CITATION: Frame, et al. v. Watt, et al., 2016 ONSC 718

COURT FILE NO.: 52581/10

DATE: 2016/01/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHERYL FRAME and MEGAN MORRISON

Lucianna Saplywy, for the Plaintiffs

Plaintiffs

• and -

BRYAN WATT, BRUCE E. SMITH LTD., VINCENZO MALATESTA, DUFFERIN CONSTRUCTION COMPANY and HOLCIM (CANADA) INC.

Stephen G. Ross, for the Defendants/Moving Parties, Bryan Watt and Bruce E. Smith Ltd.

Martin P. Forget, for the Defendants, Vincenzo Malatesta, Dufferin Construction Company and Holcim (Canada) Inc.

Defendants

HEARD: January 21, 2016

The Honourable Mr. Justice J.R. Henderson

ENDORSEMENT

1This is a Rule 20 motion brought by the defendants, Bryan Watt (“Watt”) and Bruce E. Smith Ltd. (collectively called “the Watt defendants”), for summary dismissal of the plaintiffs’ claim and all crossclaims against the Watt defendants.

2This court action arises out of a three vehicle collision that occurred on the QEW in St. Catharines at approximately 7:15 a.m. on November 18, 2008. One of the vehicles involved in the collision, a transport truck, was being operated by Watt eastbound in the right lane of the QEW near the Lake Street ramp.

3At approximately the same time, a pickup truck operated by the defendant, Vincenzo Malatesta (“Malatesta”), and owned by the defendants, Dufferin Construction Company and Holcim (Canada) Inc. (collectively called “the Malatesta defendants”), was travelling on the Lake Street ramp. It was Malatesta’s intention to merge from the Lake Street ramp onto the eastbound QEW.

4Travelling behind the Malatesta vehicle on the Lake Street ramp was a Mercury Topaz, owned and operated by the plaintiff, Cheryl Frame (“Frame”). It was also Frame’s intention to merge onto the eastbound QEW.

5The Frame vehicle merged onto the eastbound QEW while the Malatesta vehicle was still on the Lake Street ramp. Shortly thereafter, the Frame vehicle was struck from behind by the Watt vehicle with such force that the Frame vehicle in turn struck the Malatesta vehicle.

6The plaintiffs commenced this action against the Watt defendants and the Malatesta defendants. In the pleadings, each of the plaintiffs, the Watt defendants, and the Malatesta defendants plead that the other two parties are liable for the motor vehicle accident.

7In this motion, counsel for the Watt defendants submits that there is no genuine issue for trial with respect to the alleged liability of the Watt defendants, and therefore requests that the claim and the crossclaims against the Watt defendants be summarily dismissed.

THE BACKGROUND FACTS

8It is agreed that Watt was operating a transport truck that was fully loaded with cases of beer, and that the Watt vehicle was travelling in the right lane of the three eastbound lanes of the QEW. It is further agreed that there was a tanker truck travelling in front of the Watt vehicle in the right lane of the eastbound QEW.

9It is agreed that the traffic was heavy at the time, and that this portion of the QEW was a construction zone, but there was no ongoing construction in the immediate area of the collision.

10The only evidence of the speed of the Watt vehicle is Watt’s testimony that he was travelling 80 kilometers per hour. Therefore, for the purposes of this motion, I accept that evidence. I also accept that the posted speed limit was 80 kilometers per hour.

11In general terms, I accept that Malatesta had some difficulty merging from the Lake Street ramp onto the QEW. Frame’s evidence is that Malatesta signaled as if to enter the QEW, perhaps more than once, and that the Malatesta vehicle moved toward the QEW lanes and then back onto the ramp. In his evidence, Malatesta testified that he felt that he could not merge onto the QEW because the tanker truck was preventing him from doing so. Both Frame and Malatesta provided clear evidence that Malatesta was travelling slowly on the Lake Street ramp and was running out of room on the ramp.

12Further, the evidence of Frame and Malatesta discloses that Frame was aware of Malatesta’s difficulties. Accordingly, Frame testified that she slowed down, made an observation of the Watt vehicle on the QEW, and then entered the right lane of the eastbound QEW. Frame also waved at Malatesta to indicate that Malatesta should merge in front of her. Frame then slowed her vehicle to allow Malatesta to do so, slowing from 60 kilometers per hour to approximately 5 kilometers per hour.

13Watt’s evidence was that he observed the Frame vehicle enter the QEW and then suddenly slow down. At that point, Watt testified that he forcefully applied his brakes, but he could not avoid colliding with the Frame vehicle.

THE COMPETING EXPERTS

14Both the plaintiffs and the Watt defendants rely upon expert evidence as to the issue of Watt’s liability for the accident. The Watt defendants retained Adam Campbell and David Porter of Giffin Koerth Forensic Engineering (“the GK experts”) to provide a report with respect to the accident (“the GK report”). The plaintiffs retained Sam Kodsi and Karla Cassidy of Kodsi Engineering (“the KE experts”) to prepare a report on the same issue (“the KE report”).

15Both sets of experts made similar factual assumptions with respect to the speeds of the vehicles, locations of the vehicles on the road, and the distances between the vehicles. Both reports offer similar opinions with respect to the time that is required for a typical attentive driver to react to a hazard. However, the reports differ in the conclusions drawn by the experts.

16In the GK report, the experts define the “response interval” as the time between the activation of the brake lights on the Frame vehicle and the time at which the brakes on the Watt vehicle were engaged. The analysis of what occurred during the response interval is critical to the liability issue. The GK experts and the KE experts agree that the response interval in the present case was in the range of 2.0 to 2.1 seconds.

17Both sets of experts also agree that 0.5 seconds of this time should be attributed to brake lag, the period between the time at which Watt depressed the brake pedal and the time the brakes were actually engaged on the Watt vehicle.

18Removing brake lag from the equation, the GK experts found that, in this case, Watt reacted by depressing the brake pedal approximately 1.5 to 1.6 seconds after the brake lights on the Frame vehicle were activated. This could be called Watt’s perception-response time. The KE experts do not seem to disagree with that calculation.

19Thereafter, the two sets of experts differ in their assessments of the reasonableness of Watt’s reaction to the circumstances.

20In the GK report, the GK experts reduce Watt’s perception-response time by removing “looming” time. This refers to the period of time, called looming, that occurs between the activation of the brake lights on the Frame vehicle and the point at which Watt perceives the Frame vehicle to be a hazard. The GK experts give the opinion that the activation of brake lights is not necessarily an indication of a hazard. The GK experts assess the looming time in this case at 0.2 to 0.4 seconds.

21The GK report indicates that the perception-response time of a typical attentive driver is 0.9 to 1.6 seconds. Therefore, the GK experts formed the opinion that Watt’s perception-response time of 1.5 to 1.6 seconds, less looming time, was within the reasonable range, and that Watt’s reaction in this case was not negligent.

22In the KE report, the KE experts do not allow for any looming time within the response interval. They state that looming does not apply in this case as looming is only an appropriate factor if there are no other external cues that would indicate the existence of a hazard. In the present case, the KE experts state that there were cues in the form of the tanker truck ahead, the merge ramp, the presence of two motor vehicles on the merge ramp, and the position of the Malatesta vehicle on the ramp.

23The KE experts undertook an analysis in which they determined that a typical driver in Watt’s position would likely require a perception-response time of 0.8 to 1.8 seconds to stop the Watt vehicle. The KE experts then analyzed whether Watt would have avoided the motor vehicle accident if Watt had reacted within that typical perception-response time.

24The result of the KE analysis is that if Watt had reacted in this typical manner, then the accident was avoidable in 85% of the cases. Therefore, the plaintiffs submit that the KE analysis supports the proposition that Watt was travelling too fast for the traffic and road conditions, or that he did not respond fast enough to the hazard ahead.

THE LAW REGARDING RULE 20 MOTIONS

25Rule 20.04(2)(a) provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

26Rule 20.04(2.1) and (2.2) provide the motions judge with additional powers that may be used to determine whether there is a genuine issue that requires a trial.

27It is trite law that on a Rule 20 motion a judge must take a hard look at the evidence to determine whether or not there is a genuine issue for trial. Further, the onus of establishing that there is no genuine issue for trial is on the moving party. See the case of 1061590 Ontario Limited v. Ontario Jockey Club, 1995 CanLII 1686 (ON CA), 21 O.R. (3d) 547 at para. 35.

28In the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada established a two-step approach to Rule 20 motions. In the first step, the motions judge is to take a hard look at the evidence to determine whether there is a genuine issue requiring a trial. If there is no genuine issue for trial, summary judgment will be granted.

29In the second step of the process, a motions judge shall consider the evidence submitted by the parties, and may exercise the additional powers of weighing the evidence, evaluating credibility, and drawing reasonable inferences as set out in Rule 20.04(2.1) to determine whether there is a genuine issue, unless it is in the interest of justice for such powers to be exercised only at a trial. See Hryniak at paras. 49-52.

30The use of the additional powers available on a motion for summary judgment 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. See Hryniak at para. 66.

ANALYSIS

31It is apparent that the issue of Watt’s liability for the accident is a genuine issue as between the parties. The plaintiffs and the Malatesta defendants both allege that Watt has been negligent, and there is also opinion evidence from the KE experts that tends to support that view. Therefore, at the first stage of the Hryniak process, having taken a hard look at the evidence, I accept that there is a genuine issue for trial.

32The next step is to determine whether I can or should weigh and evaluate the evidence to decide the liability issue on this summary judgment motion. The parties have all been examined for discovery, Frame and Watt have been cross-examined on affidavits filed on this motion, and the GK experts and the KE experts have been examined under oath. Thus, I have a considerable amount of sworn evidence available for my consideration. I have analyzed that evidence using the powers set out in Rule 20.04(2.1).

33I start my analysis by observing that it is very difficult for any court to resolve an issue where there is conflicting expert evidence. Conflicting evidence as between lay witnesses can often be resolved by considering inconsistencies in the sworn evidence, bias, or credibility problems. However, in the present case, I am presented with two sets of qualified experts who have no significant credibility issues, but differing opinions.

34In that regard, I adopt the comments of Edwards J. in the case of Paul v. Oliver Fuels Ltd., [2012] O.J. No. 540 at para. 44 as follows:

While there may very well be cases in the future with conflicting expert opinions that are amenable to a motion for summary judgment, it strikes me that where there are conflicting experts’ opinions, in general, such a case is not, ... amenable to summary judgment.

35In the present case, counsel for the Watt defendants submits that I should prefer the evidence of the GK experts over that of the KE experts because the GK experts, in particular Adam Campbell, have superior qualifications with respect to human factors. In my view, it is not appropriate to do so at this point in this case. The qualifications of the experts go to the weight of their evidence, and there is no doubt that I have the power to assess weight on a Rule 20 motion. But, in this case I cannot find that the weight of the opinion evidence of one expert is so strong that I should ignore the opinion evidence of another expert.

36In the alternative, counsel for the Watt defendants submits that if I carefully assess the evidence of the KE experts, on that evidence alone, I can find that Watt is not liable. Specifically, Watt’s counsel notes that the KE experts state that a typical driver in Watt’s position would likely require 0.8 to 1.8 seconds to stop the Watt vehicle. Then, the KE experts found that had Watt reacted to the brake lights on the Frame vehicle in this typical manner, the accident may or may not have been avoided.

37Therefore, given the delay of 0.5 seconds for brake lag, counsel submits that, even on the KE experts’ evidence, Watt would have had to react to Frame’s brake lights in less than 1.3 seconds if he were to avoid a collision. Counsel submits that I should not hold Watt to such a high standard of care, and therefore, on that basis alone, I should find that Watt was not negligent. That argument is bolstered by the fact that Watt was facing an emergency situation, and accordingly is not held to the same standard of conduct as someone in a calmer more deliberate moment, as discussed in the case of Canadian Pacific Ltd v. Gill, 1973 CanLII 2 (SCC), [1973] S.C.R. 654, at p. 665.

38At first blush, this is an attractive argument. That is, it may be appropriate for a court in some cases on a summary judgment motion to find that a trailing driver is not required to react to the brake lights on a lead vehicle in less than 1.3 seconds after activation. However, in the present case, I find that the liability issue is not as simple as that suggested by counsel for the Watt defendants.

39The first and most prominent problem with counsel’s submission is that the analysis of Watt’s alleged negligence in this case does not start with the activation of the brake lights on the Frame vehicle. There are other matters related to events that occurred prior to the activation of the brake lights on the Frame vehicle that must be considered, including the actions of the Malatesta vehicle on the ramp; the actions of the Frame vehicle on the ramp; whether Watt was aware or should have been aware of the actions of either of the other two vehicles; whether Watt was aware of the merge lane at Lake Street; whether Watt was aware of the difficulties encountered by the Malatesta vehicle; and the view that Watt had of the events considering that he was in an elevated position in a transport truck. All of these other matters are the subject of conflicting evidence from the three main parties to this proceeding. At this point, without hearing oral evidence, it is very difficult to resolve these factual issues.

40The second problem with counsel’s submission, which is related to the first problem, is the concept of looming. That is, there is still a conflict between the two sets of experts as to whether looming time should be considered in addition to the typical perception-response time. Whether or not looming should be part of the experts’ calculations likely depends upon the findings of the trier of fact as to the events that occurred prior to the activation of the brake lights on the Frame vehicle.

41The third problem with counsel’s submission is that the factual assumptions of the two sets of experts, although consistent with one another, are not findings of fact. The factual assumptions of the two sets of experts are merely the factual foundation for the opinions expressed by the experts. Accordingly, the opinions of the experts are only useful to the court if the underlying facts are proved at trial.

42In the present case, there are factual disputes as to whether the brake lights on the Frame vehicle were activated while the Frame vehicle was on the ramp or on the QEW, and whether the Frame vehicle slowed gradually or suddenly stopped. There is also a factual dispute as to whether the Malatesta vehicle activated its brake lights, and/or a turn signal. Thus, the factual foundation for the opinions of the experts may not be the same as the factual matrix after a full trial. This may, in turn, affect the opinions of the experts.

43The fourth problem with counsel’s submission is a significant one. On the cross-examination on his affidavit, Watt testified that he did not ever see the brake lights on the Frame vehicle. This fact alone causes me some concern about relying on expert opinions that consider a perception-response time that commences with Watt’s reaction to the brake lights on the lead vehicle.

44The fifth problem with counsel’s submission is that there are several modest disagreements between the two sets of experts on technical issues. In particular, the KE experts are quite critical of the methodologies used by the GK experts. Given that the end result is not exceptionally clear, any findings regarding these technical disagreements may have some effect on the strength of the experts’ opinions.

45In summary, I find that there are significant factual issues that are yet unresolved with respect to the mechanics of the accident and the events that occurred prior to the time that the Frame vehicle entered the QEW. In my view, the resolution of these factual issues would best be done after a full trial at which the three main parties testify.

46Moreover, there are differences in the opinions of the two sets of experts, and those differences can only properly be considered after the triers of fact have made findings of fact. Then, it is possible that the opinions of one or both sets of experts could be challenged in light of those findings of fact.

47Based on the evidence before me today, it is open to the trier of fact to ultimately conclude that Watt was travelling too fast for the traffic and road conditions, or, in the alternative, that Watt was not keeping a proper lookout. Considering the complexity of the analysis required, I find that I am unable to resolve the liability issue by using the additional powers that are available to me on a Rule 20 motion. A full trial is necessary.

48Finally, I note that in the Hryniak decision, it is important for the motions judge in a Rule 20 decision to consider the interest of justice in relation to the goals of timeliness, affordability, and proportionality. That consideration, in my view, supports a finding that there should not be a summary judgment granted in this case. The trial of this action is scheduled to commence approximately two months from now. Also, I accept the view that if I were to remove Watt from the proceedings at this point, the amount of trial time that would be devoted to the liability issue would not be significantly reduced. Therefore, I find that a summary judgment at this stage would not significantly expedite the trial nor save trial time.

CONCLUSION

49In conclusion, I find that the issue of Watt’s liability is a complex matter. The conflicting factual evidence of the three main parties and the competing opinions of the experts require careful scrutiny. I am not able to resolve the liability issue by using the additional powers that are available to me on a Rule 20 motion. A full trial is necessary.

50For all of these reasons, the motion of the Watt defendants for summary dismissal is dismissed.

51If the issue of costs cannot be resolved, I direct that the party seeking costs shall deliver written submissions to the trial co-ordinator at St. Catharines within 20 days of the release of this decision with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Henderson J.