Court File and Parties

COURT FILE NO.: CV-11-438288

DATE: 2015-08-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ronald Nadeau, Susan Griffiths, Evan Griffiths and Julia Griffiths, Plaintiffs

AND:

Gary E. Peters, Charlie Peters, Clarence Saylors and Harold Bond Keevil, Defendants

BEFORE: Carole J. Brown, J.

COUNSEL:
Zoran Samac, for the Plaintiffs

Daniel M. Himelfarb, for the Defendants Gary E. Peters and Charlie Peters

Jay A. Skukowski, for the Defendant Clarence Saylors

Richard M. Horst, for the Defendant Harold Bond Keevil

HEARD: June 18, 2015

ENDORSEMENT

The Motion to Consolidate

[1] At the outset of the motion, Clarence Saylors, Harold Bond Keevil and Ronald Nadeau et al., brought a motion pursuant to Rule 6.01 to consolidate actions CV-11-442576 and CV-11-438288. All parties were in agreement that the matters should be consolidated, and I granted that Order at the outset of the motion. The actions should be consolidated and tried together or seriatim pursuant to Rule 6.01, at the determination of the trial judge. The actions arise from common issues of fact and law and the relief sought arises from the same occurrence or series of occurrences, namely a "cascade" or "chain reaction" motor vehicle accident. Consolidation will result in a more expeditious, less expensive means of proceeding. Witnesses and evidence will be the same or similar in both actions, there will be real savings in time and cost and there will be no prejudice to the parties, particularly given their agreement to the consolidation.

The Summary Judgment Motion

[2] The plaintiffs and the co-defendants, Clarence Saylors and Harold Bond Keevil, bring summary judgment motions seeking the following determination and Orders:

a. That liability for the accident of June 19, 2010 rests with Charlie Peters and Gary E. Peters; and

b. That the defendants, Clarence Saylors and Harold Bond Keevil, did not cause or contribute to the accident.

[3] The defendants, Charlie Peters and Gary E. Peters, take the position that the summary judgment motion should be dismissed on the basis that liability for the June 19, 2010 accident is a genuine issue requiring a trial.

The Facts

The Motor Vehicle Accident

[4] This action arises from a "cascade" or "chain reaction" motor vehicle accident which occurred on November 19, 2010 on Pinewood Park Drive in North Bay, Ontario, involving three motor vehicles.

[5] All three vehicles were proceeding southbound on Pinewood Park Drive in North Bay. The first vehicle in line was operated by the defendant, Clarence Saylors. This vehicle was followed by the vehicle operated by Harold Bond Keevil. The third vehicle in line was operated by Charlie Peters and owned by his father, Gary E. Peters. The Saylors’ vehicle had stopped in order to turn left into an entrance to a gas station at 260 Pinewood Park Drive. The Keevil vehicle managed to stop safely behind the Saylors vehicle. This is disputed by Peters. The Keevil vehicle was then rear-ended by the Peters’ vehicle and was pushed into the Saylors’ vehicle. Again, Charlie Peters disputes that his vehicle pushed the Keevil vehicle into the Saylors’ vehicle. Arlene Nadeau was a front seat passenger in the Saylors’ vehicle. She died on or about October 15, 2010, as a direct result of the injuries sustained in the motor vehicle accident.

[6] Mr. Peters left the scene of the accident before the police arrived, but after having given his coordinates to Mr. Keevil. The North Bay Police Service arrived at the accident scene and conducted an investigation of the accident. The Motor Vehicle Accident Report indicates that the Saylors’ vehicle was turning left into 260 Pinewood Park Drive; that the Peters’ vehicle was traveling at a high rate of speed and following too closely to the Keevil vehicle; and that the Peters’ vehicle could not stop in time and rear-ended the Keevil vehicle which then rear-ended the Saylors’ vehicle. The Report indicates that the Saylors vehicle was "driving properly".

[7] As a result of the motor vehicle accident, Mr. Peters was charged with the offences of following too closely in breach of section 158(1) of the Highway Traffic Act ("HTA") and failing to report a motor vehicle accident resulting in damage exceeding $1,000 in breach of section 199(1) of the HTA.

The Highway Traffic Act Trial

[8] Mr. Peters’ trial was heard August 17, 2011 at the Provincial Offences Court in North Bay, Ontario. The transcripts of the trial were before this Court.

[9] At the trial, evidence was given by Messrs. Saylors and Keevil, the investigating officer, Constable Hughes, as well as an independent witness, Faye Brooks. The defendant, Mr. Peters, was not present at the trial and, therefore, gave no evidence.

[10] Mr. Keevil, testified that he was traveling south on Pinewood Park Drive when the vehicle ahead of him (the Saylors’ vehicle) braked quickly. Mr. Keevil applied his brakes. He stated that he "wasn't concerned about whether [he would] be able to stop the car or not". Mr. Keevil's vehicle was "just about stopped" or was stopped. He then looked in his rearview mirror and was struck from behind by the Peters’ vehicle. Prior to the impact, he could not see how far the Peters’ vehicle was behind him. As a result, the Keevil vehicle was pushed forward into the Saylors’ vehicle. Mr. Keevil estimated that at the time he was rear-ended, the distance between the front of his vehicle and the rear of the Saylors’ vehicle was "1 to 2 car lengths". According to Mr. Keevil, prior to being rear ended by the Peters’ vehicle, his vehicle had "decelerated to the point where [he] was not concerned about hitting the car in front and [his intention] had then turned to the car behind [him]"

[11] Mr. Saylors testified that he was operating his vehicle southbound on Pinewood Park Drive when he slowed down in order to make a left-hand turn. He activated his left turn signal and looked over at the oncoming traffic, to see if the way was clear. In the process of making his turn, he was hit from behind. Mr. Saylors testified that before making the turn, he did not slam his brakes or bring his vehicle to a quick stop. Mr. Saylors’ evidence did not indicate whether the Keevil vehicle was hit prior to it hitting the Saylors’ vehicle.

[12] Ms. Brooks testified that she was no more than four car lengths behind the Peters’ vehicle when the accident occurred. She testified that she was unable to see the car in front of the Peters’ vehicle, which was driven by Mr. Keevil. She did not see the Peters’ vehicle hit the vehicle in front, she only saw the backend of the Peters’ vehicle bounce. Nor did she see the actual collision, as she was two or three vehicles behind the Peters’ vehicle.

[13] Before the accident, Ms. Brooks observed the Peters’ vehicle "following the car ahead of [it] too closely because [it] kept braking and [she] could see he was following too closely". In addition, Ms. Brooks testified that the Peters’ vehicle was veering in and out of the southbound lane, and into the northbound lane, in an apparent attempt to pass the vehicle ahead of it. Ms. Brooks stated that Mr. Peters’ driving made her "a little bit nervous" so she "slowed down a little bit" in order to put more space in between their vehicles. Shortly thereafter, she saw the back end of Peters’ vehicle [bounce] as a result of hitting the vehicle ahead of it.

[14] As regards the evidence of the independent witness, Ms. Brooks, the trial judge, Beck J P, stated as follows:

She can see the silver car, that Mr. Peters is following too closely behind another motor vehicle. She was able to determine this because she could see the silver car braking continuously. She observed that Mr. Peters vehicle was veering in and out of traffic continuously, like he wanted to pass, and this occurred about, as she indicated, about summer time, 5’ish. The weather conditions were clear. She further indicates that when Mr. Peters' car got into the merge lane on Pinewood Park Drive, it looked like he was going to go straight at the lights and instead he veered back into the traffic, back in front of her. She followed Mr. Peters down the merge lane onto Pinewood Park Drive. There are now a few or a couple cars between her and Mr. Peters. She observed Mr. Peters’ silver car continuously breaking until the accident. With respect to the driving behaviour of Mr. Peters, she indicated this made her nervous so she backed off a bit. When they got in front of the Esso gas station, she seen [sic] the back end of Mr. Peters' silver car bounce as he had struck the car in front of him.

[15] The Trial Judge, Beck JP, convicted Mr. Peters of failing to report a motor vehicle accident pursuant to section 199 of the HTA. She held, in her ruling, as follows:

Further with respect to section 199(1) of the Highway Traffic Act indicates, [" ] every person in charge of a motor vehicle or streetcar [" ], the evidence heard as Mr. Peters was operating the silver car is described in evidence, the vehicle that struck Mr. Keevil's Subaru…

Further in section 199, [" ] who is directly or indirectly involved in an accident. [" ] In this instance Mr. Peters rear-ended Mr. Keevil's vehicle. The damage was estimated between $9-$13,000 on the Subaru as he had damage to the rear of his vehicle and the front of the vehicle…

Section 199 further states "… If the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulations". Again injuries were sustained as a result of the collision that occurred between the three vehicles. Mr. Peters’ vehicle collided into Mr. Keevil's car which created an impact into the rear end of the blue car. The blue car as indicated in evidence, there is a male driver, Mr. Clarence Saylors, the front passenger Ms. Nadeau and Ms. Hutchinson who was seated in the back seat. All three are elderly people. Ms. Nadeau required an ambulance; the ambulance did take the two ladies to hospital, which they were later released. The testimony from Clarence Saylors indicates that damage to the blue car was estimated at approximately $4,000.

R. v Peters (2011), No. 10-0409, October 7, 2011 (unreported) (Ont. Ct. J.)

[16] In concluding that personal injuries and damages resulted from the accident, Beck J P. found that the accident was a "chain reaction" which resulted from the actions of the defendant, C. Peters.

[17] As regards the charge pursuant to HTA section 158(1), Mr. Peters was not convicted, as there was no evidence as to the distance between the two vehicles on Pinewood Park Road. No one was able to determine how close the Peters’ vehicle was to the Keevil vehicle at the time of impact.

[18] There was no appeal of the conviction under HTA section 199(1).

The Examinations for Discovery

[19] Clarence Saylors’ examination for discovery in these actions was held September 15, 2014. His evidence was consistent with the testimony that he had given at the HTA trial on August 17, 2011. He testified that he was driving his vehicle south on Pinewood Park Drive when he activated his left hand turn signal and slowed down in order to make a left-hand turn. He stated that he was moving slowly and in the process of making his left-hand turn, when he was rear-ended by the Keevil vehicle. He testified that his vehicle was only struck once from behind.

[20] Harold Keevil's examination for discovery was held February 24, 2015. His evidence was also consistent with the testimony he had given at the HTA trial. He testified that the Saylor vehicle stopped quickly but he was able to stop safely behind it prior to being rear ended by the Peters’ vehicle. He testified that the braking required "wasn't anything unusual" and "wasn't severe". He testified that he was not concerned about hitting the Saylors’ vehicle, or whether he would be able to stop for it. He testified that he was driving safely and not following the Saylors’ vehicle too closely, such that he believed he had enough space between his vehicle and the Saylors’ vehicle.

[21] Mr. Keevil further testified that he believed Charlie Peters was on his cell phone when the accident occurred.

[22] Mr. Keevil testified that even if the Saylors’ vehicle had braked suddenly, he would have been able to stop. He stated that if he had been concerned about hitting the Saylors’ vehicle he would have gone onto the shoulder of the road or taken some other evasive maneuver, but did not need to do so. Mr. Keevil testified that his vehicle did not strike the Saylors’ vehicle prior to being rear ended by the Peters’ vehicle, and that there was approximately one car length between his vehicle and the Saylors’ vehicle prior to being rear ended by Mr. Peters. He testified that immediately before being hit from behind, there was no possibility that his vehicle would have hit the Saylors’ vehicle, if it had not been rear-ended by the Peters’ vehicle, and that there was no chance his vehicle would have hit the Saylors’ vehicle, but for the actions of Charlie Peters in striking him from behind. He testified that the impact from behind was such that his seat reclined 4 notches.

[23] Charlie Peters was examined for discovery on September 15, 2014. He testified that he was driving his vehicle on Pinewood Park Drive behind the Keevil vehicle. He saw the Saylors’ vehicle in front of the Keevil vehicle apply its brakes and slow down. In turn, the Keevil vehicle also slowed down. Mr. Peters had advance warning that the Saylors’ vehicle was slowing down and was going to turn. He did not see the Saylors’ vehicle with its left turn signal activated, but knew that the Saylors’ vehicle intended to make a turn. He observed Mr. Saylors begin a left-hand turn over a yellow line.

[24] Charlie Peters testified that, as the Saylors’ vehicle was in the process of making its turn, it stopped halfway in the opposite lane of traffic to allow an unidentified northbound vehicle to pass. He testified that the unidentified northbound vehicle was then forced to swerve around the Saylors’ vehicle onto the gravel shoulder at about 60 to 70 km/h. He testified that it hit the shoulder and caused "dust and rocks flying everywhere on the opposite shoulder". He testified that the unidentified northbound vehicle which barely made it around the Saylors’ vehicle continued onwards without stopping. In examination for discovery, when it was indicated to him that no one else had described such a vehicle, he stated "so I mean this oncoming car, yeah it would have been easy to miss".

[25] When the Saylors’ vehicle stopped midway through its turn, Charlie Peters observed the Keevil vehicle rear-end the Saylors’ vehicle. Charlie Peters, who was 15 to 20 m away at that point, tried to swerve, but his vehicle ultimately struck the rear of the Keevil vehicle.

[26] As regards the unidentified vehicle, no other witnesses or parties testified to seeing such a northbound vehicle. There was no evidence of this in the Motor Vehicle Accident Report nor at the HTA trial.

[27] Despite Mr. Peters' evidence in cross-examination that "it would have been easy to miss" when questioned as regards the vehicle and the fact that no one else had seen or reported it, this evidence is not consistent with his evidence that this unidentified vehicle barely made it around the Saylors’ vehicle, hit the shoulder and caused "dust and rocks flying everywhere on the opposite shoulder".

The Law

Rule 20 and Summary Judgment

[28] Rule 20 provides for summary judgment where there is no genuine issue requiring a trial with respect to a claim or defence.

[29] The Supreme Court of Canada, in Hyrniak v Mauldin, 2014, SCC 7 and Bruno Appliances and Furniture Inc. v Hyrniak, 2014 SCC 8, has recently reinterpreted Rule 20, taking into account the recognized need for access to justice for the majority of Canadians. The Supreme Court held that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. It found that the Court of Appeal, in Combined Air Mechanical Services Inc. et al v. Flesch et al, 2011 ONCA 764, placed too high a premium on the "full appreciation " of evidence that can be gained in a conventional trial, given that such a trial is not a realistic alternative for most litigants. It held that 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 a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

[30] On a motion for summary judgment, the judge must first determine if there is a genuine issue requiring trial based only on the evidence before the judge without using the judge's new fact-finding powers.

[31] There will be no genuine issue requiring a trial if the summary judgment process provides the motion judge with the evidence required to fairly and justly adjudicate the dispute on the merits within the meaning of Rule 20.04(2)(a) and is a proportionate, more expeditious and less expensive means to achieve a just result. Where a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceedings at trial would generally not be proportionate, timely or cost-effective. However, a process that does not give the judge confidence in conclusions to be drawn can never be the proportionate way to resolve the dispute.

[32] Madam Justice Karakatsanis, writing for the Court, observed as follows in the companion case, Bruno Appliances, supra, at paragraph 22:

The motion judge should ask whether the matter can be resolved in a fair and just manner on a summary judgment motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is the proportionate, more expeditious and less expensive means to achieve a just result. If there appears to be a genuine issue requiring a trial, based only on the record before her, the judge should then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice.

[33] To grant summary judgment, on a review of the record, the motions judge must be "of the view that sufficient evidence has been presented on all relevant points to allow him/her to draw the inferences necessary to make dispositive findings under Rule 20.

[34] The Supreme Court recognized that concerns about credibility or clarification of evidence can often be addressed by calling oral evidence on the motion itself, using the powers given to the court pursuant to Rule 20.04(2.1). However, it also recognized that there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.

[35] The enhanced fact-finding powers granted to motion judges in Rule 20.04(1.1) may be employed on a motion for summary judgment unless it is in the "interest of justice" for them to be exercised only at trial. The Supreme Court observed that inquiry into the interest of justice to be served by summary judgment must be assessed in relation to the full trial and the relative efficiencies of proceeding by way of summary judgment as opposed to trial, including the cost and speed of both procedures, the evidence available at trial versus that on the motion, as well as the opportunity to fairly evaluate such evidence.

[36] The Supreme Court further commented that the interest of justice inquiry goes further and also considers the consequences of the motion in the context of the litigation as a whole. In cases where some claims against the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice.

[37] The parties must each "put their best foot forward". A party is not entitled to sit back and rely on the possibility that more favorable facts may develop at trial. The court is entitled to assume that all of the evidence the parties intend to rely on at trial is before the court.

Rear End Collisions: Canadian Jurisprudence

[38] When one vehicle strikes another from behind, the fault rests with the driver of the rear vehicle, and the driver of the rear vehicle has the onus of proving that the collision did not occur as a result of his or her negligence: Beaumont v Ruddy, [1932] O.J. No. 51 (Ont. C.A.). The Ontario Court of Appeal further stated in Ruetz v Goetz, [1955] O.J. No. 296 (C.A.), as follows:

"When one motor vehicle is following another, there is not only a duty in law on the following vehicle to exercise reasonable care, but if he collides with the leading vehicle there is an onus of proof resting on him which has been correctly described in Beaumont v Ruddy.

[39] Canadian jurisprudence recognizes a standard of care imposed upon a driver of the vehicle which follows another vehicle. The driver of that vehicle must keep a reasonable distance behind the vehicle ahead, must keep his or her vehicle under control at all times; must keep an alert and proper outlook; and must proceed at a speed which is reasonable relative to the speed of the vehicle in front. The following vehicle must anticipate that, for whatever reason, the vehicle ahead may stop. The reason need not be anticipated. The vehicle following must proceed with that care which will enable the vehicle to avoid colliding with the vehicle in front: Kosinski v Snaith 1983 2130 (SK CA), [1983] S. J. 663 (Sask. C.A.)

Analysis

[40] It is the position of the defendants, Charlie Peters and Gary E. Peters, that there are genuine issues requiring a trial, including the credibility of the witnesses and whether the defendants Peters are entirely at fault for the motor vehicle accident. They maintain that if this Court is unable to determine that these defendants were entirely at fault, there would have to be an apportionment of liability among the defendants. It is their position that, based on the evidence, the Court should find these defendants did not cause or contribute to the acts giving rise to the plaintiff's claims or, alternatively, that liability should be apportioned. They state that the issue of liability turns exclusively on the order of impact between the three vehicles involved in the accident and that there are competing versions of how the accident occurred.

[41] The evidence of Messrs. Saylors and Keevil, given at both the HTA trial and examinations for discovery, is consistent with that of the Motor Vehicle Accident Report of Constable Hughes and the findings of Beck JP. Based on the evidence before me, including the transcripts from the HTA trial, the reasons for decision of Beck JP, the Motor Vehicle Accident Report, and the transcripts from examinations for discovery, it appears that only Mr. Peters’ evidence differs, including his evidence as regards the mechanics of the "chain reaction" accident, and the appearance of the unidentified northbound vehicle in his description of the accident. As Mr. Peters did not remain at the scene of the accident, there is no statement from him taken by the police. As he did not appear at his HTA trial, there is no testimony from him. His only testimony was given at examinations for discovery. Based on the transcripts, his evidence was inconsistent with the evidence given by Messrs. Saylors and Keevil at their examinations for discovery, which corroborated one another.

[42] Further, Charlie Peters' testimony on examination for discovery was inconsistent with the evidence given in the HTA trial, based on the transcript thereof. It was inconsistent with the Motor Vehicle Accident Report of Constable Hughes, with the evidence given by Messrs. Saylors and Keevil at their examinations for discovery, as well as the evidence of the independent witness, Faye Brooks.

[43] The HTA Trial Judge, Beck JP, took all of the evidence at the trial into consideration in making findings of fact involving the mechanics of the "chain reaction" motor vehicle accident, and in arriving at her decision, as set forth above.

[44] Mr. Peters maintained that he inquired of Mr. Keevil as to whether he hit the Saylors’ vehicle and Mr. Keevil responded "well I didn't think he [Saylors] was going to turn". Peters further maintains that Mr. Keevil told him that he hit the Saylors’ vehicle and Charlie Peters hit his vehicle. Additionally, he maintains that Mr. Keevil testified that he was uncertain whether his vehicle came to a complete stop or a rolling stop when it was rear-ended by the Peters’ vehicle and that he had to do some "hard braking" due to Saylors stopping ahead of him. He was also uncertain whether Mr. Saylors signaled a left-hand turn.

[45] It is of note that Mr. Keevil, in his examination for discovery, stated that he braked quickly but was never concerned that he would be unable to avoid hitting the Saylors’ vehicle. He further maintained in cross-examination that he had not hit the Saylors’ vehicle. It is further noted that Mr. Saylors’ evidence is that he was only hit once from behind, and not twice, as would have occurred had he been first hit by Mr. Keevil, followed by a second time when Charlie Peters hit Mr. Keevil, which would have knocked the Keevil vehicle into the Saylors vehicle the second time.

[46] Based on the caselaw set forth at paragraphs 38 and 39, supra, the duty was on the defendants Peters to ensure that the collision did not occur and that Charlie Peters was driving with sufficient distance between his vehicle and the Saylors vehicle so as not to collide with him. In the present case, the onus rests on both Charlie Peters and Harold Keevil to rebut the presumption of fault for the accident. Mr. Keevil testified that he was able to stop safely behind the Saylors vehicle but was subsequently rear-ended by the Peters vehicle causing his vehicle to rear end the Saylors vehicle. He testified he was not concerned with whether he would be able to stop for the Saylors vehicle in front of him; that he did stop for the Saylors vehicle; that he was not following too closely, that there was enough space between his vehicle and the Saylors vehicle such that even if the Saylors vehicle had braked suddenly, he would not have hit it; that there was absolutely no possibility that he would have hit the Saylors vehicle had he not been rear-ended by Mr. Peters; and that but for the actions of Mr. Peters in hitting him from behind, there was no chance that he would hit the Saylors car in front of him. Mr. Peters testified that Mr. Keevil first rear-ended the Saylors vehicle, as a result of which, he rear-ended the Keevil vehicle. Based on all of the evidence before me, I have found Mr. Keevil's evidence to be consistent with all of the other testimony, including that of the independent witness, as well as being consistent with the Motor Vehicle Accident Report, as witnessed by the HTA transcripts and the transcripts of the examinations for discovery. Mr. Peters’ evidence is the only evidence which is not consistent with all of the rest of the record before this Court.

[47] I am of the view that there is sufficient evidence before this Court to determine the issues as regards summary judgment. The Motor Vehicle Accident Report, the Highway Traffic Act evidence and judgment and the examinations for discovery in these actions, including the evidence of Faye Brooks, Clarence Saylors and Harold Keevil at the HTA trial were all consistent as to the mechanics of the motor vehicle accident. The examinations for discovery of Messrs. Saylors and Keevil were consistent with their previous evidence at the HTA proceedings. Only Mr. Peters' version of the facts differs. I do not accept his version of the facts, based on all of the evidence before this Court.

[48] I am of the view that this summary judgment motion can be determined on the evidence before me, without having to resort to the additional powers afforded this Court pursuant to Rule 20.04(2.1). I am of the view that sufficient evidence has been presented on all relevant points to allow me to draw the inferences necessary to make dispositive findings under Rule 20. I am satisfied, based on the record before me, and that I am able to fairly and justly adjudicate the dispute on the merits within the meaning of Rule 20.04(2)(a). I am satisfied, based on the evidence, that the "chain reaction" accident was caused by Mr. Peters rear-ending the Keevil vehicle.

[49] There is no genuine issue requiring a trial as regards the liability of Mr. Saylors. I am satisfied based on all of the evidence, as set forth above, that Mr. Keevil's version of the facts is consistent with all evidence but for that of Charlie Peters, and that his evidence is to be accepted, such that he has discharged the onus on him and is not liable for the accident. I am of the view, based on all of the evidence, that Charlie Peters has failed to discharge the onus upon him, has failed to fulfill the duty upon him as a following vehicle on the highway, and that summary judgment should go against him, and accordingly, as owner of the vehicle, Gary E. Peters is also liable for the accident.

Costs

[50] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

Carole J. Brown, J.

Date: August 6, 2015