CITATION: Marrocco v. Heft, 2017 ONSC 654
COURT FILE NO.: CV-12-445473-A3
DATE: 20170126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SANTANNA MARROCCO, DANIEL BRODIE, JO-ANNE MARROCCO, and RICCARDO MARROCCO
Plaintiffs
– and –
JOHN DOE, STEPHEN HEFT, THE CORPORATION OF THE TOWNSHIP OF KING, BELAIR DIRECT, AMANDA ECKFORD, GEORGINA ECKFORD, DORIS BRODIE, TD AUTO FINANCE SERVICES INC., PHILIP BRODIE and MURRAY MARTIN
Defendants
– and –
REGIONAL MUNICIPALITY OF YORK POLICE SERVICES BOARD
Third Party/Moving Party
John J. Aikins and Noam Uri, for the Defendant, Stephen Heft
Eugene G. Muzzuca, for the Third Party/Moving Party
HEARD: 1 November 2016, at Toronto
Mew J.
REASONS FOR DECISION
(Motion for Summary Judgment)
[1] Two motor vehicle accidents occurred on 9 December 2010 on the 8^th^ Concession Road in the Township of King.
[2] The first accident occurred a few minutes before 4:57 pm. Amanda Eckford was driving a white Chevrolet owned by her mother, Georgina Eckford, northbound on the 8^th^ Concession. Doris Brodie was operating a Dodge Nitro, owned by TD Auto Finance Services Inc. and was exiting from the driveway of the residence of Murray Martin on the east side of the road when a collision occurred between the Eckford vehicle and the Brodie vehicle.
[3] Santana Marrocco was a passenger in the Brodie vehicle. As a result of this first accident, she sustained a small cut above her knee.
[4] The driveway which the Brodie vehicle had emerged from was north of the crest of a hill which the Eckford vehicle would have come over immediately before the collision. Following the collision, the Eckford vehicle came to rest partly in a ditch on the west side of the road, blocking at least part of the southbound lane. Doris Brodie pulled her vehicle, which had a trailer attached, out of the driveway and down the hill, parking on the east side of the road.
[5] At approximately 5:30 pm, Stephen Heft turned his 2003 Acura right from King Road onto 8^th^ Concession Road and began heading north. As he crested the hill near the Martin property, he alleges that he was suddenly confronted with a vehicle stopped in the roadway in front of him, directly perpendicular to the road. He took evasive action to avoid hitting this vehicle, but in the course of doing so, lost control and collided with the Eckford vehicle. Unfortunately, Santanna Marrocco who, at the time, was standing in the vicinity of the Eckford vehicle, was struck and seriously injured.
[6] This motion raises the issue of the liability for the second accident, if any, of the Regional Municipality of York Police Services Board, which is the body responsible for policing in the Region of York and, in particular, for the York Regional Police Service Communications Centre, which deals with 911 calls. It is alleged that through a 911 call made after the first collision, York Regional Police Service (YRPS) became aware of a “dangerous situation”, following which YRPS failed to respond in a prompt and urgent manner or provide any instructions to the caller to reduce or eliminate the danger.
[7] It is also pleaded that YRPS was negligent in that it:
a. Had inspected the roadway on several occasions throughout the day and failed to record icy conditions or report the conditions to the road authority;
b. Failed to close the roadway when they knew or ought to have known it was highly dangerous;
c. Failed to respond in an appropriate manner to the 911 call;
d. Failed to obtain sufficient information from the 911 caller to properly assess the urgency of the situation;
e. Failed to advise the 911 caller that they would not be responding in a timely manner and that they should take steps to remove themselves from a danger situation;
f. Failed to contact the road authority to advise of the highly dangerous situation;
g. Failed to immediately dispatch police officers after the first collision to secure or close down the road;
h. Failed to immediately dispatch a tow truck to remove the Eckford vehicle from the ditch;
i. Failed to instruct Doris Brodie and Amanda Eckford to leave the area and report the accident at a collision reporting centre;
j. Was aware that this was a highly dangerous section of roadway, with numerous accidents, due to both the improper design of the highway, improper location of a driveway that created a blind spot for vehicles exiting from the driveway, and they failed to report the unusual number of accidents to the road authority; and
k. Failed to take all reasonable precautions to protect road users in the circumstances.
[8] The parties making these allegations against YRPS are Stephen Heft, The Corporation of the Township of King and Doris Brodie, all of whom are defendants in a consolidated action in which Santanna Marrocco is the principal plaintiff. Those defendants have advanced their allegations against YRPS in a third party claim. They seek contribution and indemnity from YRPS for any liability imposed on them as a result of the accident and the resulting injuries to the plaintiffs.
[9] This is a case managed action and is a consolidation of six proceedings that were originally commenced as a result of the 9 December 2010 accidents. On 6 May 2014, I was appointed as the case management judge for this litigation, pursuant to Rule 77.05(2)(b) of the Rules of Civil Procedure.
[10] The trial of the consolidated action is scheduled to commence on Tuesday, 3 April 2018. The estimated length of trial is 60 days.
Issues
[11] The issues addressed on this motion are as follows:
a. Should the designated case management judge hear this motion;
b. Is summary judgment on the issue of the liability of YRPS appropriate; and
c. If so, should the action against YRPS be dismissed?
[12] The arguments advanced in both the written and oral submissions of the parties focused on the allegations concerning the Communications Centre and the acts or omissions which occurred following the first 911 call. I have therefore taken a similar approach, although the pleading contains particulars of negligence (recorded in paragraph 7, above) which go beyond just the responsibility of YRPS for the operation of the Communications Centre.
[13] That said, during the course of argument, there was some reference to evidence of Doris Brodie, Amanda Eckford and Stephen Heft about the condition of the 8^th^ Concession road, and in particular the presence of ice, and speculation about whether police patrols before the first accident should have been aware of that and, if so, whether any action should have been taken.
[14] To place the “911 issues” in context, the prioritisation of emergency calls is set out in, or informed by, the third party’s directives on Communications, Traffic Management Enforcement and Road Safety. The adequacy of these procedures is not challenged. What is in dispute is the application of the procedures and, specifically, whether YRPS and its employees met the applicable standard of care.
Should the case management judge hear this motion?
[15] Shortly before the motion was argued, counsel for Heft requested a telephone case conference to discuss whether the motion, the return date of which had been scheduled for a number of months, should proceed. Counsel raised the rules which preclude a case management judge or a pre-trial judge from presiding at the trial of an action, unless the parties have consented in writing (Rules 77.06(2) and 50.10). Asserting that because a summary judgment motion is akin to a trial, it was submitted that I should not hear the summary judgment motion without the written consent of all parties.
[16] At the time of the case conference, I had yet to see all of the material filed by the parties and deferred any further consideration of the submissions made on this issue to the return date of the motion.
[17] On the return date of the motion proper, I heard argument on not only the preliminary issue raised by Heft but, also, the substantive issues, reasoning that in light of the substantial record and submissions that had been filed, it would be the lesser of two evils for me to hear argument on all issues even if I then acceded to the submissions that I should not be hearing the motion and, as a result, made no determination on the second and third issues identified above.
[18] Counsel for Heft referred to a recent decision of the Court of Appeal in Royal Bank of Canada v. Hussain, 2016 ONCA 637 at para. 19, where the court noted:
Particularly with the expanded powers available to motion judges under the amended Rule 20, presiding on a summary judgment motion must be viewed as akin to presiding at a trial or the hearing of an application.
[19] In Royal Bank of Canada v. Hussain, the motion judge had already conducted a pre-trial conference in the action prior to hearing a summary judgment motion in the action prior to hearing a summary judgment motion in which he granted judgment to the plaintiff.
[20] The Court of Appeal noted that Rule 50.09, which deals with disclosure of information made at a pre-trial conference reflects the intention that a judge presiding at the hearing of the proceeding or a motion or reference in a proceeding should be insulated from knowledge of statements made at pre-trial conference. The rule is designated to assure litigants that any information revealed at a pre-trial will not be used at a subsequent hearing, thereby encouraging a full and frank exploration of the settlement prospects at an early stage of the proceeding (see para. 18).
[21] As case manager, I have conducted a number of telephone case conferences. I have also heard one substantive motion in which the plaintiffs sought an order extending the time within which they could appeal from an order of Master Brott in which she ordered the consolidation of five separate actions and ordered the removal of the lawyer of record who had represented one of the plaintiffs in those actions: reported at 2014 ONSC 6451.
[22] There has not, to date, been a pre-trial conference or a settlement conference. Nor am I aware of any other settlement discussions which have involved judicial participation (and certainly none involving me).
[23] The circumstances in the present case are therefore quite distinct from those in Royal Bank of Canada v. Hussain. There the Court of Appeal, in order to protect the efficacy of pre-trial conferences in facilitating settlements, concluded that upholding the decision of the motions judge would sanction ignoring the rules and would undermine public confident in the administration of justice.
[24] I see no such concern in the circumstances of this case. The practice of directing that all motions in a proceeding be heard by a particular judge, whether occurring under Rule 77 or otherwise, is well established as a mechanism for the more efficient and cost effective management of an action: see also Rule 37.15. In the context of case management, Rule 77.06(1) provides for the case management judge to hear and conduct all steps in a proceeding, with the exception of presiding at the trial of the action or hearing of the application.
[25] While I agree that the effect of the decision Royal Bank of Canada v. Hussain effectively extends the application of Rule 77.02 to prohibit a case management judge or master who has conducted a pre-trial conference or a settlement conference from thereafter hearing a summary judgment motion, I see no reasonable basis for extending that principle as far as counsel for Heft suggests I should.
[26] Indeed, the efficacy of case management would be significantly compromised if a party could veto a case management judge, knowledgeable about the dispute and the parties, from hearing a summary judgment motion, despite the judge not having conducted a pre-trial conference or a settlement conference, or having otherwise participated in any settlement discussions.
[27] Subject to the limitations articulated by the Court of Appeal in Royal Bank of Canada v. Hussain, the following passage in Adrian Zuckerman, Zuckerman on Civil Procedure – Principles of Practice, 3^rd^ ed. (London: Sweet & Maxwell, 2013) at p. 547 is apposite:
It has been suggested that considerable judicial involvement in the pre-trial process … could undermine judicial impartiality. However, the risk of partiality is no greater when judges exercise case management powers than when they discharge any other judicial function. It is incumbent on judges to keep an open mind and be amenable to argument at any stage of the proceedings. "Although judges were now expected to take a more active role in managing and controlling proceedings than was once the case,” Moore-Bick L.J. said "it was important that they remained, and were seen to remain, scrupulously impartial". Thus, a judge who has read the parties' evidence and arguments in advance of the trial must continue to be open to persuasion, no matter how strongly he holds his preliminary view. …. It is true that some management decisions can have far-reaching effects on outcome. But provided that judges account for their decisions by giving adequate reasons, the risk of untoward influence should be overcome…
[28] As a result, I do not accept the objection taken by Heft to me hearing this motion, and will proceed next to address whether summary judgment is an appropriate mechanism for determining the liability of YRPS.
Is summary judgment appropriate?
[29] Not every case where summary judgment is sought is appropriate for summary determination. In Griva v. Griva, 2016 ONSC 1820, a decision arising from a case conference to determine whether a party’s request to schedule a summary judgment motion should be acceded to, Firestone J. wrote, at para. 19:
I adopt the reasoning of Myers J. in 2287913 Ontario Inc. v. Blue Falls Manufacturing Ltd., 2015 ONSC 7982, where at para. 17 he states in part: “[W]here a party advances a small number of discrete issues that may resolve the entire case, it is much easier to conclude that a thorough investigation of those issues may be the most proportional process even though the issues may be complex or have some facts in dispute.” At para. 59 of Hryniak, Justice Karakatsanis wrote: “[W]hat is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure.”
YRPS’s Position
[30] YRPS asserts that there is no genuine issue requiring a trial in the third party claim. YRPS Communications Centre personnel met their standard of care in their prioritisation of the first 911 call. In any event, if the call had been given a higher priority, it would still not have received immediate police response because it was not an emergency. The issues in the third party claim are not inextricably linked to those in the main action. Accordingly, there should be no concern that resolving the third party claim now could lead to inconsistent findings when the main action goes to trial.
[31] In support of its position, YRPS relies on an affidavit of Theresa Virgin who is presented as an expert in 911 and emergency communications in Ontario, including records keeping, call taking, dispatching, training, supervising and managing a 911/Police Communications Centre.
[32] YRPS also relies on affidavits sworn by Lisa Duivenvoorden, the communications supervisor employed by YRPS at the times material to these proceedings and by Frances Fentanopoulos, a law clerk employed by the lawyers for YRPS, who attested to various disclosure, procedural and evidentiary issues, and appended transcripts of, inter alia, various individuals examined for discovery.
[33] Significantly, the “call-taker” who answered the 911 call made by Doris Brodie at 5:03 pm on 9 December 2010, Laurie Magoffin, has not provided an affidavit, notwithstanding that she remains an employee of YRPS (a recording of the 911 call is, however, part of the record).
[34] The essence of Ms. Virgin’s opinion is that based on all of the information received by the call-taker on the first 911 call, the call-taker gave an appropriate priority level to the call.
[35] Ms. Virgin and Ms. Duivenvoorden were cross-examined on their affidavits.
Heft’s Position
[36] The defendant Heft opposes the summary judgment motion (the other defendants who have taken third party proceedings against YRPS take no position on the motion).
[37] Heft argues that it is not appropriate to grant summary judgment on the third party claim in circumstances where there are ten different potential tortfeasors, including YRPS, and the trial judge will be asked to determine the respective degrees of fault of those parties.
[38] The third party claim against YRPS does not give rise to a defence that there was no duty owed or that there is some other basis, such as a limitation period, which would preclude recovery against YRPS. Rather, the issue is whether, on the evidence, there was a breach (or breaches) of the duty owed by YRPS to some or all of the other parties.
[39] Furthermore, although YRPS, as the moving party in a summary judgment motion, has an obligation to put its best foot forward, it is plain and obvious that not all relevant evidence is before the court. Heft points to the absence of an affidavit and, hence, any cross-examination, of the call-taker, Laurie Magoffin. Other material witnesses are said to include P.C. Johnson (the patrol officer for the zone in which the accident occurred), the call-taker’s supervisor, two other dispatchers who were involved and the 911 training coordinator.
[40] Heft, too, relies on an expert, Paul D. Linnee, who attests to having more than forty years of experience in the design, management and operation of public safety emergency communication call centres and their systems and the hiring, training and management of the staff who provide 911 emergency communications services. Mr. Linnee resides in Bloomington, Minnesota, U.S.A.
[41] Mr. Linnee offers the opinion that a prudent 911 call-taker would have classified Doris Brodie’s call as a “priority Level 2” call given that it was reported as a property damage motor vehicle accident with an injury plus there was a public safety risk. He says that he does not believe that a reasonable call-taker would have characterised the call as a “priority Level 3”, especially given the knowledge that the participants might be at the scene for many hours as it got colder and darker in a situation where they were in a dangerous location.
[42] Mr. Linnee also opines that a prudent 911 call-taker would have made it clear to Ms. Brodie that, given the other demands which YRPS faced at the time (due to other calls and incidents) that the call-taker’s decision/action to assign a priority “3” to the caller’s incident would result in a longer delay in the police response and that, accordingly, Ms. Brodie and others at the scene should have been advised to carefully assess their current situation and exposure to additional risk of secondary crashes and take whatever measures might be appropriate at the scene to minimize or eliminate those risks.
[43] There is also an affidavit from Stephen Heft which attests to what happened, from his perspective, as well as to his familiarity with the road, the condition of the road and his general observations at the time of the accident.
Analysis
[44] In assessing the appropriateness of resolving the third party claim by way of summary judgment, I have considered, in particular, the following:
a. Whether the evidentiary record is sufficient;
b. Use of summary judgment to resolve third party claims and the possibility of inconsistent findings;
c. The reconciliation of conflicting expert opinions; and
d. The overall interests of fairness.
[45] I start by making the observation that only the transcripts of the examination for discovery of an adverse party (in this case, a party adverse to YRPS) can be used as evidence on a motion unless the other parties consent: Rule 39.04(2). The third party has not pleaded to the main action and is sued only by Mr. Heft, King Township and Doris Brodie; Amanda Eckford, Georgina Eckford, Santana Marrocco, Daniel Brodie and Philip Brodie, whose transcripts have been filed as part of the third party’s case, are not adverse to YRPS in the litigation.
[46] The function of a motion judge hearing a motion for summary judgment is to consider whether he/she has the evidence required to fairly and justly adjudicate the dispute in a timely, affordable and proportionate procedure under Rule 20.04(2)(a)(ii): Linten v. Tholos Restaurant Inc., 2016 ONSC 4167 at para. 47.
[47] It would undermine the efficacy of the summary judgment process if, for a moving party to succeed, it was necessary to include in the record the evidence of all, or substantially all, of the witnesses who might be called at trial. On the other hand, although a motion judge is required to assume that the parties have placed before him or her all of the evidence necessary for the judge to be able to confidently resolve the dispute, summary judgment should be denied when it is clear to the judge that there is material evidence that should be before the court but is not: Abuajina v. Haval, 2015 ONSC 7938 at paras. 33-34.
[48] It is not a sufficient answer to concerns, raised by the court or by a responding party about the sufficiency of the evidence, to say that if there is other evidence out there that should be before the court, the responding party, rather than complain about the absence of such evidence, should go out and get it.
[49] The parties who are not adverse to the third party, whose discovery transcripts the third party has filed, are adverse to the responding parties on this motion and, hence, could easily have been filed by one of them if it was thought appropriate to do so.
[50] But it would be far harder, indeed, burdensome, for a responding party to be forced to use the mechanism of Rule 39 to plug the gaps left by the moving party, particularly if (as is the case here) the witnesses concerned are present or past employees of the moving party.
[51] Aside from concerns about the sufficiency of the evidentiary record, an obvious concern is the impact that resolution of this summary judgment motion in favour of the third party will have on the litigation as a whole. In Hamilton (City) v. Thier + Curran Architects Inc., 2015 ONCA 64 at para. 18, the Court of Appeal stated:
Summary judgment is available in the case of third party claims. Rule 20.09 of the Rules of Civil Procedure so provides, and in Bongiardina v. York (Regional Municipality) this court observed that nothing in Rule 20 suggested that third party claims were to be considered on a different footing from the main action.That said, in Bongiardina this court issued a caveat:
[15] There might well be cases in which it would be inappropriate to bring a motion for summary judgment in respect of a third party claim. For example, if the third party claim could not be resolved without detailed knowledge of the factual circumstances that gave rise to the main action, a motion for summary judgment would be premature.
[52] The Court of Appeal continues, at para. 22:
As this Court stated in Baywood Homes Partnership v. Haditaghi, a summary judgment motion judge commits an error in principle when he or she fails to assess the advisability of the summary judgment process in the context of the litigation as a whole. In Hryniak, the Supreme Court of Canada emphasized the need to assess the appropriateness of granting summary judgment where the dismissal of a claim against one defendant would still see the claim proceed to trial in any event against other defendants; granting partial summary judgment in such circumstances would risk creating duplicative proceedings or inconsistent findings of fact.
[53] The behaviour of the individuals involved in the first accident and the conditions at and near the accident locations at the time of the first and second accidents (and in between) will be matters of inquiry at the trial. Although a summary dismissal of the third party claim would end the third party’s liability, an obvious concern arises that the trial judge will need to apportion the liability of the various tortfeasors, and will do so on a different (and potentially more complete) evidentiary record than the record before me. The risk of inconsistent findings is a real one.
[54] I would add that, although evidence about the condition of the 8^th^ Concession road before and at the time of the accidents was not the focus of the parties’ arguments on this motion, there was reference to it and to whether more should have been done by YRPS in the circumstances. That remains a live issue in the third party action, as pleaded.
[55] As has already been noted, the law relating to the liability of 911 dispatchers is relatively undeveloped.
[56] Both YRPS and Heft have put forward expert opinions. Although the experts have been cross-examined, there has not been, as there would be at trial, a voir dire to qualify them as experts.
[57] Each party has criticisms of the other’s expert.
[58] Ms. Virgin has never been qualified as an expert witness before. Her objectivity is said to be compromised because she may have trained some of the third party’s call-takers.
[59] Mr. Linnee, on the other hand, is an American whose opinion on the standard of care of call-takers is based, in part, on references to U.S. and British practices and procedures which may have limited or no application to the role and responsibilities of a call-taker in York Region.
[60] Quite aside from these challenges to the qualifications or reliability of these experts, or the weight that should be ascribed to their opinions, there are inherent difficulties in resolving an issue on summary judgment where there is conflicting expert evidence: Frame v. Watt, 2016 ONSC 718 at para. 33; Paul v. Oliver Fuels, 2012 ONSC 978 at para. 44.
[61] If resolving conflicting expert opinions was the only obstacle to resolving this motion, a mini-trial would be an option. But, as must be becoming apparent from these reasons, that is not the only concern.
[62] Viewed through the lens of YRPS, it is easy to understand why this motion has been pursued. I would agree with YRPS that if its liability position could be fairly determined at this time, it should not be forced to remain in an expensive and time consuming legal process any longer.
[63] However, when the litigation as a whole is considered, the liability of YRPS cannot, in my view, be fairly considered as a discreet issue, capable of summary resolution on the present record. Viewed in the context of multi-party litigation, even though it may well be that YRPS is ultimately held to be at most a fringe player or not to have liability at all, I have concluded that the overall interests of justice militate against isolating the issue of the liability of YRPS from all of the other liability issues in this litigation.
[64] Whilst I have alluded to a number of reasons why summary judgment might not be appropriate, the overarching concern which I have, bearing in mind the interests of justice as a whole, is that the claim pleaded against York Region, while not completely novel, is one which nevertheless arises in circumstances where the potential liability of a party in the position of YRPS is not well developed. A judge asked to determine the liability, if any, of the third party, should do so as part of the overall consideration of the liability of all parties connected to this tragic accident.
[65] The culture shift promoted by Hryniak has not, as the Supreme Court noted in Hryniak itself, changed the principal goal, which is a fair process that results in a just adjudication of disputes (Hryniak v. Mauldin, 2014 SCC 7 at para. 28).
[66] In the circumstances I have described, I do not believe that I can fairly and justly adjudicate this dispute on a motion for summary judgment.
[67] Having so concluded, I will not address the third issue which I listed in paragraph 10 (above).
Costs
[68] I am presumptively of the view that the responding party, Heft, is entitled to costs of this motion (some adjustment should, however, be made to reflect Heft’s lack of success on the issue of whether I, as the case management judge, should have heard this motion). YRPS may, of course, submit otherwise.
[69] If counsel are unable to resolve the issue of costs, written submissions, not to exceed four pages in length, should be delivered to me at the Court House, 5 Court Street, Kingston, Ontario K7L 2N4 along with, if applicable, a bill of costs:
a. by the responding party within fourteen days of receipt of these reasons; and
b. by the moving party within fourteen days of receipt of the responding party’s costs submissions.
Graeme Mew J.
Released: 26 January 2017