ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-13-471612

DATE: 20150708

BETWEEN:

JOSE SALDANA
Plaintiff

– and –

MICHAEL CARUANA, JOHN DOE and INTACT INSURANCE COMPANY
Defendants

Jean S. Lessard, for the Plaintiff

Ashley Shmukler, for the Defendant, Michael Caruana
Tricia D. Hannigan, for the Defendant, Intact Insurance Company

HEARD: June 22, 2015

FAIETA, j

reasons for decision

[1] The plaintiff brings this action for damages as a result of injuries that he suffered on January 12, 2011 when an automobile operated by the defendant Michael Caruana, in which the plaintiff was a passenger, collided with an automobile owned and operated by an unknown person.

[2] At the time of the collision, Caruana was insured under an automobile insurance policy issued by the State Farm Mutual Automobile Insurance Company. The plaintiff was insured under an automobile insurance policy issued by the defendant, Intact Insurance Company, which, amongst other things, provides the plaintiff with coverage for damages he has suffered that were caused by an unidentified and uninsured automobile.

[3] Caruana brings this motion to ask this court to dismiss this action against him on the basis that he is not responsible for the collision. If that order is granted, then Intact will be liable to pay the plaintiff for damages he suffered as a result of the collision.

[4] In turn, Intact asks this court to dismiss this action against Intact on the basis that Caruana is at least 1% responsible for the collision. Since the plaintiff’s claim is within the limits of State Farm’s automobile policy, a determination that Caruana is at least 1% responsible for the collision would eliminate any need for the Intact policy to respond.

[5] Accordingly, the central question to be determined on this motion for summary judgment is whether the collision was caused, in whole or part, by Caruana’s negligence.

[6] In addition, two other issues were raised at the hearing of this motion:

1. whether Caruana should be granted an adjournment to provide additional evidence;

2. whether the plaintiff is entitled to a declaration that Intact shall indemnify it in the event that his claim against Caruana is dismissed.

[7] For reasons described below, I have found that Caruana was partially at fault for the collision and, accordingly, I have dismissed the action against Intact.

ANALYSIS

[8] This motion for summary judgment is brought pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 When considering a motion for summary judgment the following principles are applicable:

1. A court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.[^1] This will occur “… 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 a proportionate, more expeditious and less expensive means to achieve a just result”.[^2]

2. In determining whether there is a genuine issue requiring a trial, a court shall consider the evidence submitted by the parties.[^3]

3. A court “… is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will present at trial: … The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: … ".[^4]

4. A court may exercise any of the following powers for the purpose of determining whether there is a genuine issue requiring a trial, unless it is in the interest of justice for such powers to be exercised only at a trial.

1. Weigh the evidence.

2. Evaluate the credibility of a deponent.

3. Draw any reasonable inference from the evidence.[^5]

4. Order that oral evidence be presented by one or more parties for the purposes of exercising the above powers.[^6]

5. The use of the above discretionary powers “… will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.”[^7]

6. Advance notice of a cross-motion for summary judgment is not required if justified based on principles of proportionality and sensible management of the court process.[^8]

Issue #1: Should this motion for summary judgment be adjourned to allow Caruana to submit additional evidence?

[9] In support of its motion for summary judgment, Caruana filed the affidavit of its counsel, Matthew Lefave. His affidavit appends as exhibits several documents including: an extract from the transcripts of the examinations for discovery of the plaintiff and Caruana related to the circumstances surrounding the collision with each extract being about 25 pages in length and a copy of the motor vehicle accident report.

[10] In response, Intact submitted the affidavit of Racquel DeGuzman, a law clerk. It appends as exhibits the following documents: a motor vehicle accident report, the transcript of an interview of Caruana; the entire transcript for the examination for discovery of Caruana, and an extract of the transcript from the examination for discovery of the plaintiff. Further, the plaintiff filed the affidavit of Alex B. Tzaferis, sworn June 1, 2015.

[11] At the commencement of the hearing of this motion counsel for Caruana asked that this court adjourn this motion so that her client could provide an affidavit from Caruana. She had advised opposing counsel less than two hours before this motion was to be heard that Caruana would seek an adjournment.

[12] Counsel for Caruana explained that this request for an adjournment was being brought at this very late point since she had only read the defendant Intact’s Factum on the weekend and became aware that it was asking this court to: (1) draw an adverse inference from Caruana’s failure to file an affidavit from a person with personal knowledge of the contested facts (such as Caruana or the investigating police officer) pursuant to Rule 39.04, and (2) refuse to permit Caruana to rely upon his own examination for discovery transcript pursuant to Rule 20.02.

[13] Caruana’s Factum and motion materials were prepared by an articling student and apparently had not been reviewed by counsel before being served.

[14] Intact opposed the adjournment request. Intact’s Factum and responding materials were served over three weeks earlier on May 29, 2015. Intact submitted that the date for this motion, along with a timetable for the exchange of materials, had been fixed on April 10, 2015 to be heard today at the insistence of other counsel for Caruana.

[15] Intact relied upon the decision of my colleague Justice Stinson in Alarcon v. Desai[^9] in which he dismissed a request for an adjournment in very similar circumstances where the request for adjournment was made late:

Where a party wishes to engage the summary judgment process of the court, they are required to put their best foot forward. Late adjournments of long scheduled motions to enable parties to remedy deficiencies in their materials should be discouraged because the inevitable result will be restarting the process, requiring the opposing party to reconsider its response, and likely preparing fresh materials, including factums. The net result will be wasted time and expense, the very opposite of the underlying purpose of the summary judgment process.

[16] In my view the reasons given for refusing the request for an adjournment described in Alarcon are equally applicable in this case. As well, Intact’s objections to Caruana’s evidence were delivered weeks earlier. Accordingly, I refused Caruana’s request for an adjournment.

Issue #2: Was the collision caused by Caruana’s negligence, in whole or part?

[17] For the reasons that follow, it is my view that Caruana is at least 1% liable for this collision. In their submissions at the hearing of this motion, both parties referenced the transcripts from the examinations for discovery of Caruana and the plaintiff.

[18] Caruana submits that he is not responsible for the collision for the following reasons:

1. He was travelling below the speed limit at 60-65 km/h; the plaintiff states that he was travelling at 70 km/h; in an 80 km/h zone;

2. He proceeded through the intersection on a green light;

3. The lighting conditions were dark and he had no visual cues to suggest that an unidentified vehicle was intending to turn left;

4. He and the plaintiff noticed the unidentified vehicle turning left at the same time and there were no other witnesses to the collision;

5. He took all reasonable measures to avoid a head-on collision once he became aware of the impending danger as he immediately applied the brakes and swerved to the left.

[19] Caruana submits that the Highway Traffic Act, R.R.O. 1990, c. H.8, imposes the following obligations on the driver of a vehicle who turns left at an intersection:

s. 141(5): No driver or operator of a vehicle in an intersection shall turn left across the path of a vehicle approaching from the opposite direction unless he or she has afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision. [emphasis added]

s. 142(1): The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.[emphasis added]

[20] While a driver may have the right of way, he or she nevertheless has a duty to exercise reasonable care to avoid a collision. The applicable principles were outlined by the Ontario Court of Appeal in Sant (Litigation Guardian of) v. Skehon[^10] the Ontario Court of Appeal stated:

The jurisprudence on the standard of care of a driver with a green light is not in dispute. A driver with a green light is free to go through the intersection assuming that drivers approaching the intersection from other directions and who necessarily are being shown a red light will stop. However, a statutory right of way does not absolve a driver from exercising proper care. A driver should not exercise his or her right of way if the driver becomes aware or should become aware that the driver without the right of way is going to go through the intersection and if the circumstances are such that the driver with the right of way had the opportunity to avoid the collision. [emphasis added]

[21] I will now turn to consider the evidence.

Accident Report and Statements made after the Collision

[22] The only two known witnesses to this collision are the plaintiff and Caruana. As will be shown below, much of their evidence is inconsistent and has changed over time. What is uncontroverted is that on January 12, 2011 the plaintiff and Caruana had worked the nightshift at a plant in Shelburne, Ontario and were on their way home in a car operated by Caruana when they struck a van that had made a left turn across their path. The van failed to remain at the scene of the accident and the identity of its owner and operator is unknown.

[23] A motor vehicle accident report prepared by Police Constable R. Welsh of the Ontario Provincial Police shows that the collision occurred on Wednesday, January 12, 2011 at 7:22 a.m. It shows that there were two eastbound lanes on Highway 89 before and after its intersection with Highway 10. It also shows that the Caruana vehicle was travelling in the right eastbound lane of Highway 89. It also shows that the passenger side of the Caruana vehicle struck the rear passenger side of the unidentified van while the van was travelling through the right eastbound lane of Highway 89.

[24] Caruana signed the following statement given to P.C. Welsh on the day of the collision after an interview that commenced at 7:38 a.m.:

Q: What can you tell me about what happened?

A: I was going east on Highway 89 going home from work. I was pretty much in the intersection on Highway 10 and a dark green or blue, 1998 or newer model styled caravan by Dodge, pulled out in front of me to make a left hand turn. I swerved to avoid a collision and went into an uncontrolled spin going about 70 km/h and hit the Dodge Caravan on the front passenger side.

Q: How are the roads today?

A: Snow covered, drivable.

Q; How [was] your visibility?

A: Clear

Q: Can you describe the other vehicle?

A: Older model Dodge Caravan. Dark in colour. No rust that I can tell.

Q: What did the vehicle do after the collision?

A: The vehicle drove off on Highway 10 southbound. The vehicle took off, really fast from the collision.

Q: Anything else?

A: No, but there were other vehicles around but nobody stopped or stayed to help.

Q: What kind of damage did the other vehicle possibly sustain?

A: Passenger middle to the rear possibly.[^11]

[25] About two and one-half months later, on March 25, 2011, Caruana provided the following statement to his insurer by telephone. It states in part:

Q: Now starting with the direction in which you were travelling and the road you were travelling on, could you please state how the accident happened in your own words?

A: Um I was uh driving um let’s see uh eastbound on Highway 89 and I was approaching the uh intersection of um Highway 89 and Highway uh 10. And um the it they it has traffic lights so anyways um the light was green was solid green and we were proceeding into the intersection and I don’t know the exact distance I was in the intersection I was pretty much in the intersection and there was a vehicle um going in the other direction that was gonna turn uh southbound onto Highway 10. And um he was there I don’t it was a mini I I believe it was a minivan. Um and as I went into the intersection he decided to pull ahead and turn. And by then it was too late for me. I tried to um avoid the accident uh tried to avoid hit a head on collision. Um so I um just did a slight left and my back end uh quarter um I believe it was the wheel house area was hit by this vehicle. I believe kind of slid off him. Cause you know that was the best I could’ve done instead of hitting him head on and causing major injury um potential so I avoided the collision as best as possible.

Q: Okay uh do you recall the weather conditions on the date of the accident?

A: Um they were it was um a little bit slushy. But it was drivable. Um I wasn’t going at full speed I was going anywhere between maybe 60 kilometers to no more than uh 65 kilometers around there.[^12] [emphasis added]

[26] A report dated June 18, 2012 by Dr. Jack Stein, a rheumatologist, prepared for the plaintiff described the collision as follows:

He was returning as a passenger with another driver towards home after an evening’s working. It was a bad weather evening with ice on the road and another car drove in front of them making a left turn. His automobile skidded and twisted and the car struck the other car on his passenger’s side. With the skidding of his car, he stated that they were going perhaps 90 kilometers per hour at the point of impact. He jumped up and covered his face, could not remember striking his head and afterwards was able to emerge from the car unaided. … He did remark that his seatbelt was broken and had come off. [emphasis added]

[27] Caruana and the plaintiff were examined for discovery, about 4 years and 4 months following the collision, on May 29, 2015. Their evidence is organized below under the various considerations raised by the parties related to whether Caruana’s negligence caused or contributed to this collision.

Speed

[28] On the day of the collision Caruana told P.C. Welsh that his automobile was travelling at about 70 km/h prior to swerving to avoid the van. A few months later he told his insurer that his vehicle was travelling between 60 km/h and 65 km/h. On examinations for discovery he said that his vehicle was travelling at about 70 km/h prior to the collision.

[29] On examination for discovery the plaintiff testified that the Caruana vehicle was travelling at about 70 km/h.

[30] As noted earlier, Dr. Stein has reported that the plaintiff told him that the Caruana vehicle was travelling at perhaps 90 km/h at the point of impact.

[31] I find that the Caruana vehicle was travelling at about 70 km/h prior to swerving to avoid the van.

Lane of Travel

[32] At his examination for discovery the plaintiff stated that there was only one lane of travel eastbound on Highway 89 at its intersection with Highway 10. This is clearly wrong. There are two eastbound lanes of travel. The police report shows that the Caruana vehicle was travelling in the right lane of Highway 89 prior to the collision. No mention is made in Caruana’s statement to P.C. Welsh regarding his lane of travel prior to the collision. However, Caruana testified at his examination for discovery that he was travelling in the left lane of eastbound Highway 89 prior to the collision.[^13]

[33] In my view the police officer would have likely gathered his evidence for the report from Caruana. Accordingly, I find that the Caruana was likely travelling in the right lane of Highway 89 prior to the collision.

Road Conditions

[34] Caruana’s statement to the OPP was that the road was “snow covered, drivable”. He later told his insurer that the road was “a little bit slushy”. At his examination for discovery Caruana described the weather conditions as “wet”. He could not remember whether it was snowing or raining. He could not remember whether there was snow on the road but he was sure that there was no ice on the road. Caruana testified that he would not have driven had there been ice on the road.[^14]

[35] On the other hand, the plaintiff described the road as “slippery”.[^15] This is consistent with Dr. Stein’s report which indicated that there was ice on the road.

[36] I find that Highway 89 was “snow covered” and “slippery”, due to icy conditions, at the time of the collision.

Visibility

[37] Caruana told P.C. Welsh after the collision that his visibility of the road was “clear”. At his examination, Caruana testified that his vision was not obstructed at the time of the collision.[^16]

[38] On the other hand the plaintiff testified that he and Caruana could not clearly see the unidentified vehicle because it was still “dark” that morning and snow was falling. He later said that he could not remember if snow had been falling.[^17] . The plaintiff testified that the Caruana vehicle was driving with its high beam headlights turned on prior to the collision because it was dark. The plaintiff testified that it was difficult to see the van.[^18]

[39] I accept the plaintiff’s evidence that it was difficult to clearly see the road and traffic ahead prior to the collision. Given the time of day and the time of the year, it is likely that Caruana would have been driving in the dark as the plaintiff testified.

Headlights & Signal Lights of the Unknown Vehicle

[40] The plaintiff saw the van’s headlights prior to the collision. The plaintiff could not remember whether he saw an indicator light or blinker on the van.[^19]

[41] Caruana testified that he did not see a left turn indicator light activated on the van prior to impact.[^20]

[42] In my view, the fact that neither Caruana nor the plaintiff could recall whether the van had activated a left turn signal, suggests that the van had already commenced its left turn by the time they first noticed the van.

Distance from the Unknown Vehicle

[43] Caruana testified that he was at the “point of no return” when he first saw the van.[^21] He first saw the van about two car lengths before the stop line at the intersection of Highway 89 and Highway 10. Later he testified that he was about two car lengths from the van when he first saw it.[^22]

[44] The plaintiff testified that he could not estimate the distance between the two vehicles when he first noticed the van. However, it was several car lengths from the intersection.[^23]

[45] I find that the Caruana vehicle was two car lengths before the intersection when he spotted the van for the first time.

Location of Property Damage on Both Vehicles

[46] Caruana’s evidence about what part of the van was struck by his automobile has been inconsistent. In his statement to the police after the collision Caruana stated that he struck the front passenger side of the van. Later in that same statement he said that the van sustained damage on the middle to the rear on the passenger side.

[47] On examination, Caruana stated that he had little recollection and was guessing where the van was struck by his vehicle.[^24]

[48] Photographs show that the right back half of the passenger side of the Caruana vehicle was damaged as a result of the collision.[^25]

Location of the Unknown Vehicle

[49] The plaintiff testified that the van had started to make its turn before the Caruana vehicle entered the intersection.[^26] The plaintiff testified that the van was in the Caruana’s vehicle lane of travel when the vehicles collided.[^27]

[50] Caruana testified that he was unsure about the location of the van when he first saw it:

It’s hard to estimate. He was near the intersection I would say. But I don’t know exactly where he was because my eyes are in front of me; I’m not looking to see where the car is physically, you know, car-length wise, you know. I know he was at the intersection; that’s all I can say.[^28]

[51] I find that the van had commenced to make its turn well before the Caruana vehicle entered the intersection.

Speed of the Unknown Vehicle

[52] The plaintiff testified that the van was travelling through the intersection at less than 10 km/h.[^29] Caruana testified that the van “seemed to go pretty fast” on the turn through the intersection although he initially testified that he “could not estimate its speed.”[^30]

[53] The plaintiff was repeatedly questioned on this point and each time confirmed that the van travelled very slowly through the intersection. I prefer his evidence and find that the van travelled at less than 10 km/h through the intersection at the time of the collision. Further, the road and visibility conditions suggest that the van would have been travelling slowly rather than “pretty fast”.

Brakes & Skidding

[54] Counsel for Caruana and Intact advised that there was no physical evidence obtained by the attending police officer or anyone else that showed when or where Caruana applied his brakes.

[55] The plaintiff testified that Caruana had enough time to avoid the collision after he and Caruana first saw the van turning.[^31] The plaintiff later said that slippery road conditions prevented Caruana from doing anything to avoid the collision.[^32]

[56] The plaintiff was unsure whether Caruana applied the brakes.[^33] However the plaintiff testified that there was so much snow on the road that the use of the brakes would not have helped because the vehicle would have slid or skidded.[^34]

[57] Caruana testified that he tapped his brakes but could not remember how far he was from the intersection when he applied his brakes. However he later recalled that he was already into the intersection when he applied his brakes.[^35]

[58] Caruana told P.C. Welsh after the collision that his vehicle went into an “uncontrolled spin going about 70 km/h” prior to the collision. However on examination for discovery, he testified that at no point did he lose control of his vehicle.[^36]

[59] On examination Caruana testified that he swerved to his left to avoid a head-on collision with the van. The rear end of the Caruana vehicle hit the van.[^37]

[60] I find that Caruana swerved to the left and applied his brakes, whether by tapping the brakes of his vehicle or otherwise, in an attempt to avoid a head-on collision with the van.

Conclusion

[61] The evidence of both the plaintiff and Caruana relating to the circumstances of the collision is often unsure, vague and inconsistent. There is no reason to think that better evidence will be available at trial. Their memories will not improve with time. There are no other known witnesses to this collision. There is no additional physical evidence that will assist with the determination of how this collision occurred and whether Caruana is responsible for this collision.

[62] In my view, Caruana is at least 1% liable for this collision. He failed to exercise reasonable care to avoid the collision. Caruana was simply travelling too fast given the poor visibility and slippery, snow-covered road conditions even if his vehicle was travelling at a speed that was less than the posted speed limit.

[63] Caruana testified that he drove using his vehicle’s high beam lights in the dark. Nevertheless he was still unable to see a dark van that was slowly turning across his right of way until he was almost in the intersection. In addition the road was “slippery” and snow covered. Had he been exercising reasonable care, Caruana would have reduced the speed of his vehicle not only to reflect the poor visibility conditions but also to reflect the fact that road conditions were also a hazard that would make it difficult, if not, impossible for him to quickly stop in order to avoid a collision with another vehicle or person.

[64] Had Caruana been driving with reasonable care he would have become aware sooner that the van was making a left turn across his path and he would have had an opportunity to avoid colliding with the van as a result of losing control of his vehicle.

[65] Accordingly, I dismiss the motion for summary judgment brought by Caruana and grant the cross-motion brought by Intact.

Issue #3: Is the plaintiff entitled to a declaration that Intact shall indemnify it in the event that his claim against Caruana is dismissed?

[66] Given that I have dismissed Caruana’s motion for summary judgment, the relief sought by the plaintiff (namely, that the plaintiff is entitled to recover from Intact in the event that the claim against Caruana is dismissed) is moot and need not be considered.

CONCLUSION

[67] For the reasons given above, I find that the defendant Caruana is at least 1% liable for the collision and, accordingly, I order that the action against Intact be dismissed.

[68] I order that Caruana pay costs of this motion in the amount of $5,000.00 to Intact. No costs were sought by, or against, the plaintiff. On a partial indemnity basis Caruana claimed $4,611.95 and Intact claimed $6,127.90. In my view, this costs award is fair and reasonable as well as within the reasonable contemplation of the parties.

Mr. Justice M. Faieta

Released: July 8, 2015

CITATION: Saldana v. Caruana et al. 2015 ONSC 4426

COURT FILE NO.: CV-13-471612

DATE: 20150708

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOSE SALDANA
Plaintiff

– and –

MICHAEL CARUANA, JOHN DOE and INTACT INSURANCE COMPANY
Defendant

REASONS FOR DECISION

Mr. Justice M. Faieta

Released: July 8, 2015

[^1]: Rule 20.04(2)(a).
[^2]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.
[^3]: Rule 20.04(2.1).
[^4]: Lopez v. Dr. M. Douris Dentistry Professional Corp., 2014 ONSC 3675, at para. 9.
[^5]: Rule 20.04(2.1).
[^6]: Rule 20.04(2.2).
[^7]: Hryniak, at para. 66.
[^8]: King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, at para. 14-15.
[^9]: 2014 ONSC 7200, at para.3..
[^10]: 2014 ONCA 623, at para. 4.
[^11]: Affidavit of Racquel DeGuzman, sworn May 29, 2015, Exhibit “B”.
[^12]: Affidavit of Matthew Lefave, sworn May 8, 2015, Exhibit “D”.
[^13]: Transcript – Michael Caruana, Question 50.
[^14]: Transcript – Michael Caruana, Questions 217-223.
[^15]: Transcript – Jose Saldana, Questions 527-530.
[^16]: Transcript – Michael Caruana, Question 124.
[^17]: Transcript - Jose Saldana, Questions 485-490.
[^18]: Transcript - Jose Saldana, Questions 494-499.
[^19]: Transcript – Jose Saldana, Questions 502-507.
[^20]: Transcript - Michael Caruana, Question 120.
[^21]: Transcript - Michael Caruana, Question 49.
[^22]: Transcript – Michael Caruana, Questions 58-61, 128-133, 135-144.
[^23]: Transcript - Jose Saldana, Question 520.
[^24]: Transcript – Michael Caruana, Questions 29-31.
[^25]: Affidavit of Alex B. Tzaferis, sworn June 1, 2015, Exhibit “E”.
[^26]: Transcript - Jose Saldana, Questions 511-515.
[^27]: Transcript - Jose Saldana, Questions 584.
[^28]: Transcript – Michael Caruana, Question 64.
[^29]: Transcript - Jose Saldana, Questions 570-572.
[^30]: Transcript – Michael Caruana, Questions 146, 165, 166.
[^31]: Transcript - Jose Saldana, Question 527.
[^32]: Transcript - Jose Saldana, Question 530.
[^33]: Transcript - Jose Saldana, Questions 524, 531.
[^34]: Transcript – Jose Saldana, Question 533-534.
[^35]: Transcript – Michael Caruana, Questions 169-172, 213.
[^36]: Transcript – Michael Caruana, Question 225.
[^37]: Transcript – Michael Caruana, Questions 189-190.