COURT FILE NO.: CV-13-5751-00; CV-13-5665-00; CV-13-494647
DATE: 2018 05 31
SUPERIOR COURT OF JUSTICE – ONTARIO CV-13-5751-00
BETWEEN
Stuart Brown
Plaintiff
-and-
Her Majesty the Queen in the Right of the Province of Ontario Represented by the Minister of Transportation for the Province of Ontario and Perry McPherson
Defendants
CV-13-5665-00
BETWEEN
Carole Beland, Corry Beland, by his Litigation Guardian Carole Beland, Rheal Beland, Marie-Paule Beland and Catherine Brown
Plaintiffs
-and-
Stuart Brown, Perry Kevin McPherson and Her Majesty the Queen in the Right of the Province of Ontario Represented by the Minister of Transportation for the Province of Ontario, and Integrated Maintenance &Operations Services Inc.
Defendants
CV-13-494647
Between
Robert McPherson, by his Litigation Guardian Sylvie McPherson, Mathew McPherson, by his Litigation Guardian Sylvie McPherson, and Sylvie McPherson, personally
Plaintiffs
-and-
Stuart Brown, Perry McPherson, the District of Timiskaming, the Corporation of the Town of Latchford, Her Majesty the Queen in Right of the Province of Ontario as Represented by the Minister of Transportation for the Province of Ontario, John Doe Contractors #1, Integrated Maintenance & Operations Inc., John Doe Contractors #2, and Germania Mutual Insurance Company
Defendants
BEFORE: Bloom, J.
COUNSEL: C. Verconich and J. Forester, Counsel for the Moving Party, Perry McPherson
Jaye Hooper, Counsel for the Responding Party, Stuart Brown
C. Burn, Counsel for the Responding Parties, Carole Beland, Corry Beland, by his Litigation Guardian Carole Beland, Rheal Beland, Marie-Paule Beland and Catherine Brown
R. Morzaria for the Responding Parties, Robert McPherson, by his Litigation Guardian Sylvie McPherson, Mathew McPherson, by his Litigation Guardian Sylvie McPherson, and Sylvie McPherson, personally
E N D O R S E M E N T
I. INTRODUCTION
[1] A motor vehicle accident occurred on December 27, 2011. Four actions were brought based on that accident. There is an order that the four actions be tried together, one immediately after the other, or as the trial judge may direct.
[2] The Moving Party has brought a motion for summary judgement seeking the dismissal as against him of the three actions whose styles of cause are set out above, and all cross-claims against him in those proceedings. The parties to the fourth action, in which he is a Plaintiff, were also served with the notice of motion.
II. EVIDENCE
[3] The evidence provided by the parties is consistent in relation to many of the facts.
[4] On December 27, 2011 at approximately 3:00 pm the Moving Party was driving his automobile northbound on Highway 11 near Stan Watton Rd. in the District of Temiskaming. His wife, Sylvie McPherson, and his three children, Mathew, Kaitlyn, and Robert, were passengers in his car.
[5] The Defendant, Stuart Brown, was driving his automobile southbound on Highway 11. His wife, Carole Beland, and two sons, Corry Beland and Andrew Beland, were passengers.
[6] The road conditions were slushy, snowy, and slippery.
[7] Mr. Brown was driving behind a row of 8 to 10 southbound vehicles. In an attempt to pass these vehicles, he lost control of his own. It fishtailed, crossed the centre line into the northbound lane, and collided in that lane with Mr. McPherson’s vehicle.
[8] As a result of the collision Kaitlyn McPherson and Andrew Beland were killed.
[9] The only party with direct recollection of the events leading up to the collision is the Moving Party.
[10] The factual issue in dispute before me is whether the Moving Party had braked as early as he should have. The Moving Party in that regard relies upon the expert evidence of Adam Campbell and Jamie Catania; the Responding parties rely upon the expert evidence of Peter Williamson. Moreover, the Moving Party contests the admissibility of the evidence of Mr. Williamson as being outside his field of expertise.
[11] In cross-examination the Moving Party testified that he applied the brakes and yelled at his family to hang on, as soon as he saw the Brown vehicle lose control in that it was fishtailing; that it lost control as soon as it pulled into the southbound passing lane; and that the sequence of events from the loss of control to the collision took place very fast. He described the rapidity of the events by stating that “[t]he best way I can explain it is one, two, bang.” He further testified that he was travelling at approximately 80 kilometres per hour before he saw the loss of control of the Brown vehicle.
[12] The expert evidence tendered by the Moving Party was in the form of affidavit evidence from Adam Campbell and Jamie Catania. Dr. Campbell’s relevant expertise is in examining human behaviour during collisions; among other professional credentials he has a doctorate of philosophy in neuromechanics. Mr. Catania’s relevant expertise is all aspects of collision reconstruction; among other professional credentials he has a Master of Engineering degree.
[13] Dr. Campbell and Mr. Catania applied in their written analysis a concept known as looming. They stated at page 17 of their July 14, 2017 report:
Vehicles situated on the roadway ahead, regardless of their heading, pose immediate hazards when approaching motorists are able [sic] determine that the gap between themselves and the vehicle ahead is rapidly shrinking. ‘Looming’ is the underlying perceptual process involved in making such a determination and used by motorists to determine when the gap between their vehicle and a vehicle ahead is closing at a sufficiently high rate. As the gap between vehicles gets shorter, the visual image of the lead vehicle grows larger to a point that prompts evasive action.
[14] In the case of the collision being examined they made the following comments at pages 18 to 21 of that report:
[g]iven the closing velocities reported, looming hazard presentation would occur no more than approximately 2.4 to 2.5 seconds before impact, assuming that both vehicles maintained constant speed….
Mr. McPherson reportedly engaged in braking prior to impact with the Brown…[vehicle]. Under an assumed initial speed of 80 km/h, Mr. McPherson applied light to moderate braking intensity over 0.6 to 1.7 seconds prior to impact.
Before applying the brakes, Mr. McPherson was required to detect the hazard posed by the Brown…[vehicle]. The time between hazard detection and the beginning of an evasive manoeuvre, such as braking or steering, is known as the perception and response interval, which includes the time required to detect and identify immediate hazards, select a response (i.e. brake and/or steer), and execute the response.
At critical thresholds for looming hazard detection, the duration of perception and response times is about 1.5 seconds, with a 5th to 95th percentile range of 1.0 to 2.0 seconds for immediate hazards….
In other words, 0.7 to 2.1 seconds elapsed from when the Brown…[vehicle] would have first posed a detectable looming hazard to when Mr. McPherson applied braking. Mr. McPherson’s actual perception and response interval was likely within the normal range of human response for a typically attentive driver….
[O]ur assessment is a conservative estimate of Mr. McPherson’s perception and response behaviour.
[15] Dr. Campbell and Mr. Catania also were critical of the analysis of Peter Williamson which was relied upon by the Responding Parties. They stated at page 19 of the report to which reference has been made:
The Williamson reports did not consider known aspects of human performance in their analysis of Mr. McPherson’s behaviour, particularly with respect to when the Brown…[vehicle] would have posed a detectable collision threat. Consequently, the conclusion of the Williamson reports that Mr. McPherson’s “braking was relatively late” cannot be relied upon.
[16] Mr. Williamson’s relevant expertise is in motor vehicle collision analysis and accident reconstruction. In cross-examination he testified that with respect to human factors, he has no expertise on medical matters such as the processes that go on in the brain. However, he further testified, “There are other areas such as things we encounter commonly in motor vehicle accidents where we just talk about reaction times. There are straight forward things where all that I do essentially is I rely on published information where people have done studies and they say this is how people react, this is what the normal range is and I will refer those to a [sic] select what a normal range would be, so I do give opinions on a fairly straight forward aspect of human factors…..”
[17] Among other professional credentials Mr. Williamson has a Master’s degree in Mechanical Engineering.
[18] Mr. Williamson rejected the applicability of the looming concept to the collision under study. He stated in a written report, “Common driving experience tells us that we would be concerned about an oncoming vehicle attempting this manoeuvre far sooner than this. Our own personal experience in regular driving can be used to appreciate that the …looming analysis is not applicable to this case and significantly underestimates the distance for hazard detection.”
[19] In cross-examination he re-affirmed that he was relying on common driving experience, in fact his own, and common sense. He said that “it’s called a sniff test to see whether what you’re being told and what the analysis is telling you makes sense.”
[20] His own conclusions were: (a) if the McPherson vehicle was initially travelling at 80 km/h as reported by Mr. McPherson, then it slowed by 4 to 12 km/h prior to impact; that slowing would occur over about 0.6 to 1.7 seconds of relatively light braking; (b) If Mr. McPherson required about 1.5 seconds to respond and begin to brake after recognizing a hazard, then it appears that he recognized the hazard from the vehicle about 2.1 to 3.2 seconds prior to impact; if he was watching the fishtailing then time to react after the recognition of a hazard could have been shorter; (c) Mr. McPherson might not be expected to recognize the hazard at the moment that control of the Brown vehicle was first lost; however, it appears that his braking was relatively late, with the braking starting after the fishtailing, as the Brown vehicle was rotating and travelling into the oncoming lane; and (d) if the braking by Mr. McPherson had started earlier, then he could have slowed to a lower speed and it is probable that a less severe collision could have occurred at a lower speed, the Brown vehicle could have had room to pass to the right into the ditch before the collision, or at the lower speed the McPherson vehicle could have been steered to the left to allow the Brown vehicle to pass.
III. GOVERNING PRINCIPLES
A. Summary Judgement
[21] The applicable provisions of the Rules of Civil Procedure are Rule 20.02 (2) and Rules 20.04 (2), (2.1), and (2.2), which are set out below:
EVIDENCE ON MOTION
20.02 (2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. O. Reg. 438/08, s. 12.
DISPOSITION OF MOTION
General
20.04 (2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. O. Reg. 284/01, s. 6; O. Reg. 438/08, s. 13 (2).
Powers
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence. O. Reg. 438/08, s. 13 (3).
Oral Evidence (Mini-Trial)
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 438/08, s. 13 (3).
[22] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87 Justice Karakatsanis for the Court set out principles to be applied on a summary judgement motion at paras. 49, 50, 57 to 59, and 66:
[49] 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.
[50] These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
[57] On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and (2.2) can provide an equally valid, if less extensive, manner of fact finding.
[58] This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.) It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.)
[59] In practice, whether it is against the “interest of justice” to use the new fact-finding powers will often coincide with whether there is a “genuine issue requiring a trial”. It is logical that, when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so. What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure.
[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 issue 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 interest of justice. Their use will not be against the interest 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.
[23] In a leading textbook on civil procedure, Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 2d ed (Markham, Ontario: LexisNexis Canada Inc., 2014) at para. 6.209 the learned authors set out the following additional principles governing a summary judgement motion:
The court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties respectively will present at trial. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing.
B. The Admissibility of Expert Evidence
[24] In the case at bar the Moving Party challenges the admissibility of the expert evidence relied upon by the Responding Parties. The governing authority in this area of the law is the judgement of the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] S.C.J. No. 23. Justice Cromwell in delivering judgement for the Court stated at paras. 14 to 54:
The Legal Framework
(1) The Exclusionary Rule for Opinion Evidence
14 To the modern general rule that all relevant evidence is admissible there are many qualifications. One of them relates to opinion evidence, which is the subject of a complicated exclusionary rule. Witnesses are to testify as to the facts which they perceived, not as to the inferences -- that is, the opinions -- that they drew from them. As one great evidence scholar put it long ago, it is "for the jury to form opinions, and draw inferences and conclusions, and not for the witness": J. B. Thayer, A Preliminary Treatise on Evidence at the Common Law (1898; reprinted 1969), at p. 524; see also C. Tapper, Cross and Tapper on Evidence (12th ed. 2010), at p. 530. While various rationales have been offered for this exclusionary rule, the most convincing is probably that these ready-formed inferences are not helpful to the trier of fact and might even be misleading: see, e.g., Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at p. 836; Halsbury's Laws of Canada: Evidence (2014 Reissue), at para. HEV-137 "General rule against opinion evidence".
15 Not all opinion evidence is excluded, however. Most relevant for this case is the exception for expert opinion evidence on matters requiring specialized knowledge. As Professor Tapper put it, "the law recognizes that, so far as matters calling for special knowledge or skill are concerned, judges and jurors are not necessarily equipped to draw true inferences from facts stated by witnesses. A witness is therefore allowed to state his opinion about such matters, provided he is expert in them": p. 530; see also R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at p. 42.
(2) The Current Legal Framework for Expert Opinion Evidence
16 Since at least the mid-1990s, the Court has responded to a number of concerns about the impact on the litigation process of expert evidence of dubious value. The jurisprudence has clarified and tightened the threshold requirements for admissibility, added new requirements in order to assure reliability, particularly of novel scientific evidence, and emphasized the important role that judges should play as "gatekeepers" to screen out proposed evidence whose value does not justify the risk of confusion, time and expense that may result from its admission.
17 We can take as the starting point for these developments the Court's decision in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. That case described the potential dangers of expert evidence and established a four-part threshold test for admissibility. The dangers are well known. One is that the trier of fact will inappropriately defer to the expert's opinion rather than carefully evaluate it. As Sopinka J. observed in Mohan:
There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves. [p. 21]
(See also D.D., at para. 53; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at paras. 25-26; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 46.)
18 The point is to preserve trial by judge and jury, not devolve to trial by expert. There is a risk that the jury "will be unable to make an effective and critical assessment of the evidence?: R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 90, leave to appeal refused, [2010] 2 S.C.R. v. The trier of fact must be able to use its "informed judgment", not simply decide on the basis of an "act of faith" in the expert's opinion: J.-L.J., at para. 56. The risk of "attornment to the opinion of the expert? is also exacerbated by the fact that expert evidence is resistant to effective cross-examination by counsel who are not experts in that field: D.D., at para. 54. The cases address a number of other related concerns: the potential prejudice created by the expert's reliance on unproven material not subject to cross-examination (D.D., at para. 55); the risk of admitting "junk science" (J.-L.J., at para. 25); and the risk that a "contest of experts" distracts rather than assists the trier of fact (Mohan, at p. 24). Another well-known danger associated with the admissibility of expert evidence is that it may lead to an inordinate expenditure of time and money: Mohan, at p. 21; D.D., at para. 56; Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27, [2011] 2 S.C.R. 387, at para. 76.
19 To address these dangers, Mohan established a basic structure for the law relating to the admissibility of expert opinion evidence. That structure has two main components. First, there are four threshold requirements that the proponent of the evidence must establish in order for proposed expert opinion evidence to be admissible: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert (Mohan, at pp. 20-25; see also Sekhon, at para. 43). Mohan also underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect -- a residual discretion to exclude evidence based on a cost-benefit analysis: p. 21. This is the second component, which the subsequent jurisprudence has further emphasized: Lederman, Bryant and Fuerst, at pp. 789-90; J.-L.J., at para. 28.
20 Mohan and the jurisprudence since, however, have not explicitly addressed how this "cost-benefit" component fits into the overall analysis. The reasons in Mohan engaged in a cost-benefit analysis with respect to particular elements of the four threshold requirements, but they also noted that the cost-benefit analysis could be an aspect of exercising the overall discretion to exclude evidence whose probative value does not justify its admission in light of its potentially prejudicial effects: p. 21. The jurisprudence since Mohan has also focused on particular aspects of expert opinion evidence, but again without always being explicit about where additional concerns fit into the analysis. The unmistakable overall trend of the jurisprudence, however, has been to tighten the admissibility requirements and to enhance the judge's gatekeeping role.
21 So, for example, the necessity threshold criterion was emphasized in cases such as D.D.. The majority underlined that the necessity requirement exists "to ensure that the dangers associated with expert evidence are not lightly tolerated" and that "[m]ere relevance or 'helpfulness' is not enough": para. 46. Other cases have addressed the reliability of the science underlying an opinion and indeed technical evidence in general: J.-L.J.; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239. The question remains, however, as to where the cost-benefit analysis and concerns such as those about reliability fit into the overall analysis.
22 Abbey (ONCA) introduced helpful analytical clarity by dividing the inquiry into two steps. With minor adjustments, I would adopt that approach.
23 At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four Mohan factors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) and in addition, in the case of an opinion based on novel or contested science or science used for a novel purpose, the reliability of the underlying science for that purpose: J.-L.J., at paras. 33, 35-36 and 47; Trochym, at para. 27; Lederman, Bryant and Fuerst, at pp. 788-89 and 800-801. Relevance at this threshold stage refers to logical relevance: Abbey (ONCA), at para. 82; J.-L.J., at para. 47. Evidence that does not meet these threshold requirements should be excluded. Note that I would retain necessity as a threshold requirement: D.D., at para. 57; see D. M. Paciocco and L. Stuesser, The Law of Evidence(7th ed. 2015), at pp. 209-10; R. v. Boswell, 2011 ONCA 283, 85 C.R. (6th) 290, at para. 13; R. v. C. (M.), 2014 ONCA 611, 13 C.R. (7th) 396, at para. 72.
24 At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. In Mohan, Sopinka J. spoke of the "reliability versus effect factor" (p. 21), while in J.-L.J., Binnie J. spoke about "relevance, reliability and necessity" being "measured against the counterweights of consumption of time, prejudice and confusion": para 47. Doherty J.A. summed it up well in Abbey, stating that the "trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence": para. 76.
25 With this delineation of the analytical framework, we can turn to the nature of an expert's duty to the court and where it fits into that framework.
E. The Expert's Duties and Admissibility
33 As we have seen, there is a broad consensus about the nature of an expert's duty to the court. There is no such consensus, however, about how that duty relates to the admissibility of an expert's evidence. There are two main questions: Should the elements of this duty go to admissibility of the evidence rather than simply to its weight?; And, if so, is there a threshold admissibility requirement in relation to independence and impartiality?
34 In this section, I will explain my view that the answer to both questions is yes: a proposed expert's independence and impartiality goes to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty. Once that threshold is met, remaining concerns about the expert's compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role.
(c) Conclusion
45 Following what I take to be the dominant view in the Canadian cases, I would hold that an expert's lack of independence and impartiality goes to the admissibility of the evidence in addition to being considered in relation to the weight to be given to the evidence if admitted. That approach seems to me to be more in line with the basic structure of our law relating to expert evidence and with the importance our jurisprudence has attached to the gatekeeping role of trial judges. Binnie J. summed up the Canadian approach well in J.-L.J.: "The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility" (para. 28).
F. Situating the Analysis in the Mohan Framework
(1) The Threshold Inquiry
52 Courts have addressed independence and impartiality at various points of the admissibility test. Almost every branch of the Mohan framework has been adapted to incorporate bias concerns one way or another: the proper qualifications component (see, e.g., Bank of Montreal; Dean Construction; Agribrands Purina Canada Inc. v. Kasamekas, 2010 ONSC 166; R. v. Demetrius, 2009 CanLII 22797 (Ont. S.C.J.); the necessity component (see, e.g., Docherty; Alfano); and during the discretionary cost-benefit analysis (see, e.g., United City Properties; Abbey (ONCA)). On other occasions, courts have found it to be a stand-alone requirement: see, e.g., Docherty; International Hi-Tech Industries Inc. v. FANUC Robotics Canada Ltd., 2006 BCSC 2011; Casurina Ltd. Partnership v. Rio Algom Ltd. (2002), 2002 CanLII 9356 (ON SC), 28 B.L.R. (3d) 44 (Ont. S.C.J.); Prairie Well Servicing Ltd. v. Tundra Oil and Gas Ltd., 2000 MBQB 52, 146 Man. R. (2d) 284. Some clarification of this point will therefore be useful.
53 In my opinion, concerns related to the expert's duty to the court and his or her willingness and capacity to comply with it are best addressed initially in the "qualified expert" element of the Mohan framework: S. C. Hill, D. M. Tanovich and L. P. Strezos, McWilliams' Canadian Criminal Evidence (5th ed. (loose-leaf)), vol. 2, at s. 12:30.20.50; see also Deemar v. College of Veterinarians of Ontario, 2008 ONCA 600, 92 O.R. (3d) 97, at para. 21; Lederman, Bryant and Fuerst, at pp. 826-27; Halsbury's Laws of Canada: Evidence, at para. HEV-152 "Partiality"; The Canadian Encyclopedic Digest (Ont. 4th ed. (loose-leaf)), vol. 24, Title 62 -- Evidence, at s.469. A proposed expert witness who is unable or unwilling to fulfill this duty to the court is not properly qualified to perform the role of an expert. Situating this concern in the "properly qualified expert" ensures that the courts will focus expressly on the important risks associated with biased experts: Hill, Tanovich and Strezos, at s. 12:30.20.50; Paciocco, "Jukebox", at p. 595.
(2) The Gatekeeping Exclusionary Discretion
54 Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence.
[25] In R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 Justice Sopinka for the Court articulated at para. 27 the qualified expert criterion to which Justice Cromwell referred:
(d) A Properly Qualified Expert
27 Finally the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify.
C. S. 148(1) of the Highway Traffic Act
[26] S.148(1) of the Highway Traffic Act, R.S.O. 1990, C.H.8 provides:
Overtaking and passing rules
Passing meeting vehicles
148 (1) Every person in charge of a vehicle on a highway meeting another vehicle shall turn out to the right from the centre of the roadway, allowing the other vehicle one-half of the roadway free. R.S.O. 1990, c. H.8, s. 148 (1).
[27] In Murray v. Brum, 27 M.V.R. (2d) 64 (Ont. Gen. Div.) at paras. 12 to 15 Justice Then discussed the principles which flow from this provision:
12 I have been referred by the plaintiff to Rydzik v. Edwards (1982), 1982 CanLII 2064 (ON SC), 38 O.R. (2d) 486, 23 C.C.L.T. 23, 138 D.L.R. (3d) 27 (H.C.) , a decision of Rutherford J. which in my view contains the legal principles applicable to the situation in the present case.
13 As in that case it is clear that in this case the defendant Brum was in contravention of s. 127(1) of the Highway Traffic Act , R.S.O. 1989, c. 54, s. 24 which reads as follows:
(1) Every person in charge of a vehicle on a highway meeting another vehicle shall turn out to the right from the centre of the roadway, allowing the other vehicle one-half of the roadway free.
14 In respect of the predecessor section of the Highway Traffic Act , Kellock J. in Gauthier & Co. v. R., 1945 CanLII 40 (SCC), [1945] S.C.R. 143, [1945] 2 D.L.R. 48 at 53-54 [D.L.R., pp. 149-150 S.C.R.] stated:
In my opinion, the appellant had, on this evidence, established a prima facie case of negligence as against the respondent. The duty cast upon drivers of vehicles meeting each other upon a highway, is set out in section 39 subsection 7, of The Highway Traffic Act , R.S.O. 1937, chapter 288, which provides that
where a person travelling or being upon a highway in charge of a vehicle meets another vehicle, he shall turn out to the right from the centre of the road, allowing to the vehicle so met one-half of the road free.
In Baldwin v. Bell, 1932 CanLII 33 (SCC), [1933] S.C.R. 1 at 12 , Lamont J., in delivering the judgment of himself and Rinfret J. (as he then was), said:
The non-observance by an automobile driver of the precautions prescribed or duties imposed by the legislature is usually prima facie evidence of negligence.
This was said with relation to the predecessor of the statutory provision above referred to. I refer also to Phillips v. Britannia Hygienic Laundry Co., [1923] 1 K.B. 539 at 548 .
The driver of a vehicle meeting another vehicle on a highway is entitled to rely on the performance by the approaching vehicle of the duty cast upon it by the statute referred to, and is in his turn bound by a similar duty. A breach of this duty occasioning damage will establish a prima facie case of negligence on the part of the driver of the offending vehicle, casting upon the latter the onus of explanation.
15 The explanation proffered by the defendant Brum for his swerving into the lane of the plaintiff is that the action of the unidentified car in cutting the defendant off caused him to brake gently on the slippery road surface causing his vehicle to veer out of control. However, I have accepted the evidence of Mrs. Scott, who saw no interference and have found as a fact that there was no interference by an unidentified red Chevy with the vehicle of the defendant Brum. Accordingly, the explanation proffered is unavailable. In the absence of an explanation, a breach of the statutory duty has established a prima facie case of negligence.
D. The Doctrine of Emergency
[28] The doctrine of emergency was succinctly stated by Justice Spence for the Supreme Court of Canada in Gill v. Canadian Pacific Railway, 1973 CanLII 2 (SCC), [1973] S.C.R. 654 at para. 19 as follows:
It is trite law that faced with a sudden emergency for the creation of which the driver is not responsible he cannot be held to a standard of conduct which one sitting in the calmness of a courtroom later might determine was the best course.
[29] That doctrine is further discussed in Gerbrandt v. Deleeuw, 1995 CanLII 407 (BC SC), [1995] B.C.J. No. 1022 (B.C.S.C.) at paras. 10 to 12 by Justice Hunter:
10 An often quoted summary of the law concerning the agony of collision is found in an old text, Huddy on Automobiles, 7th Ed., page 471 and page 335 (this passage is relied upon by the Saskatchewan Court of Appeal in English v. North Star Oil Limited 1941 CanLII 161 (SK CA), [1941] 3 W.W.R. 622 (Sask. C.A.) and Reineke v. Weisgerber 1974 CanLII 945 (SK QB), [1974] 3 W.W.R. 97(Sask. Q.B.)):
"Under circumstances of imminent danger an attempt to avoid a collision by turning one's course instead of stopping the vehicle is not necessarily negligence. Or an attempt to stop when a turn would have been a more effective method of avoiding the collision is not necessarily negligence ...one who suddenly finds himself in a place of danger and is required to consider the best means that may be adopted to evade the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence."
11 In Gill v. C.P.R. 1973 CanLII 2 (SCC), [1973] 4 W.W.R. 593 Mr. Justice Spence speaking for the court said the following:
"It is trite law that, faced with a sudden emergency the creation of which the driver is not responsible, he cannot be held to a standard of conduct which one sitting in the calmness of a Courtroom later might determine was the best course ..."
12 It was dark at the time of this accident and Mrs. Gerbrandt was driving into a curve. Mr. Deleeuw was approaching from the opposite direction. She noticed that he was weaving - she thought over the center line. She was in a quandary as to what she should do. Her first thought was to pull off the road to her right and then she remembered that someone had been killed driving off the road at that location. She is unclear as to what she did next but the accident reconstruction, including the skid and scuff marks on the road surface and the location of the major damage to both vehicles, confirm that she turned suddenly to her left, likely with the hope that the Deleeuw vehicle would pass by on her right. Unfortunately for her and her family, that did not occur. She was clearly in an emergency situation. The law does not expect the same care from a driver in such a situation as it does from a driver in normal driving circumstances.
[30] Recently in the Ontario Court of Appeal the doctrine of emergency was addressed by both Justice Huscroft for the majority and Justice Pepall in dissent in Isaac Estate v. Matuszynska, 2018 ONCA 177. Huscroft J.A. at paras. 27, 28, and 38 states:
27 The emergency doctrine allows exigent circumstances to be taken into account in determining whether the standard of care was met. The question for the motion judge was whether the emergency doctrine applied in these circumstances.
28 Two elements must be established in order for the emergency doctrine to apply. First, the harm must be imminent. Second, it must be unforeseen: G.H.L. Fridman, The Law of Torts in Canada 3rd ed. (Toronto: Thomson Reuters Canada Ltd., 2010), at p. 378. Put another way, the doctrine will not apply where the emergency could have been reasonably anticipated: Lewis N. Klar, Tort Law, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2012), at p. 360.
38 As for the actions taken by Lafontaine, the law is not so unreasonable as to hold people to a standard of perfection in determining the appropriate standard of conduct in an emergency: Canadian Pacific Railway v. Gill et al., 1973 CanLII 2 (SCC), [1973] S.C.R. 654, at p. 665. In this case, the motion judge considered all of the relevant circumstances and found that the respondent acted reasonably in the context of the emergency he faced. She considered and rejected the very argument the appellants reiterate on appeal, describing it as parsing the chronology of events in minute detail, "ignor[ing] the dynamic and rapidly escalating situation that was unfolding...the very danger of judging the events of the night with perfect hindsight."
[31] Justice Pepall at paras. 75 to 83 states:
75 In tort law, emergencies may arise in a variety of contexts. In certain intentional torts, for example, assault or trespass to property, the defences of self-defence or necessity may be available and in that way, consideration of an emergency may be appropriate. In contrast, with negligence, an emergency does not amount to a defence; rather it informs the standard of care.
76 In this case, the appellants' claim is framed in negligence.
77 To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable, and prudent person in the same circumstances. What is reasonable depends in part on the likelihood of a foreseeable harm: Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, at para. 28. In an emergency, a person is not to be held to a standard of perfection. As the Supreme Court stated in Canadian Pacific Ltd. v. Gill et al., 1973 CanLII 2 (SCC), [1973] S.C.R. 654, at p. 665, "[i]t is trite law that faced with a sudden emergency for the creation of which the driver is not responsible he cannot be held to a standard of conduct which one sitting in the calmness of a courtroom later might determine was the best course." See also: Horsley v. MacLaren, 1971 CanLII 24 (SCC), [1972] S.C.R. 441. In this way, the doctrine of emergency demands an analysis of the applicable standard of care.
78 However, to constitute an emergency in a legal sense, the emergent situation must be imminent and unforeseen: G.H.L. Fridman et al, The Law of Torts in Canada, 3rd ed. (Toronto: Thomson Reuters Canada Ltd., 2010), at p. 378.
79 The CIVJIl Jury Instructions, 2nd ed, 2017 Update [February 2017], at $S8.04.1, put it this way:
A person who, without negligence on his or her part, is suddenly and unexpectedly confronted with an emergency arising from either the actual presence or the appearance of imminent danger to self or to others is not expected or required to use the same judgment and care that is expected of him or her in calmer and less hurried moments. Such a person is not required to exercise extraordinary care and control. His or her duty is to exercise only the care that an ordinary, prudent person would exercise in the same situation. The test in such a case is not whether a better course of action was open, but whether what was done was what an ordinary prudent person might reasonably be expected to do in such an emergency. [Emphasis added.]
80 As described by Lewis N. Klar, in Tort Law, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2012), at p. 360, the doctrine will not apply where the emergency could have been reasonably anticipated. This was explained by this court in Gellie v. Naylor et al. (1986), 1986 CanLII 2673 (ON CA), 55 O.R. (2d) 400 (C.A.). In that case, the trial judge failed to properly instruct the jury because he had not instructed them that, in the particular factual circumstances of that case, they could find that the antecedent conduct of the plaintiff factually negated the existence of an emergency in its legal sense. This court stated at p. 402:
[I]f the motorist is alerted, by the previously observed conduct of another person that there is a distinct possibility the other person may act negligently and expose himself to danger, then the assumption loses its justification. The anticipation of negligent conduct renders such conduct foreseeable and makes it incumbent on the motorist to take additional precautions: see generally Fleming, The Law of Torts, 6th ed. (1983), at pp. 115-6:
Liberty to act on an expectation of non-negligence in others ceases as soon as there are indications that they are, or are likely to be, acting imprudently. The ever present possibility of negligent behaviour demands constant scrutiny in every direction whence danger may loom, and the greater the risk the more tentative must be the assumption that others will conduct themselves with reasonable care.
81 Similarly, as explained in Holizki Estate v. Alberta (Public Trustee), 2008 ABQB 716, 462 A.R. 85, at para. 173:
The case law establishes limitations on when this doctrine can be invoked. First, the defence is only applicable if the emergent situation is imminent and unforeseen and could not have been reasonably anticipated by the reacting driver. If the defendant driver anticipates a dangerous situation and has sufficient opportunity to apply his brakes or take other evasive action to avoid the collision, but does not, then the doctrine is not applicable and the defendant driver will be held contributorily liable for the resulting damages.
82 The duty arises when the possibility of danger first becomes apparent: Holizki, at para. 175.
83 The motions judge did not turn her mind to the elements of the doctrine of emergency. She did not consider whether the evidence of an emergent situation was imminent, unforeseen, or unanticipated, and failed to consider the applicable law as set out in Gellie. There was evidence in the record before her that might support such a finding, but the motions judge did not consider the elements of the doctrine.
[32] Despite argument by Ms. Burn that the emergency doctrine differs in its application as between the driver of a vehicle who initiates an emergency and his innocent passengers, I find that the above principles guide the application of the doctrine in both situations.
IV. ANALYSIS
[33] The Moving Party argues that there is no genuine issue requiring a trial with respect to the claims, including cross-claims, against him. He argues that s. 148(1) of the HTA applies to render Mr. Brown prima facie negligent; and that the emergency doctrine applies to himself so as to render his own conduct free from negligence. Additionally, he contends that the Williamson evidence is inadmissible because it is not expert opinion evidence, but simply lay opinion based on common sense and experience. Finally, he submits that it would be appropriate to use Rule 20.04 (2.1) and (2.2) to grant summary judgement.
[34] The Responding Parties argue that there is a genuine issue requiring a trial on the extent of Mr. McPherson’s liability which may be at least 1%. They contend that Mr. Williamson’s evidence is admissible as expert opinion, and that he only used common sense and experience within the context of his expertise. Moreover, they submit that the risk of my findings being inconsistent with those to be made in the fourth action (which is not before me) also bars my granting summary judgement.
[35] I am satisfied that there is a genuine issue requiring a trial on the extent of Mr. McPherson’s liability, and, therefore, dismiss the motion before me. I do so for reasons other than the risk of inconsistent findings put to me by the Responding Parties. I set out those reasons now; in formulating them I have had regard to the governing principles set out above.
[36] S. 148(1) of the HTA applies to Mr. Brown. However, Mr. Williamson’s evidence is relied upon by the Responding Parties to create a basis for finding at least some liability on the part of Mr. McPherson.
[37] The Moving Party asks me to determine on this motion the admissibility of Mr. Williamson’s evidence. Further, to grant summary judgment, if I found this evidence admissible, I would still have to assess the weight of his evidence as well as that of Dr. Campbell and Mr. Catania.
[38] In Frame, et al. v. Watt, et al., 2016 ONSC 718 at paras. 33, 34 and 35 Justice Henderson discusses the difficulties in assessing conflicting expert evidence on a summary judgement motion:
33 I start my analysis by observing that it is very difficult for any court to resolve an issue where there is conflicting expert evidence. Conflicting evidence as between lay witnesses can often be resolved by considering inconsistencies in the sworn evidence, bias, or credibility problems. However, in the present case, I am presented with two sets of qualified experts who have no significant credibility issues, but differing opinions.
34 In that regard, I adopt the comments of Edwards J. in the case of Paul v. Oliver Fuels Ltd., [2012] O.J. No. 540 at para. 44 as follows:
While there may very well be cases in the future with conflicting expert opinions that are amenable to a motion for summary judgment, it strikes me that where there are conflicting experts' opinions, in general, such a case is not, ... amenable to summary judgment.
35 In the present case, counsel for the Watt defendants submits that I should prefer the evidence of the GK experts over that of the KE experts because the GK experts, in particular Adam Campbell, have superior qualifications with respect to human factors. In my view, it is not appropriate to do so at this point in this case. The qualifications of the experts go to the weight of their evidence, and there is no doubt that I have the power to assess weight on a Rule 20 motion. But, in this case I cannot find that the weight of the opinion evidence of one expert is so strong that I should ignore the opinion evidence of another expert.
[39] The entire quotation from Justice Edwards in Paul v. Oliver Fuels Ltd., [2012] O.J. No. 540 at para. 44 is helpful:
44 While there may very well be cases in the future with conflicting expert opinions that are amenable to a motion for summary judgment, it strikes me that where there are conflicting experts' opinions, in general, such a case is not, adopting the words of the Court of Appeal in Combined Air, supra, amenable to summary judgment. The facts before me, while simple on first analysis, in reality encompass conflicting experts' opinions particularly with respect to the standard of care of the installer and the inspector. In short, when confronted with such conflicting experts' opinions from all sides, a summary judgment motion cannot serve as an adequate substitute for the trial process. For these reasons, the summary judgment motions of the plaintiff and both defendants are dismissed.
[40] I am not able to justly resolve the admissibility of Mr. Williamson’s evidence without a voir dire at which he would be cross-examined on the issues mandated by the principles I have set out above, including whether he had employed his expertise to do his analysis or was simply giving lay opinion evidence based on common sense and experience. His qualification to give human factors evidence would also be the subject of that voir dire.
[41] Further, the weighing of his evidence, were it to be ruled admissible, as well as the evidence of Dr. Campbell and Mr. Catania would also require viva voce cross-examination of those witnesses in my view.
[42] I do not find it appropriate to use my powers under Rule 20.04 (2.1) and (2.2) to make those findings of admissibility or weight.
[43] In Hryniak v. Mauldin, supra at para. 51 Justice Karakatsanis states:
[51] Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself. However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.
[44] In the case at bar the admissibility of expert evidence and the assessment of its weight should take place in the context of a full trial so that a just and fair determination of the liability of the parties to the four actions can be determined. For example, the weight of the expert evidence would then be determined in the context of all the admissible evidence of the events in question. In Cannon v. Funds for Canada Foundation, 2012 ONSC 399 at para. 477 Strathy J., as he then was, notes that in a case where a court must make “the evaluation, assessment and comparison of the credibility of a number of witnesses…[,] using the motion judge’s expanded powers under Rule 20.04(2.1)” still does not render a summary judgment motion a suitable forum for this assessment.
V. COSTS
[45] I will receive submissions as to costs in writing. They are to be no more than 4 pages, excluding a bill of costs. The Responding Parties are to serve and file their submissions within 14 days of release of this endorsement. The Moving Party is to serve and file his submissions within 14 days of service upon him of the last set of the Responding Parties’ submissions. There shall be no reply.
Bloom, J.
DATE: May 31, 2018