CITATION: Gurpersaud v. Safie 2016 ONSC 7033
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN: NERANJAN GURPERSAUD et al., Plaintiffs
-and-
ROY SAFIE et al., Defendants
BEFORE: F.L. Myers J.
COUNSEL: Brigette A. Morrison, for the defendant Aviscar Inc.
Richard Roth for the defendants Mark A. Lim and Jaskar Trucking Inc.
HEARD: November 9, 2016
ENDORSEMENT
The Motion
1The defendant Aviscar Inc. moves for summary judgment dismissing the crossclaim brought against it by the defendants Mark Lim and Jaskar Trucking Inc. For the reasons that follow, I am satisfied that it is in the interests of justice to resolve this matter on the record before the court and that there is no genuine issue requiring a trial in the crossclaim. Therefore the crossclaim is dismissed.
The MVA
2On October 1, 2010, the plaintiff Neranjan Gurpersaud was a passenger in a Chrysler Caravan minivan being driven by the defendant Roy Safie. Mr. Safie had rented the minivan from the defendant Aviscar. Mr. Gurpersaud was seated in the middle row of the minivan directly behind the driver’s seat. While driving in New Jersey, Mr. Safie had slowed and then stopped the minivan in traffic when the minivan was struck from behind by a tractor trailer being driven by the defendant Mark Lim. The defendant Jaskar Trucking Inc. owns the truck that Mr. Lim was driving.
The Claims against Aviscar
3There is no suggestion in the evidence that Mr. Safie bears any responsibility for the accident. He has been let out of the action by all of the parties including the plaintiffs and the defendants Lim and Jaskar. The plaintiffs have also agreed to dismiss their claims against Aviscar. The defendants Lim and Jaskar continue to claim that Aviscar shares liability for the plaintiffs’ injuries as the owner of the vehicle that was hit from behind.
4Aviscar argues that it has no liability for the accident. Moreover, Mr. Safie, the lessee of the minivan, has $2 million of other insurance available to him so that under the waterfall of applicable insurance coverage provided under s. 277(1.1) of the Insurance Act, R.S.O. 1990, c. I.8, Aviscar’s insurance is not required to respond to this claim.
5In their cross-claim, the defendants Lim and Jaskar adopt the allegations formerly made by the plaintiffs against Aviscar at paragraph 22(B) of the statement of claim as follows:
a) They permitted the Caravan to be operated by an Incompetent driver;
b) they permitted the Caravan to be operated when it [sic] knew or ought to have known that it was mechanically unfit for operation on the road;
c) they permitted the Caravan to be operated by a driver whose ability was impaired by drugs, alcohol, fatigue and stress of [sic] a combination thereof;
d) they failed to employ routine safety measures or inspections to ensure the Caravan was safe for the road; and
e) they failed to observe the rules of the road as required by N.J.S. A. 39:4.
6The reference in subparagraph (e) is to a New Jersey statute. In addition, at paragraph 55 of the statement of claim, the plaintiffs plead and rely upon other New Jersey laws.
New Jersey or Ontario Law
7For this motion, one of Aviscar’s lawyers has delivered an affidavit containing a provision of New Jersey’s transportation law that provides that there is no vicarious liability imposed upon car rental companies for motor vehicle accidents in New Jersey. The purpose of this evidence is to argue that under the law of New Jersey that may apply to this accident, Aviscar cannot be liable unless it is proven to have committed negligence in its own right.
8Foreign law is a question of fact to be proven by expert evidence. Appending a foreign statute to a local lawyer’s affidavit is not admissible proof of the foreign law. In the absence of proof of foreign law, the court will presume that the foreign law is the same as our domestic law. Re Low, 1933 162 (ON CA). Without admissible expert evidence as to New Jersey law this motion is therefore to be decided on the basis that if New Jersey law applies to this accident, the applicable New Jersey law is the same as Ontario law.
9In Ontario, under s. 192 of the Insurance Act, an owner of a motor vehicle is jointly and severally liable with the driver in the event that the driver’s negligence causes damage. As there is no evidence that the driver Mr. Safie did anything wrong, and he has been let out of the action by all parties, there is no basis for Aviscar to have vicarious liability for his acts. This is especially the case because in a rear end collision, the front car’s driver will generally only be found to be liable in limited and unusual circumstances. The burden is on the driver of the rear-ending car to disprove his or her 100% liability. Beaumont v Ruddy, 1932 147 (ON CA), [1932] O.R. 441 (C.A.). A mere suggestion that someone else may be liable is insufficient. Rogerson v Burrbridge, [2008] O.J. No. 981
10Moreover, in this case, s. 267.12 of the Insurance Act limits the liability of Aviscar as a motor vehicle lessor to a maximum liability of $1 million less amounts recovered under other applicable insurance policies. As Mr. Safie’s $2 million insurance policy will respond first to any liability that may be found, that means there can be no liability for Aviscar. This is subject to an exception however, in s. 267.12(4)(b) of the statute, which provides that a lessor will remain liable if there is a basis for it to be liable other than vicarious liability. That is, under Ontario law, Aviscar can only be liable if there is a cause of action against it that is independent of vicarious liability of the driver.
11Even if New Jersey law might limit the liability of car rental companies to their own actual negligence, Ontario law does so too in this case. Therefore Aviscar is content to have the matter determined under Ontario law even though it tried to put New Jersey law into evidence.
12Lim and Jaskar argue that there are other New Jersey family law and civil procedure statutes pleaded and it would bring the administration of justice into disrepute if this motion were decided under Ontario law when the trial might be decided under New Jersey law. I do not agree. It was open to Lim and Jaskar to prove New Jersey law if they had wished to do so on this motion. On a motion for summary judgment, the responding parties are not entitled to argue that there may be better evidence presented at trial. Rather they are required to lead trump or risk losing. Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 at para 26 “Generally, the court is entitled to assume that the record on a motion for summary judgment contains all the evidence the parties would present at trial.” Sweda Farms at para. 27.
13The fact that both sides on this motion decided to have their crossclaim resolved under Ontario law, when the plaintiff might decide to prove New Jersey law at trial, reflects evidentiary choices that are quite properly in the bailiwick of the parties and their counsel. I do not see how the administration of justice is impacted by differences in counsels’ decisions on which evidence to lead on a motion and at trial. If Lim and Jaskar object to the possibility of having their fate determined at trial under New Jersey law while Aviscar’s obligations are determined under Ontario law in this motion, it was open to them to prove New Jersey law on the motion. I do not see either a risk of bringing the administration of justice into disrepute or a genuine issue requiring a trial on this point.
There is no Genuine Issue Requiring a Trial on the Claims that Aviscar was Negligent
14There are only two bases pleaded in the statement of claim and adopted in the crossclaim under which Aviscar is alleged to be liable for its own negligence as set out in paragraph 5 above. First, the plaintiff pleads that Aviscar allowed the minivan to be operated when it knew or ought to have known that it was mechanically unfit for operation on the road. Second, the plaintiff pleads that Aviscar failed to employ routine safety measures or inspections to ensure the minivan was safe for the road.
(a) Mr. Gurpersaud Testified that his Seat Lifted when the Minivan was Hit from Behind
15The only evidence to support the two claims of negligence against Aviscar is the plaintiff Gurpersaud’s testimony that, when the minivan was hit from behind, he felt the back of his seat dislodge from its moorings and swivel forward so that his knees and head hit the driver’s seat in front of him. Lim and Jaskar have also purported to exhibit documents to their lawyer’s affidavit evidencing that the Mr. Gurpersaud made similar statements on a contemporaneous basis in his accident benefit forms and to some of his healthcare professionals. The documents, in the manner adduced, are inadmissible as hearsay and oath-helping. But, the plaintiff Gurpersaud was examined as a witness for the purpose of the motion by Aviscar and the transcript of his testimony is properly before the court.
16Aviscar invites me to find that the plaintiff’s testimony that his seat lifted is in error. I do not need to make that finding of fact or to assess the credibility of Mr. Gurpersaud under the court’s enhanced powers under Rule 20.04 (2.1) in order to resolve this motion.
17Even accepting that, on being hit from behind, Mr. Gurpersuad’s seat lifted when it should not have done so, the plaintiff and the defendants Lim and Jaskar in their crossclaim still need to link that fact to negligence on the part of Aviscar. If the minivan’s seat simply had an undiscoverable mechanical defect for example, liability for seat failure would not fall on Aviscar. Lim and Javiskar bear the ultimate burden of proof of the negligence of Aviscar in the crossclaim. They rely on the plainitff’s pleading that Aviscar is liable on the bases that it knew or ought to have known that the minivan was unfit for operation and that Aviscar’s maintenance and safety measures were inadequate. If that is so, then there could be liability on Aviscar. However, Lim and Jaskar have adduced no evidence at all on this motion to support either of the grounds of negligence alleged.
18Despite the ultimate burden of proof at trial in the crossclaim, on the motion, there is a burden on Aviscar to lead evidence to establish that there is no genuine issue for trial under Rules 20.01(3) and 20.04(2)(a). Sanzone v. Schechter, 2016 ONCA 566.
19Aviscar has adduced affidavit evidence on this motion from Steven Smithers who was its Fleet Operations Manager at the relevant time. Mr. Smithers has provided evidence that from the time of the purchase of the minivan by Aviscar in April, 2010, to the date of the accident in October, 2010, there were never any repairs or maintenance related issues with the seats in the minivan. He swore that there were no repairs to the seats undertaken after the accident i.e. they were not broken in the accident. He also testified that preventative maintenance was performed on the minivan by Aviscar in preparation for the rental to Mr. Safie. Avis produced its documentary records as back-up. In addition, Aviscar has filed the affidavit of Giulio Alonzi, who was the employee who inspected the minivan after the accident. By the time of the motion, he was the Maintenance & Damage Manager of Aviscar. He described the standard maintenance regimen for Aviscar’s fleet of rental cars. He also adopted Mr. Smither’s evidence concerning the lack of issues with the seating in the minivan and throughout Aviscar’s fleet of Chrysler Caravan minivans more generally. None of this evidence was contested or the subject of cross-examination on behalf of Lim and Jaskar.
20Lim and Jaskar have failed to respond to Aviscar’s evidence or to undermine it. They have had six years to develop and adduce evidence since the accident. They did not cross-examine Aviscar’s employee witnesses. They did not move for directions to seek further documentary or oral discovery. They did file a document purporting to be an expert’s report as an exhibit to their lawyer’s affidavit. This does not comply with Rule 39.01(7). There is no affidavit from the proposed expert. Nor is there an expert’s certificate. Rule 53.03 has not been complied with as required. Expert evidence cannot be introduced on a motion as an exhibit to a lawyer’s affidavit. Sanzone v. Schechter, at para. 16. In addition, the proposed expert admitted under cross-examination that his evidence was largely not scientific and he would have to do more work to make his observations scientifically valid for trial. An unsworn, unscientific expert discussion is not admissible expert evidence.
21In any event, Lim and Jaskar’s proposed expert says that he was able to cause a Chrysler Caravan minivan seat to dislodge from its moorings by placing a thick towel between the latching mechanism on the bottom of the seat and the mooring bolt to which the seat is to attach on the floor of the minivan. The towel prevented the latch from catching the bolt and then, when the expert struck the seat from behind with his arm, he was able to make it lift. Therefore, he hypothesizes that a piece of cloth may have covered the mooring bolt at a time when the seat was unlatched and prevented the seat from properly latching to the floor when Mr. Gurpersaud sat in it. This could have been the cause of the plaintiff’s seat lifting when the minivan was hit from behind. At the hearing, counsel for Lim and Jaskar further hypothesized that Aviscar must have failed to properly inspect the minivan for a piece of cloth – perhaps a scarf – that must have been left hidden under the seat where it then somehow got itself between the seat latch and the mooring bolt.
22It was the evidence of the plaintiff that he sat in the seat without incident for approximately 14 hours on the day of the accident. All luggage was stowed in the trunk area at the back of the van. There was nothing visible on the floor of the minivan around him.
(b) Proof of Negligence Requires Evidence of the Breach of a Duty of Care
23To establish liability for negligence, a plaintiff is required to prove that the defendant breached a duty of care. Resurface Corp. v. Hanke, 2007 SCC 7 at para. 6. In Wiley v. Tymar Management Inc., 1997 2893 (BC CA), the court considered a claim for negligence against a bingo hall. The bingo hall provided several chairs for patrons, many of which were rickety. One chair collapsed under the plaintiff. The court held that evidence of the collapse of the chair, without more, was not proof of negligence.
- The difficulty presented to the appellant in pressing its argument is that there was no evidence from which a conclusion can be drawn about why this chair collapsed. We know is was a folding chair. It may have collapsed because it was not properly unfolded. It may have collapsed because of an inherent defect that could not have been noticed by inspection. It may have collapsed because it became unsuitable for its purpose and if that is so that might have been a matter that could have been determined by inspection or it might not have been a matter that could have been determined by inspection. In the end we just do not know why the chair collapsed. Without that knowledge it is not possible to find that there was breach of a duty of care and I could not say that the trial judge erred in principle or was clearly wrong in finding that there was no breach of a duty of care.
24Similarly, in Chow-Hidasi v. Hidasi, 2013 BCCA 73, a wife sued her husband as a result of injuries that she sustained in a car accident when the steering wheel and brakes of the car that he was driving suddenly locked. The Court held that, once again, proof of breach of a duty of care require more:
15 The next issue was whether the mechanical failure of the vehicle could have been prevented by the exercise of reasonable care by the defendant. Given the evidence that Mr. Hidasi had taken considerable care in maintaining his vehicle, and in particular that he had had a full “safety check” done on the Jeep the day before the accident, the Court resolved this question in Mr. Hidasi’s favour, ruling that the brake and steering failure was “unexpected and was not discoverable through the exercise of reasonable care.” (Para. 40.)
25As was the case in those two precedents, Lim and Jaskar have adduced no evidence at all to establish that Aviscar breached either of the two duties of care that the plaintiff pleaded against Aviscar which they adopted. That is, there is no evidence that Aviscar knew or ought to have known that the minivan was mechanically unfit or that Aviscar failed to employ routine safety measures or inspections to ensure the minivan was safe. The expert’s supposition that a piece of material might have blocked the locking mechanism and counsel’s argument that Aviscar must have missed the presence of a piece of material, perhaps a scarf, under the chair when it inspected the minivan prior to the rental to Mr.Safie, are not supported by any evidence at all. They are mere speculation, layered on inadmissible, unscientific supposition.
26There was admissible evidence adduced by Aviscar that it had no basis to believe that anything was wrong with the seat and that its routine maintenance was performed without incident. Under rule 20.02(2), Lim and Jaskar were required to adduce evidence of specific facts to respond to the evidence adduced by Aviscar. They did not meet their evidentiary burden. There is no competing evidence or credibility issue raised in the evidence to require a trial.
27Lim and Jaskar rely on case law relating to sales of goods and warranties provided by a seller. In some of those cases, sellers have been found liable upon mere proof that a good that they sold has failed or not met its pre-sale description. But a breach of a contractual warranty is not the same as the tort of negligence. If a seller is required by contract or statute to supply a folding chair that works, it will be liable for breach of warranty if the chair does not work. But if a bingo hall can be liable in negligence for breach of its duty of care to properly maintain its chairs, then the simple failure of the chair, while sufficient to amount of a breach of warranty of the seller, is not proof of negligence by the bingo hall. Liability in sales of goods cases turns on the scope and content of the contractual, statutory, or implied common law warranties that may be applicable. Tort liability in negligence turns on the scope and content of the duties of care that are applicable. Sales of goods cases therefore are of little assistance in negligence cases unless the warranty (or contractual duty) at issue parallels the duty of care at issue in the tort claim. That is not the case in the cases relied upon by Lim and Jaskar.
(c) The is no Evidence to Support an Adverse Inference due to Spoliation
28Lim and Jaskar argue that there ought to be a presumption of negligence because Aviscar sold the minivan without keeping pictures or allowing inspection of the seats. The law relating to spoliation allows the court to draw an adverse inference against a party who knowingly destroys evidence. To obtain the benefit of the presumption, Lim and Jaskar must show that Aviscar intentionally destroyed or suppressed evidence. This requires it to know or have a reasonable basis to believe that the seat was going to be an issue in the litigation.
29There was no reference in the pleadings or in any communications among counsel to any concern with respect to the seats until well after the minivan had been sold. Aviscar adduced unchallenged evidence that the minivan was sold back to Chrysler in the ordinary course as part of its normal fleet rotation operations.
30Aviscar kept appropriate photographs of the damage caused by the rear end collision that it knew was in issue. It did not keep pictures of any front-end damage that may have occurred when the minivan was pushed into the car ahead of it. I do not see how that avails Lim and Jaskar however. Counsel for Lim and Jaskar argues that the law of spoliation relied upon by the British Columbia Court of Appeal in Chow-Hidasi above, and more recently in this court in Wight v Pickering Automobiles Inc. (c.o.b. Pickering Honda) 2011 ONSC 6002, is based on a Supreme Court of Canada precedent decided in 1895. St. Louis v. R. (1895), 1896 65 (SCC), 25 S.C.R. 649. He argues that the Supreme Court of Canada decision is out of date and that in 2016, a professional car rental company ought to be held to a higher standard. It ought to have delivered a checklist showing the specific maintenance of the minivan and pictures of the seat. As noted above, Aviscar produced what it says it had concerning the facts that it knew were in issue and there was no cross-examination of its witnesses on that evidence.
Counsel provided no case law establishing that the Supreme Court’s 1895 decision is no longer good law or to support another applicable legal standard. The ongoing validity of the test in spoliation cases was recognized by the Court of Appeal of this province in Spasic Estate v. Imperial Tobacco Ltd., 2000 17170 (ON CA). There is no basis to find that Aviscar knew or ought to have known that the state of the seat was in issue or that it intentionally destroyed evidence at the time that it sold the minivan in the ordinary course of its business. Therefore there is no genuine issue requiring as a result of the claim of spoliation.
It is in the Interests of Justice to Deal with this Crossclaim Summarily
31Finally, Lim and Jaskar argue that this is not a proper case for summary judgment because it is not in the interests of justice to do so when viewed from the perspective of the case as a whole. A trial will still be required between the plaintiffs and Lim and Jaskar. Lim and Kaskar raise the specter of inconsistent verdicts. Were I required to make a finding of fact on the plaintiff Gurpersuad’s evidence that his seat lifted and thereby assess his credibility as a witness, there might be an issue of overlap with the trial. If a trial is actually held in this rear end collision case, then the judge could be called upon to assess the plaintiff’s evidence about his seat in the context of assessing his injuries and damages. In that case, there could be a risk of two courts being called upon to assess the credibility of the same witness’s testimony on the same point. But such is not the case here. Even if the plaintiff’s seat lifted (or not) there is still no evidence adduced by Lim and Jaskar to rebut Aviscar’s evidence establishing that there is no genuine issue requiring a trial in relation to the two heads of negligence pleaded against Aviscar. Moreover, the plaintiff has already let Aviscar and Safie out of the action. There is no basis to fear that the trial judge will be asked to make any conclusion about the potential liability of either of them at the trial that might be inconsistent with the actual decision on this motion. By dismissing the crossclaim, the court is saving costs and reducing the scope of the trial (if there will ever be one). This is a case where a discrete and narrow issue can be and has been fully explored and resolved without contested findings of fact (and even assessing arguments based on inadmissible evidence that the parties attempted to adduce on the motion). Griva v Griva, 2016 ONSC 1820 at paras. 18 and 19. There will not be a mini-trial so the risks of a hybrid process raised by Lederer J. in Yusuf (Litigation Guardian of) v. Colley, 2014 ONSC 6501 are not present in this case. The issues here are similar to those in Anjum et al. v Doe et al., 2015 ONSC 5501, in which summary judgment was found to be the more efficient, affordable, and proportionate process despite the delivery of a jury notice.
32In all, I am satisfied that it is fair and in the interest of justice for me to apply the facts to the law in a summary process in light of the nature of the issues, the evidence (and lack of evidence), and proportionality. Hryniak v Mauldin, 2014 SCC 7 at para. 59. Aviscar has established that there is no genuine issue requiring a trial. The crossclaim is therefore dismissed.
33The parties are to speak to the motions office to arrange a 90 minute hearing before me in November to deal with costs.
F.L. Myers J.
Date: November 14, 2016