CITATION: Brown v. Dalessandro et al., 2016 ONSC 1724
COURT FILE NO.: 6665-12SR
DATE: 2016/03/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Michelle Brown
Plaintiff
- and -
Antonio Dalessandro, Chris Hall, Meter Mix, Robert Vansteeg (also known as "Bob Vansteeg"), John Doe and Trillium Mutual Insurance Company
Defendants
COUNSEL:
C. Nicolis, for the plaintiff
M. Packer, for the defendants, Antonio Dalessandro, Chris Hall, Meter Mix, and Robert Vansteeg
HEARD: February 24, 2016
Mitchell J.:
Overview
[1] Pursuant to Rule 20 of the Rules of Civil Procedure, the moving party defendants seek summary judgment dismissing the plaintiff's claim for damages against each of them arising from a motor vehicle accident which occurred on August 4, 2010.
[2] A preliminary issue was raised by defendants' counsel with respect to the plaintiff's medical records prepared by Dr. Michel Rathbone attached as Exhibit "F" to the affidavit of Rosie Cepeda sworn January 29, 2016. The plaintiff included these records in her responding materials to support her claim for damages. To address the concerns of the defendants, it was agreed that the reports and related portions of the affidavit would be struck for purposes of the motion with the defendants admitting, for purposes of the motion only, that the plaintiff suffered serious injuries in the accident.
[3] The motion proceeded with respect, only, to the plaintiff's claims against the defendants, Antonio Dalessandro ("Dalessandro"), Chris Hall ("Hall") and Meter Mix Concrete Ltd. ("Meter Mix"). On consent, the action against Robert Vansteeg (also known as "Bob Vansteeg") ("Vansteeg") is hereby dismissed.
Background
[4] By statement of claim issued April 10, 2012, the plaintiff seeks general and special damages totaling $1,000,000 arising from injuries suffered in the accident. The plaintiff claims the moving party defendants, Dalessandro and Hall, are both liable in negligence. The plaintiff claims the moving party defendant, Meter Mix, is vicariously liable for the negligent conduct of its employee, Hall.
[5] The circumstances of the accident present as somewhat unique. The accident occurred on August 4, 2010 at approximately 4 p.m. The plaintiff was heading northbound on Eleanor Street in London and stopped at the stop sign at the intersection of Eleanor Street and Florence Street (the "intersection") intending to cross over Florence Street and continue northbound on Eleanor Street. Florence Street is a through-street having four lanes – two lanes in each direction.
[6] At the same time as the plaintiff was stopped at the intersection, a cement truck in the inside westbound lane of Florence Street was stopped attempting to turn left (south) on Eleanor Street. The driver of the cement truck did not have sufficient turning radius to complete the turn with the plaintiff's vehicle stopped at the intersection. With cars stopped behind her vehicle, the plaintiff was unable to reverse her vehicle and provide the driver of the cement truck with sufficient room to complete the turn.
[7] The plaintiff's view of the westbound lanes of Florence Street was blocked by the cement truck. After approximately five minutes, the driver of the cement truck waved the plaintiff into traffic on Florence Street.
[8] The plaintiff attempted to traverse all four lanes of traffic on Florence Street. In doing so, her vehicle struck Dalessandro's travelling westbound in the curb lane of Florence Street.
[9] The plaintiff was charged under the Highway Traffic Act (the "HTA") with failing to yield. Following a trial, the plaintiff was convicted of this offence.
[10] The defendants defended this claim and examinations for discovery have taken place. A trial is scheduled for 2017. No pretrial has been conducted. The trial, should it be necessary, will proceed before a jury.
Analysis
The Law
[11] Rule 20.04(2)(a) of the Rules of Civil Procedure requires the court to grant summary judgment where there is no genuine issue with respect to a claim or defence.
[12] With respect to the Court's powers on a motion for summary judgment, rules 20.04(2.1) and 20.04(2.2.) provide as follows:
(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[13] These enhanced powers came into effect in 2010. The Supreme Court of Canada's decision in Hyrniak v. Mauldin[^1] is the leading case on how these enhanced powers under rule 20 are to be utilized.
[14] Karakatsanis J. writing for the court in Hyrniak made the following comments regarding the role of rule 20 as part of a necessary culture shift. She writes[^2]:
There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.
This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible – proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.
[15] Hyrniak does not alter the well-developed principle that the parties are presumed to have placed before the court all of the evidence relevant to the issues that would be available at trial.[^3] The Court may presume that no further and better evidence is available and the record is complete. The motion before me proceeded on an extensive record, including the evidence from the HTA trial, the evidence given on examinations for discovery, witness statements provided to police, affidavit evidence and GPS tracking evidence.[^4]
[16] The enhanced powers permit the motions judge to use the summary motion rules as a legitimate alternative means for adjudicating and resolving legal disputes. No longer are the summary judgment rules a highly restrictive tool to weed out only those claims and defences which are clearly unmeritorious.[^5] It is presumed that the judge will use these powers unless it is in the interest of justice for them to be exercised only at a trial. Whether or not a trial is required in the interests of justice will be driven by the underlying objective of the rule which is to promote access to justice by ensuring the process is proportional to the dispute.
[17] Where the trial is to proceed before a jury, the interests of justice require the court to consider this as an additional factor in determining whether it is appropriate to determine the issues in a summary fashion. In this regard, I adopt the comments of Dunphy J. in McDonald v. John Doe[^6] where he states:
I do not conclude that the existence of a jury notice is a bar to proceeding with summary judgment motions requiring Rule 20.04(2.1) of the Rules of Civil Procedure. However, I do think it is incumbent upon the court to give due consideration to the right to a jury trial and other relevant factors in considering whether the interest of justice require the Rule 20.04(2.1) toolbox to remain unopened.
[18] I will now apply the approach developed in Hyrniak to the claims of the plaintiff against each of Dalessandro, Hall and Meter Mix. If the motion is successful with respect to the plaintiff's claims against Hall, the claim against Meter Mix cannot succeed.
Claim against Dalessandro
[19] The plaintiff must "play trump" or risk losing and must demonstrate that her case has a real chance of success at trial. The Court must be scrupulous in assessing the merits of a credibility dispute so as to ensure that any such dispute constitutes a genuine issue requiring a trial.[^7]
[20] At trial, the plaintiff must convince the jury that she has met the burden of proving, on a balance of probabilities, that Dalessandro breached the standard of care. On the record before me, there is no evidence to support a finding that Dalessandro breached his duty of care to the plaintiff.
[21] Plaintiff's counsel pointed to a change in the evidence of Dalessandro between his evidence given at the HTA trial, his statement to police and his evidence given on discovery with respect to the speed he was travelling at the time of the accident. At its worse, his evidence supports a finding that he was travelling the posted speed limit of 50 km/hour. On the evidence, a jury could not find that Dalessandro was speeding at the time of the accident.
[22] The parties agree that Dalessandro could not see beyond the cement truck and in particular could not and did not see the plaintiff's vehicle stopped at the intersection. There is no evidence to the contrary.
[23] I do not accept the evidence of the plaintiff that the eastbound traffic was stopped to allow her to proceed across the eastbound lanes of Florence Street. I am able to weigh the evidence as I am permitted to do and, based on the evidence of Dalessandro and the evidence of independent witnesses, Paul Peaire and Carl Noel, I find that the flow of eastbound traffic on Florence Street proceeded uninterrupted and unabated at the time of the accident and during the events immediately preceding the accident.
[24] By virtue of the state of the traffic and what he was able to observe while travelling westbound on Florence Street at the posted speed limit, Dalessandro would not have been alerted to a situation of impending danger imposing on him a duty to reduce his speed and take other steps to avoid an accident with the plaintiff's vehicle.
[25] There is no evidence to support a finding by a jury that the plaintiff should have reduced his speed to avoid a collision with the plaintiff's vehicle – a collision he could not have anticipated or predicted in these circumstances.
[26] While not determinative of the issue, I note that Dalessandro was not charged with any offence under the HTA unlike the plaintiff who was charged and convicted.
[27] I therefore am able to conclude on the evidentiary record before me that through no fault or negligence of Dalessandro, the accident occurred. Accordingly, the plaintiff's claim against Dalessandro is dismissed.
Claim against Hall and Meter Mix
[28] There is authority for a driver being found partially liable in negligence for failing to take proper care in waving another driver into traffic: see Nash v. Sullivan, 1973 CanLII 785 (ON CA), [1973] O.J. No. 2139 (ONCA); Makonin v. Chartrand, [1993] B.C.J. No. 228 (BCSC).
[29] For purposes of the motion, the moving defendants, Hall and Meter Mix, do not dispute that, on the evidence if accepted, a jury properly instructed could find the driver of the cement truck negligent. However, Meter Mix says the truck was not its truck and that Hall was not the driver of the truck. The issue for purposes of the motion is one of mistaken identity.
[30] The evidence relied on by the defendants, Hall and Meter Mix, to support a finding of mistaken identity is as follows:
(i) The plaintiff testified that the driver of the cement truck was bald, approximately 50 years of age and wearing an orange shirt with yellow reflector tape. She has never wavered in her description of the driver whether during the HTA trial or on discovery. Hall's evidence is that he is 34 years of age, has brown hair, is not and has never been bald, and does not own an orange shirt or one with reflector tape.[^8]
(ii) The plaintiff and both independent eye witnesses[^9] testified that the cement truck had a rear discharge system (rotating drum). Vansteeg's evidence is that the cement truck identified as being driven by Hall at or about the time of the accident was a front discharge truck.
(iii) The plaintiff and eye witnesses estimate the cement truck was stopped at the intersection waiting to turn onto Eleanor Street for approximately 5 minutes. The GPS information did not record Hall's truck as being stopped longer than 2 minutes[^10].
[31] Ms. Packer argued that the only possible inference a jury could draw from this evidence is that the cement truck involved in the accident was not a Meter Mix truck and the driver of the cement truck involved in the accident was not Hall.
[32] Plaintiff's counsel conceded that portions of the plaintiff's evidence are not reliable. He admitted that she was mistaken in her recall of having stopped for a period of 3 minutes in front of the cement truck before proceeding northbound into the westbound lanes of traffic and submits that the evidence of the independent witnesses, Peaire and Noel, to the effect that the plaintiff proceeded across all four lanes of traffic without stopping.
[33] I disagree with the moving parties' position on the motion. The reliability of the plaintiff's evidence, or a portion of her evidence, will undoubtedly be called into question at trial. Her counsel has conceded this. The plaintiff was knocked unconscious by the impact of the collision. In her August 4, 2010 statement to police and during the HTA trial, the plaintiff testified she recalls nothing after she left her stop position at the intersection and proceeded to cross Florence Street. Despite, these concerns with the strength of the plaintiff's evidence, a jury must consider the whole of the evidence which goes beyond just the evidence of the plaintiff and the evidence of Vansteeg which refutes and weakens her evidence.
[34] The trier of fact, whether judge or jury, must consider the issue of the identity of Hall as the driver of the subject cement truck in the context of all of the evidence including evidence challenging the credibility of Hall and the accuracy of the GPS evidence. This evidence is as follows:
(i) The Meter Mix yard is located on Frances Street just east of Eleanor Street south of Florence Street. There is no evidence to suggest a cement truck yard other than the Meter Mix yard was located on or near Eleanor Street at its intersection with Florence Street;
(ii) The GPS placed Hall, and the cement truck he was driving, southeast on Eleanor Street at its intersection with Florence Street at 4:02 p.m on August 4, 2010.[^11] This evidence is consistent with Hall being at the intersection at the time of the accident.
(iii) Based on the plaintiff's description of the cement truck as having a "white cab, white drum, the word "City" on the side with wheels on the back", Vansteeg confirmed three vehicles in the Meter Mix fleet matched this description and one of these vehicles was being driven by Hall at the time and location of the accident.[^12] The word "City" is the last four digits of the phone number for Meter Mix.[^13]
(iv) No other cement truck and driver were identified as being at the intersection of Eleanor Street and Florence Street at the time of the accident.
(v) Hall ended his shift at Meter Mix at 4:15 p.m. on August 4, 2010.[^14]
(vi) Hall has given conflicting evidence as to his whereabouts at the time of the accident and his involvement in the accident, if any, as follows:
(a) In a discussion with police officer Wakelin on August 11, 2010, Hall stated "as he neared the intersection he observed a vehicle in the bushes and one smashed on the street." Hall said he was just leaving the yard and going in the opposite direction.
(b) In a statement given to the insurance adjuster after the statement of claim was issued, Hall stated "he vaguely remembers a black car cutting in front of his truck and hitting a blue Ford Ranger... He was slowing down his vehicle and had his left turn signal on... He was able to make his turn...He drove back to the yard with the truck and walked back to the scene and gave the police his information".[^15]
(c) At his examination for discovery held June 29, 2015, Hall testified he had no recollection of the incident.[^16]
[35] If the trial proceeds, a jury will be the triers of fact, not a judge. The jury will be asked to decide whether or not Hall was the driver of the cement truck who is alleged to have "waved" the plaintiff into traffic without first ensuring she could proceed safely.
[36] The evidence described above is sufficient for a jury to find it more likely than not that Hall was the driver of the cement truck involved in the incident. This case will depend on the jury's assessment of the credibility and reliability of the evidence of both the plaintiff and Hall. They will need to see and hear these witnesses to properly assess their credibility and reliability. This is not an appropriate case to open the "tool box" and conduct a mini-trial. It would not be in the interest of justice to do so. The parties are presumptively entitled to a trial by jury and I do not think it appropriate to usurp the role of the jury. The issue of mistaken identity is a genuine issue requiring a trial by jury.
[37] The motion to dismiss the plaintiff's claims against the defendants, Hall and Meter Mix, is dismissed.
Costs
[38] There was divided success on the motion as between the moving parties and the responding party. Accordingly, the moving parties and the responding party shall each bear their own costs of the motion. Dalessandro is entitled to his costs of the action to be agreed or assessed pursuant to Rule 58.
Justice A.K. Mitchell
Released: March 9, 2016
CITATION: Brown v. Dalessandro et al., 2016 ONSC 1724
COURT FILE NO.: 6665-12SR
DATE: 2016/03/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michelle Brown
Plaintiff
-and-
Antonio Dalessandro, Chris Hall, Meter Mix, Robert Vansteeg (also known as "Bob Vansteeg"), John Doe and Trillium Mutual Insurance Company
Defendants
REASONS FOR JUDGMENT
Mitchell J.
Released: March 9, 2016
[^1]: Hyrniak v. Mauldin, 2014 SCC 7. [^2]: Ibid at paras. 27 and 28. [^3]: See Nguyen v. SSQ Life Insurance Co., 2014 CarswellOnt 15513 (Ont. S.C.J.) at para 32. [^4]: Based on the extensive evidence of the plaintiff before me from other sources, I draw no adverse inference from the fact she did not depose the affidavit in response to the motion, as was requested by moving parties' counsel. [^5]: Ibid at para. 36. [^6]: [2015] O.J. No. 2344 at para.45. [^7]: Khabouth v. Nuko Investments Ltd., 2013 ONSC 2159, aff'd Khabouth v. Nuko Investments Ltd, 2013 ONCA 671 at para 37. [^8]: Affidavit of Christopher Hall sworn December 29, 2015. [^9]: John Patrick Paul Peaire statement dated August 4, 2010. Exhibit "D", Affidavit of Darcy Forbes sworn August 7, 2015. Carl Noel statement dated August 5, 2010. Exhibit "E", Affidavit of Darcy Forbes sworn August 7, 2015. [^10]: Paragraph 15 of the Affidavit of Robert Vansteeg sworn September 24, 2015. [^11]: Exhibit "B", Affidavit of Robert Vansteeg sworn September 24, 2015 at para. 26. [^12]: London Police Officer, Kristopher Wakelin's police report dated August 13, 2010, Exhibit "G", Affidavit of Darcy Forbes sworn August 7, 2015. [^13]: Affidavit of Robert Vansteeg sworn September 24, 2015 at paras. 8 and 9. [^14]: Exhibit "D", Affidavit of Robert Vansteeg sworn September 24, 2015. [^15]: Page 55, Q & A 348, 400 and 401, Transcript of Examination for Discovery of Chris Hall taken June 29, 2015, Exhibit "C", Affidavit of Rosie Cepeda sworn January 29, 2016. [^16]: Page 45, Q & A 335, Transcript of Examination for Discovery of Chris Hall taken June 29, 2015, Exhibit "C", Affidavit of Rosie Cepeda sworn January 29, 2016.