Court File and Parties
Newmarket Court File No.: CV-12-112469-A1 Date: 2016-09-01 Ontario Superior Court of Justice
Between: GURDEEP JUNEJA, Plaintiff – and – DALJIT KAUR SAMRA, Defendant RAMINDER K. KANWAR and TARLOCHAN S. KANWAR, Third Parties
Counsel: D. Romaine, for the Plaintiff B. Lee and J. Anand, for the Defendant N. Mester, for Third Parties
Heard: July 5, 2016
Healey J.
Nature of the Motion
1This is a motion by the Third Parties for summary judgment dismissing the claims against them, on the basis that there is no genuine issue of liability requiring a trial.
2This action arises out of an accident that occurred on January 2, 2011 on Fisherman's Way in the vicinity of the Vaughan Mills Shopping Centre, when the vehicle operated by the Defendant (“Samra”) collided with the vehicle carrying the Plaintiff (“Juneja”) and one of the Third Parties (“Kanwar”). Juneja and Kanwar are husband and wife, respectively. Juneja had a suspended driver’s licence at the time of the accident. Kanwar is alleged to have been driving.
3Samra seeks an order by cross-motion to amend the Third Party Claim by adding a claim that the operator of the vehicle was Juneja, as opposed to Kanwar, and that he was operating the vehicle without a valid driver’s licence and/or as an excluded driver under the policy. Both the Third Parties and Juneja oppose the amendment.
The Facts
4The vehicle carrying Juneja and Kanwar (the “Third Party vehicle”) was travelling in an easterly direction on Fisherman's Way, having entered onto it from the parking lot of the Vaughan Mills Shopping Centre. Fisherman's Way is a four-lane road that circles around Vaughan Mills Shopping Centre, with two lanes in each direction (an “inner ring” and an “outer ring”). The Defendant vehicle operated by Samra was travelling westbound on Fisherman's Way in the outer ring, with the intention to turn into the parking lot. In order to do so, the Defendant vehicle had to cross the two lanes of the inner ring to complete her left hand turn.
5The evidence of Samra is that she was in the outer ring, travelling in the lane closest to the inner ring prior to initiating the turn. She described the traffic as being bumper-to-bumper. She stopped her vehicle before initiating the turn. At the intersection where she made the turn, there was a security guard guiding cars, but Samra’s evidence is that he was directing traffic in other directions. Samra initiated her turn when the driver in the inner ring closest to her stopped his car and indicated to her to proceed in front of him by waving his hand. Her evidence is that the cars in the oncoming lanes of the inner ring were stopped, and it was for that reason that the driver gestured for her to proceed across his path. She estimated her speed while turning to be "the appropriate speed to make a turn", and stated that “it was not 30 or 40” (presumably kilometers per hour). After initiating the turn, she had no warning before feeling the impact of the Third Party vehicle.
6No evidence was presented, direct or indirect, to suggest that Samra looked to her right into the curb lane closest to the parking lot before beginning to proceed into it; her evidence was that she was "initially looking straight". She also testified that “once you are entering in the parking lot, obviously you look into the parking lot."
7Juneja’s evidence is that he was seated in the front passenger side of the Third Party vehicle. The visibility was perfect. His description of the traffic, when asked whether it was bumper-to-bumper or free-flowing, was that it was free-flowing traffic in both directions. Juneja’s evidence is that after exiting the parking lot, the Third Party vehicle turned into the curb lane of the inner ring, closest to the parking lot. There is no evidence that it ever change lanes before the collision occurred. He did not see anyone directing traffic as the Third Party vehicle left the mall. He recalled that there was a car travelling beside them on the inner ring, to the left and ahead of the Third Party Vehicle. The driver of that car then began to slow down. Juneja had no idea why the driver of that vehicle was slowing down, and could not say whether it ever came to a stop. He did not feel the Third Party vehicle slow down, and it continued forward, at which time it collided with the Defendant vehicle. On discovery he stated "I don't think there was enough time for my wife to react, for her to do anything more than tap the brake, if she was even able to do that". He estimated that they were travelling 30 to 40 km/h. He first noticed the Defendant vehicle immediately before the impact.
8The front driver’s side corner of the Third Party vehicle collided with and damaged the passenger side front bumper of the Defendant vehicle.
9There is no evidence that this accident occurred at an intersection controlled by either lights or a stop sign. Calling it an “intersection” is perhaps a misnomer, but the inference that can be drawn from the evidence filed is that a driver can exit or enter the parking lot from Fisherman’s Way at various intervals.
10Samra has not presented engineering evidence to support an argument that the accident could have been avoided or minimized, had the Third Party vehicle been driven in a different manner, or conversely, that the accident occurred because of the way that vehicle was being driven.
11Samra alleges that she saw Juneja driving the Plaintiff vehicle, as opposed to Kanwar. On examination, she recalled that it was a young man who confronted her and used profanity after the collision, and she described him as the driver. Samra testified that by the time the police arrived on the scene, Kanwar was in the driver's seat. She gave evidence that she notified the police when they arrived that initially the male was driving, but the female had switched to the driver’s seat.
12The plaintiff has provided an unsworn statement of a York Regional Police officer who attended on scene. The statement indicates that the officer’s notes do not record that one of the drivers had said that a passenger and driver had switched seats. The statement is attached to the affidavit of a legal assistant, who does not have personal knowledge of these contested facts. Given that the proposed evidence has not been given under oath or affirmation, no reliance will be placed on it for the purpose of this motion.
13At paragraph 2 of the Statement of Claim commenced in 2012, Juneja claimed that he was a passenger in the Third Party motor vehicle. In her Statement of Defence delivered in April, 2013, Samra claimed at paragraph 3 that "the Defendant has no knowledge, or insufficient knowledge to plead, in respect of the allegations contained in paragraph 2 of the Statement of Claim". It was only in April, 2016, that Samra's counsel obtained confirmation that Juneja’s licence was suspended at the time of the accident. At the time that Samra’s cross-motion was filed, neither the Plaintiff nor the Third Parties had provided any policies of insurance to her counsel, evidencing coverage and any associated excluded drivers.
Issues
1. Does a genuine issue requiring a trial exist with respect to the liability of the Third Parties?
2. If so, should the Defendant be permitted to amend her Third Party Claim?
Position of the Parties
14The Third Parties move for summary judgment on the basis that Samra cannot satisfy her burden of establishing any liability upon the driver of the Third Party vehicle. Kanwar argues that the evidence provided by Samra in her affidavit, and the law relied on by her counsel, do not establish any breach of the standard of care of a motorist. In particular, Samra has no evidence to offer the court in relation to the manner in which the Third Party vehicle was being operated prior to the collision.
15Juneja opposes the motion to amend the Third Party Claim on the basis that the proposed amendment will have no impact on the fact that Samra cannot establish negligence on the part of either Kanwar or Juneja. Accordingly, even if Juneja was in fact driving, which is denied, such issue is a red herring.
16The position of Juneja is that if the court finds there is no genuine issue for trial, in that Samra is 100 per cent liable, with no basis for a finding of contributory negligence, then liability is no longer in issue and the amendment is irrelevant. If the court finds that there is a genuine issue for trial, in that there may be some contributory negligence on the driver of the Third Party vehicle, then Juneja does not oppose the amendment, subject to some qualifications.
The Law
17In Hryniak v. Mauldin, 2014 SCC 7 [“Hryniak”], the Supreme Court of Canada considered when summary judgment can be granted on the basis that there is “no genuine issue requiring a trial”, as per rule 20.04(2)(a). The Court also considered when it is against the interest of justice for the new fact finding powers in rule 20.04(2.1) to be used on a summary judgment motion.
18With respect to the issue of when summary judgment can be granted, the court stated, at para. 49 of Hryniak, as follows:
[49] There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
19In terms of the approach to a motion for summary judgment, Hryniak directs at para. 66 that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact-finding powers. If there appears to be a genuine issue requiring a trial, she should then decide if the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2). These powers may be used by the motion judge in her discretion 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.
20The moving party bears the onus of establishing that there is no triable issue; however, the responding party, on a motion for summary judgment, must “lead trump or risk losing”: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.), at p. 557. Although the onus is on the moving party to establish the absence of a genuine issue requiring a trial, there is an evidentiary burden on the responding party, who may not rest on the allegations or denials in the party’s pleadings, but must present by way of affidavit, or other evidence, specific facts showing that there is a genuine issue for trial. It is only after the moving party has discharged its evidentiary burden of proving that there is no genuine issue that requires a trial for its resolution, that the burden shifts to the responding party to prove that its claim or defence has a real chance of success: Cuthbert v. TD Canada Trust, 2010 ONSC 830, 2010 ONSC 88, 88 C.P.C. (6th) 359, at para. 12, citing Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161 (C.A.).
21As stated in Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 17, “[t]he motions judge is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.” It is not sufficient for the responding party to say that more and better evidence will or possibly may be available at trial. The respondent must set out specific facts and coherent evidence organized to show that there is a genuine issue requiring a trial: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 225 (Gen. Div.), at p. 238; Canadian Imperial Bank of Commerce v. Mitchell, 2010 ONSC 2227, [2010] O.J. No. 1502, at para. 18.
22To succeed in her Third Party Claim, Samra will bear the onus of establishing that the Third Parties are negligent and that their negligence, in whole or part, caused the Plaintiff’s injuries. Accordingly, they must provide evidence showing a genuine issue for trial regarding the Third Party's failure to operate the vehicle in a reasonable or prudent manner, a manner that caused or contributed to the collision: Laviolette v. Laidlaw Waste Systems Ltd., at para. 17. There must be some evidence upon which the motion judge can find a genuine issue for trial in respect of the liability of the Third Parties: Hussain v. Uddin Estate, at para. 16.
23The Third Party vehicle did not have an unfettered right to proceed through the intersection, regardless of circumstances, but had the right of way as the through vehicle. Provided that the driver of the Third Party vehicle met the standard of care required, which was that of a prudent and reasonable driver keeping a proper lookout, the third parties’ motion should succeed: Fiddler v. Vasilakos, 2014 ONSC 5774 at paras. 24-28. In Fiddler v. Vasilakos, the court granted the motion for summary judgment of the third party on the factual situation very close to the one before this court. Perrell J. found that the third party could not have done anything to avoid the collision with the defendant, who was attempting a left turn across two lanes of southbound traffic at an uncontrolled intersection. This was so despite evidence that the cars in the lanes closest to the defendant had stopped to allow the defendant to proceed. The third party had just made a lane change by moving from the passing lane to the curb lane, approximately four to five car lengths before the intersection. There was no evidence that the lane change had caused the accident. The plaintiff had seen the third party approaching before the collision, but too late to complete the turn safely.
24Also factually close to the case before the court is Nash v. Sullivan, [1973] O.J. No. 2139 (Ont. C.A.). In that case the driver of a motorcycle was found 50% liable, because he was negligent in failing to slow his motorcycle and keep a proper lookout as he approached an intersection hidden from the view of motorists making left turns, when he saw the cars in the lane of traffic to his left had stopped for those making a left turn. The Court of Appeal held that the situation was one of potential danger, of which both parties should have been aware, and which created an obligation on the defendant to act prudently when proceeding straight on a through highway.
25A heavy onus rests upon the driver attempting to make a left turn in the face of oncoming traffic: Nash v. Sullivan, at p. 2.
26In Nowakowski v. Mroczkowski Estate the law regarding the duties imposed upon both the turning driver and the oncoming driver were summarized as follows, at para 78-84:
Section 141(5) of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA") provides:
(5) No driver or operator of a vehicle in an intersection shall turn left across the path of a vehicle approaching from the opposite direction, unless he or she has afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision.
In Payne v. Lane, [1949] O.W.N. 284 (H.C.J.), Barlow J. said "a very heavy onus is placed upon a driver making a left-hand turn. He may only turn into the path of approaching traffic after having assured himself he can do so in safety."
In Swartz v. Wills, [1935] S.C.R. 628-5634, the court said that "where there is nothing to obstruct vision and there is a duty to look, it is negligence not to see what is clearly visible." This was affirmed in Harrison v. Bourn, [1958] S.C.R. 733.
I am satisfied that the law requires a driver turning left to do so with reasonable care. The law further requires both the turning driver and the oncoming driver to take reasonable care to avoid the accident.
I am satisfied that the law requires a driver turning left to do so with reasonable care. The law further requires both the turning driver and the oncoming driver to take reasonable care to avoid the accident.
There is no rule of law that requires a driver turning left, who has complied fully with s. 141 (5) of the HTA, to yield the right-of-way to an oncoming car, which could not be seen at the start of the left turn. Such a proposition would be unrealistic and unfair. In such a situation both drivers have a duty to use reasonable care in the circumstances and to drive sufficiently slowly to come to a safe stop within their range of view.
There is no rule of law that imposes on a driver effecting a left turn some liability for any accident during that turn involving an oncoming car. Liability depends on the absence of reasonable care in the circumstances.
In assessing negligence, this Court should do so in the context of human conduct. We must be careful not to judge it too finely in terms of several meters or fractions of seconds or impute to humans the qualities and speed of modern electronic equipment. The test for negligence is conduct which falls below that of the reasonably prudent driver. It does not include an error in judgment which does not violate that standard of care.
27This useful summary of the law appears to be in keeping with that applied to reach the outcomes in both Fiddler v. Vasilakos and Nash v. Sullivan. The difference in outcomes can be explained by the fact that in Fiddler, the driver of a left turning vehicle had seen the oncoming vehicle approaching, but had not taken reasonable care to judge his ability to safely execute the turn. In contrast, in Nash the driver of the left turning vehicle did not have an unobstructed view of the oncoming motorcycle, which had approached the intersection hidden from his view. This appears to be the only way to reconcile these two cases, as both involved situations where the vehicles in the line of traffic closest to the left turning vehicle that had stopped to allow the left turn to be made.
Analysis
28In this case, having considered the evidence filed on this motion and the submissions of counsel, I conclude that this is an appropriate case for summary judgment, as such approach will provide a fair and just adjudication. On the evidence filed I am able to reach the necessary findings of fact, and apply the law to those facts, in order to reach a determination on the merits. There is no need for trial to resolve any of the issues in this case.
29Samra relied on a motorist who waved her through a gap in the traffic, rather than satisfying herself that it was safe to make a left-hand turn across the path of traffic. The evidence is that she was completely unaware of the approaching Third Party vehicle, and that she did not see it before feeling the impact. There is no rational explanation for this, other than that she did not take care to ensure that there was no approaching vehicle in the curb lane of the inner circle. The Third Party vehicle had been in the curb lane since exiting the parking lot; there was no preceding lane change that may have explained Samra’s inability to see it prior to the collision. There is no evidence of the speed of the Third Party vehicle, beyond that provided by the plaintiff, who believes that it was travelling between 30 to 40 km/h. The fact that Samra has no evidence with respect to the speed of the Third Party vehicle lends support for the conclusion that her attention was not focused in the direction of its approach. There is no direct evidence from Samra to support her belief that she had ample time to turn left across the curb lane, nor indirect evidence from which the court could infer such a fact. Samra offers no evidence that she continued to look to her right to observe the flow of traffic, looking either for the presence of vehicles or their speed, before attempting to complete her turn. There is no evidence that Samra braked or slowed down before attempting to cross the curb lane of the inner circle.
30There is no evidence that the Third Party vehicle could have avoided hitting the Defendant vehicle. There is no evidence that the driver, assuming that it was Kanwar, was distracted at the time or had been drinking alcohol or taking medication that day. Rate of speed cannot be faulted as contributing to this accident; the parties were not in a parking lot, but rather were on a four-lane road circling the parking lot. For this reason, the line of cases that place some emphasis on the speed of vehicles in a shopping center parking lot are not determinative of this motion: Ashim v. Zia, 2014 ONSC 6460; Delfino v. Martin, [1973] O.J. No. 2159 (H.C.J.). That is not to say that speed does not matter in the case of left turning vehicles across a right-of-way, but that in this case there is no evidence to contradict that the highest possible speed at which the Third Party vehicle was travelling was 40 km/h, a speed that is legislated to be reasonable and prudent even within a school zone.
31Samra’s counsel argues that the uncertainty over the driver of the Third Party vehicle must be resolved before liability can be determined, as this will impact on the credibility of the parties overall in this action. I disagree, for the reason that a resolution of this issue will not add anything to Samra’s ability to provide evidence about the speed or operation of the Third Party vehicle.
32There is no evidence that the accident was caused by anything other than Samra’s precipitous left turn into the path of the Third Party vehicle, at the very moment that the Third party vehicle was entering the intersection.
33There are no genuine issues requiring a trial in the Third Party Claim, and it should be dismissed.
Decision
34For the above reasons, the summary judgment motion is granted, and the Third Party Claim is dismissed with costs.
35In light of this ruling, the motion of the Defendant to amend the Third Party Claim is dismissed, as it is now moot.
Costs
36If the parties are not able to agree upon the costs of this motion, they may each deliver brief written submissions. The Third Parties’ are due September 15, 2016, the Plaintiff’s by September 22, 2016, followed by the Defendant’s by September 29, 2016.
Healey J. Released: September 1, 2016