contravention of the G1 licence requirements. In fact, Deley admitted he never even asked Ovens to accompany Brown.
[47] As plaintiff’s counsel put it, Deley allowed an “epileptic newbie” to operate the vehicle alone.
[48] While the defendants Brown and Deley are jointly and severally liable, on the Record before me and having heard the able arguments from both counsel, I conclude that as between them Brown should bear 75 percent of the responsibility and Deley 25 percent.
Decision
[49] I am satisfied that sufficient evidence exists on the record to demonstrate that there is no genuine issue requiring a trial and that there will be judgment in favour of the plaintiff as follows:
- i) There will be a finding that the defendant Brown was 75 percent negligent and the defendant Deley 25 percent negligent;
ii) The defendants Stokley and 1002013 Ontario Inc. are vicariously liable for his negligence pursuant to s. 192 of the HTA;
iii) The defendant Deley was negligent in entrusting the vehicle to Brown on the day in question;
iv) The defendants Stokley and 1002013 Ontario Inc. are vicariously liable for Deley’s negligence.
- The plaintiff may proceed with an assessment of her damages.
[50] There will be costs to the plaintiff on a partial indemnity basis.
[51] In this regard plaintiff’s counsel provided a Costs Outline seeking the sum of $21,194.21 on the partial indemnity scale, as follows:
Fees $16,825.00
HST $2,187.25
Estimated lawyer’s fee for appearance - $750.00
Disbursements $2,181.96
Total $21,194.21
[52] In assessing the costs, I am mindful of the factors referred to in Rule 57 as well as the inherent discretion imparted to the Court pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and, the overriding principle of proportionality as set out in rule 1.04(1.1) of the Rules of Practice.
[53] Furthermore as stated by Armstrong J.A. in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) in assessing costs the court must be vigilant against the notion of merely multiplying the hours expended times the hourly billing rates of the lawyers involved.
[54] That said, therefore, I find the hourly rates claimed here are reasonable. In passing I think, through inadvertence, that the sums of $6,000 and $240 credited to Mr. Allingham and Ms. Wunder should be reversed.
[55] Furthermore the disbursements charged are likewise reasonable.
[56] With respect to the fee portion of the Costs Outline however I have modified it somewhat to reflect that while the defendants did in effect lengthen out the proceedings in not coming to grips with the liability issue sooner than December 2014, in my view the initial hours expended were, perhaps generous, given the relatively non-complex nature of the claim.
[57] I have therefore assessed the various fees as follows:
Jerry O’Brien $8,000.00
James Allingham $240.00
Emily Wunder $4,000.00
Law Clerk $855.00
Total $13,095.00
Plus HST $1,702.30
Mr. O’Brien’s counsel fee
at the motion will be $750.00
Disbursements $2,181.96
Total $17,729.31
[58] The costs are therefore fixed at $17,729.31.
Original signed by “Gates J.”
Richard C. Gates
Justice
Released: January 22, 2015
CITATION: Vynckier v. Brown and State Farm, 2015 ONSC 376
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lindsey Vynckier
Plaintiff
– and –
Christopher Brown, 1002013 Ontario Inc., Michelle Stokley, Kingsway General Insurance Company Jevco Insurance Company, Kingsway Financial Services Inc. and Curtis Deley
Defendants
– and –
State Farm Mutual Automobile Insurance Company added by order pursuant to section 258(14) of Insurance Act, R.S.O. 1990, Chapter 1.8 as amended
Third Party
REASONS FOR JUDGMENT
Gates J.
Released: January 22, 2015