ONTARIO SUPERIOR COURT OF JUSTICE

Court File No.: 85315/13
Date: 2015-11-18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVID DUNCAN

Plaintiff

– and –

CHARLES TAYLOR

Defendant

Troy H. Lehman, for the Plaintiff

Todd J. McCarthy, for the Defendant

HEARD: November 18, 2015

Justice B. Glass

Motion by Defendant for Summary Judgment

[1] The Defendant moves for dismissal of the action on the basis that the finding of guilty of failing to yield the right of way pursuant to the Highway Traffic Act against the Plaintiff ends the issues of this action against the Defendant. The Plaintiff had driven his vehicle from a side street onto a through street at a time when he was obligated to stop his vehicle before entering Warden Avenue in Toronto. When he drove onto Warden Avenue, the Defendant was travelling toward the Plaintiff. There is some dispute whether or not the Defendant was passing a truck or cube van when the Plaintiff drove onto Warden across the lanes of traffic for the Defendant and the driver of the cube van.

Background

[2] The Defendant drove into the driver’s side of the Plaintiff’s vehicle.

[3] At this area of Warden Avenue, there are two lanes of traffic for northbound and two for southbound traffic. The Defendant was travelling north in the non-curb lane.

[4] There may be an issue whether or not the Defendant had time to avoid the collision when the Plaintiff drove onto Warden Avenue.

[5] In any event, the Plaintiff was charged with failing to yield to traffic on Warden Avenue when he drove onto Warden. He had a trial and was found guilty.

Positions of the Parties

[6] Mr. McCarthy submits that since Mr. Duncan was found guilty, liability should be off the table and the action ought to be dismissed.

[7] Mr. Lehman submits that Mr. Taylor had no involvement with the fail to yield proceedings. The finding of guilty of Mr. Duncan did not depend on how Mr. Taylor was driving. The accident in effect did not depend on the accident at that trial.

Analysis

[8] With a summary judgment motion requesting that the action be dismissed, the issue is whether there is an issue requiring a trial. In so considering this case, one must consider whether or not the Plaintiff is trying to re-litigate the issue of negligence.

[9] I do not find that this is an attempt to re-litigate. The only issue before the court at the fail to yield trial pursuant to the Highway Traffic Act was whether or not the Plaintiff failed to yield to traffic on Warden Avenue when he drove onto that street. There was no need for any determination about the manner of driving by Mr. Taylor. Any comment about Mr. Taylor’s driving would have been outside the issues to be determined by the Justice of the Peace.

[10] In effect, the issue about the manner of driving by each driver has not been determined previously in this case. If there is no re-litigation, there is no abuse of process as one might consider were a party attempting to have a trial about the same evidence afresh.

[11] There are issues for a trial in this personal injury motor vehicle accident case. There appears to be conflicting evidence from various sources about whether the Defendant was passing a cube van or a truck, whether the Defendant was speeding, where the Defendant was located when the Plaintiff entered Warden Avenue, whether the Defendant had a last clear chance to avoid the accident, expert accident reconstruction evidence.

[12] There is an acknowledgement by Mr. Lehman that there is some negligence attributable to Mr. Duncan; however, what percentage of negligence applicable to each driver is a decision requiring more evidence than the paperwork of a summary judgment motion.

[13] A trial will determine liability and damages after the presentation of evidence. The facts of this case are not simple matters. Injuries are reported to be significant. The credibility of witnesses will be an integral part of the trial.

[14] If one were considering moving for summary judgment at this stage absent the issue of re-litigation or abuse of process, one would place the court in the position of simply filing documents, affidavits, diagrams, maps, expert reports but all short of having witnesses testifying about the location of vehicles and how the drivers moved their vehicles. In other words, one would be left to speculate or guess about what happened. That is not the purpose of concluding an action by way of a summary judgment motion because there are genuine issues to be determined.

[15] Paragraph 49 of Hryniak v. Mauldin, 2014 SCC 7 sets out the guideline for summary judgment motions. These reasons are addressing the guidance from the Supreme Court.

Conclusion

[16] The motion for summary judgment is dismissed.

Justice B. Glass

Released: November 18, 2015