Court File and Parties

COURT FILE NO.: CV-12-461295 DATE: 20160720 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Denis Kavounov, by his Estate Trustee Without a Will, Maryna Maksymova, Maryna Maksymova and Anastasia Kavounov, a minor by her Litigation Guardian Maryna Maksymova, Plaintiffs AND: Roman Vasylyovy Karaman, The Estate of Denys Balaban and Alexander Nevski, Defendants

BEFORE: Pollak J.

COUNSEL: Andrew Kerr, for the Plaintiffs Richard Hepner, for the Defendant Roman Vasylyovy Karaman

HEARD:

Endorsement

[1] This is a motion for summary judgment by the Defendant, Roman Vasylyovy Karaman (“Mr. Karaman”) for an Order dismissing the Plaintiffs’ action against him.

[2] The Plaintiffs’ action is for damages arising from the death of Denis Kavounov (“Mr. Kavounov”), who was a passenger in a car allegedly driven by the Moving Defendant, Mr. Karaman. The Statement of Claim alleges that either Mr. Karaman or his co-defendant, Denys Balaban (“Mr. Balaban”), was the driver of the car.

[3] Just before the accident, Mr. Karaman, Mr. Kavounov, and Mr. Balaban were driving to Jasper to find a motel.

[4] Mr. Karaman, the only survivor, gave evidence on this motion that he was the front seat passenger at the time of the accident, that it was Mr. Kavounov who was driving, and that Mr. Balaban was sitting in a back seat.

[5] The Plaintiffs plead that the driver, either Mr. Karaman or Mr. Balaban, is responsible for the accident and liable for their damages. The Plaintiffs submit that if the issue of who was driving cannot be decided by the court on this motion, the issue ought to be determined by the normal method of a trial.

[6] The Plaintiffs submit that the expert evidence on which they rely is sufficient to discredit Mr. Karaman’s direct evidence and that such evidence therefore creates a genuine issue for trial. The Plaintiffs submit that this is a case of a “battle of the experts”. If the court prefers the evidence of their experts, Mr. Walters and Mr. Kumar, over that of the Defendant’s expert, then the expert evidence will support the Plaintiffs’ claim. If, however, the court prefers the evidence of the Defendant’s expert, the Plaintiffs’ claim will not be successful. It is submitted that, for the court to make this determination of which expert’s views should be preferred, it is necessary to hear viva voce evidence and to be cross-examined in court. It is further submitted that it would also be good for the court to have evidence of the accident, such as photographs of the car, and to put these documents to the experts. The Plaintiffs argue that the court should not make such a decision without the “machinery” of the trial.

[7] The Moving Defendant argues that all of the experts conclude that they cannot determine who was driving at the time of the accident. The only evidence before the court with respect to who was driving is that of Mr. Karaman, who denies he was driving. He points out that the Plaintiffs have not filed any responding materials except for their expert reports. These reports, it is submitted, all conclude that there is not enough evidence to determine who was driving. There is then no direct evidence to contradict his direct evidence, which was not altered by his cross-examination.

[8] The burden of proof in this action is on the Plaintiffs to demonstrate, on a balance of probabilities, that Mr. Karaman was driving the car. It is submitted that there is no evidence presented to show that Mr. Karaman, on a balance of probabilities, was driving the car at the time of the accident and, as such, there is no factual basis that raises a genuine issue to be tried as it relates to the claim against Mr. Karaman. The Plaintiffs, in response to this motion, must put their best foot forward, and their expert evidence does not prove that Mr. Karaman was driving.

[9] Mr. Karaman argues that he has provided direct evidence which has not been altered on cross-examination. He also relies on the Alberta Collision Reports which are included as exhibits to his affidavit evidence. I do not accept the conclusions reached in these documents as they have not been properly introduced into the evidence. He, however, argues that his direct evidence is enough to discharge his legal burden of showing there is no triable issue with respect to his liability. He relies on the case of Dubrovsky v. State Farm Mutual Auto Insurance Co., 2011 ONSC 2361, 105 O.R. (3d) 310, at paras. 13-15. I agree with these submissions.

[10] Both parties relied on the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.R. 87. The Supreme Court of Canada gave us a roadmap of the approach to follow on a motion for summary judgment. The court stated the following at para. 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use 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.

[11] In this action, the issue in dispute is “who was driving the car”. The evidence on this motion does deal with this material issue in dispute. As I have referred to above, the evidence before the court is not contradictory. The experts of the Plaintiffs have concluded that it is not possible to determine who was driving. I do not accept that I should reject the direct evidence of Mr. Karaman, which was unsuccessfully challenged on cross-examination. There is no legal basis for me to do so.

[12] I find that the evidence on this motion is sufficient to establish that there are no genuine issues requiring a trial. I can make a fair determination on the basis of the record before me. I do not need to use my discretion to determine if the need for a trial in this case could be avoided by the use of the court’s fact-finding powers.

[13] For all of the above-noted reasons, I find that the Plaintiff has not met the burden of proving that there is a genuine issue for trial. I find that the Moving Defendant, Mr. Karaman, has met his burden of proof to show that summary judgment dismissing the Plaintiffs’ action against him should be granted.

Costs

[14] If the parties are unable to agree on costs, they may make brief written submissions to me no longer than three pages in length. The Defendant’s submissions are to be delivered by 12:00 noon on July 29, 2016, and the Plaintiff’s submissions are to be delivered by 12:00 noon on August 9, 2016. Any reply submissions are to be delivered by 12:00 noon on August 16, 2016.

Pollak J. Date: July 20, 2016