ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-485514
DATE: 20151231
BETWEEN:
MAZEN ABUAJINA
Plaintiff
– and –
RANCHO REHANI HAVAL
Defendant
Chris Nicolis, for the Plaintiff
Eric R. Levin, for the Defendant
HEARD: at Toronto, 16 December 2015
REASONS FOR DECISION
Mew J.
[1] The defendant claims that he was not responsible for injuries sustained by the plaintiff as a result of a pedestrian knock-down accident. He seeks summary judgment dismissing the plaintiff’s action.
[2] The parties dispute whether summary judgment is an appropriate means of resolving the issue of liability.
[3] The plaintiff argues that the evidence raises issues of credibility which should be resolved through a trial. In the present case, the trial would be by a judge and jury (the jury notice having been served by the defendant).
[4] The defendant argues that the issue of liability can be determined on the basis of the written record without having to utilize Rule 20.04(2.2) mini-trial.
[5] The decision of the Supreme Court of Canada in Hryniak v. Maudlin, 2014 SCC 7, has ushered in a culture shift in civil litigation which (at para. 2):
…entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case.
[6] The defendant believes that he has a very strong case on liability, hence this motion.
[7] There are three witnesses to the subject incident – the plaintiff, the defendant and one independent witness. These individuals, plus the investigating police officer, would likely be the only witnesses on the issue of liability were this matter to proceed to trial.
[8] The parties have already conducted examinations for discovery. Nevertheless, if the defendant is not liable for the accident, there is an obvious advantage to resolving that issue now. A finding in the defendant’s favour will, subject to any appeal, end the case. Although the case is already well advanced, the costs associated with trying the issue of damages would then be avoided.
[9] If the motion for summary judgment is not successful, a layer of not insignificant expense will have been added to the costs of this litigation.
The Evidence
[10] The defendant was driving a Dodge Caravan mini-van southbound on Pharmacy Avenue in Scarborough, approaching its intersection with Lawrence Avenue. During the course of executing a right hand turn from Pharmacy Avenue into the westbound curb lane of Lawrence Avenue the defendant’s vehicle made contact with the plaintiff.
[11] The defendant and the plaintiff have very different versions of what happened. In particular there is a serious factual dispute as to which direction the plaintiff was moving at the time of the accident.
[12] The defendant says that he stopped at the intersection of Pharmacy Avenue and Lawrence Avenue. In his affidavit he says that the light for southbound traffic was red. After stopping, he looked left and then looked right and after confirming there were no pedestrians or vehicles, he proceeded to make his right hand turn. He was about half way through that turn when he heard something hit the right passenger side of his van, between the right front passenger door and the rear passenger door. He stopped his van, came around to the passenger side of the vehicle, and saw the plaintiff lying on the road, talking on his mobile phone.
[13] The defendant admits that he did not observe the plaintiff prior to the accident.
[14] The plaintiff says that he was walking from his residence, located in a building on the south side of Lawrence Avenue East, to his place of employment, located on the north side of Lawrence Avenue East, east of its intersection with Pharmacy Avenue. He says he crossed from the south side of Lawrence Avenue to the north side at its intersection with Victoria Park Avenue. He then continued to walk eastward towards his place of employment. When he arrived at the intersection of Lawrence Avenue East and Pharmacy Avenue, the traffic light for eastbound/westbound traffic was red. He claims that he waited for the traffic signal to change. While waiting, he noticed the defendant’s vehicle to his left. It was not moving. When the eastbound walk signal came on, the plaintiff proceeded to walk eastbound on Lawrence Avenue across Pharmacy Avenue. As he stepped off the sidewalk he claims that he was struck by the defendant’s vehicle within a metre or less from the sidewalk.
[15] An independent witness, Irene Cooper, was operating a TTC bus travelling westbound on Lawrence Avenue. She had stopped to pick up passengers at a TTC bus stop located near the northeast corner of Lawrence Avenue and Pharmacy Avenue. She observed the traffic lights on Pharmacy Avenue southbound and northbound turning amber. Accordingly, she took her foot off the brake of her bus and began to proceed westbound on Lawrence Avenue, in anticipation of the westbound traffic lights turning green. At the same time, she saw a pedestrian starting to make a run from north to south, towards Lawrence Avenue. The pedestrian was on the northwest side of the intersection. The pedestrian ran into the middle of the right passenger side of a van which had been in the process of making a right hand turn from southbound Pharmacy Avenue to westbound Lawrence Avenue. When Ms. Cooper first saw the van, it was stopped at the intersection of Lawrence Avenue and Pharmacy Avenue.
[16] Ms. Cooper told the investigating officer:
I started to enter the intersection at which point I saw a pedestrian making a run to across from North to South across Lawrence on the Westside.
[17] The investigating officer also questioned the defendant regarding what had occurred:
Q. Tell me what happened?
A. I was coming from north of Pharmacy to south, turning right on Lawrence and the, I was passing the line, it was green, and suddenly somebody hit my car on the passenger-side.
Q. Where did he hit your car?
A. On here. I don’t know exactly. (Pointing to mirror area/passenger front door of scout 4181).
Q. What time did this occur?
A. About 8:15 AM.
Q. What did the male that hit your car look like?
A. 5’6”, a little bit Arabic, brown face, he spoke no English.
Q. Anything to add?
A. I speak a little bit Arabic. I asked him “Why go” and he said, “I thought I could make, but sun in face”.
[18] Ms. Cooper was not cross-examined on the affidavit she swore in relation to the motion for summary judgment. However, in an affidavit sworn by the plaintiff he said, in response to Ms. Cooper’s affidavit:
“I deny that I was running southbound across Lawrence Avenue. I was on my way to work and I did not deviate from my normal route.”
[19] The motor vehicle accident report prepared by the investigating officer noted that the area of impact to the defendant’s vehicle was 2.1 metres south of the north curb of Sheppard Avenue and 5.2 metres west of the west curb of Pharmacy Avenue.
[20] The notes of the investigating officer indicate that he arrived at the accident scene approximately seven minutes after receiving a radio call. His notes do not disclose how he ascertained the scene of the accident. When he arrived, an ambulance was already on the scene. The pedestrian (presumably the plaintiff) was still at the scene, as was the pedestrian’s roommate, who was translating for the ambulance.
[21] No statement was taken by the investigating officer from the plaintiff. However, at his examination for discovery, the plaintiff indicated that the police came to the hospital to ask him what had happened:
The police came to hospital and they asked me, when I crossed the road, how did I cross. I told it was white signal to me and he was looking to the left. When the signal is white, still he can’t move, but he don’t stand for the people to cross. He hit me. The police told me that there is a lady stated that I crossed the red signal. They said there is a vehicle showroom and they have a camera on the closed TV, the area.
[22] While the plaintiff was still in hospital, he was served by the investigating officer with a Provincial Offences ticket, charging him under s. 144(25) of the Highway Traffic Act which provides:
(25) No pedestrian approaching a traffic control signal and facing a red or amber indication shall enter the roadway.
[23] The plaintiff’s evidence is that the charge was subsequently withdrawn. No transcript or other corroboration of what happened with the charge is in the record.
Analysis
[24] On a motion for summary judgment a court should undertake the following analysis (Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, affd. 2014 ONCA 878, per D.L. Corbett J. at para. 33):
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.
[25] The second limb of the analysis requires a judge to consider whether the evidence on a summary judgment is sufficient to give the judge confidence that he or she can fairly resolve the dispute (Hryniak at para 57).
[26] Both parties in this case agree that credibility is important. Rule 20.04(2.1) expressly permits the court to evaluate the credibility of a deponent or to draw any reasonable inference from the evidence. But, as the Court of Appeal in Baywood Homes Partnership v. Haditaghi (2014), 120 O.R. (3d) 438, 2014 ONCA 450 cautions, in actions where credibility is important (at para. 44):
Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.
[27] In the present case, there are questions that arise in my mind, as a trier of fact, that are not addressed by the present record.
[28] The plaintiff was not asked what time he was due at work (bearing in mind the defence evidence that he was running into the road).
[29] No video footage has been offered in evidence on this motion (despite the suggestion it may exist or have existed).
[30] No evidence was adduced to determine what the position of the sun was, at the time of the accident, in relation to the intersection (the plaintiff having indicated that the sun was in his face).
[31] The defendant was not asked, in respect of his statement that while “turning red on Lawrence and the, I was passing the line, it was green”, the “green” refers to the light governing southbound or westbound traffic.
[32] Neither the statement of the defendant or his affidavit make any reference to the bus which Ms. Cooper was driving. Unfortunately, when questioned, he was not asked whether he saw the bus.
[33] The answers to these questions might help me evaluate the credibility of the evidence of the witnesses, given the seemingly irreconcilable differences between the versions of events advanced by the plaintiff and defendant respectively. But I am required to assume that the parties have placed before me all of the evidence that will be available to me at trial, even when it is clear to me that they have not. Knowing that, can I say with confidence that I can fairly resolve the issue of liability?
[34] I feel I must answer that question in the negative.
[35] I next consider whether it would be appropriate to order a mini-trial.
[36] Were I to do so, I would want to hear from the plaintiff, the defendant and the investigating officer. Ideally I would also like to hear from the independent witness (although the plaintiff elected not to cross-examine her on her affidavit, despite asserting that her evidence should be rejected). In effect, I would end up hearing most if not all of the same evidence on liability that would be presented at a trial.
[37] This raises a number of concerns.
[38] Would proceeding to a mini-trial serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (Hryniak at para. 66)?
[39] While I would expect to be able to fully resolve the issue of liability by using the mini-trial powers, unless I conclude that the plaintiff is entirely at fault, proceeding by way of summary judgment will not be cost-effective. Quite the contrary.
[40] In a pedestrian knock-down case, the onus is on the defendant to show that he is not liable: s. 193(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (as amended). While I would keep an open mind on the issue of liability until the evidence is in, cases such as this are often challenging for defendants, particularly where, as here, a pedestrian is crossing at a regular street crossing: Lalonde v. Kahkonen, [1971] 1 O.R. 91 (C.A.) at para. 6.
[41] So the practical reality is that there is a reasonable possibility that my determination of the issue presented for summary judgment would not resolve the whole case, but a whole additional layer of expense would have been added to a case that is bound for a trial in which the plaintiff, and possibly the defendant too, will still testify.
[42] Another concern is whether a motion for summary judgment in the circumstances of this case is a back-door attempt at bifurcation of the issues to be tried.
[43] The following comment of Bale J. in Dickson v. Di Michele, 2014 ONSC 2513, at para. 15, is equally applicable to the case before me:
What the plaintiff is, in effect, asking the court to do is to bifurcate the proceeding by ordering separate hearings on the issues of liability and damages. In considering whether a bifurcation of a proceeding is something that may be ordered on a motion for summary judgment, the court must consider rule 6.1.01 which came into effect at the same time as the 2010 amendments to the summary judgment rules. Under rule 6.1.01, “with the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages.” In this case, the plaintiff does not have the defendants’ consent.
[44] Since the Dickson case, there have been decisions which have emphasised that summary judgment is a separate process available when the interests of justice are satisfied, Rule 6.1.01 notwithstanding: Anjum v. John Doe, 2015 ONSC 5501, at para. 8; see also Bondy-Rafael v. Potrebic, 2015 ONSC 3655 (Div. Ct.), where D.L. Corbett J. (concurring) expressed the view, at para. 65, that under Hryniak, the court has the power to proceed with separate trials using the summary judgment procedure.
[45] But the guiding principle as to whether to exercise the court’s discretion to grant summary judgment remains the overall interests of justice, having regard to the litigation as a whole.
[46] Having determined that the paper record is insufficient to resolve the issue submitted for summary judgment, the existence of a jury notice is another feature of the litigation as a whole that should inform a determination of whether to order a mini-trial. In that regard, I conclude that the existence of a jury notice is a significant factor militating against ordering a mini-trial in this case. I adopt the following passage from the decision of M.L. Edwards J. in Mitusev v. General Motors, 2014 ONSC 2342 at para 91:
On a motion for summary judgment, while it is clear that the motion judge is required to determine whether there is no genuine issue for trial – even in the face of a Jury Notice, where the motion judge is unable from the evidence filed to make findings of fact, and to thereafter apply the law, it seems to me that it would be the exceptional case that the motion judge would exercise the expanded fact finding allowed by Rule 20.04(2.1) and (2.2) to effectively usurp the fact finding role of a jury.
[47] I would add that, having regard to the litigation as a whole, this action gives the impression of being a fairly routine personal injury action. Discovery has taken place. Evidence on damages is being developed. Before trial there will be a mandatory mediation and a pre-trial, both of which will offer opportunities for resolving this matter. 95% of personal injury actions (if not more) resolve before trial. Interposing a min-trial at this juncture would, in my view, be a disproportionate measure.
[48] I would therefore dismiss the defendant’s motion for summary judgment.
[49] When a motion judge dismisses a summary judgment motion, he or she should remain seized of the matter in the absence of compelling reasons to the contrary: Hryniak, at para 78.
[50] In the present case, I would not regard the purpose behind the Supreme Court’s direction in Hryniak to be well-served by me remaining seized. I have made no findings about the evidence on this motion beyond concluding that there are evidentiary issues that require oral testimony and, hence, in the circumstances, that there is a genuine issue for trial that cannot be resolved by summary judgment. Furthermore, as a practical matter, I will shortly be assigned to the team of judges hearing criminal cases, which would cause scheduling challenges were I to remain seized. I therefore exercise my discretion not to remain seized of this case.
Costs
[51] The parties have provided me with costs summaries. I am presumptively of the view that the defendant should pay the plaintiff’s costs of the summary judgment motion on a partial indemnity scale and would invite the parties to endeavour to agree quantum. However, if a different disposition of costs is requested, or the parties cannot agree on quantum, either party may notify my judicial assistant within 14 days of the release of these reasons. I will then give directions on how and when further submissions on the issue of costs will be received.
Graeme Mew J.
Released: 31 December 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MAZEN ABUAJINA
Plaintiff
– and –
RANCHO REHANI HAVAL
Defendant
REASONS FOR DECISION
Mew J.
Released: 31 December 2015