Court File and Parties

COURT FILE NO.: CV-15-525045 DATE: 20170113 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: VICTOLA MAYERS, Plaintiff AND: AMMAR KHAN and BRINK’S CANADA LTD., Defendants

BEFORE: Justice Glustein

COUNSEL: Bryan D. Fromstein, for the Plaintiff S. Gordon McKee and Daniel Styler, for the Defendants

HEARD: January 9, 2017

REASONS FOR DECISION

Nature of Motion and Overview

[1] The defendants, Ammar Khan (“Khan”) and Brink’s Canada Ltd. (“Brink’s”) (collectively, the “Brink’s Defendants”) bring a motion for summary judgment under Rule 20 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”), in relation to a claim for damages brought by the plaintiff, Victola Mayers (“Mayers”), arising from a motor vehicle accident which took place on January 18, 2015 (the “Accident”).

[2] The only issue on this motion is whether there is a genuine issue requiring a trial that Khan, the driver of a Brink’s armoured truck, was liable, in all or in part, for the Accident. Based on the applicable principles set out in Hryniak v. Mauldin, 2014 SCC 7 (“Hryniak”), I am confident that I can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[3] I find that based on the evidence before me, considered in the context of the applicable law on summary judgment and motor vehicle negligence, there is no genuine issue requiring a trial that Khan was liable, in any part, for the Accident.

[4] Consequently, for the reasons I discuss below, I grant the motion and dismiss the action.

Evidence

[5] I review the evidence on the motion with respect to both uncontested and contested facts.

Uncontested Facts

[6] I summarize the following uncontested evidence:

i) Mayers was driving her vehicle eastbound in Scarborough on Lawrence Avenue at the intersection with Birchmount Road and was in the intersection ahead of the stop line in the left turning lane so that she could make a left turn northbound onto Birchmount Road;

ii) A witness, Rolando Areglado (“Areglado”) was stopped at the left turn lane at the red light southbound on Birchmount Road at the intersection with Lawrence Avenue;

iii) Areglado had a clear and unobstructed view of the intersection because his vehicle was facing it and there was no vehicle in front of him;

iv) Areglado was familiar with the area as he travelled it frequently both because it was on the route back from his church and was near his workplace;

v) “Every time” Areglado approached that intersection, “I always look at the lights, so that I could be ready” and “I automatically look if the light is still green and the pedestrian [countdown crossing light]” to decide whether he should go straight or should make a left turn at the intersection;

vi) Khan was driving westbound on Lawrence Avenue;

vii) Khan was travelling between 60 to 70 kilometres per hour. Areglado’s evidence on cross-examination was that he did not know the speed of the Khan vehicle (the Brink’s truck). Mayers had no evidence as to the speed of the Brink’s truck. There is no expert accident reconstruction evidence before the court;

viii) There was light rain or snow, with “wet” roads, but “it wasn’t slippery”. It was “dark”, but there was no visibility issue (as set out by Mayers in her evidence and confirmed by Khan whose evidence was that he had a “clear, unobstructed view” as he approached the intersection);

ix) Mayers did not see the Brink’s truck as she was “busy doing [her] turn”;

x) Khan “observed a white car [the Mayers vehicle] facing eastbound on Lawrence, in the left turn lane for northbound Birchmount”;

xi) Khan did not slow down as he entered the intersection;

xii) The Mayers vehicle turned left and collided with the Brink’s truck. Mayers’ vehicle then spun out in a clockwise direction, hitting both Areglado’s car and a City of Toronto traffic sign;

xiii) Areglado did not hear the Brink’s truck apply the brakes;

xiv) Areglado did not know the colour of the eastbound-westbound Lawrence Avenue traffic light before the Brink’s truck entered into the intersection. His evidence was that the traffic light was yellow when the Mayers vehicle turned left and at that point, he saw the Brink’s truck enter the intersection and he thought “oh there’s an accident waiting to happen” since the Brink’s truck is “already there because it’s in motion … it happened so fast”;

xv) Areglado advised the investigating officer that the Brink’s truck was travelling “really fast”. However, his uncontested evidence on cross-examination was that statement referred to his observation that the Brink’s truck did not slow down when it approached the intersection;

xvi) The Brink’s truck weighed 19,080 pounds; and

xvii) Areglado did not have an opinion on who was at fault for the Accident, since he did not know whether a left-turning driver or the driver who goes through the intersection is at fault.

Contested Facts and Relevant Evidence

[7] I summarize Mayers’ evidence which is not accepted by either the Brink’s Defendants or the independent witness Areglado:

i) Mayers made her left turn on an “advance green” light while in the eastbound left turning lane on Lawrence Avenue; and

ii) Khan struck Mayers’ vehicle as he drove through a red light going westbound on Lawrence Avenue, while Mayers turned on the advance green light.

[8] Mayers was interviewed by the police after the Accident. She did not advise the investigating officer that she turned left on an advance green light. The investigating officer noted “[Mayers] advises she was eastbound on Lawrence and made a left to go northbound on Birchmount. She did not see truck westbound when she turned”.

[9] Mayers did not recall reporting to anyone (except perhaps to her lawyer prior to issuing the claim) that she had turned on an advance green light.

[10] Mayers did not recall the traffic light at the intersection ever being red between the time she left the parking lot to turn onto Lawrence Avenue and the impact. She only noticed it with a green arrow.

[11] I summarize Areglado’s evidence which is not accepted by Mayers:

i) Areglado’s unequivocally states that “I disagree” with Mayers that she turned left on an advance green light;

ii) When Areglado arrived at the intersection travelling southbound, he:

(a) looked to see if the light for traffic going eastbound and westbound on Lawrence Avenue was “still green”;

(b) observed that the traffic light for eastbound and westbound vehicular traffic on Lawrence Avenue was green; and

(c) looked at the pedestrian lights on his left and right which were located on the north side of Lawrence Avenue for east-west pedestrian traffic crossing Birchmount Road and saw that the signal indicated that pedestrians had approximately ten seconds remaining to cross Birchmount Road;

iii) Areglado’s evidence was that he then “looked forward that’s the time I saw the white [Mayers] car”. Mayers’ car was facing eastbound on Lawrence Avenue, stopped in the intersection and waiting to turn left onto northbound Birchmount Road. Mayers was not blocking the westbound Lawrence Avenue traffic “because there’s still car[s] coming on east and west”;

iv) Areglado saw “lots of cars coming from east to west … when I was stopped”;

v) Areglado saw the traffic light turn yellow and then saw “the white car starting to turn left”;

vi) “At the same time” as Mayers’ car began her turn on the yellow light, Areglado observed the Brink’s truck driving westbound either just approaching or driving through the intersection of Lawrence Avenue and Birchmount Road. Areglado’s evidence was “I can’t really tell, but [the Brink’s truck] it’s already there because it’s in motion, right, since it happened so – like fast”; and

vii) The traffic light was yellow when Mayers turned left, but Areglado could not say how long the traffic light had been yellow before impact or the colour of the light when the Brink’s truck entered into the intersection.

[12] Areglado’s affidavit and cross-examination evidence is consistent with his report to the investigating officer who arrived at the scene of the Accident.

[13] Areglado’s only evidence as to the colour of the traffic light is that it was yellow when Mayers began making her left turn. Mayers’ evidence is that Khan drove through a red light while she turned left on an advance green light. Khan’s evidence is that the traffic light was green and turned yellow when he was in the middle of the intersection. Areglado has no evidence as to the colour of the light when Khan entered into the intersection traveling westbound on Lawrence Avenue since the Accident “happened so fast” after Mayers’ turn on the yellow light.

[14] I summarize Khan’s evidence which is not accepted by Mayers:

i) Khan approached the intersection driving westbound and observed that the traffic light for east-west vehicular traffic on Lawrence Avenue was green;

ii) Khan further observed that north-south vehicular traffic was stopped at the intersection, while east-west vehicular traffic was moving through the intersection;

iii) As Khan entered the intersection, he was looking “straight on the road” when he saw the traffic light turn yellow while he was in the middle of the intersection. It was at that point when Mayers made a left turn in front of Khan; and

iv) Khan immediately slammed on the brakes but was unable to stop the Brink’s truck in time to avoid hitting the passenger’s side of Mayers’ vehicle.

[15] Khan’s evidence is consistent with his statements to the investigating officer. Khan’s evidence on the first three points set out at paragraph 14 above is also consistent with that of Areglado.

[16] While Areglado’s evidence is that he did not hear Khan put on the brakes, the issue of whether Khan put on the brakes is not relevant to liability (as I discuss below), since by both Areglado and Khan’s evidence, there was no time for Khan to avoid the Accident as Mayers turned directly in front of Khan in the intersection.

Applicable Law

[17] The applicable legal principles arise both from the law relating to (i) summary judgment and (ii) motor vehicle negligence. I address each of these legal issues below.

Summary Judgment

[18] Both parties rely on Hryniak. I summarize the Hryniak principles below:

i) Summary judgment must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. It is no longer merely a means to weed out unmeritorious claims but rather a “legitimate alternative means for adjudicating and resolving legal disputes” (Hryniak, at paras. 5 and 36);

ii) An issue should be resolved on a motion for summary judgment if the motion affords a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive process to achieve a just result than going to trial (Hryniak, at paras. 4 and 49);

iii) On a motion for summary judgment, the judge must first determine if there is a genuine issue requiring a trial based only on the evidence before the judge and without using the judge’s fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the powers under Rules 20.04(2.1) and (2.2) (Hryniak, at para. 66); and

iv) The standard for determining whether summary judgment will provide a fair and just adjudication is not whether the procedure is as exhaustive as a trial, but rather “whether it gives the judge confidence that [the judge] can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (Hryniak, at para. 50). A judge must be confident that he or she can fairly resolve the dispute (Hryniak, at para. 57).

[19] In Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (“Sweda Farms”), affirmed 2014 ONCA 878, Corbett J. reviewed the process by which the court considers whether summary judgment is appropriate. He stated (Sweda Farms, at para. 33):

The court on a motion for summary judgment should undertake the following analysis:

1. The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;

2. On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;

3. If the court cannot grant judgment on the motion, the court should:

a. Decide those issues that can be decided in accordance with the principles described in 2) above;

b. Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;

c. In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.

[20] The moving party bears the evidentiary burden of demonstrating that there is no genuine issue requiring a trial. Only after the moving party has discharged its evidentiary burden of proving that there is no genuine issue requiring a trial for its resolution does the burden shift to the responding party to prove that its claim has a real chance of success (Sanzone v. Schechter, 2016 ONCA 566, at para. 30).

[21] A court should (i) be cautious to ensure that affidavit evidence does not “obscure the affiant’s authentic voice” and (ii) take “great care” “to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all” (Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, at para. 44 (“Baywood”)).

[22] Summary judgment is available in motor vehicle negligence cases. While the court in Cadogan v. Lavigne, 2000 CarswellOnt 2191 (SCJ) (“Cadogan”), relied upon by Mayers, commented that “the occasion would be rare in which a motion for summary judgment would succeed in a motor vehicle negligence claim”, it noted that “[c]ircumstances, however, are so myriad and idiosyncratic that the circumstances for such a successful motion may well arise” (Cadogan, at para. 7).

[23] Further, Cadogan was decided before Hryniak, in which the Supreme Court encouraged the use of summary judgment, when a fair result could be obtained, as “a proportionate, more expeditious and less expensive means to achieve a just result”, instead of going to trial (Hryniak, at para. 49).

[24] Given the general principles set out by the Supreme Court in Hryniak, there should be no presumption against the availability of summary judgment for motor vehicle negligence cases. Each case will depend on its own facts, with the court determining, as required under Hryniak, whether the evidence led on the motion enables the court to find with confidence that there is no genuine issue requiring a trial.

[25] Motor vehicle negligence cases may often raise credibility issues with respect to liability. However, if such conflicting evidence can be addressed with fairness and confidence under the Hryniak principles, summary judgment is appropriate, particularly given the extensive trial time and cost that is often required to address damages, causation, and statutory threshold issues which would not be necessary if there is no genuine issue requiring a trial with respect to liability.

[26] Each party submitted authorities in which summary judgment was either granted or denied by the court in motor vehicle negligence cases. However, each of those cases turns on the evidence before the court in those matters.

[27] By way of example, in Singh v. Tattrie, 2013 ONSC 5154 (“Singh”), relied upon by Mayers, the court dismissed a motion for summary judgment by the oncoming driver since there was uncontested evidence that the oncoming driver appeared to pause or stop before the stop line and then proceeded through the intersection when the turning driver made a turn. Further, there was evidence the oncoming driver had not kept a proper lookout (Singh, at paras. 5-6, 22-24). On that basis, the court concluded that there was a genuine issue requiring a trial on liability.

[28] However, as I discuss above, when the Hryniak test is met, there is no principled reason against granting summary judgment in motor vehicle negligence cases. George J. adopted this approach in the recent decision of Aranas v. Kolodziej, 2016 ONSC 7104 (SCJ) (“Aranas”).

[29] George J. considered all of the evidence available at the motion and dismissed the action, despite conflicting evidence as to the conduct of the defendant driver. George J. held (Aranas, at paras. 45-49):

Plaintiff 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.

This 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.

The 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.

I 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.

[30] George J. also summarized the settled law that “[a] party cannot, in opposition to summary judgment, simply point to evidence that might be available at trial, which would contradict” the evidence available before the court on the summary judgment motion. A party must “lead trump or risk losing”. The court is to “assume there is a complete record and that the parties have tendered all the evidence they intend to use at trial” (Aranas, at para. 34).

[31] Consequently, after my review of the relevant motor vehicle negligence principles, I will apply the summary judgment principles and the applicable motor vehicle negligence law to the evidence in this case.

Motor Vehicle Negligence Principles

[32] The applicable principles are not in dispute. I summarize them as follows:

i) “The law is well settled that a very heavy onus is placed upon a driver making a left-hand turn. He may turn into the path of approaching traffic only after having assured himself that he can do so in safety” (Payne v. Lane, 1949 CarswellOnt 187 (HCJ), at para. 2);

ii) The onus set out at subparagraph (i) above exists under section 141(5) of the Ontario Highway Traffic Act, RSO 1990, c. H.8. In particular, “No driver or operator of a vehicle in an intersection shall turn left across the path of a vehicle approaching from the opposite direction unless he or she has afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision”;

iii) If there is evidence of negligence on the part of a driver going through an intersection, that driver may be contributorily liable for the accident. An oncoming driver must take reasonable care to avoid an accident (Nowakowski v. Mroczkowski Estate, [2003] OJ 650 (SCJ), at paras. 78-84);

iv) In Marcoccia v. Ford Credit Canada Limited, 2009 ONCA 317 (“Marcoccia”), the defendant was found partly liable for making a turn without a proper lookout even when the plaintiff drove through a red light. The court held that “both drivers committed major blunders that led directly to the disastrous accident and the respondent’s injuries” (Marcoccia, at paras. 2, 4-6, 21, and 22);

v) Even if a driver drives through a red light, the other driver with a right of way still has a duty to exercise reasonable care to avoid a collision “1) if the driver becomes aware or should become aware that the driver without the right of way is going to go through the intersection and 2) if the circumstances are such that the driver with the right of way had the opportunity to avoid the collision” (Sant v. Sekhon, 2014 ONCA 623, at para. 4);

vi) Similarly, in Gardiner v. MacDonald, 2016 ONSC 602 (“Gardiner”), affirmed 2016 ONCA 968, the court held that a defendant bus driver who had a green light was 20 percent at fault for an accident in which the other defendant drove through a red light. The trial judge relied on evidence that the bus driver was a professional with control of a vehicle that weighed in excess of 12,000 kg, and had admitted (a) he had an obligation to adjust his driving since the road surface was affected by the weather conditions and (b) it was prudent in the circumstances to go slower. Consequently, the court held that the bus driver “ought to have been traveling with greater caution with due regard for the weather and road conditions”, particularly given the expert evidence that “a wet and slushy road surface would have resulted in a reduced co-efficient of friction between bus tires and road surface, a factor which, coupled with excessive speed, would have compounded the challenge faced by [the bus driver] in driving defensively and eventually facing the hazard posed by the MacDonald vehicle as it entered the intersection” (Gardiner, at paras. 143, 154, 156, 169, 174, and 194);

vii) A driver travelling in excess of the posted speed limit will not per se be found negligent. The rate of speed which may be considered excessive and thereby constitute negligent driving will vary depending on the nature and condition of the particular road travelled upon and the traffic faced by the driver. The speed of the dominant driver exercising reasonable prudence is a question of fact that turns on the circumstances of each case (Gardiner, at paras. 160-61); and

viii) A “but for” causation test “must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury” (Gardiner, at para. 184).

Application of the Law to the Evidence

[33] There are two theories put forward by Mayers as to liability on the part of Khan. Mayers submits that there is sufficient evidence raising a genuine issue requiring a trial on either of these theories.

[34] First, based on Mayers’ evidence, Mayers submits that she turned left on an advance green light and that Khan drove through the intersection on a red light while Mayers made her turn. Mayers submits that on that basis, there is a genuine issue requiring a trial that Khan could be liable (although Mayers might also be contributorily liable).

[35] Second, if the trial judge does not accept Mayers’ evidence, Mayers’ submits that based on the evidence led by the Brink’s Defendants and the cross-examinations of Khan and Areglado, there is a genuine issue requiring a trial that Mayers turned on the yellow light but Khan was contributorily liable for failing to take reasonable precautions to avoid the Accident.

[36] On the evidence before me, and considering the applicable summary judgment principles and motor vehicle negligence law, I find that neither theory raises a genuine issue requiring a trial.

The "Advance Green Light" Theory

[37] As the court held in Aranas, it is not simply because there is a conflict in the evidence that a case must proceed to trial. The court must consider the evidence as a whole to determine whether it is confident that it can make the necessary findings of fact and apply the relevant legal principles.

[38] Mayers’ “advance green light” theory is contradicted not only by Khan, but most importantly by the independent witness Areglado. His evidence is clear and unchallenged. He was stopped at the red light going southbound on Birchmount Road, a route with which he was extremely familiar. He always checked the lights on Lawrence Avenue and the pedestrian countdown lights at that intersection so that he could decide whether to turn left or go straight.

[39] Areglado noticed the pedestrian countdown clock was at approximately ten seconds, an observation which could not support a finding of an advance green light. If Mayers’ version was to be believed, it would mean that as she was turning left on an advance green light, pedestrians were being given right of way to walk directly in front of her vehicle. This cannot be the case.

[40] Areglado particularly observed that the light for eastbound and westbound on Lawrence Avenue was green in both directions, and that cars were traveling eastbound and westbound through the intersection, which again removes any reasonable finding that Mayers turned on an advance green light. That evidence is fully consistent with Khan’s evidence as to the westbound green light he observed as he approached the intersection.

[41] Further, Areglado noticed that the Mayers vehicle (i) was stopped in the intersection after Areglado noticed that approximately ten seconds remained in the pedestrian countdown, and (ii) started its turn on the yellow light. That evidence is fully consistent with Khan’s evidence that he saw Mayers’ car in the intersection waiting to turn as he approached the intersection.

[42] There is no reason not to accept Areglado’s evidence as confirmed by Khan. Areglado is an independent witness who does not know Mayers, and regularly travels the route (i) to go back from church and (ii) since it is close to his workplace. Areglado had a clear and unobstructed view of the intersection just behind the stop line. He has a practice of checking both the Lawrence Avenue lights and the pedestrian crossing lights as he approaches that intersection.

[43] Areglado was cross-examined at length by Mayers’ counsel, and his evidence was consistent throughout. Areglado’s affidavit and cross-examination evidence was also consistent with the motor vehicle accident report which set out Areglado’s comments from the interview at the time of the Accident.

[44] Similarly, Khan’s evidence is fully consistent with the rejection of an “advance green light” theory.

[45] Further, Mayers did not tell the investigating officer that Mayers had turned on an advance green light. There is no reference to an “advance green light” anywhere in the report.

[46] There is no genuine issue requiring a trial to challenge Areglado’s evidence. If Khan had driven through the red light while Mayers turned on an advance green light, Areglado would have seen it, based on his regular practice when he approaches the intersection of checking the status of the eastbound and westbound lights, as well as the pedestrian countdown clock, a practice he followed in this case. Areglado could not have seen (i) eastbound and westbound vehicular traffic traveling through the intersection or (ii) a green light in both directions for eastbound and westbound vehicular traffic on Lawrence Avenue, if Mayers turned on an advance green light.

[47] The court is entitled to assume that there will be no other evidence on this issue at trial. There is no “dash-cam” or other video evidence, nor is there any expert accident reconstruction or other expert evidence (if such evidence could be obtained on the issue of the colour of the light).

[48] Consequently, I am confident that on the balance of probabilities, I can make the factual findings that (i) the traffic light was not an “advance green” for Mayers and (ii) as such, Khan did not go through a red light while Mayers had an advance green light. On this basis, there is no genuine issue requiring a trial on this theory of liability.

[49] While not essential to the conclusion that there is no genuine issue requiring a trial that Mayers turned on an advance green light, I note that Mayers’ evidence is that she did not recall the traffic light facing her at the intersection ever being red from the time she turned on to Lawrence Avenue until the Accident took place. While not determinative as to whether Mayers turned on an advance green light, this evidence is more consistent with a finding that the light for east-west traffic was green for an extended period (and hence yellow when the turn took place), and less consistent with a finding of an advance green light.

The "Contributory Negligence" Theory

[50] Mayers relies on the following evidence to submit that even if the court finds that she turned left on a yellow light, there is a genuine issue requiring a trial as to whether Khan was contributorily liable for failing to take reasonable precautions to avoid the Accident:

i) Areglado told the investigating officer that Khan was driving “really fast”;

ii) Khan’s evidence is that he was driving “approximately 60 to 70” kilometres per hour;

iii) On Areglado’s evidence, Mayers was in the intersection preparing to turn;

iv) On the evidence of both Mayers and Khan, there were no visibility issues. Khan’s affidavit evidence was that he “observed a white car facing eastbound on Lawrence, in the left turn lane for northbound Birchmount”;

v) On Areglado’s evidence, Khan did not slow down as he entered the intersection;

vi) On Areglado’s evidence, he did not hear any noise when Khan purportedly “slammed on my brakes”;

vii) Areglado’s evidence was that Khan could have entered the intersection on a yellow light. Areglado was not sure whether the light was green and only turned yellow when Khan entered the intersection. Areglado did not know whether the light was red before Khan entered the intersection; and

viii) Khan was a professional driver operating a truck weighing 19,080 pounds.

[51] However, even if I accept all of the above evidence, it would not raise a genuine issue requiring a trial that Khan could be liable in negligence for his conduct as a driver.

[52] The factual finding that must be made at trial in order for Khan to be liable is that he had the opportunity to avoid (at least in part) the Accident. Further, a causal finding would have to be made that “but for” his conduct, he would have been able to avoid (at least in part) the Accident.

[53] Again, the evidence of the independent witness Areglado is pivotal to this issue. Areglado’s evidence is that Mayers turned on the yellow light and immediately thereafter, the Brink’s truck collided with Mayers’ vehicle. It happened “so fast” since the Brink’s truck was “already there” when Mayers turned on the yellow light. Areglado’s evidence was that he thought “oh there’s an accident waiting to happen” since the Brink’s truck is “already there because it’s in motion … it happened so fast”.

[54] There is no evidence that the light was red when Khan entered into the intersection, except for Mayers’ “advance green light” evidence for which there is no genuine issue requiring a trial as I discuss above. Areglado was not sure whether the light was yellow when Khan was approaching the intersection or whether, as Khan stated, the light was green and turned yellow as he entered the middle of the intersection.

[55] However, regardless of whether the light was yellow or green as Khan entered into the intersection, Khan and Areglado both provide the same evidence relevant to his ability to avoid the Accident.

[56] Khan’s evidence is that Mayers turned “as I entered the intersection [and] the traffic light turned yellow”, as “the white [Mayers] car attempted to turn directly in front of me onto northbound Birchmount”. In such circumstances, there is no genuine issue requiring a trial that Khan could have avoided the Accident, or was unable to do so as a result of his conduct. Khan’s evidence is fully consistent with Areglado’s evidence summarized at paragraph 53 above that an accident was “waiting to happen” when Mayers turned in front of Khan at the intersection.

[57] Areglado’s evidence is that it was only after he saw the Mayers car turn on the yellow light that he saw the Brink’s truck, and by then he anticipated that an accident would occur because of the left turn onto the oncoming Brink’s truck.

[58] There is no evidence that Khan saw the yellow light within any reasonable period of time before entering the intersection (if the light was not green when Khan entered the intersection, as Khan sets out in his evidence). Even if the light was yellow when Khan entered the intersection as Mayers made her left turn, Areglado’s evidence is that the Accident happened “too fast”, leading to a reasonable inference that the Accident was unavoidable as the Brink’s truck was already in or immediately entering the intersection when the Mayers vehicle turned as the light turned yellow, without Mayers noticing the Brink’s truck.

[59] Mayers provided no evidence on the timing in relation to Khan’s conduct. She did not see the Brink’s truck, as she was “busy” getting ready for her turn.

[60] Khan met his evidentiary burden by leading his evidence and that of Areglado that the Accident happened while Mayers was turning on a yellow light with no reasonable time to stop. This evidence discharges Khan’s burden to establish no genuine issue requiring a trial.

[61] Accepting that Khan saw the Mayers vehicle waiting to turn and that the Mayers vehicle was in the intersection ahead of the stop line but not blocking westbound traffic as Khan approached the intersection, there is no evidence that Khan ought to have anticipated that Mayers would make a turn in front of him, when Khan either was driving through a green light or came up on the intersection if it had just changed to yellow as he entered into the intersection. There is no evidence that Khan had sufficient notice of a yellow light or of Mayers turning in front of him so that he could have avoided the Accident.

[62] The evidence as to when Khan became aware of the risk of an accident is that it was only after he entered or immediately approached the intersection driving at or up to ten kilometres per hour above the speed limit, when the Mayers vehicle turned immediately in front of him on a yellow light. That evidence does not raise a genuine issue requiring a trial that Khan could have avoided the Accident.

[63] It cannot be said that just because Khan was travelling between 60 to 70 kilometres per hour on a main artery, he could have avoided the Accident when it is acknowledged that there were no visibility problems and the road was not slippery.

[64] Further, there is no evidence (unlike in Gardiner), from an expert that the weight of the vehicle was a factor which ought to have required Khan to drive more slowly. In Gardiner, there was evidence both from admissions from the driver and expert evidence on that issue.

[65] Whether an armoured truck can safely travel on clear roads with good visibility at 60 to 70 kilometres an hour is not a matter of “robust common sense” that a court can determine. The onus was on Mayers to lead evidence that the speed was not appropriate given the weight of the Brink’s truck and she did not do so.

[66] It is not sufficient on a motion for summary judgment to speculate that there might be evidence at trial that Khan’s speed, the weight of his vehicle, or whether he is a professional driver might result in a finding of liability. While causation can be established on a robust common sense approach, it is not sufficient to find, on the evidence before the court, that Khan ought to have been able to avoid the Accident when there is (i) no admission that he was in any way negligent in looking at the road or driving at an inappropriate speed, (ii) no evidence that driving between 60 and 70 kilometres per hour on Lawrence Avenue, on a road which was not slippery with clear visibility, could have prevented Khan from reacting prudently when Mayers made the left turn, or (iii) no evidence or admission that it was inappropriate to drive a 19,080 pound truck at or up to ten kilometres above the speed limit of 60 kilometres per hour. All of the above submissions made by Mayers are speculation with no support on the evidence.

[67] Finally, whether or not Areglado heard the brakes does not raise a genuine issue requiring a trial with respect to Khan’s liability. Under Areglado’s evidence, once Mayers made the left turn under the yellow light, there was nothing Khan could do to avoid the Accident. Even if he did not “immediately” slam on his brakes, there is no genuine issue requiring a trial that Khan had the ability to avoid the Accident.

[68] Consequently, the only reasonable evidence to accept is that “it was too fast” for Khan to do anything to avoid the Accident.

[69] As in Aranas, this is not a complex matter. There are only three witnesses, and the evidence of Mayers as to the advance green light is not credible for the reasons I discuss above. The evidence remaining for the court to consider is that of Khan and Areglado, both of whom give consistent evidence leading to the conclusion that Khan could not have avoided the Accident.

[70] Mayers must put her best foot forward and submit cogent and compelling evidence to support or oppose the motion, so that the court can take a hard look at the evidence (Chrysanthis v. Rutkowska, 2015 ONSC 7236 at para. 21; see also Aranas, at para. 34). Mayers cannot “in opposition to summary judgment, simply point to evidence that might be available at trial, which would contradict what I now know” (Aranas, at para. 34).

[71] Further, all of the above evidence is consistent with Areglado’s evidence that there was only approximately ten seconds remaining on the pedestrian lights as he approached the intersection, so his evidence that Mayers turned left on the yellow light just as Khan entered the intersection leaves no genuine issue requiring a trial as to Khan’s liability.

[72] In the present case, while there are conflicting versions between Mayers and Khan as to how the Accident took place, as in Aranas, there would be no additional evidence on liability at trial.

[73] A finding of summary judgment does not “obscure [Mayers’] authentic voice” as submitted by Mayers relying on Baywood. Mayers’ “voice” has been heard with her “advance green light” version of the Accident. That version does not raise a genuine issue requiring a trial for the reasons I discuss above.

[74] Further, there is no “substantive unfairness” concern as raised in Baywood, as Mayers’ submissions of potential contributory negligence by Khan are based on the evidence which is known to the court, as I discuss above. A trial would not allow more “substantive” evidence on any of these issues which could not be obtained through the evidence filed on the motion.

[75] As in Aranas, I am satisfied that I have a complete and accurate record. I can resolve the allegations of negligence and issue of liability. The motion is a fair proceeding and is a more efficient and cost effective way of deciding this case (Aranas, at para. 48).

[76] In the present case, a trial court would have to address whether the statutory threshold for liability has been met, as well as the damages causation and quantum issues, which would involve considerably more evidence and complexity. I adopt the comments of George J. in Aranas that the cost and time required for a trial would be grossly disproportionate and unnecessary for a fair and just resolution given the straightforward facts of the case (Aranas, at para. 47).

[77] Consequently, I accept Khan’s submission that a summary judgment is a fair, cost-effective and efficient way to resolve the issue of liability in this case.

[78] For the above reasons, I am satisfied that the issue of liability can be fairly and justly decided on this motion. I find that the Brink’s Defendants have satisfied their onus to establish that there is no genuine issue requiring a trial. I conclude that given all of the evidence which would be before the court, there is no genuine issue requiring a trial that, on the balance of probabilities, Khan was liable for the Accident.

Order and Costs

[79] I order summary judgment in favour of the Brink’s Defendants and dismiss the action, with costs.

[80] The parties agreed as to the costs of the motion, which they fixed at $19,000 inclusive of taxes and disbursements. I find that amount to be reasonable based on the motion records and affidavits filed, the cross-examinations conducted, and the thorough research, factums, compendiums, and briefs of authorities provided. Consequently, I order Mayers to pay costs of $19,000 (inclusive of taxes and disbursements) to the Brink’s Defendants within 30 days of this order.

[81] I make no finding on the costs of the action, as that issue was not raised before me on the motion. Those costs may be assessed if not agreed by the parties.

[82] I thank both counsel for their thorough oral and written submissions which were of great assistance to the court.

GLUSTEIN J. Date: 20170113