CITATION: Sobh v. RBC General Ins., 2016 ONSC 7382
COURT FILE NO.: 2160-13
DATE: 2016/12/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ali Sobh
Plaintiff
– and –
RBC General Insurance Company, Ron Middel and 980587 Ontario Inc., c.o.b. as RGM General Contractors
Defendants
R. Vitols, for the plaintiff
Crista Rea, for the defendant RBC General Insurance Company
Chris Marshall, for the defendant Ron Middel and 980587 Ontario Inc., c.o.b. as RGM General Contractors
HEARD: December 14, 2016
garson j.
Introduction
[1] The defendants, 980587 Ontario Inc., c.o.b. as RGM General Contractors and Ron Middel (“Middel”), bring a motion for summary judgment dismissing the claim brought against them by the plaintiff.
[2] The defendant RBC General Insurance Company (“RBC”) brings a cross-motion for summary judgment releasing RBC from this action on the basis that Middel is at least one percent (1%) responsible for the loss, and as a third-party with liability coverage under a motor vehicle liability policy, RBC’s inclusion in this action on an uninsured/unidentified motorist basis would be obviated.
[3] The defendant RBC also seeks summary judgment limiting their obligation to respond under the Ontario Automobile Policy (“OAP”) to $200,000 in accordance with the section 5 limits where an accident is caused by an unidentified automobile. More specifically, RBC seeks a determination that the Family Protection Coverage – OPCF-44R provisions of the policy would not be engaged to cover any excess amounts.
Background and Facts
[4] This action arises out of a motor vehicle accident that occurred on November 23, 2011 at Southdale Road. The plaintiff rear-ended the defendant motor vehicle driven by Middel, which had to brake suddenly due to an unidentified vehicle that cut him off.
[5] Although the plaintiff and the defendant offer slightly different recollections of the events, the parties do not dispute that:
(i) Middel was stopped at a red light at Southdale and Wellington and recalls seeing an unidentified vehicle to his right;
(ii) Middel proceeds eastbound on Southdale in the passing lane and was a few car lengths from Dearness Drive when he was cut off by the unidentified vehicle (described by Middel as a dark-coloured Chrysler 300);
(iii) The two lanes of travel on Southdale merge into one lane on the east side of Dearness.
(iv) Middel was travelling approximately 30 to 40 kilometres per hour when the unidentified vehicle cut him off and indicates that the unidentified vehicle travelling in the curb lane sped up and abruptly swerved in front of his vehicle, cutting him off just prior to the Dearness Road intersection;
(v) The unidentified vehicle braked after cutting off Middel and was in front of him for two or three seconds before making a left turn into the Dearness Home;
(vi) Middel did not have an opportunity to take any evasive measures other than braking to avoid a collision;
(vii) The plaintiff, travelling approximately 45 to 50 kilometres per hour and at a distance of about one to one-and-a-half car lengths behind Middel, applied his brakes but failed to stop before colliding with Middel; and
(viii) The plaintiff saw the unidentified vehicle pass his own vehicle while he was behind Middel.
Positions of the Parties
[6] The plaintiff does not oppose the motion for summary judgment brought by Middel and acknowledges that either the policy of Middel or RBC will have to respond to this claim, but not both.
[7] The plaintiff opposes the relief sought by RBC to limit their coverage under the policy to $200,000 and argues that the Family Protection Coverage – OPCF-44R will apply to cover any excess damages that may be awarded at trial.
[8] The defendant Middel submits that there is no genuine issue for trial and that in these circumstances, there is no evidence to establish any negligence on the part of Middel.
[9] The defendant RBC submits that while acknowledging that significant liability rests with the plaintiff for rear-ending Middel, Middel ought to have been aware of the need for the unidentified vehicle to merge and that Middel’s inactions or actions render him at least one percent (1%) responsible for the loss and consequently end RBC’s involvement in the within action.[^1]
[10] The defendant RBC alternatively argues that in order to trigger the OPCF-44R Family Protection Endorsement, the plaintiff must provide evidence (in addition to his own evidence) by way of an independent witness or other physical evidence indicating the involvement of the unidentified automobile.[^2]
Discussion
Summary Judgment
[11] Rule 20.04 permits the granting of summary judgment where the court is satisfied that there are no genuine issues requiring a trial. There will be no genuine issue for trial if the court can reach a fair and just determination of the matters on the merits on the available evidence.
[12] In determining whether a genuine issue for trial exists, the court must first look to the available evidence. If there appears to be a genuine issue for trial, the court may then consider the enhanced powers under r. 20.01(2.1) and (2.2) provided their use is not against the interests of justice and determine if the need for a trial can be avoided by using these powers. These powers include a limited weighing of the evidence, evaluating the credibility of the deponents and drawing reasonable inferences from the evidence. If the use of these new fact-finding powers will lead to a fair and just result in a timely proportionate and affordable manner the court should then engage such powers.[^3]
[13] As with all civil proceedings, the court should apply the Rules with a view to securing the just, most expeditious and least expensive determination of the proceedings on its merits.[^4]
[14] Each party must put its best foot forward and present its strongest case and the court is entitled to assume that the record contains the evidence which the parties would present at trial.
Issue #1 – Is Middle responsible for at least one percent (1%) of the loss?
[15] The parties agree that the test to be applied in these circumstances is that of whether a reasonable jury, properly instructed, could find Middel at least one percent (1%) responsible or liable for the loss.
[16] Section 158 of the Highway Traffic Act[^5] (“HTA”) states:
The driver of a motor vehicle … shall not follow another vehicle … more closely than is reasonable and prudent having due regard for the speed of the vehicle and the traffic on and the conditions of the highway.
[17] The Fault Determination Rules[^6], although not binding on tort actions, apportion liability in a rear-end collision at one-hundred percent (100%) for the driver of the rear vehicle and zero percent (0%) for the driver of the lead vehicle.
[18] Canadian courts have consistently found, generally speaking, the operator of a rear vehicle at fault for rear-end collisions.[^7]
[19] The common law principle of fault attribution to the rear vehicle in rear-end collisions is not absolute and is subject to a careful examination of whether the rear-driver and, by necessity, the lead-driver were acting reasonably in the circumstances.[^8]
[20] RBC has filed a series of cases where Courts of Appeal have seen fit to apportion liability in rear-end collisions. Examples include: (i) where a truck is parked in the middle of the road because it ran out of gas[^9]; (ii) where a vehicle is stopped in the middle of a road in a winter storm to check the brakes[^10]; and (iii) where a vehicle comes to an unexplained sudden stop.[^11]
[21] RBC argues further that in these circumstances, Middel should be considered the driver of a vehicle who follows another and ought to be held to the standard of care imposed upon such drivers.
[22] More specifically RBC argues that Middel’s vehicle must:
(i) keep a reasonable distance behind the vehicle ahead;
(ii) keep his vehicle in control at all times;
(iii) keep an alert and proper lookout;
(iv) proceed at a reasonable speed relative to the vehicle ahead;
(v) anticipate the vehicle ahead may stop for whatever reason; and
(vi) proceed with care to avoid colliding with the vehicle ahead.[^12]
[23] RBC further suggests Middel ought to have been aware that with the impending merging of the two lanes, the unidentified driver would at some point have to merge or lose its lane of travel.
[24] I disagree. When a vehicle takes sudden, abrupt, unlawful and unsafe action and swerves in front of another vehicle, it would be unreasonable and an affront to common sense to expect the vehicle that has been cut off to anticipate this action. The evidence before me is clear that Middel was operating his vehicle at a reasonable speed and had no other reasonable choice when cut off but to slam on the brakes and avoid the collision. Middel ought to have anticipated that the vehicle to his right would either slow down and yield the right of way to Middel or pass only where the movement can be made in safety as required by section 150(1) of the HTA. Simply put, Middel ought to have anticipated that the driver of the unidentified vehicle would operate his vehicle in safety, and in compliance with the rules of the road.
[25] Middel properly responded to the sudden and unsafe merge by operating his vehicle reasonably and in safety.
[26] The unidentified vehicle was in front of Middel for two to three seconds before making a left hand turn.
[27] Middel slammed on his brakes. His actions were sufficient to allow him to avoid colliding with the unidentified vehicle.
[28] The plaintiff acknowledges in his Examination for Discovery that Middel could not have done anything differently in response to the actions of the unidentified vehicle:
Q. 1219 Was there anything else you say that vehicle ahead of you should’ve done under the circumstances?
A. I don’t, I don’t recall him really, him doing, could do anything. Maybe if he wanted to go into the right lane but would he take a chance on that? I don’t…
Q. What do you mean the right lane?
A. Like to the curb lane to try to get out of that, get outta [sic] the, the way of that vehicle. But it’s not really his fault. He can’t do anything about that.
Q. Okay.
A. That unexpected, the, the vehicle that, that caused all of this, the unidentified vehicle, it caused all the trouble, all this, the whole situation and I don’t know if anything could’ve been really done to avoid, other than maybe going into the right lane, but not knowing if there’s vehicles coming onto the right lane and causing another accident, so…
Q. Okay.
A. I think the best thing he did, he could’ve did he did.
Q. Okay. You mean slam on the brakes?
A. Pretty much.
[29] Officer Costa, who attended at the scene to investigate, indicates in his Will Say statement that he “strongly believes the actions of [the unidentified vehicle] caused the accident as his lane change was not made in safety”.
[30] There is a heavy evidentiary burden on the plaintiff and, in this case RBC as co-defendant, to prove that the collision did not occur as a result of the rear-driver’s negligence.
[31] In my view, there is some evidence of negligence beyond that of the plaintiff. However, such negligence can only be attributed to the actions of the unidentified driver of the unidentified vehicle, and not to Middel.
[32] In Findlay, Driver 1 stopped his vehicle in the middle of the road in a snow storm. Driver 2 stopped behind him and was waiting for oncoming traffic to pass when he was rear-ended by Driver 3. The Court of Appeal found fault with Driver 1 for leaving his vehicle on the travelled portion of a highway. More importantly, the Court of Appeal determined that there could not have been a valid finding of negligence made against Driver 2 (Diver).[^13]
[33] On the facts before me, and not dissimilar to the Court of Appeal’s analysis in Findlay. I am satisfied that the actions of the unidentified vehicle set in motion an unfortunate chain of events for which only the driver of the rear-vehicle (the plaintiff) and the unidentified vehicle may be found negligent.
[34] In other words, I cannot attribute negligence, not even one percent (1%) in these circumstances, nor could a reasonably and properly instructed jury.
Conclusion on Issue #1
[35] On the evidence before me, I am unable to reach a fair and just determination of the issue and conclude that a genuine issue for trial exists.
[36] However, I am satisfied that it is in the interests of justice for me to rely on the expanded fact-finding powers and in so doing, I am able to make a determination in this issue which will achieve a fair and just result, in a proportionate, expeditious and least-expensive manner.
[37] Based on the above reasons, I conclude that RBC has not displaced the heavy presumption of negligence imposed on the plaintiff, not even by one percent (1%), in favour of Middel. Accordingly, I find that there is no genuine issue for trial and that summary judgment shall issue in favour of the defendants 980587 and Middel, dismissing the plaintiff’s claim as against them.
Issue #2 – RBC’s cross-motion
[38] Having already determined that a genuine issue for trial does not exist as to whether the defendants 980587 and Middel are liable, not even one percent (1%), for the loss, I now turn to the issue of the meaning of “independent witness evidence” under OPCF-44R, s.1.
[39] In other words, the defendants 980587 and Middel’s success on this motion is determinative of RBC’s cross-motion for summary judgment, releasing them from liability coverage. I now will address the extent of such coverage.
The OPCF 44R Family Protection Coverage Endorsement
[40] Section 1.5 of OPCF 44R provides coverage where an accident is caused by an uninsured or unidentified automobile. Section 1.5(C) and (D) read in part:
(C) where an eligible claimant alleges that both the owner and driver of an automobile…cannot be determined, the eligible claimant’s own evidence of the involvement of such automobile must be corroborated by other material evidence; and
(D) “other material evidence” for the purposes of this section means
(i) independent witness evidence, other than evidence of a spouse…or a dependent relative…; or
(ii) physical evidence indicating the involvement of an unidentified automobile.
[41] In Pepe v. State Farm Mutual Automobile Insurance Company, the Court of Appeal found that the girlfriend and a passenger in the car of the driver of a vehicle injured in a single car accident due to an unidentified automobile can meet the test for an independent witness under OPCF-44R Section 1.5.[^14]
[42] Section 1.5(D)(ii) does not apply in this situation as there is sparse physical evidence of the involvement of an unidentified automobile. The fact that police could not locate the unidentified vehicle is, in and of itself, not fatal to the claim. I now turn my attention to section 1.5(D)(i).
[43] The plaintiff argues that the evidence of Middel meets the requirements for corroboration by “other material evidence”. I agree.
[44] In Pepe, the Court of Appeal spoke of both the purpose and the meaning of the corroboration requirement and stated, at para. 15:
…Evidence from a second source is seen as capable of overcoming the inherent weaknesses from the suspect source. Broadly speaking both at common law and under statute, corroborative evidence is evidence from a source extraneous to the witness whose evidence is to be corroborated that is relevant to a material fact in issue and that tends to show that the witness whose evidence needs corroboration is telling the truth…
[45] The evidence of Middel is capable of corroborating the plaintiff’s evidence on the issue of the actions of the unidentified driver and automobile.
[46] Middel’s evidence describing the incident is independent from the plaintiff and relates to the material matters of both the existence of, and actions of, the unidentified driver and whether such actions were a cause of the loss. At a minimum, the evidence of Middel certainly goes to the issue of the credibility of the plaintiff and his version of events.
[47] The twin requirements of materiality and independence are met. The evidence of Middel that he was cut off by an unidentified driver that forced him to slam on his brakes, is independent of the plaintiff’s evidence that the unidentified vehicle “caused all the trouble”. Middel is neither the spouse nor a dependent relative of the plaintiff. Middel’s evidence is material and therefore satisfies the corroboration requirements of OPCF-44R Section 1.5
Conclusion on Issue #2
[48] On the evidence before me, I am unable to reach a fair and just determination on this issue and conclude a genuine issue exists for trial.
[49] However, I am satisfied that it is in the interests of justice for me to rely on the expanded fact-finding powers and in so doing, I am able to make a determination in this matter that will achieve a fair and just result in a proportionate, expeditious and least-expensive manner.
[50] Based on the above reasons, I conclude that the evidence of Middel satisfies the requirements of corroboration by an independent witness and make a binding determination in this matter that the provisions of OPCF-44R coverage are triggered for the purposes of defining RBC’s involvement in these proceedings.
Costs
[51] Middel seeks costs of $9,567.93 on a partial-indemnity scale, inclusive of HST and disbursements.
[52] RBC seeks costs of $8,139.77, inclusive of HST and disbursements, on a substantial-indemnity scale and $6,652.86, inclusive of HST and disbursements, on a partial-indemnity scale.
[53] The plaintiff seeks costs, on a partial-indemnity scale, from September 1, 2016, up to and including December 7, 2016, and on a substantial-indemnity scale thereafter, for a total claim of $5,505.64, inclusive of HST and disbursements.
[54] The plaintiff relies on a December 7, 2016 e-mail offer to settle in support of his argument that RBC acted unreasonably by seeking summary judgment on the issue of the extent of its coverage and therefore necessitated the involvement of the plaintiff in what would otherwise be a conflict between two insurers as to who should be defending the claim.
[55] All counsel were well prepared and made concise and well-reasoned arguments.
[56] Middel and, to a lesser extent, the plaintiff, were both successful in their arguments and are entitled to recover some of their costs.
[57] I am mindful of the factors set forth in R.57.01. In these circumstances, I note the importance of the issues to the parties and the fact that RBC acted somewhat unreasonably in requiring the plaintiff to prepare materials and take a position on the OPCF-44R issue. I also take into account what RBC could reasonably expect to pay in relation to these motions.
[58] In all of the circumstances, I find that a fair, balanced and just award in an award of costs payable by RBC on a partial-indemnity scale as follows:
(i) $7,500.00 inclusive of HST and disbursements, payable to Middel within 30 days;
(ii) $4,500.00 inclusive of HST and disbursements, payable to the plaintiff within 30 days.
Post-Script
[59] In light of the travel requirements and other competing matters, it becomes impractical and unmanageable in many circumstances for judges to remain seized of partial summary judgment cases. Further, seizing myself will likely create time and cost impediments towards a successful completion of this matter. Accordingly, I will not remain seized of this matter nor make any further orders under Rule 20.05 beyond the binding determination already made.
“Justice M. A. Garson”
Justice M. A. Garson
Released: December 23, 2016.
CITATION: Sobh v. RBC General Ins., 2016 ONSC 7382
COURT FILE NO.: 2160-13
DATE: 2016/12/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ali Sobh
Plaintiff
– and –
RBC General Insurance Company, Ron Middel and 980587 Ontario Inc., c.o.b. as RGM General Contractors
Defendants
REASONS FOR JUDGMENT
Garson J.
Released: December 23, 2016
[^1]: O.Reg 676 Section 2 (1)(c) of the Insurance Act, R.S.O. 1990, c.1.8 provides that the third party liability coverage under Middel’s policy would become 100% responsible for any of the plaintiff’s damages. [^2]: See Section 1.5(c) and (d) of OPCF-44R. [^3]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. [^4]: Rule 1.04 of the Rules of Civil Procedure, R.S.O. 1990, Reg. 194. [^5]: R.S.O. 1990, c. H.8 [^6]: R.R.O. 1990; Reg 668, section 6. [^7]: Beaumont v. Ruddy, 1932 CanLII 147 (ON CA); Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3s) 523 at para. 19. [^8]: Martin-Vandenhende v. Myslik, 2012 ONCA 53, 287 OAC 250 at para. 31. [^9]: Irvine v. Metropolitan Transport Co. Ltd., 1933 CanLII 109 (ON CA). [^10]: Findlay v. Diver, 1992 CanLII 7537 (ON CA). [^11]: Kim v. Salzi, 1994 CanLII 1851 (BC CA) at para. 9. [^12]: Swain v. Gorman, 2014 ONSC 4686, 243 A.C.W.S. (3d) 768. [^13]: Ibid, at p. 4. [^14]: 2011 ONCA 341, 105 O.R. (3d) 794.