ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KHADIJA RAHIMI, NAJLA RAHIMI and ZELAIKHA RAHIMI
Plaintiffs
- and -
MOJTABA HATAMI and AVISCAR INC.
Defendants
Bahareh Kazemi,
for the defendant by counterclaim Najla Rahimi
Brigette A. Morrison,
for the defendants/plaintiffs by counterclaim
HEARD: June 26, 2015
F.L. Myers J.
REASONS FOR decision
Background
[1] The plaintiff Najla Rahimi moves for summary judgment dismissing the counterclaim brought against her by the defendants. For the reasons that follow, the counterclaim is dismissed. A necessary element of that holding is a finding that the defendant Mojtaba Hatami is 100% liable for the car accident that is the subject matter of this lawsuit. Accordingly, this motion not only resolves the counterclaim but the issue of liability in the main action as well. Therefore, all that remains for trial is the assessment of the plaintiffs’ damages.
The Facts
[2] On January 14, 2009, the plaintiff Najla Rahimi was driving her sisters to a movie in her car. They were being joined by the defendant Mojtaba Hatami. He was not familiar with the City. So he was following behind the plaintiffs’ car driving a car that he leased from the defendant Aviscar. The defendants’ car rear-ended the plaintiffs’ car.
[3] All three plaintiffs have sued for damages for injuries they claim to have sustained in the accident. In their statement of defence, the defendants deny liability for the accident and claim that the accident was caused by the negligence of the plaintiff Najla Rahimi. Particulars of the negligence alleged against the plaintiff Najla Rahimi include that:
a. she created an emergency and situation of danger;
b. she was careless and/or reckless in the operation of her vehicle at the time;
c. she made an unexpected maneuver without giving proper warning;
d. she came to a sudden and unexpected stop, or abruptly decelerated, some distance from an intersection when she knew or ought to have known that such action would not be anticipated by the Defendant Mojtaba Hatami, who was following her vehicle;
e. she came to a sudden and unexpected stop, or abruptly decelerated, when she knew or ought to have known that it was unsafe to do so, given the weather and road conditions at the time, the fact that the Defendant, Mojtaba Hatami been following her vehicle with a gap of only 1-2 car lengths;
f. she failed to give any warning to the Defendant, Mojtaba Hatami, of her intention to stop or decelerate suddenly;
g. she had the last clear chance to avoid an accident which he knew or ought to know was likely to occur…
[4] The defendants have properly raised in their statement of defence both contributory negligence and a claim for contribution and indemnity against the plaintiff Najla Rahimi under the Negligence Act, RSO 1990, c. N-1. By way of counterclaim however, the defendants seek contribution and indemnity by the plaintiff Najla Rahimi in respect of the damages claimed by her sisters. The defendants’ counsel conceded during argument that the facts and issues in the main claim and in the counterclaim are identical. The practical effect of the counterclaim is just that Najla Rahimi’s insurance policy is responding to that portion of the proceeding. Najla Rahimi is therefore represented by different counsel in her claim with her sisters as distinct from the counterclaim. Not surprisingly, counsel for Najla Rahimi in her capacity as plaintiff consents to the relief that she seeks on this motion.
Summary Judgment and the “Best Foot Forward” principle
[5] In Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200,Corbett J. described the current approach to summary judgment motions following the Supreme Court of Canada’s decision in Hryniak v Mauldin, 2014 SCC 7 as follows:
[32] Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions. This principle does not mean that large, complicated cases must go to trial, while small, single-issue cases should not. Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse. If anything, this principle is even more important after Hryniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties’ cases before it.
[33] As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:
The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
If the court cannot grant judgment on the motion, the court should:
a. Decide those issues that can be decided in accordance with the principles described in 2), above;
b. Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;
c. In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.
[34] The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a “full appreciation” of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court’s appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured. [Footnotes omitted.]
[6] Justice Corbett makes reference to the “best foot forward” principle that emerges from Rule 20.02. I agree with and adopt the recent description of the “best foot forward” principle as penned by Dunphy J. in 2313103 Ontario Inc. et al. v JM Food Services Ltd. et al., 2015 ONSC 4029 at para. 40:
Of particular relevance to this case is “best foot forward” assumption. In bringing a motion for summary judgment the court is entitled to assume that both parties have put before the court all of the evidence they would intend to adduce at trial (even if not in the same form) that relates to the issues for decision on the motion. Ambush and surprise have no legitimate place in modern litigation, but this is particularly so in motions for summary judgment where the entire action or a substantial part of it may be disposed of in favour of one or the other party. Summary judgment is no place for a party to look to keep dry powder for another day and it is rather late in the process to sit down and ensure the issues are thoroughly understood.
[7] In the case at bar, the parties agreed to limit their evidence to lawyers’ second-hand affidavits, the transcripts of the examinations for discovery of all parties, and an accident benefits statutory examination of the plaintiff Najla Rahimi. Normally, a party would not be entitled to rely on the transcript of his or her own examination for discovery. Rather, Rule 31.11 provides that transcripts from discovery can be read into evidence only by adverse parties. However, here, rather than drafting affidavits and cross-examining the adverse parties, counsel have determined to put in evidence all of the discovery testimony. While nothing prevented counsel from subjecting the parties to rigorous cross-examination on discovery, neither side approached examinations for discovery that way. The net effect of these strategic choices is that the court has before it the transcripts of evidence of every one of the eyewitnesses to the car accident. The fact that none was subject to rigorous cross-examination, in my view, falls within the “best foot forward” principle. That is, I assume that the court has before it all of the evidence that would be available at trial. If counsel decided not to cross-examine both on discovery and then, additionally, for this motion, that is their strategic choice and suggests an inference that doing so would not have been fruitful or yielded different evidence. To rule otherwise, would be to allow a party to keep its powder dry contrary to Justice Dunphy’s view with which I agree. Ignoring counsel’s strategic choices would provide a party two kicks at the can – testing the case before and then again after cross-examination. That would not be efficient, affordable, proportionate or at all fair.
[8] I have before me the police report and certain third party records (that are hearsay except where they refer to statements made by the parties themselves). I also have the transcripts of the eyewitnesses. Finally, counsel helpfully provided pictures and maps of the site. Apart from the strategic issue of cross-examination, I do not see what else would be available to a trial judge on the issue of liability. I am certainly comfortable that I have sufficient material to allow me to find the facts and apply the necessary law on liability and that this is a fair, just, and proportionate process for doing so. I will deal with one issue where credibility might be in issue just from the discovery of Najla Rahimi alone. However, even if I were to discount her evidence as lacking credibility or observational accuracy, the remaining evidence of her sisters and, especially the defendant Mojtaba Hatami, do not raise a genuine issue requiring a trial on liability. Mr. Hatimi essentially admits liability. In fact, it would only be through rigorous cross-examination of all of the witnesses, including their own client, that the defendants’ counsel (putting forward an adverse position of their insurer), might try to suggest that the parties are colluding to enable the defendant Mojtaba Hatami to take the fall for Najla Rahimi who was then his girlfriend and is now his wife. However, there was no such cross-examination. The rule in Browne v. Dunn (1893), 6 R. 69 (H.L.) was not followed to allow such an argument to be made. There is not a hint of evidence of collusion. Absent admissible evidence supporting or pointing toward collusion among witnesses and given the facts as attested to as set out below, I am confident proceeding on the evidence that counsel agree is admissible, is apparently complete and comprehensive, and which is deemed to be complete under the “best foot forward” principle.
Liability for Rear-end Collisions in Ontario
[9] The law of negligence relating to rear-end collisions has been settled in Ontario for the better part of a century. In Beaumont v. Ruddy, 1932 CanLII 147 (ON CA), [1932] O.R. 441 (C.A.) Masten J.A. wrote:
Generally speaking, 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.
[10] Beaumont was applied by Rooke J. (as he then was) in a case that bears many factual similarities to this one. In Kashuba v. Ey, 1992 CanLII 6153 (AB QB), Rooke J. decided a trial involving a rear-end collision. Like this case, the defendant knew the plaintiff and was following the plaintiff’s car. The defendant was staying close because he did not know the area. The plaintiff knew that the defendant was following her car and that the cars were close together. As the plaintiff slowed for red light, she saw the defendant’s car quickly approaching her car. She therefore made a quick right turn on the red light and the defendant followed her. The defendant lost some control of his car and swerved ultimately hitting the plaintiff’s car. Rooke J. described the legal situation as follows:
[45] In terms of particulars, they follow in fact (as I find them) very similar to that which is pleaded in the statement of claim. The defendant was following more closely than was reasonable and prudent having regard to the speed of the vehicles, other factors of traffic and road conditions not being a particular fact. The risk, in my view, was on him. In my view, in those circumstances, he must be able to control his vehicle in relation to the vehicle in front of him. He was operating, in my view, at an excessive rate of speed having regard to the distance between the vehicles. Now, that is really the same as following too close, because distance and speed are interrelated. From his inability to react and brake sufficient to miss or stop behind the plaintiff's vehicle, he was either following too close, or at too fast a rate of speed, or failing to keep a proper lookout, or any of the above having regard to the separation of distance between the parties. The onus was on him in all of those circumstances of speed, of lookout, and of distance, to be able to control his vehicle.
[46] Counsel for the defendant refers to a number of cases that suggest a sudden stop by the plaintiff, which is the evidence of the defendant, constitutes negligence that either absolves the defendant or results in contributory negligence by the plaintiff. He relies upon a number of authorities for that proposition including the following: Sinclair v. Nyehold, 1972 CanLII 1055 (BC CA), [1972] 5 W.W.R. 461, 29 D.L.R. (3d) 614 (B.C.C.A.), at p. 618 [D.L.R.]; Fagg v. Woodhead (September 14, 1987), Doc. Vancouver CA006731 (B.C.C.A.); Baraly v. Bradley (June 28, 1991), Doc. Moncton SC/88/1128 (N.B.Q.B.) [reported 1991 CanLII 12423 (NB KB), 117 N.B.R. (2d) 413, 295 A.P.R. 413] – Landry J., at pp. 1 to 3; Brennan Farms Ltd. v. Dorcas (November 17, 1986), Doc. Woodstock W/C/l64/85 - McLellan J., affirmed (November 17, 1987), Doc. 292/86/CA (N.B.C.A.); and lastly Molson v. Squamish Transfer Ltd. (1969), 1969 CanLII 751 (BC SC), 70 W.W.R. 113, 7 D.L.R. (3d) 553 (B.C.S.C.) – Wilson C.J.S.C.). Now, noting that each case must turn on its particular facts and that inquiries are necessary to be made, one cannot conclude liability just from a rear end collision. I reject the position of the defendant's counsel as argued based on those authorities. Even accepting all of the defendant's evidence, I find nothing "tricky" about the intersection as in the Fagg case, or related to stopping for a small animal as in the Molson case, or an exposure of an unnecessary risk by default by the plaintiff as in the Sinclair case, or any otherwise inappropriate action by the plaintiff that would make the plaintiff in any way liable in the circumstances.
[47] Having regard to the defendant's speed and the distance at which he was following in a city where there are numerous intersections and where one may quickly make a right-hand turn, as this plaintiff did, she was entitled to stop relatively abruptly or slow down to make that turn. He needed to anticipate that, and he was required to be able to control his vehicle.
[48] In the circumstances of this case, I accept the arguments of the plaintiff's counsel which were based on a number of cases including: Brooks v. Ward, 1956 CanLII 82 (SCC), [1956] S.C.R. 683, 4 D.L.R. (2d) 597, at p. 686 [S.C.R.]; and Bowes v. Coles (1975), 1975 CanLII 2013 (PE SCTD), 9 Nfld. & P.E.I.R. 184, 12 A.P.R. 184 (P.E.I. S.C.). I adopt, in relation to the latter case, the words of Trainor C.J.P.E.I. at p. 200 where he says at para. 14: "In rear-end collisions, a heavy burden rests upon the driver of the overtaking vehicle. He has fallen short of discharging the burden." I find that applies in this case.
[49] In Whiddon v. Wickstrom, [1948] O.W.N. 336 (C.A.), Justice Hoss talks about the need to be able to stop in the event of an emergency, and I do not interpret the word "emergency" to be some external emergency, but rather to be an emergency in the context of the vehicle in front of you. If that vehicle stops, the following driver needs to make an emergency stop, and needs to be able to do it in safety. The test is not whether there is emergency in the external sense, but the test is what a reasonable and prudent driver in the circumstances would be able to do. That test, it seems to me, applies to an interpretation of all of the cases. You must look at the circumstances and see what a reasonable and prudent driver would do.
[11] In Rogerson v Burridge, [2008] O.J. No. 981, there was a four car pile-up. The fourth car in line hit the third car. The third car was propelled into the second car. The second car hit the plaintiff who was at the front of the line. The drivers of the second and third cars in the line moved for summary judgment dismissing the action against them. They argued that liability rested 100% with the fourth and last car who started the chain reaction. There was some suggestion in a lawyer’s affidavit that the plaintiff had reported feeling two collisions. The fourth defendant argued that there was therefore a “possibility” that there was a collision between the second car and the plaintiff’s car before the fourth car came along.
[12] The motion was heard and decided in 2008 before the recent widening of Rule 20 and before the decision of the Supreme Court of Canada in Hryniak, supra. Accordingly, the motion judge was keen to the limits on his ability to draw inferences, evaluate credibility, and weigh evidence. Nevertheless, the court held that there was no genuine issue for trial on the evidence in light of the burden on the fourth defendant to disprove his negligence.
[13] This decision was upheld by the Court of Appeal, 2008 ONCA 680, [2008] O.J. No. 3851. The Court held that:
We see no error in the motion judge’s conclusion that there was no air of reality to the appellant’s position that negligence by someone other than the [fourth] driver was a genuine issue for trial.
[14] I take from these cases that each case is to be decided on its own facts. The burden is on the defendant to disprove negligence. Doing so requires, in effect, a basis to say that the plaintiff was negligent or contributorily negligent. Simply knowing that a defendant is following behind one closely is not in itself negligence by a plaintiff. The basic burden on the defendant is to leave enough room to stop in safety given the speed and circumstances. The few cases which have held drivers who rear-end another car not liable involve very unusual circumstances in which negligent acts of third parties (such as cutting off the defendant) or the plaintiff have been sufficiently inappropriate, sudden, or unexpected to a reasonable driver so as to absolve the defendant and overcome his or her burden of disproving negligence. Martin-Vandenhende v. Myslik, 2012 ONCA 53, at para. 31, Swain v. Gorman, 2014 ONSC 3822 at para.31, Gon (Litigation guardian of) v. Bianco, 2014 ONSC 3786 at para. 48. Finally, a mere suggestion of liability of the plaintiff is not enough to overcome the burden on the defendant on a motion for summary judgment. There must be evidence that gives at least an air of reality to a claim for negligence by the plaintiff before the court even embarks upon the Hryniak fact-finding roadmap.
The Evidence
[15] The plaintiffs were going to a movie. The defendant Mojtaba Hatami was joining them but Najla Rahimi and Mojtaba Hatami did not tell this to the sisters. They were keeping their relationship secret for cultural reasons. The movie that they went to see was not available. So the sisters decided to drive to a different theatre. Najla Rahimi informed Mojtaba Hatami of the plans by text message and told him to follow her.
[16] The evening was clear. The road was straight and flat. There was some snow on the ground so the road was slippery. . All of the plaintiffs were wearing their seat belts.
[17] The plaintiff says that she slowed for an amber light. She says that she saw the light when she was one to two car lengths from it. She says that she came to a stop slowly. There is no evidence of the plaintiff making a sudden stop. Neither sister recalled anything unusual about the stop. The defendant Mojtaba Hatami was looking down and did not see the plaintiff slowing until it was too late. The plaintiffs’ car was still moving when the defendants’ car hit them.
[18] At the scene, the defendant Mojtaba Hatami told the police that he was driving northbound at about 60 km/hour “…and I hit her, I was just driving then we hit, I’m not sure how we hit.” He adopted his statement on discovery although he said that he thought that his speed was closer to 50 km/hour.
Analysis
[19] Based on the defendant’s own statement and the lack of evidence from any other witness of any act by the plaintiff other than slowing her car, there is simply no basis to find that the plaintiff might have been negligent. The defendants have not satisfied the burden upon them to rebut the presumption of negligence nor have they raised a triable issue of any basis to do so.
[20] The defendants argue that there are credibility issues. They suggest that the failure of Najla Rahimi and Mojtaba Hatami to disclose their relationship to the police raises a credibility issue as to their honesty. In addition, the defendants point to the police officer’s notation in his accident report that the accident happened some 100 metres south of the next stoplight. The police officer’s evidence is not properly before the court. The plaintiff Najla Rahimi denied a suggestion that the accident occurred so far from the light and reiterated her evidence that she was just one to two car lengths from the light when it turned orange. If that is so, the defendants argued that she must have jammed on her brakes to stop in time. But they do not really press that argument however because they recognize that the evidence of the plaintiff Najla Rahimi cannot be right. If she was travelling at 50 or 60 km/hour, she could not have reduced her speed to the 20 or 30 km/hour at which she was travelling when she was hit without having gone right through the intersection. It is simple math that does not need an expert to say that someone travelling 50 – 60 km/hour is travelling at more than 10m per second. The plaintiffs’ car would have travelled more than two car lengths and been into the intersection in a fraction of a second.
[21] The defendants’ principal argument, as pleaded in their statement of defence and quoted above, is that the plaintiff Najla Rahimi actually stopped her car well short of the light on the sudden and this raises a triable issue of negligence for a jury. I am prepared to assume, for the sake of argument, that Najla Rahimi is mistaken in her evidence as to her location and that her evidence should be discounted. However, this leaves in place the evidence of the sisters neither of whom recalls noticing anything unusual in the way the car was slowing before the defendant Mojtaba Hatami hit them. Mr. Hatami’s evidence was that he looked up at the light and saw that it was green. His last recollection of seeing the green light was when he was approximately 100 metres from the light. He then looked down at his gauges for five to ten seconds. When he looked up, he had to hit his brakes and collided with the plaintiffs’ car that was still moving forward.
[22] Even discounting the evidence of Najla Rahimi, there is still no evidence that she was negligent. Even if she slowed mid-block, well before reaching the traffic light, that, without more, is not negligence as described in the case law. A person driving behind someone else is required to leave enough room to stop his car or to react in safety in response to the car ahead. It is pure speculation however, to suggest that the plaintiff did something unusual or sufficiently inappropriate to absolve the defendant Mojtaba Hatami from his presumptive liability or to find the plaintiff negligent so as to be liable for even 1% contribution. The fact that Mojtaba Hatami looked away for a significant period of time and that he admits to having no idea what caused the accident is determinative in my view. There is no admissible evidence to leave the issue of negligence of the plaintiff Najla Rahimi to a jury. Specifically, there is no evidence to raise a genuine issue requiring a trial on any one of the particulars of negligence pleaded by the defendants as set out in para. 3 above.
[23] Would that I had determined that there was a need to make findings of fact on this motion, I would have come to the same result. Under Rule 20.04(2.1)(3) I would have inferred the lack of evidence of negligence of Najla Rahimi from the failure of the defendants to cross-examine her and their failure to comply with the rule in Browne v. Dunn. It is not clear whether the defendants’ insurer or counsel would be entitled to try to undermine the evidence of Mojtaba Hatami in any event. On the admissible evidence before the court therefore, I would have found that weighing the evidence of all of the parties, Mojtaba Hatami had not rebutted the presumption of negligence nor made out any negligence on Najla Rahimi on any of the particulars of negligence pled.
[24] Therefore, the counterclaim is dismissed.
The Effect of the Main Claim
[25] The defendants argue that the court cannot or should not decide the issue on motion because the plaintiff is not formally before the court. They rely on cases like Tran v. Arezes, 2015 ONSC 980, at para. 26, in which Stinson J. declined to determine an issue of liability in a multi-car pile-up where one of the parties was not before him on the motion. However, in each of the cases relied upon like Tran, there were three or more cars involved. Resolving issues as between two of the parties in those cases did not necessarily resolve the issues among or between others. Here, by contrast, there are only two drivers. The resolution of the issues in the counterclaim necessarily resolves the same issues in the main claim as between the same parties on the same facts and law. This is not a case therefore like Sutherland (Litigation guardian of) v. Green, 2011 ONSC 1954 in which resolution of the issues among one set of players left the same issues to go to trial as among and between others. If a motion for summary judgment does not resolve a significant issue for trial, then one can rightly question whether deciding part of the case by motion is efficient, affordable, and proportionate or otherwise in the interest of justice. This is the very narrow concern expressed by the Court of Appeal in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 at paras. 34 to 38. Granting summary judgment in the counterclaim in this case resolves the major issue of liability in the case and leaves only the issue of damages for trial. In the context of the litigation as a whole, the remaining trial will be shorter, focused only on damages, and need not involve testimony of the defendants or anyone concerning the cause of, or liability for, the accident.
[26] In my view therefore, this is a case in which it is in the interest of justice to grant summary judgment in the context of the litigation as a whole. The plaintiff is therefore entitled to judgment for liability against both defendants. The action will proceed to trial on damages only.
Costs
[27] Najla Rahimi seeks costs of the counterclaim in the amount of approximately $16,000. While it seems to me that Najla Rahimi should presumptively be entitled to costs, I am not satisfied that she ought to be entitled to two full sets of costs. While she has separate counsel in the main claim and the counterclaim and is entitled to do so, it is still an unusual circumstance as compared to most civil litigation. There was no argument before me as between Ms Rahimi’s counsel as plaintiff and her insurer’s counsel as to whether there ought to be an allocation of costs as between them or why, for example, the insurer did not appoint the plaintiffs’ counsel to act in the counterclaim. Would that necessarily have been a conflict? Nor have the defendants had an opportunity to weigh-in on the issue of whether they ought to be liable for more than one set of fees. They may have something to say about whether a defendant ought reasonably to expect to be faced by two sets of counsel for the same party. On the other hand, might there be an issue of whether the defendants needed to counterclaim to raise the issue of contribution and indemnity in light of the pleading in the statement of defence. I make no comment on the outcome but simply raise these issues so as to say why I decline to award costs at this point. In my view, the costs of the counterclaim ought to be reserved to the judge who decides the main action.
F.L. Myers, J.
DATE: July 2, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KHADIJA RAHIMI, NAJLA RAHIMI and ZELAIKHA RAHIMI
Plaintiffs
- and -
MOJTABA HATAMI and AVISCAR INC.
Defendants
REASONS FOR DECISION
F.L. MYERS J.
Released: July 2, 2015