ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-1235-A1
DATE: 20150916
BETWEEN:
LINDSEY MULLINS
Plaintiff
-and-
BRIAN BUTLER and Brian Butler, Estate Trustee for The Estate of Debra Butler
Defendants
-and-
LINDSEY MULLINS and MOSTAFA MARINI
Third Parties
Alexander Hora for the Defendants, Responding Parties on motion
Mark W. Birdsell for the Third Parties Moving Parties on the motion
Heard: March 10, 2015
DECISION
H.K. O’CONNELL J.
[1] The moving parties, the third parties, Marini and Mullins, seek summary judgment on 3 related matters.
Position of the Third Parties Seeking Summary Judgment
[2] This case involves 4 separate statements of claim, 3 of which are before the court on this motion. The claims relate to a car accident that occurred on September 19, 2010.The plaintiff vehicle was owned by Ms. Mullins, she is plaintiff in one action and the third party in three actions. The plaintiff vehicle was operated by Marini, a plaintiff in one action and a third party in three actions. Mr. Birdsell represents Mullins and Marini in their third party capacity only.
[3] The accident occurred at County Road 10 and Concession 12 in Clearview. The plaintiff vehicle was going south on county road 10 and had the right of way at the intersection. The defendant vehicle operated by Mr. Butler was travelling west on concession 12 and had a stop sign at the intersection.
[4] The defendant, Mr. Butler could not say whether he stopped as he should have. At his examination for discovery, he testified that he could not really recall the details of the accident, as that date was a blur based on sleep deprivation prior to the accident, based on limited sleep he was caring for his wife who was ill with cancer. She is now deceased.
[5] The independent witness statement of Mr. Carr, at Tab ‘T’ of the Applicant’s motion record, taken by police at the scene of the accident, says that Mr. Butler did not come to a stop and entered the intersection without stopping. This led to the collision with the plaintiff’s vehicle causing both vehicles to end up in the ditch.
[6] The plaintiff vehicle upon crashing caused a number of the occupants to be rendered unconscious.
[7] At discovery Mr. Marini confirmed that he was wearing a seat belt, was not distracted and was driving at the speed limit. He was not impaired by alcohol or drug or distracted in any other way. Mr. Marini denied seeing the defendant’s vehicle such that he could avoid it.
[8] The other occupants of the vehicle, Mullins, MacKenzie and Tremblay did not see the defendant vehicle before the accident happened and they confirmed that Marini was travelling at authorized speed. Two of the ladies heard Mr. Marini yell something along the lines of, “what the fuck is this guy doing,” right before the impact occurred.
[9] Mr. Butler was charged under the Highway Traffic Act with failing to yield right of way. The accident report lists his driver action as failing to yield right of way, and notes Marini’s driving as being proper.[^1] There is no evidence in the police report nor in Carr’s statement that says that Marini contributed to the accident.
[10] Mr. Butler pleaded guilty on September 29, 2010 to failing to yield at a stop sign.
[11] On August 30, 2013 based on a driver’s licence search of Mr. Butler, there had been no appeal, nor any indication of an attempt to appeal. Mr. Butler at discovery advised he pleaded guilty and paid the fine imposed.
[12] The third parties submit that Butler is 100% at fault. There is no evidence to suggest that Marini contributed to the accident or could have avoided it in any way.
[13] All relevant party’s evidence has been produced. Four occupants were in plaintiff vehicle. All have been exposed to examination for discovery. There is no evidence of contributory negligence in those extracts, argues counsel. That is why this motion was brought.
[14] Rule 20.04(2) of the Rules notes that summary judgment shall issue if there is no genuine issue requiring a trial. Counsel argues that under 20.04(2)(a) the court can, on the facts of this case, find that there is no genuine issue.
[15] In Combined Air[^2] the Ontario Court of appeal introduced the full appreciation test. The responding parties have put forward no evidence of contributory negligence by Mr. Marini, the driver. In the context of the record before the court, summary judgment should issue.
[16] Counsel notes that the responding parties argue that Mr. Marini was speeding, but that is wrong. They also argue he was not paying attention. However based on the record before the court the court can find that there is no genuine issue for trial.
[17] In Walker v. Brownlee et. al.[^3], the Supreme Court of Canada noted:
While the decision of every motor vehicle collision case must depend on its particular facts, I am of the opinion that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right of way and a collision results, if he seeks to cast any portion of the blame on B, the driver having the right of way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A’s disregard of the law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful skilful driver would have availed himself, and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali.
[18] This case is applicable argues counsel, to the case at bar. There is no question that the moving party’s vehicle had the right of way and could not avoid the collision.
[19] Counsel also references Ali v. Diogo[^4], and Mensink v. Dale[^5]. Although those cases have distinguishing issues the court found that the drivers who had the right of way were not at fault. Counsel emphasizes that in the case at bar there is no evidence that Mr. Marini could have avoided the accident.
[20] In Bhattacherjee v. Marianayagam[^6], the concern of a prior finding undermining the credibility of the judicial process is the same in our case, given that the defendant has plead guilty to fail to yield. O’Connor J. held that in Bhattacherjee, there was no genuine issue respecting trial on the evidence before him
[21] In Bhattacherjee, O’Connor J. considered the examination of the parties and all of the necessary evidence to have a full appreciation of the evidence, including material facts and issues from which to weigh the evidence. Counsel submits that same template of appreciation is present on this motion before me.
[22] Counsel submits that the defendants have not proffered any evidence to suggest that Mr. Marini is partially responsible, in any way, for the accident.
[23] Summary judgment is the most proportionate, timely and cost effective approach in the case at bar. The evidence is clear, and there is no reason to have the third parties attend trial and incur the expense.
Position of the Responding Party Defendants
[24] The respondents note that this motion involves 3 pieces of 4 pieces of a trial schema.
[25] Liability issues will continue no matter what happens in this case given Mr. Marini is a plaintiff in one of the actions.
[26] There is a real risk of inconsistent results. It is not disputed that Mr. Butler has plead guilty and did fail to yield. Yet there is still an argument that Mr. Marini contributed to the accident in question.
[27] The posted speed limit in the area was 80 km/h. yet there is proof of speeding given Mr. Marini was travelling at up to 90km/h. There is a paucity of evidence given that none of the occupants of the Marini vehicle can remember the accident. As Mr. Marini has no recollection he could bear some liability.
[28] The witness statement of Mr. Carr is not before the Court as a sworn statement on this motion.
[29] In addition to speeding, there is a real question as to whether Mr. Marini was keeping a proper lookout under the circumstances, which is a question that could be answered to visit contribution to the accident upon him.
[30] Counsel argues that there is some coherent evidence to show a real issue for trial.
[31] It is also argued that it is inappropriate to positively conclude the effective inevitability of the defendants being found 100% liable. There is still a live issue on apportionment of blame.
[32] Mr. Hora sought to distinguish some of the cases referenced in argument on the motion.
[33] For instance in Mensink the defendant was driving below the speed limit which is different from our case.
[34] Counsel referenced the lead case of Hryniak which speaks to the interests of justice on a summary judgment motion in the context of the litigation as a whole. The court, on a summary judgment motion reminds counsel, should be careful not to run the risk of duplicative proceedings or inconsistent findings. Counsel argues that a trial of the issue of alleged negligence of Mr. Marini will not be lengthy nor complicated.
[35] In relation to the decision in Walker, the responding party argues that Mr. Marini, with the exercise of reasonable care could have taken some action to avoid the crash. In our case we have speeding and a concern that there was not a proper lookout being kept.
Reply
[36] Mr. Birdsell says that the defendants are simply seeking to find a reason for liability that is not founded in the evidence. The evidence is what it is at this point in time. It is complete and succinct. There is no evidence of negligence by Mr. Marini, nor did he admit speeding. He gave a range based on what he believed the speed limit was. Two of the three other occupants in the vehicle he was driving, confirmed that he was not speeding. The third could not assist in this respect.
[37] This motion can be clearly determined on the facts on the record in favour of the third parties. There is sufficient evidence to make dispositive findings under Rule 20. The issues in this case are fairly straight forward. This matter does not require proceeding to trial.
Decision
[38] I have no hesitation in finding that I can gain a full appreciation of the evidence and issues required to make dispositive findings on this motion. The interests of justice can be protected by deciding this case on the evidentiary record as presented.
[39] It is no answer to say that there is no evidence to show that Mr. Marini was not keeping proper watch. A paucity of evidence is not a proxy to infer that that could have been the case. Indeed I asked counsel Mr. Hora, when he was making his submissions, what utility I could make of his commentary of this may be a case of failure to be keep a proper look out.
[40] I note here that there is no evidence of any distraction, as Mr. Marini testified he was not impaired by alcohol or drugs, was not using his cell phone and was not otherwise engaged in less than prudent driving. We do not assume that people who drive do not do so prudently, but we do assume that driver’s do drive prudently, and are expected to drive in a diligent and prudent matter.
[41] There is common sense involved. Without a showing by some evidence, of failure to keep a proper look-out or to exercise proper prudence under the circumstances, I do not see how I can extrapolate from that how that should be inferred, especially in a case where Mr. Butler admitted he failed to yield in circumstances where the other driver Mr. Marini had a right of way.
[42] Having said that I should not be taken to be saying that failure to yield by one motorist yields complete liability on that driver. It clearly doesn’t. When it doesn’t however is a question of what level of negligence should be visited upon the other driver. That part of the equation is ripe for consideration on a summary judgment motion when the record is otherwise capable of being fully appreciated.
[43] There is not one scintilla of evidence that Mr. Marini was not driving in a prudent, and undistracted manner.
[44] I turn myself to the issue of speed. There is an argument advanced that Mr. Marini was speeding. In his examination for discovery Mr. Marini was asked about his speed. He said he was “probably going between 80 and 90.” He immediately added however that, “I don’t speed”.
[45] His answer was that he believed that the posted limit was 80 or 90. Reading that answer in conjunction with his response that he doesn’t speed leads to the rational conclusion in the context of all of the evidence that he wasn’t speedking. Furthermore Ms. Mullins, who owned the car and was in the front passenger seat, testified at discovery in relation to speed, that “ we were at 50, and then the 80 sign came up, so we were just hitting that 80 mark because, like, it was just kind of right outside Wasaga. So it was like in a rural area where you could only do 50, and then kind of going more on the highway came up to 80. So it was 80.”
[46] Ms. Mullins when asked if Mr. Marini got the vehicle up to 80, answered: “I want to believe he’s pretty close there or there, yes.”
[47] Ms. Mackenzie, who was also in the car, testified at discovery in relation to speed that the limit was 80, and that “I believe we just hit 80”. Here answer it is noted, is entirely consistent with Ms. Mullins’.
[48] I am satisfied on the comprehensive record before me and having taken a good hard look that speed was not a factor. Even if Mr. Marini was going 90 in an 80 zone, a fact that is more than unlikely given the evidence, including his, there is no evidence that this would have made a difference in relation to the crash that followed.
[49] It should also be remembered that both Ms. Mackenzie and Ms. Mullins heard Mr. Marini comment upon what Mr. Butler was doing within a split second of the crash according to Ms. Mackenzie, and Ms. Mullins said once Mr. Marini made his comment the car was “just like right there.”
[50] There was on the evidence no time for even the application of the horn on the vehicle of the car being driven by Marini.
[51] The submissions of Mr. Hora that summary judgment should not be granted based on Justice Karakatsanis’ comments in Hryniak[^7], in relation to the interest of justice, I find do not assist. This is not a case where there is a need to fear duplicative proceedings. It is most efficient and economical to grant summary judgment in the case at bar as that is the most proportionate, timely and cost effective approach given the fact sifting and findings that can be readily undertaken.
[52] In this regard I adopt and accept the reasoning in Walker, that “A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A’s disregard of the law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful skilful driver would have availed himself.” In this case the moving party cannot on the evidence meet that onus.
[53] This was an unavoidable collision, on the material before me, wrought by the negligence of Mr. Butler who failed to yield, and caused a crash that Mr. Marini could not avoid.
[54] Summary judgment shall therefore issue in favour of Marini and Mullins. I will provide an endorsement on costs later this week. I thank counsel for providing their cost submissions at the end of the motion.
O’CONNELL J.
Released: September 16, 2015
[^1]: I do not use the opinion of Mr. Marini driving properly as a feature in this decision, nor the lack of note of any contributory negligence in the police report, to ground my decision.
[^2]: Combined Air Mechanical Service Inc. V. Flesch 2011 ONCA 764, [2011], 108 O.R. (3d) 1.
[^3]: 1952 328 (SCC), [1952] S.CJ. no.56, at para. 49
[^4]: [1996] O.J. No. 4094 ( Ont. Ct. Gen. Division)
[^5]: [1996] O.J. No. 4251 ( Ont. Ct. Gen. Division)
[^6]: 2013 ONSC 40, [2013] O.J. No. 8 (Ont. Sup. Ct. Justice)
[^7]: Hryniak v. Maudlin, 2014 SCC 7.