COURT FILE NO.: 13-508A1 DATE: 20170306 CORRIGENDA: 20170309 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KHOW CHIN HEW Plaintiff – and – RONALD W. SHARMAN Defendant
No Counsel appearing, for the Plaintiff Drew Sinclair, for the Defendant
– and – FREDERICK STEPHEN PAGE S. Alexandre Proulx, for the Third Party Third Party
HEARD: January 27, 2017 and February 28, 2017
revised REASONS FOR DECISION
The text of the original Decision has been corrected with the text of corrigendum (Released today’s date)
di luca j. :
[1] This is a motion for summary judgment brought by the Third Party, Frederick Page (Page), against the Defendant, Ronald Sharman (Sharman). This motion first came before me on January 27, 2017. At that time an objection was raised regarding the admissibility of a late breaking expert’s report that had not been provided in affidavit form and that had only been prepared following the completion of cross-examinations on the affidavits filed in support of the motion. For oral reasons provided on that date, I granted leave to file the report in a proper form, and I adjourned the motion to permit cross-examination of the expert. A supplementary responding motion record was received by the Court and submissions were completed on this motion on February 28, 2017.
[2] For the reason set out below, I grant summary judgment and dismiss the Third Party Claim against Page. In my view, there is no genuine issue requiring a trial.
Brief Overview
[3] This action arises out of a motor vehicle collision that occurred on August 8, 2011 on Highway 12 in Orillia, Ontario. On that date, four vehicles were travelling westbound in a procession. The lead car, a Pontiac Sunfire, was driven by the Third Party, Page. The second car, a black Chevrolet pick-up truck, was driven by Mr. MacDonald (MacDonald), a non-party to the action. The third car, a silver Honda Odyssey, was driven by the Plaintiff, Ms. Hew (Hew). The final car, a GMC pick-up truck towing a 20 foot Bonaire trailer, was driven by the Defendant, Sharman.
[4] Page was returning to his then residence which had a driveway on Highway 12. In order to enter the driveway he had to turn left off of Highway 12. In making this turn, he came to a complete stop as there was on-coming traffic. Once traffic cleared, Page turned left and entered his driveway.
[5] The two vehicles immediately behind Page stopped behind Page and waited as he executed his left turn. The third vehicle, driven by the Defendant Sharman, was unable to stop and he collided with Hew, causing her injuries.
[6] Sharman does not deny liability. However, he seeks to share liability with Page and claims that Page’s sudden stop to turn left into his driveway is at least in part a cause of the accident. More particularly, Sharman takes the position that Page’s sudden stop was negligent in the circumstances.
[7] The plaintiff takes no position on this motion, and no counsel appeared on her behalf.
Summary of the Relevant Facts
[8] At the scene of the accident, Highway 12 has one lane going in each direction and the posted speed limit is 80 km/h. The westbound portion of the road approaching the scene of the accident is slightly inclined and curved, making it difficult for drivers to see what is ahead.
[9] According to Page, he was travelling westbound on Highway 12 approaching his driveway. He was travelling at approximately 80 km/h. He knew he was the lead vehicle in a chain of vehicles and knew that if he slowed down the others would have to as well. Page activated his left turn signal prior to braking.
[10] In an affidavit sworn in support of the motion, Page stated that he commenced braking at approximately 100 metres from his driveway. In cross-examination, he was not directly challenged on this assertion. Rather, it was put to him that he first perceived his driveway was coming up at the 100 metre mark, then he decided he needed to brake, then turned on his signal indicator, then he lifted his foot off the accelerator, and then he started braking. On the basis of these answers, counsel for Sharman retained a forensic accident reconstructionist and commissioned a report. The reconstructionist was told to assume that Page was driving at 80 km/h at the 100 metre mark, and that a reaction time of 1.5 to 2.5 seconds was required to perform the various tasks involved in commencing to stop the vehicle. On the basis of these assumptions, the reconstructionist calculated a braking point of 66.7 metres for a 1.5 second reaction time and 44.5 metres for a 2.5 second reaction time. The reconstructionist opined that if Page was travelling at 80 km/h and started braking at the 66.7 metres mark, his braking would have been “modestly aggressive”, and if the braking started at the 44.5 metre mark it would have been “very aggressive” in order to come to a complete stop before making the turn. It was never put to Page that he actually started braking at either 44.5 or 66.7 metres instead of “approximately 100 metres.” This evidence will be the subject of further discussion below.
[11] As a result of oncoming traffic, Page could not complete the left turn. Page brought his vehicle to a complete stop and waited for approximately 10 seconds until a gap in traffic opened up and he made his left turn into his driveway. Page noticed that a black truck stopped behind him without difficulty. Page also noticed a second vehicle, behind the black truck, also stop without difficulty.
[12] After Page witnessed the two vehicles stop behind him, he began to make his left turn and observed in his side view mirror the vehicle driven by Sharman rear-ending the vehicle driven by Hew.
[13] In cross-examination on his affidavit, Sharman agreed that the two vehicles between his truck and Page’s car managed to stop without difficulty. Sharman indicated that the incline on the roadway limited his ability to see, though he did not reduce his speed which was between 70 and 80 km/h. Sharman agreed that the trailer he was towing “sometimes” made it more difficult to stop, though he was not sure whether that was the case on the date of the accident. He agreed that he left 54 feet of skid marks on the road as a result of his braking. Sharman indicated that he was travelling three to four car lengths behind Hew and that with the benefit of hindsight, he should have left more distance.
[14] In examinations for discovery, Hew testified that she was driving behind a black truck (MacDonald) and that the car in front of the black truck (Page) “suddenly made a turn to the left”, which she further described as a “very abrupt turn.” She was asked whether she had difficulty stopping, and she testified:
No, I controlled it. I managed to keep – I managed to stop. I was paying attention to the road and the cars ahead of me and I stopped.
[15] The MacDonald vehicle was occupied by Steven MacDonald and Patricia MacDonald, both of whom gave statements to police at the scene, though neither of whom provided an affidavit or other sworn evidence on this motion. Steven MacDonald was driving. He indicated that he “managed to stop” but that Page “made a fast stop and (sic) give enough time on his behalf of the car making left turn for everyone to react.” Patricia MacDonald, the passenger, told police that Page “made a sudden left turn, and they were just able to get stopped.” In a subsequent statement to police, Patricia MacDonald indicated that they “slowed ASAP as not a lot of time was given.” Counsel for Page objected to the admissibility of these statements on the basis of hearsay. The objection will be discussed below.
[16] On the basis of the estimated following distances between the various cars, the reconstructionist opined that Sharman was following Hew too closely, Hew was following MacDonald too closely, and MacDonald was following Page too closely. In cross-examination, the reconstructionist agreed that the cars following Page all left an insufficient following distance that could present a danger. He further agreed that Sharman should have maintained an even greater following distance given the fact that he was towing a trailer, the fact that his vision was compromised by the incline of the road and given his age (75 years old).
[17] The police investigated the accident and charged Sharman with careless driving. Page was not charged with any offence and was not referred to in the police report.
The Law
[18] In Hryniak v. Maudlin, 2014 SCC 7 at para. 49, the Supreme Court of Canada discussed the scope of the summary judgment power in Rule 20.04(2)(a) of the Rules of Civil Procedure:
There will be no genuine issue requiring a 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.
[19] The Court further directed judges considering summary judgment motions as follows at para. 66:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issuing requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interests of justice. Their use will not be against the interests 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.
[20] The modern approach to summary judgment motions requires that parties continue to put their “best foot forward.” As Corbett J. notes in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32:
Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions. This principle does not mean that large, complicated cases must go to trial, while small, single issue cases should not. Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse. If anything, this principle is even more important after Hyrniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties’ cases before it.
[21] On a similar note, Dunphy J. in 2313103 Ontario Inc. v. JM Food Services Ltd., 2015 ONSC 4029 at para. 40 explains as follows:
Of particular relevance to this case is “best foot forward” assumption. In bringing a motion for summary judgment, the court is entitled to assume that both parties have put before the court all of the evidence they would intend to adduce at trial (even if not in the same form) that relates to the issues for decision on the motion. Ambush and surprise have no legitimate place in modern litigation, but this is particularly so in motions for summary judgment where the entire action or a substantial part of it may be disposed of in favour of one or the other party. Summary judgment is no place for a party to look to keep powder dry for another day and it is rather late in the process to sit down and ensure the issues are thoroughly understood.
[22] The Court can also assume that the party responding to a summary judgment motion will present the evidence it intends to rely on at trial in order to prove that its claim or defence has a chance of success. In the vernacular, the responding party must “lead trump or risk losing”, see: 1061590 Ontario Ltd. v. Ontario Jockey Club, (1995), 21 O.R. (3d) 547 (C.A.) at p. 557, and Juneja v. Samra, 2016 ONSC 5502 at paras. 20-21.
Negligence in Rear-End Collisions
[23] It is well settled that when one vehicle runs into another from behind, the fault lies with the driver of the rear car who must satisfy the Court that the collision did not occur as a result of his or her negligence, see: Beaumont v. Ruddy, [1932] O.R. 441 (Ont. C.A.) and section 158 of the Highway Traffic Act, R.S.O. 1990, c. H.8. This principle was more recently affirmed by the Court of Appeal in Iannarella v. Corbett, 2015 ONCA 110 at para. 19, where Lauwers J.A. explained:
In my view, the driver of the rear vehicle might well have an excuse for the collision that satisfies the jury that the accident did not occur as a result of his or her negligence. Nonetheless, the duty to provide that explanation rest on the defendant, not the plaintiff. To put it differently, once the plaintiff has proven that a rear-end collision occurred, the evidentiary burden shifts from the plaintiff to the defendant, who must then show that he or she was not negligent. This analysis would apply even where an emergency situation is alleged, as in this case.
[24] Liability is not, however, always fixed on the rear-ending vehicle in all cases, see: Martin-Vandenhende v. Myslik, 2012 ONCA 53 at para. 31. There are cases where it has been argued that the conduct of the lead vehicle contributes in whole or in part to the accident and serves to lessen or remove liability on the rear-ending vehicle, see: Kashuba v. Ey, Swain v. Gorman, 2014 ONSC 4686 affm’d at 2015 ONCA 194, and Grewal v. Handa, 2014 ONSC 5911. The situations where this might occur are relatively rare, as Myers J. explains in Rahimi v. Hatami, 2015 ONSC 4266 at para. 14:
The basic burden on the defendant is to leave enough room to stop in safety given the speed and circumstances. The few cases which have held drivers who rear-end another car not liable involve very unusual circumstances in which negligent acts of third parties (such as cutting off the defendant) or the plaintiff have been sufficiently inappropriate, sudden, or unexpected to a reasonable driver so as to absolve the defendant and overcome his or her burden of disproving negligence.
Analysis
[25] This is a straightforward case. Sharman accepts that he is primarily responsible for the accident that injured Hew. Sharman maintains that Page is, at least to some degree, also responsible. Page’s liability turns on whether his braking and left turn into his driveway was done in a negligent fashion. The issue for me to decide is whether a trial is required to determine this issue. I have before me a body of evidence, much of it tested by cross-examination. I assume that the parties have put their best foot forward and I find that in the circumstances of this case, applying Hyrniak, there is no genuine issue requiring a trial. Put another way, I am confident that I am in a position to make the required findings of fact to determine this case. I am also confident that summary judgment is in this case a proportionate, more expeditious and less expensive means to achieve a just result.
[26] Many of the key facts are undisputed. In particular, it is not disputed that:
a. Sharman rear-ended Hew; b. Sharman’s vehicle is the only vehicle that rear-ended another vehicle; c. Both the MacDonald vehicle and the Hew vehicle managed to safely stop behind Page; d. Both Page and Sharman did not see Hew and MacDonald having any trouble stopping their respective vehicles; e. Sharman was following Hew too closely; f. Hew was following MacDonald too closely; g. MacDonald was following Page too closely; h. Page came to a complete stop before turning left into his drive way; i. The chain of vehicles was travelling at approximately 80 km/h when Page commenced braking for his left turn; and, j. Sharman was towing a very large trailer, did not reduce his speed or increase his following distance, and had partially obstructed vision.
[27] Set against these undisputed facts, liability on Page can only arise if he acted negligently in braking for his left turn. Sharman submits that a trial is required to determine this issue for a number of reasons.
[28] First, Sharman submits that the evidence of MacDonald and Hew supports the inference that Page’s braking was abrupt and caused a chain reaction culminating in the accident. I agree that this is an issue. However, I find that I am able to determine this issue on the evidence presented before on the motion. The fact that the two cars following behind Page managed to stop their cars without incident while travelling at 80 km/h and following too closely is effectively dispositive of this issue. While the braking may have felt “abrupt”, this is more than explained by the speed and proximity of the Hew and MacDonald vehicles to each other and to Page. I do not view Hew’s statements about the abrupt stop by Page, nor the MacDonalds’ hearsay utterances about Page’s stop as supportive of a finding of liability on Page’s part, especially when viewed in context. More to the point, I find that a trial is not required to assess the impact that these utterances might have on the issue of liability.
[29] On this note, while Page objected to the admissibility of the MacDonalds’ utterances on the basis of hearsay, those utterances were included in his motion material in a police report that was appended as an exhibit to a sworn affidavit. I will assume for the purpose of this motion that the MacDonalds can be compelled to attend trial and would give evidence in accordance with the statements they provided to police. Nonetheless, I remain of the view that those statements do not support a finding of liability on Page.
[30] Second, Sharman submits that there are credibility issues that require a trial. He points to the fact that Page has been inconsistent on whether his cruise control was activated when travelling on Highway 12 immediately prior to accident. He also submits that there is inconsistency in the evidence over whether Page used his turn signal. In relation to cruise control, I agree that Page has been inconsistent on this issue, however the inconsistency is of no moment. There is no evidence that the activation or deactivation of cruise control played any role in the accident. Moreover, Page’s evidence of speed is roughly consistent with that of the other parties. Therefore, his evidence of speed is not undermined by the inconsistency on the use of cruise control. In relation to the second issue, Page is clear in his evidence that he used his turn signal. No one contradicts him on this. At best, Hew does not recall seeing a turn signal. That is not, in my view, an inconsistency requiring a trial.
[31] Lastly, Sharman points to the expert reconstructionist evidence and suggests that it clearly supports negligence on Page’s behalf. I agree that if the facts supported the position that Page braked very aggressively at 44.5 metres from his driveway while travelling at 80 km/h, an inference of liability might arise. Perhaps it might even arise if the braking occurred at the 66.7 metre mark, though I note that the expert described braking from this point as only “modestly aggressive.” That said, the expert evidence must find root in the evidence provided in the record. If the assumed facts that support the expert’s opinion are not found in the record, the opinion has no value.
[32] I find that there is no evidentiary basis to support the fact that Page started braking at either the 66.7 metre mark or the 44.5 metre mark. There is also no evidentiary basis to support the application of a 1.5 to 2.5 second reaction time starting from 100 metres away from the driveway, which was used to arrive at the above noted marks.
[33] Page’s evidence was clearly stated in his affidavit. He started braking at approximately 100 metres before his driveway. The cross-examination on this issue did not fairly challenge this assertion. If Sharman had wanted to challenge the distance and reaction times for the braking process, he should have directly suggested to Page that in view of the many steps required to brake a vehicle in motion, he was wrong about where he started braking. This was not done. I set out the portion of the cross-examination in full for context:
Q. So at some point you realized it was necessary to start your braking activity – okay? – and this was a hundred metres from your mother’s driveway? A. Yeah. Q. Okay. So at that that time you perceived your driveway was coming up, you put on your blinker? A. Yes. Q. Okay. But you’re unsure if you’re using cruise control or not. So then at that point you took your foot off the gas? A. Yes. Q. Okay. You put your foot down on the brake? A. Yes. Q. And then you continuously applied your brake until your vehicle came to a stop? A. Yes. Q. Okay. And then once you’re at a full stop you stayed in that position until it was clear to make your turn? A. Yes.
[34] When challenged on this issue during submissions, counsel for Sharman indicated that his cross-examination of Page would be different at trial. That may be. Nonetheless, that is not a reason order a trial in this matter. To permit otherwise would run afoul of the “best foot forward” principle, and would permit counsel to argue in favour of having a trial on basis that there are factual issues that remain to be addressed at trial, notwithstanding the fact that they could have been addressed at the motion stage.
[35] On the whole, I am not satisfied that a trial is required to determine the issues raised by Sharman. The record before me provides a proper basis upon which I can assess the few factual issues that would need to be determined if this matter proceeded to trial. On the basis of the evidence, I am not satisfied that Page did anything negligent while braking and turning left into his driveway. I do not find that Page braked in a very aggressive or even modestly aggressive fashion, thus contributing to the accident. The three cars behind him were following too closely given the speed involved. Reasonably prudent drivers would have maintained a greater distance in anticipation that a car travelling ahead of them would have to slow to stop from 80 km/h in order to safely turn left across the oncoming lane of traffic. Page was not at fault in this accident.
Conclusion
[36] Having considered all of the evidence before me, I am satisfied that a trial of the Third Party Claim is not required in order to arrive at a fair and just result in this matter.
[37] The summary judgment motion is granted and the Third Party Claim is dismissed with costs.
[38] If the parties are not able to agree upon costs, they may each deliver brief written submissions, no more than three pages in length. Page will file his submissions by March 20, 2017. Sharman will file his submissions by March 27, 2017. The costs submissions should also address costs thrown away in relation to the January 27, 2017 appearance.
Justice Di Luca
Released: March 9, 2017
CORRIGENDA
- Paragraph [6] – The text of the original Decision has been corrected to substitute “Sharman” for “Page” in the first sentence.