Aranas v. Kolodziej, 2016 ONSC 7104

CITATION: Aranas v. Kolodziej, 2016 ONSC 7104

COURT FILE NO.: 15-2583

DATE: 2016/11/17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Alfredo Aranas

Plaintiff

– and –

Halina Kolodziej and Jan Blus

Defendants

Eric B. Heath, for the Plaintiff

Michael Kennedy, for the Defendants

HEARD: September 23, 2016

Reasons for decision on summary judgment motion

justice j. george:

BACKGROUND

1The defendants seek summary judgment dismissing this action, with costs.

2The claim arises from a motor vehicle accident that occurred on March 27, 2011. It took place in London, Ontario at the intersection of Queens Avenue and Wellington Street. The plaintiff alleges the defendant Halina Kolodziej (“Kolodziej”) sideswiped her. The defendant Jan Blus (“Blus”) was the co-owner of the vehicle operated by Kolodziej.

3The defendants say there is no genuine issue requiring a trial. They rely upon the plaintiff’s affidavit and examination for discovery, which confirms four points. First, that both the plaintiff and Kolodziej were travelling westbound on Queens Avenue, a one-way street. Second, at the relevant time Kolodziej was in the left turning lane. Third, that the plaintiff was in the lane beside and to the right of Kolodziej, which was a through lane. And fourth, that the plaintiff turned left from this adjacent lane.

4Kolodziej contends she had the right of way and acted reasonably and prudently at all times. She argues the evidence indisputably establishes the collision was caused by the plaintiff’s improper left turn, and that, respecting liability, there is no genuine issue requiring a trial.

5The defendants argue the question of liability is straightforward, with little conflicting evidence. They suggest summary judgment is proportional and the more expeditious way to address this issue, which would alleviate the need for a protracted trial where damages would be hotly contested.

6The plaintiff opposes the motion and asks that it be dismissed. Her counsel points out that summary judgment is rare in motor vehicle accidents. She suggests there is evidence that could support a finding Kolodziej was negligent. In other words, even if she had made an improper left turn there is a triable issue respecting Kolodziej’s opportunity to avoid the collision.

EVIDENCE

7Kolodziej filed an affidavit on this motion. She was examined for discovery, and on the contents of her affidavit.

8She deposes that on the date of the accident she was driving her 2003 Pontiac Grand Am, which she jointly owned with Blus. She says her vehicle was in good mechanical condition and that there were no problems with the left turn signal, its brakes, or horn.

9As she was driving westbound on Queens Avenue, and immediately before the accident, she attempted a left turn onto Wellington Street. She deposes this at paras. 10 to 26 of her affidavit:

10. As I approached the intersection of Queens Avenue and Wellington Street, there were 4 lanes on Queens Street; one left-turn lane; two through-lanes; and one parking / right-turn lane….

11. The accident occurred in the daylight hours, in the early afternoon. The weather was dry and sunny. I do not believe the weather played a role in the accident. I was not talking on my cell phone at the time of the accident, and I was not distracted at all.

12. …..Queens Avenue is a one-way street. I believe I turned onto Queens Avenue from Waterloo Street.

13. As I approached the intersection of Queens Avenue and Wellington Street, I entered the left-turn lane, because I intended to make a left turn to go in my favourite parking spot on York Street.

14. The traffic light on Queens Avenue was red, so I stopped at the traffic light in the left turn lane. My left indicator was on, as is my usual practice. When the light turned green, I intended to make a left turn to head south on Wellington Street to the parking lot. I had no intention whatsoever of going straight through the intersection. As I said above, I park in the same parking lot on York Street when I am in the area.

15. While I was stopped at the red light, there were no other cars in front of me.

16. When the light turned green, I drove forward into the intersection at a slow speed, intending to make my left turn.

17. In order to make a left turn from Queens Avenue onto Wellington Street, cars have to drive straight before turning left because there is an island in the middle of Wellington Street. At no point prior to the accident did I ever turn or veer to the right when I entered the intersection.

18. Something, which I later learned was the plaintiff’s car, sideswiped the right side of my car before I had completed my turn. The “sideswipe” occurred when I was still in the intersection, about two to three seconds after I began driving into the intersection.

19. The plaintiff’s car impacted the right passenger side of my car. I did not initiate the collision at all. I was in the intersection in front of the left-turn lane about to turn left onto Wellington Street….

10The plaintiff also filed an affidavit on this motion. She was questioned on discovery and cross-examined on her affidavit.

11Shortly after the accident, the plaintiff completed a self-reporting collision centre report. She writes this:

Drive slowly cause I’m going to turn left, and also there’s a “men at work construction” all of the sudden there a fast car in my left side supposed to be not there cause there a arrow sign for left turn only, hit my car and dragging all the way…..lady drive fast wrong way she’s supposed to be behind me….I’m going to turn left I signal my speed is less than 30.

12On the plaintiff’s version of events, she is attempting an improper left turn. She has Kolodziej’s vehicle behind hers and to the left as it approached. She alleges Kolodziej was speeding.

13On cross-examination, the plaintiff testified she did not recall how long she had been on Queens Avenue before the accident. She acknowledged knowing Queens was a one-way street and that it had four lanes. There is this exchange with counsel:

Q: And do you recall what type of lanes they were? Were they all through lanes? Were some turning lanes?

A: No, because I was in, I was in the third lane and then the, my GPS said you need to make a left turn. So I go to the second lane.

Q: So Queens Avenue is a one way street. So you mentioned that you were in the third lane, so exactly which lane was it? How far to the right?

A: Far away from, from the third and before I turned to make, to the second lane, right? Because I was the arrow already.

Q: So, on this diagram it has Queens Avenue showing as a one way street and it has some lanes marked 1, 2, 3, and 4. So which lane were you in right before your GPS told you to turn left?

A: This one.

Q: You were in lane number two?

A: Yeah because the lady, she’s on the lane 1. That’s why she stopped.

Q: And when your GPS told you to turn you were in this lane, lane 2.

A: Yeah, this is me.

14The diagram is an overview of Queens Ave. The plaintiff describes lane 4 as the curb lane on the extreme right, and lane 1 as the curb lane on the extreme left. She places herself in lane 3, two lanes removed from the left turning lane, when her GPS instructed her to turn left. She recalls the intersection being controlled by traffic lights, and admits to attempting the left turn onto Wellington from lane 2, a through lane. Kolodziej was in lane 1.

15She describes the collision as Kolodziej “hitting her T-bone”. She deposes that Kolodziej “hit my wheels and then she dragged my car.”

16It is not entirely clear, but it appears the plaintiff is suggesting one of two things. Either Kolodziej was attempting to drive straight through the intersection while in a left-turn turn, or that, while she was attempting an improper turn, Kolodziej nonetheless had the opportunity to observe it and avoid collision. In either case there is no dispute that, first, Kolodziej was in the far left turning lane, and second, that the plaintiff was attempting to make a left turn from a through lane.

17At the time of collision, Kolodziej is clear in that she was in the intersection, just in front of the left turning lane. She denies attempting to proceed through the intersection, or to moving into the lane on her right.

18The plaintiff suggests Kolodziej was using her cell phone at the time of the accident. Defendant counsel points out that both parties indicate the accident occurred at 1:30 p.m., while the phone records disclose Kolodziej made a call at 1:32 p.m.

ISSUE

19The issue is a narrow one. Is a trial required to determine whether Kolodziej was negligent, either because she was a distracted driver, or that she, notwithstanding the plaintiff’s mistaken belief she could turn left, had an opportunity to avoid the collision?

POSITION OF PARTIES

Plaintiff

20The plaintiff points to the existence of damage to the front bumper assembly of Kolodziej’s vehicle. She argues it would be open to a jury to accept her version and conclude it was in fact Kolodziej’s vehicle that initiated and came into contact with hers. She argues this evidence could lead to a finding Kolodziej either saw, or ought to have seen, the plaintiff’s vehicle as she approached it from behind. In other words, even if she attempted an improper left turn, apportionment of liability is to be determined, and that only the trier of fact can do this responsibly.

21The location of damage is essential to the plaintiff’s argument. According to her, damage on the front of the vehicle is consistent with her version that she was “T-boned” by Kolodziej. She suggests that, irrespective of the illegal turn, Kolodziej was behind her and must have seen her before and as she was making this turn, and that there is no evidence she took evasive action. This, she argues, requires a trial, and is not something I can summarily address.

22She references the Court of Appeal’s decision in Morcoccia v. Gill, 2009 ONCA 317. In that case the plaintiff entered an intersection on a red light intending to proceed through, while the defendant was turning left. A collision ensued, and the jury found each to be at fault, apportioning liability.

23She also relies on Gardiner v. MacDonald Estate, 2016 ONSC 602 where the court reiterates the longstanding principle that a driver entering an intersection has a duty to act so as to avoid a collision, if reasonable care will prevent it. She contends that, irrespective of her fault in making the turn, given she was struck by the front of Kolodziej’s vehicle, which necessarily means she was approaching her from behind, it would be open for a trier of fact to conclude Kolodziej is, at least partly, at fault. Gardiner talks about this in terms of the dominant driver - in this case Kolodziej - having a responsibility to avoid a collision, if they have a reasonable opportunity to do so.

24Respecting cell phone use, the plaintiff’s position is Kolodziej was using hers before and at the time of accident, urging me to conclude little turns on the noted time of accident, as compared to the phone records. That is, the 1:30 p.m. time estimate is not a precise accounting of when the collision occurred and that the 1:32 p.m. phone call could very well have been placed before the accident.

Kolodziej

25Kolodziej argues the location of her car’s damage does not alter what we know for certain, which is, the plaintiff was not in the proper lane as she attempted a left turn. She highlights the fact the plaintiff has, to this point, given inconsistent accounts, at one point describing a ‘T-bone’, and at another a sideswipe. These are two different things.

26She contends that not only did the plaintiff make an improper turn, but that the collision occurred in the lane she was properly in. The plaintiff has admitted she was turning left from a lane that was not designated a left-turn lane, and has not disputed Kolodziej’s account except for the allegation she was speeding. In other words, she has not alleged Kolodziej was trying to move to the right, or proceed through the intersection, rather that she was driving fast and could have avoided the collision. Mere bald assertions. Defendant counsel argues that to accept the plaintiff’s argument would be to essentially conclude Kolodziej had a responsibility to protect the plaintiff from her own bad driving.

27I am asked to conclude there is no genuine issue requiring a trial, and that, on the complete record before me, it would not be open to a trier of fact to find Kolodziej was even partially at fault. There are no complex issues; no expert evidence; no first responder assessments, or independent witness accounts to consider.

LAW

Rules of Civil Procedure

28Rule 20.04 of the Rules of Civil Procedure provides that:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(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;

1. weighing the evidence,

2. evaluating the credibility of a deponent,

3. 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.

29The applicable test has changed over time. Before 2010 the threshold was whether there was a genuine issue for trial. Since then the test is whether there is a genuine issue requiring a trial. This makes it a broader consideration, expanding the authority of a judge to dispose of a matter at this earlier stage. Subrule (2.1) defines the enhanced jurisdiction, expressly granting the court authority to weigh evidence, assess credibility, and draw inferences, which had historically been within the sole purview of a trial judge, and only after hearing viva voce evidence.

Hryniak

30The Supreme Court’s decision in Hryniak v. Mauldin, (2014), 2014 SCC 7, 366 DLR (4th) 641, is required reading. As a first step, I must determine if there is a genuine issue requiring a trial, based solely on the complete motion record. At this stage I am to have no regard to the new and enhanced fact finding powers.

31There are some conflicts in the evidence, and it’s fair to say this case might not have been conducive to summary judgment under the traditional analysis.

32That being the case, I must still determine whether a trial can be avoided through my use of the enhanced powers set out in subrules (2.1) and (2.2). My focus is on (2.1) as neither party sought to adduce viva voce evidence at the hearing, and I didn’t otherwise deem it necessary.

33Hryniak makes it clear that a trial is not required if a summary motion can achieve a fair and just adjudication, and if it amounts to a process that allows the motions judge to make the necessary findings of fact and to properly apply the law to those facts. It is, in a sense, a comparison between a motion and full trial, including an assessment of respective costs and how long each would take to completion. This is not to say speed and efficiency will, alone, own the day, but it is a factor. The ultimate question is whether the record before me permits a fair evaluation of the evidence.

34A party cannot, in opposition to summary judgment, simply point to evidence that might be available at trial, which would contradict what I now know. To borrow a phrase from the court in 1061590 Ontario Limited v. Ontario Jockey Club (1995), 1995 1686 (ON CA), 21 OR (3d) 547 (Ont. CA), a party resisting the motion must “lead trump or risk losing”. I am to assume there is a complete record and that the parties have tendered all the evidence they intend to use at trial. Allegations and denials do not suffice.

ASSESSMENT

Use of Broadened Powers

35Given many facts are undisputed, and given the issues lack complexity, this is an appropriate case to use the broadened powers set out in the rules.

36I turn now to the standard for determining negligence.

37There are several well accepted legal principles that must guide me. First, to avoid liability in a negligence case, one must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. This is dependent on the facts of each case. In our instance, knowing very clearly the plaintiff did something she shouldn’t have, the question is whether, in the circumstances, Kolodziej could have reasonably avoided the collision and injury.

38While there may be conflict in the evidence as to speed, and the precise location of Kolodziej’s car at the point of impact, I find that the plaintiff’s version is not based in reality or consistent with all the other evidence. There is no good evidence Kolodziej was distracted while driving, including by cell phone use. In fact the evidence suggests otherwise. Also, there is no believable evidence Kolodziej was speeding. It is simply inconsistent with the plaintiff’s contention she checked her blind spot, and with the physical set up of the intersection.

39On the other hand, there is ample evidence the plaintiff disregarded traffic rules, and caused a collision. Kolodziej was entitled to drive assuming others will follow the rules. She could not have reasonably foreseen a driver making a left turn from a lane that is not the furthest to the left. It would be pure speculation, and for the plaintiff wishful thinking, to believe Kolodziej could have avoided the accident.

40More importantly, I am satisfied, having regard to the pleadings, filed affidavits, and cross-examination transcripts, that the body of evidence would not change were we to have a trial. The record is complete. There is no other evidence to call. As noted earlier, no first responders attended the scene, there is no accident reconstruction analysis, and no nearby independent witnesses. The trial judge would be in no better position to make the necessary findings.

41The best evidence, and only logical conclusion to arrive at, is Kolodziej was faced with a sudden, unexpected variable. I find that the plaintiff entered her lane immediately prior to collision, an act which, on its own, caused the accident.

42After applying the test, which is not one of perfection, but how a reasonable person would have responded in similar circumstances, Kolodziej did not contribute to the cause of accident.

43Kolodziej was faced with unforeseeable circumstances, outside her control. She is absolved of liability. I do not accept that a sudden braking, for example, would have avoided this. Also, given she was in the furthest left lane of a one-way street, there was no other lane she could have moved to as an avoidance measure.

Plaintiff’s Entitlement To Her Day In Court

44It struck me that the plaintiff’s argument was essentially she deserved her “day in court”. Given I have a complete record, this is her day in court. Her argument is a trial judge might conclude Kolodziej, exercising reasonable care, could have avoided the collision, and that if she could have, the trial judge would then have to apportion liability on a percentage basis.

45Plaintiff counsel was incorrect in stating that, where there are conflicts in the evidence, summary judgment is inappropriate. At one time this was the case, but no longer.

46This is not a complex matter. There are only two witnesses. There are no conflicting expert opinions. While the issue of damages could be complex and challenging, the question of liability is a simple one. There would be no additional evidence at trial.

47The parties have filed pleadings, affidavits, and each have been examined twice. I agree with counsel for Kolodziej, who writes this at para. 41 of the defendant’s factum:

….a trial would be vastly more expensive and time consuming, as a trial would also deal with lengthy evidence on damages. The cost and time required for a trial would therefore be grossly disproportionate and unnecessary for a fair and just resolution given the straightforward facts of the case.

48I have a complete and accurate record. I can resolve the allegation of negligence and issue of liability. This motion is a fair proceeding, and is a more efficient and cost-effective way of deciding this case.

CONCLUSION

49Summary judgment is granted. The Statement of Claim is dismissed.

50Costs are in order. If they cannot be agreed upon, Kolodziej has until December 14, 2016 to file written submissions, not to exceed 3 pages in length. The plaintiff has until December 21, 2016, constrained by the same page limit.