Court File and Parties
Court File Nos.: CV-14-499282-00-B1 Date: 2016-08-12 Ontario Superior Court of Justice
Between: Janice Annemarie Beckford, Plaintiff – and – Mayank Kumar Bathia, Defendant
Counsel for Plaintiff: No one appearing for the Plaintiff Counsel for Defendant: Yulia Barsky
– and –
Ministry of Transportation of Ontario, Third Party – and – Brennan Paving & Construction Ltd., Fourth Party
Counsel for Third Party and Fourth Party: Michael Blinick and Sean Valentine
Heard: August 10, 2016
Endorsement
DIAMOND J.:
Overview
[1] In the main action, the plaintiff has sued the defendant for damages arising from a motor vehicle accident which occurred on May 14, 2012 in the eastbound express lanes of Highway 401 near the Yonge Street exit. In her Statement of Claim, the plaintiff alleges that (a) her vehicle was completely stopped within its lane of travel, (b) while her vehicle was stopped, the defendant’s vehicle struck the plaintiff’s vehicle from behind, and (c) the impact caused the plaintiff’s vehicle to travel forward and, in turn, collide with another vehicle being driven by a third party, Adam Jolicoeur (“Adam”).
[2] In defending the main action, the defendant commenced a Third Party Claim against the Ministry of Transportation (“MTO”) for failing to ensure that the highway was reasonably safe for motorists. In particular, the defendant alleges that dust and debris were present in the laneway he was driving on the date of the accident, and the presence of that dust and debris created a risk to all motorists, causing and/or contributing to the accident.
[3] MTO defended the Third Party Claim and issued a Fourth Party Claim against Brennan Paving & Construction Ltd. (“Brennan”) for contribution and indemnity. MTO had previously retained Brennan to perform maintenance and general repair work to the highway, and on the date of the accident, Brennan had been performing grading, drainage and structure rehabilitation to the express lanes of highway 401 between Avenue Road and Bayview Road.
[4] In summary, the defendant is alleging that the construction work caused dust and debris to form, travel and land in the laneway he was driving on the date of the accident. The presence of such dust and debris caused and/or contributed to his inability to properly stop his vehicle in time and avoid rear-ending the plaintiff’s vehicle.
[5] MTO has defended the Third Party Claim. Brennan has defended the Fourth Party Claim, Third Party claim and the main action.
[6] Both MTO and Brennan now bring joint motions for summary judgment seeking an order dismissing both the Third Party Claim and Fourth Party Claim on the basis that there are no genuine issues requiring a trial of either proceeding.
[7] MTO and Brennan submit that there is no evidence in the record before this Court to support the allegations of negligence set out in the Third Party Claim against MTO (and in turn in the Fourth Party Claim against Brennan). The defendant resists the motions for summary judgment on the primary basis that the evidence produced by MTO and Brennan is deficient and does not reflect the true and accurate condition of the lane at the time of the accident. As a result of this lack of evidence, the defendant argues that there remains a genuine issue that requires a trial, namely whether MTO and/or Brennan share in the liability for the accident.
Summary Judgment
[8] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the Court shall grant a summary judgment if the Court is satisfied that “there is no genuine issue requiring a trial with respect to a claim or defence”. As a result of the amendments to Rule 20 introduced in 2010, the powers of the Court to grant summary judgment have been enhanced to include, inter alia, weighing the evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence.
[9] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada held that on a motion for summary judgment the Court must first determine whether there is a genuine issue requiring a trial based only upon the record before the Court, without using the fact-finding powers set out in the 2010 amendments. The Court may only grant summary judgment if there is sufficient evidence to justly and fairly adjudicate the dispute, and if summary judgment would be an affordable, timely and proportionate procedure.
[10] The overarching principle is proportionality. Summary judgment ought to be granted unless the added expense and delay of a trial is necessary for a fair and just adjudication of the case.
[11] Nothing in Hryniak or the subsequent jurisprudence displaces the onus upon a party responding to a motion for summary judgment to “lead trump or risk losing”. The Court must assume that the parties have put their best foot forward and placed all relevant evidence in the record. If the Court determines that there is a genuine issue requiring a trial, the inquiry does not end there and the analysis proceeds to whether a Court can determine if the need for a trial may be avoided by use of the aforesaid fact-finding powers.
[12] The Court of Appeal for Ontario subsequently held in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 that summary judgment is appropriate when it 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 (my emphasis). The Court is obliged to assess the advisability of a summary judgment process in the context of the litigation as a whole. As stated by the Supreme Court of Canada in Hryniak:
“The “interests of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against the single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.”
[13] In my view, in the context of this litigation as a whole, the potential disposition of the Third Party Claim and Fourth Party Claim by way of summary judgment is both advisable and warranted. The alleged presence of dust or debris in the lane on the date of the accident is an issue independent of the questions to be answered and the conclusions to be drawn in the main action. Insofar as the joining of issues between the plaintiff and the defendant, the presence or absence of dust or debris on the highway is essentially irrelevant as the plaintiff is not alleging that the accident was caused by dust or debris on the highway.
[14] In determining the motions for summary judgment, I see no risk of duplicative proceedings or inconsistent findings of fact should the main action proceed to trial. The trier of fact in the main action will not be asked to make any findings as to the presence or absence of dust or debris on the highway. The only issues to be determined by the trial of fact in the main action are whether the defendant is liable for rear-ending the plaintiff’s vehicle, and any resulting damages.
[15] In the circumstances of this case, and on the record before me, I find the motions for summary judgment to be the most proportionate, timely and cost effective approach necessary to deal with the narrow issue of the presence or absence of dust or debris on the highway on the date of the accident.
Decision
[16] In support of the motions for summary judgment, MTO and Brennan have tendered affidavit evidence from Chris Arsenault (“Chris”, MTO’s Maintenance Superintendent, but not specifically responsible for overseeing the construction to the highway), Robert Carello and Mitch Macausland (respectively “Robert” and “Mitch”, Co-Project Managers for Brennan at the location in question at the date of the accident).
[17] In order to ensure that Brennan complied with the terms of its contract, MTO retained a consultant administrator known as URS to supervise the construction and generate daily reports to the MTO. Those reports detailed the activities performed by Brennan and any deficiencies identified by URS.
[18] In patrolling the stretch of highway under construction, the MTO would examine the conditions of the highway and also note any deficiencies. None of MTO’s employees, agents or other representatives made any notations or other records of the presence of dust or debris on the subject section of the highway, either on the date of the accident or on the days preceding or following the accident. Similarly, none of Brennan’s maintenance and reporting logs make any reference(s) to dust or debris leaving the “work zone” and entering the live traffic lanes on the date of the accident.
[19] The defendant is the only witness on these motions who claims that there was dust and/or debris in the lane on the date of the accident. The defendant’s position in response to these motions is essentially two-fold:
a) his evidence is credible and warrants a finding that there is a genuine issue requiring a trial, and b) the plaintiff has failed to tender sufficient evidence to establish that MTO and Brennan do not share in liability for the accident.
[20] Dealing with the first submission, in my view the defendant’s evidence is simply not credible. To begin, after the accident Police Constable Wong of the Ontario Provincial Police was called to the scene in order to carry out an investigation. The defendant provided P.C. Wong with a written statement (in the defendant’s own handwriting) which he signed on May 14, 2012. In that statement, the defendant wrote:
“I also tried to stop my car but my car went out of control and skid and bumped into the front car. My car skid because of rough road. I tried to control the car but I wasn’t able to and it bumped in the front car.”
[21] There is no specific reference in the defendant’s written statement to dust or debris being present in the lane on the date of the accident. On his examination for discovery, the defendant gave evidence that (a) his words “rough road” were intended to convey the presence of debris on the highway that date, and (b) he advised P.C. Wong of the presence of dust or debris on the highway, and the dust and debris were contributing factors to his inability to stop his vehicle and avoid rear-ending the plaintiff’s vehicle.
[22] MTO and Brennan argue that the defendant’s discovery evidence was self-serving and, essentially, tendered with selective hindsight. For the reasons that follow, I agree.
[23] In addition to the evidence tendered by MTO and Brennan, there is simply too much independent oral and documentary evidence which fails to corroborate the defendant’s version of events.
[24] There is no affidavit from the plaintiff on this motion, but in any event the plaintiff does not allege the presence of any dust or debris on the highway on the date of the accident. While the defendant did file the transcript from the plaintiff’s examination for discovery, there is no evidence in that transcript supporting the presence of any dust or debris on the highway. Indeed, the written statement signed by the plaintiff and delivered to P.C. Wong on the date of the accident makes no mention of any alleged dust or debris, and the condition of the road is noted as “clear/dry/normal”.
[25] The written statement given by Adam (the driver of the vehicle struck by the plaintiff’s vehicle) given to P.C. Wong also makes no mention of the presence of dust or debris on the highway on the date of the accident, and the condition of the road is noted therein as “good”.
[26] More importantly, there is nothing in the motor vehicle accident report prepared by P.C. Wong (or his notes taken contemporaneously with the investigation) which mention or even hint at the presence of dust or debris on the highway. Unlike the plaintiff, the defendant or Adam, P.C. Wong is a truly independent witness to the accident, as it is his job to investigate the cause of the accident in a fair and impartial manner. If the defendant had advised P.C. Wong that dust or debris was a contributing factor to the accident, I would have expected there to be a reference somewhere in his report or notes of this possibility (or at least a notation confirming what the defendant told P.C. Wong). The report and notes are completely silent in this regard.
[27] The objective, independent evidence fails to corroborate the defendant’s story in any way. Accordingly, I find that there is no credible evidence in the record before me to support a finding that dust or debris was present on the highway on the date of the accident.
[28] The defendant makes the additional argument that there are other sources of evidence not tendered by MTO and Brennan in support of their motions for summary judgment, and as such this alleged lack of evidence supports a finding of the presence of a genuine issue requiring a trial. In particular, the defendant submits that the plaintiff failed to (a) tender evidence from some of its employees who were working on the date in question, (b) obtain and produce copies of MTO’s video recordings of the highway on the date of the accident and (c) ascertain the identity of certain construction workers who may have witnessed the accident.
[29] As previously stated, there is an obligation upon MTO and Brennan to present a record that satisfies their legal and evidentiary burdens to convince me that there is no genuine issue requiring a trial. This is not to be confused or conflated with the underlying onus upon the defendant to prove his Third Party Claim, i.e. ultimately convince a trial judge that the presence of dust and/or debris contributed to his inability to stop his vehicle in time. The defendant can never resile from that underlying onus.
[30] On these motions for summary judgment, I am required to assume that the parties have tendered all of the evidence that will be available to the trial judge. In responding to the motions for summary judgment, the defendant was under an obligation to “lead trump or risk losing”. While MTO and Brennan must satisfy the onus of establishing that there is no genuine issue requiring a trial, in the face of the evidence tendered by MTO and Brennan on these motions, the defendant must still demonstrate that it has evidence capable of satisfying his underlying, and ultimate, legal onus at the trial of his Third Party Claim.
[31] As Justice Myers held in Paramandham v. Holmes et al, 2015 ONSC 1903, a party’s argument that his/her own credibility is key to the disposition of the action “rings hollow in light of a failure to adduce evidence…neither does the argument that more evidence is required hold water.”
[32] The defendant did not tender any evidence from P.C. Wong (either by way of affidavit or Rule 39.03 examination) nor did he seek to adduce evidence from any of the third parties mentioned above. It was within the defendant’s power to do so if he believed that such evidence was important enough to raise genuine issues requiring a trial.
[33] The defendant chose to rely upon his own word. In the absence of corroborating evidence, I do not find his word to be credible, and this is something I am entitled to do under the provisions of Rule 20.04 of the Rules of Civil Procedure.
[34] For these reasons, the motions for summary judgment brought by MTO and Brennan are granted and the Third Party Claim and Fourth Party Claim are both dismissed.
Costs
[35] While the parties did submit Costs Outlines and Bills of Costs at the conclusion of the hearing of the motions, I understand that there were offers to settle made in these proceedings. While I would urge the parties to try and resolve the costs of these motions, and of the Third Party Claim and Fourth Party Claim, if those efforts prove unsuccessful, MTO and Brennan may serve and file written costs submissions (totaling no more than four pages including a Costs Outline) within 10 business days of the release of this Endorsement.
[36] The defendant shall thereafter serve and file his responding costs submissions (also totaling no more than four pages including a Costs Outline) within 10 business days of the receipt of the costs submissions from MTO and Brennan.