Court File and Parties

COURT FILE NO.: CV-10-403021 DATE: 20170509 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Thilorthaka Kanagalingam, Nallathamby Rajakumar, Raj Rajakumar, (Minors by their Litigation Guardians) and Abiytheya Rajakumar (Minors by their Litigation Guardians), Plaintiffs AND: Subramaniam Jeyakumar, Financialinx Corporation, Jamie Marston and Vol-Ham Automotive Inc., Defendants

BEFORE: Carole J. Brown, J.

COUNSEL: Richard Levin, for the counsel for the responding party plaintiffs, Kanagalingam Hue Nguyen, for the counsel for the moving party defendants, Jeyakumar

HEARD: April 10, 2015

Endorsement

[1] The moving party defendants, Subramaniam Jeyakumar and Financialinx Corporation (“the moving defendants”), bring this motion for summary judgment and dismissal of the action and crossclaims as against them pursuant to Rule 20 of the Rules of Civil Procedure.

[2] In the event that it is necessary, they further seek leave to bring the summary judgment motion pursuant to Rule 48.04 of the Rules of Civil Procedure. I will, therefore, first address the issue of leave to bring the motion and, thereafter, will address the main issue, as both were argued before me at the motion.

[3] The co-defendants, Jamie Marston, and Vol-Ham Automotive Inc., do not take a position on the motion, and were not present at the motion.

Rule 48.04

[4] Rule 48.04 provides as follows:

Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.

[5] The test to be applied on a motion pursuant to Rule 48.01(1) is whether there exists a substantial and unexpected change in circumstances since the time the action was set down for trial such that to refuse the Order would be manifestly unjust. The court will consider the facts known to the parties as of the date the action was set down for trial; whether there has been an important change in the circumstances since then; the object of the request for leave; whether the motion would likely be granted; and the likelihood that the trial will be delayed if the motion is granted. In considering the goals of proportionality, defence counsel who is co-operating with respect to a trial scheduling form to allow the plaintiff to set the action down for trial, ought not to be strictly held to have consented to the action being placed on the trial list in the sense contemplated by the Rule: Jimenez v Romeo, [2009] O. J. No. 5248 (Ont.S.C.J.); and see Rohit v Nuri, [2010] O. J. No. 638, 2010 ONSC 171 (Ont.S.C.J.).

[6] This action was set down for trial by the plaintiff in October 2013. In 2014, the plaintiff followed up regarding a certification form sent to all parties to complete. In response, counsel for the moving co-defendant, Ms. Kanagalingam, responded on November 28, 2014 that the form only requires that the plaintiff fill it out and have consulted with opposing counsel. The moving party co-defendant went on to state that they were “not to be taken as consenting to this matter being placed on a trial list”. The action was subsequently struck from the trial list due to the plaintiff having miscalculated a date, and the plaintiff sought to have it restored to the list. Counsel for the plaintiff sought the formal consent of the co-defendants to do this. The moving co-defendant stated that he did not want to provide formal consent as he did not want to waive his clients’ rights to continue with a form of discovery, defence medical examinations etc. pursuant to Rule 48.04. While he stated that he did not oppose the motion to restore the matter to the trial list assuming no costs were sought against his client, he could not consent to the action being restored to the trial list due to the consequences of Rule 48.04.

[7] In the decision restoring the action to the trial list, the motions Master commented as regards the understandability, in the circumstances, of the co-defendants’ unwillingness to consent in the face of Rule 48.04, and awarded the co-defendant its costs of the motion in the cause.

[8] The plaintiff takes the position that by giving input as regards the certification form, the co-defendants substantively consented to having the matter set down for trial. The plaintiff submits that provision to the court of a joint certification form constitutes substantive consent. No case law on point in support of this proposition was provided.

[9] In my view, the filing of the certification form is a procedural matter and does not constitute substantive consent for purposes of Rule 48.04. Further, the fact that the moving party co-defendants agreed to have the trial restored to the trial list does not constitute substantive consent for purposes of Rule 48.04. Accordingly, I find that no consent was given and no motion pursuant to Rule 48.04 is required.

[10] However, in the event that I am not correct in that finding, I am satisfied that there was, in the circumstances of this case, a substantial and unexpected change in circumstances since the time that the action was set down for trial. By correspondence of May 13, 2016, following examinations for discovery, counsel for the co-defendant responded to a request by counsel for the moving co-defendants, and agreed to release the moving co-defendant on a without costs basis and, in order to facilitate the release of the co-defendant, admitted 1% liability.

[11] I am satisfied that this is a substantial and unexpected change in circumstances since the time the action was set down for trial and, accordingly, if I was not correct as above stated, and leave is required, I grant leave to bring this motion.

The Summary Judgment Motion

The Facts

[12] This action arises out of a motor vehicle accident which occurred on June 23, 2008 at between 9:30 and 10 PM on Danforth Avenue between the defendant, Subramaniam Jeyakumar and the defendant, Jamie Marston.

[13] At the time of the accident, Mr. Jeyakumar was driving a 2005 Kia Sentra, which he had leased from Financialinx with the plaintiff, Thilorthaka Kanagalingam, sitting in the back seat directly behind the driver.

[14] Mr. Jeyakumar was, according to his evidence, stopped at an intersection at a red light. When the light turned green, he drove straight ahead in his lane. The vehicle in the right lane, driven by Mr. Marston, suddenly and without warning, struck his vehicle on the right passenger side.

[15] Mr. Marston did not stay at the scene of the accident, although he stopped and gave his business card to Mr. Jeyakumar before leaving. No police were called to the scene of the accident. However, a tow truck arrived at the scene and accompanied him to a Self-Reporting Collision Centre.

[16] The plaintiffs issued the statement of claim on May 13, 2010, seeking damages for injuries allegedly sustained in and resulting from the accident. Statements of defence and crossclaim of the co-defendants were served and examinations for discovery completed.

[17] Following examinations for discovery and pursuant to the request of the moving co-defendants, the non-moving co-defendants admitted 1% liability for this motor vehicle accident in order to facilitate the release of the moving defendants from this action. The non-moving co-defendants did not admit 100% liability for this accident in order that they could potentially claim negligence against another person if such person were found before the trial.

[18] It is the position of the moving party co-defendant that because the co-defendant, Mr. Marston, has admitted 1% liability and is jointly and severally liable, he is essentially 100% liable, although he will not formally admit to 100% liability. However, in email correspondence sent March 22, 2017 from counsel for Mr. Marston, he stated:

“My client has reasonably admitted 1% based on the evidence known by the parties at this time. However, the admission should not be construed to suggest that your client is not also at fault. The responding submissions are accurate in that this motion – brought by your client – is simply to determine whether there is a triable issue with respect to your client’s liability; not my client. If Mrs. Kanagalingam feels strongly that your client is partially liable she has a right to pursue same. Your client’s discovery evidence is telling as outlined in Mr. Levin’s submissions. Furthermore, Mr. Levin is also correct that his client is not required to accept any admission made by my client.”

[19] A pretrial will be held June 5, 2017 and the trial, with jury, is scheduled to commence October 2, 2017.

Positions of the Parties

Position of the Moving Party Co-defendants

[20] It is the position of the moving party that there is no genuine issue requiring a trial in this matter. The moving party maintains that there is no evidence to suggest liability on the part of Mr. Jeyakumar. The moving party states that the evidence of Mr. Jeyakumar as well as that of Ms. Kanagalingam indicates no liability on the part of Mr. Jeyakumar. His evidence is that he was stopped at an intersection at a red light and, when the light turned green, he drove straight ahead in his own lane when, suddenly, the car to his right entered his lane and struck his car on the right passenger side. He did not see the Marston vehicle until it sideswiped his vehicle. He testified that the impact caused a dent to the front right side of the vehicle as well as scratches along the entire right side of the vehicle. He had not consumed any drugs, alcohol or prescription drugs that day. His vehicle was in good mechanical condition and there were no mechanical issues which contributed to the accident.

[21] It was the evidence on examination for discovery of Ms. Kanagalingam that she was a backseat passenger in Mr. Jeyakumar’s vehicle which was travelling straight in his lane at the time of the accident, when a vehicle on the right side came and “banged on the passenger side of the vehicle”. She estimated that vehicle to have been travelling at about 50 km/h. She did not know whether Mr. Jeyakumar was accelerating or cruising at the time of the impact.

[22] It is the position of the moving party that there is, accordingly, no evidence of liability on the part of the moving co-defendants, and therefore no genuine issue requiring a trial as against them.

Position of the Responding Party Plaintiff

[23] It is the position of the responding party plaintiffs that the non-moving party co-defendant has acknowledged only 1% liability and is unprepared to acknowledge complete liability. The responding party maintains that issues relevant to the question of liability remaining in issue include the speeds of the vehicles, the placement of the vehicles in relation to each other preceding the accident, the actions of the two drivers immediately preceding the collision, the property damage occasioned by the loss and the possible evidence of an independent witness. Further, issues likely relevant to the issue of damages remaining in dispute are again, the speeds of the vehicles, the point of impact as between the two vehicles, and the property damage occasioned by the loss. These issues have been outstanding from the beginning.

[24] It is the position of the responding party that there is significant conflicting evidence as regards the circumstances of the motor vehicle accident which are relevant to both issues of liability and damages. There is no evidence to suggest that the credibility or reliability of the evidence of the moving co-defendants or the non-moving co-defendants are to be preferred one over the other. There is no evidence that clearly points to the culpability of one driver over the other.

[25] It is the position of the plaintiff that granting summary judgment under such circumstances would prejudice the plaintiff’s ability to have a fair trial before a jury, as the removal of the moving party defendants from the action at this stage may limit the plaintiff’s ability to lead critical evidence respecting the motor vehicle accident, her injuries sustained, and who is responsible.

Analysis and Conclusion

[26] In Hryniak v Mauldin, 2014 SCC 7, [2014] S.C.J. No. 7, the Supreme Court of Canada determined that there would be no genuine issue requiring a trial where a judge is able to reach a “fair and just determination on the merits” of the case. This will be the case when the process: (1) permits the judge to make the necessary findings of fact on the basis of the evidence adduced, (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.

[27] Pursuant to Hryniak, the motion judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the court, without using the new fact-finding powers set forth in Rule 20.04. There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportional procedure. If there appears to be a genuine issue requiring a trial, the motion judge should determine if a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). The judge may, at his or her discretion, use those powers, provided that doing so does not offend the interest of justice, i.e., that it 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.

[28] The moving party bears the onus of establishing that there is no triable issue. However, a responding party must “lead trump or risk losing”: 1061590 Ontario Limited v Ontario Jockey Club, [1995] O.J. No. 132, 21 O.R. (3d) 547 (Ont. C.A.). The responding party may not rest on the allegations or denials in the pleadings, but must present by way of affidavit or other evidence, specific facts and coherent, organized evidence demonstrating a genuine issue. The responding party is required to “put its best foot forward”: Curoe Construction Ltd. v Ottawa (City), 2015 ONCA 693 at paras. 26-27 (Ont. C.A.) The motions judge is entitled to assume that the record contains all evidence that the parties will present if there is a trial. It is not sufficient for the responding party to say that more and better evidence will be available at trial. The court must take a “hard look” at the evidence to determine whether there is a genuine issue for trial.

[29] In the circumstances of this case, I do not find summary judgment to be appropriate.

[30] Based on the evidence and submissions from counsel, it would appear that the issue of liability is still live as between the two co-defendants. While the non-moving party co-defendant, Mr. Marston, has admitted 1% liability to facilitate the release of the moving party co-defendant, at the request of the moving party, the non-moving party has also made clear its position that there continues to be conflicting evidence as between the co-defendants relevant to both liability and damages. Further, it has clearly stated, in writing, that the admission of 1% liability should not be construed to suggest that the moving party co-defendant, Mr. Jeyakumar is not also at fault. Based on the evidence before me, there are conflicting issues of evidence to be canvassed and assessed on a complete record, with the benefit of viva voce evidence from all involved parties. As a result, I do not find it in the interest of justice to release the moving party co-defendants from the action.

[31] There is, in these circumstances, a genuine issue requiring a trial as regards allocation of liability. While it may be said, as has been urged by the moving co-defendants, that if Mr. Marston has admitted 1% liability, he may, on the basis of joint and several liability, be found to be responsible for 100% of the damages, his counsel has also made it clear in his correspondence that he may be raising the issue of liability as against Mr. Jeyakumar and/or another party. There is conflicting evidence as regards the motor vehicle accident, the speeds at which the vehicles were proceeding and the actual damage that resulted which must be adjudicated.

[32] In the circumstances of this case, with the evidence before me, I find that there is a genuine issue requiring a trial. I am unable to reach a fair and just determination on the merits of the case, based on the record before me. I am not able to make the necessary findings of fact as regards liability on the basis of the evidence adduced or to apply the law to those facts. I do not find that summary judgment, in the circumstances of this case, is a proportionate, more expeditious and less expensive means to achieve a just result. Further, I do not find that a trial could be avoided by using the new powers pursuant to Rules 20.04(2.1) and (2.2). Indeed, I am cognizant of and have taken into consideration the findings of Karakatsanis J. addressing the “interest of justice” requirement in Hryniak v Maulden, supra., at paragraphs 48-51, as follows:

The “interest of justice” inquiry goes further and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of negative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a party could significantly advance access to justice and be the most proportionate, timely and cost-effective approach.

[33] In this case, there is conflicting evidence with respect to the actions of the two drivers, the speed and placement of their vehicles, the severity of the impact and the resultant damage. There is the possibility of an independent witness being called at trial by Mr. Marston to testify regarding the accident and the actions of the drivers. Further, based on the evidence given by the plaintiff at examination for discovery, it appears that she had little first-hand knowledge of how the accident occurred, such that the evidence of the two co-defendant drivers will be important for purposes of the proper determination of the issues by the triers of fact, the jury.

[34] The co-defendant, Mr. Marston, admitted 1% liability in order to assist in facilitating the release of the moving party defendants, but without prejudice to their right to assert responsibility for the loss on the co-defendant or on another, which could, potentially, affect the plaintiff’s ability to recover full damages. In my view, the plaintiff’s ability to recover 100% of their damages could be seriously compromised if only one tortfeasor remains in the action as the court may be called upon to determine the relative percentages of liability between the two drivers, in the event that evidence arises that would suggest negligence on the part of Mr. Jeyakumar. The evidence of all parties will be required in order for the court to properly apportion liability pursuant to the Negligence Act for any damages found to exist: see dissenting opinion of Sopinka J in Hollis v Dow Corning Corp., [1995] 4 SCR 634, at p. 705, para. 102, citing McCarroll et al. v Powell et al. 40 (ONCA), at p. 635.

[35] Based on all of the evidence before me, I am satisfied that this matter must proceed to trial expeditiously, with all parties in attendance. Accordingly, I do not grant summary judgment.

Costs

[36] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

Carole J. Brown, J. Date: May 9, 2017