COURT FILE NO.: CV-16-550322 DATE: 20180713 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALMAS ADATIA, Plaintiff AND: ALFRED CASSAR, Defendant

BEFORE: Copeland J.

COUNSEL: Derek L. Smith, for the Plaintiff Tricia D. Hannigan and Denise Junkin, for the Defendant

HEARD: June 7, 2018

Endorsement

Introduction

[1] The defendant brings a motion for summary judgment in an action involving a motor vehicle collision.

[2] The defendant asks the court to determine the issue of liability in his favour, and dismiss the plaintiff’s action. If this matter is to be resolved by way of summary judgment, it requires the court to make findings of credibility.

[3] The collision at issue happened at a T intersection, controlled with stop signs at all three directions. The plaintiff was travelling eastbound. Her version of events is that she came to the stop sign, stopped, and proceeded, and that the intersection was clear when she proceeded. The plaintiff’s version is that when she was in the intersection, the defendant, who had been travelling southbound and was executing a left turn, turned and hit her car on the driver’s side.

[4] The defendant’s version of events is the same in terms of the physical layout of the intersection and where the vehicles collided. He was travelling southbound. But he says that he came to the intersection and stopped. He says there was a car at the stop sign for westbound traffic, but no cars coming eastbound. He says the driver of the car at the westbound stop sign waved him to proceed into the intersection. He says he then started his left turn (to travel eastbound), and the plaintiff, travelling eastbound, hit him on his passenger side as he was in the intersection making his left turn.

[5] The third party witness, Mr. Zabudsky’s version of events is that he was travelling westbound. He stopped at the stop sign. He saw the defendant’s brown car stop at the stop sign for southbound traffic. He saw the defendant begin his left turn to go eastbound. Then he saw the white car of the plaintiff approach from the east, not slow or stop at her stop sign, and hit the defendant’s vehicle as he was making his left turn. Similarly to both the plaintiff and the defendant, Mr. Zabudsky describes the point of impact as the plaintiff’s driver’s side hitting the passenger side of the defendant’s vehicle.

[6] These summaries are very brief and for purpose of context. I will make further reference to the evidence in the course of my analysis.

[7] In one sense, the issues on this motion in relation to liability are straightforward. The motion turns on issues of the credibility of three witnesses – the plaintiff, the defendant, and Mr. Zabudsky. There is no expert evidence, or objective evidence about the circumstances of the collision such as a police investigation or accident reconstruction evidence.

[8] The question I must consider is whether I have confidence that I can fairly resolve these credibility issues by way of summary judgment. As I will discuss below, the case law is clear that a judge on a summary judgment motion can decide issues of credibility; however, the case law also sounds caution about when a paper record will be sufficient to fairly decide issues of credibility.

[9] The defendant in this case argues that the credibility issues are amenable to resolution on a summary judgment motion on the record before the court. In particular, the defendant points to two factors that he argues should lead the court to conclude that it can fairly decide the issue of credibility in his favour. First, he argues that plaintiff has been inconsistent in her evidence, and has a poor memory, and for this reason is not credible. Second, the defendant argues that the evidence of a third party witness favours the defendant’s version of events. The defendant argues that the third party witness is independent, and therefore his evidence is sufficient to allow the court to resolve the credibility issues in favour of the defendant and grant summary judgment.

[10] The plaintiff argues that neither of these arguments should be accepted. The plaintiff argues that her evidence about the circumstances of the collision is consistent. The plaintiff further argues that the circumstances of the third party witness coming forward in this case are such that the court cannot, on a paper record, place reliance on the witness’ supposed independence to tip the scales in favour of the defendant on the issue of credibility. The plaintiff argues that the credibility issues in this case must be decided at trial.

The Law regarding summary judgment and credibility assessment

[11] In considering whether there is a genuine issue requiring a trial, I must consider if the summary judgment process, in particular, the record on the motion: (1) allows me to make the necessary findings of fact, including any necessary findings of credibility; (2) allows me to apply the law to the facts; and, (3) if summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result. If I find that there are genuine issues requiring a trial, and the record on the motion as it stands is insufficient to allow me to determine the genuine issues requiring a trial, I must consider if I can decide the issues using the fact-finding resources available under the summary judgment rule: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.

[12] In this summary judgment motion, the crucial question is whether the record allows me to fairly make the necessary findings of fact, in particular, findings of credibility.

[13] A judge hearing a summary judgment motion can determine issues of credibility if he or she finds the record on the motion is sufficient to do so. Rule 20.04(2.1) of the Rules of Civil Procedure expressly permits the court to weigh evidence, to evaluate credibility of witnesses, and to draw reasonable inferences from the evidence.

[14] However, in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 at para. 44, the Court of Appeal cautioned that it can be difficult for a judge hearing a summary judgment motion to make findings of fact where credibility is a central issue:

Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice. This makes the motion judge’s task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.

Analysis

[15] I find on the record in this case that I do not have confidence that I can fairly make the necessary findings of fact on a summary judgment motion, and that the matter should proceed to trial. I will explain my reasons for finding that I cannot fairly decide the credibility issues on this motion with reference to the structure of the two main arguments put forward by the defendant on the motion: 1) is the plaintiff really such a poor witness as the defendant contends? and, 2) is the evidence of the third party witness, Mr. Zabudsky, sufficient to tip the credibility scales in the defendant’s favour?

1) Is the plaintiff really such a poor witness?

[16] The defendant argues that the plaintiff is not a credible witness, that her evidence is confusing and contradictory, and that she has a poor memory. I note that the defendant did not cross-examine the plaintiff on her affidavit filed on the motion (or at least no transcript of a cross-examination was filed), but rather relied on the plaintiff’s examination for discovery.

[17] Reviewing the plaintiff’s evidence on the motion as a whole, I find that she is consistent on the core of her evidence about how the collision happened. She recalled the defendant’s car at the southbound stop sign. She did not recall a car at the westbound stop sign. She recalled that she stopped at the intersection, and was clear to proceed, and then that the defendant made his left turn and collided with her vehicle.

[18] She was uncertain about some peripheral things, such as whether the previous intersection before the intersection where the collision occurred has a stop sign for her lane of travel, whether or not she stopped at the previous intersection, the distance between the previous intersection and the intersection where the collision occurred. She also did not recall how long she was stopped at the stop sign at the intersection where the collision occurred. She was uncertain about the posted speed limit.

[19] Her uncertainty about these more peripheral aspects of her evidence is relevant to the credibility and reliability of her evidence. But I find that her credibility is not so flawed that I find it appropriate to resolve the credibility issues against her on a written record.

[20] Further, the defendant’s evidence is not without flaws in considering the credibility and reliability of his evidence.

[21] In his examination for discovery, and cross-examination, the defendant says he did not see the plaintiff’s vehicle coming eastbound. In places he says he did not see her because it was clear “way back”, but in other places he says he was looking forward to make his turn. I note that Mr. Zabudsky says he did see the plaintiff’s vehicle coming. This raises issues of whether the defendant was keeping a sufficient lookout as he made his turn.

[22] In his examination for discovery, the defendant testified that from the time his car went from the southbound lane into the intersection to make the turn, to the time of impact with the plaintiff’s vehicle was two to three minutes. This seems like a very long time to make a left turn. And as I discuss further below, is inconsistent with Mr. Zabudsky’s evidence.

[23] There is some inconsistency between the defendant’s evidence about his interaction with the driver of the westbound car at the intersection, and his evidence that when Mr. Zabudsky approached him 30 minutes or so later at the school parking lot, he had never seen Mr. Zabudsky before. In his examination for discovery, the defendant testified that when he stopped at the intersection, there was a car stopped westbound as well. The defendant testified in his examination for discovery, when asked who had the right of way to go as between himself and the vehicle at the westbound stop sign: “We looked at each-other and he signaled me to go.” In the cross-examination on his affidavit filed on the motion, the defendant described this as, “we looked at each other, and he waived [sic] me on, and I made my left turn.” However, the defendant testified in his examination for discovery that when Mr. Zabudsky approached him in the parking lot 30 minutes or so later, he had never seen him before the accident. In his cross-examination on the affidavit filed on the motion, the defendant said he had never seen Mr. Zabudsky before the moment Mr. Zabudsky approached him in the school parking lot.

[24] Further, as I discuss below at paragraphs 39-40, there are some inconsistencies between the defendant’s evidence and Mr. Zabudsky’s evidence.

[25] I point out these issues with the defendant’s evidence not for the purpose of saying he is less credible than the plaintiff, but for the purpose of saying that this is a case where credibility assessment is central, and both of the main witnesses have areas of inconsistency in their evidence. It is also a case where there is no other objective evidence, such as forensic evidence collected at the scene, or accident reconstruction evidence. These factors make this a case where there are real obstacles to deciding credibility on a paper record.

[26] A further issue that troubles me with respect to assessing credibility as between the plaintiff and the defendant, is that counsel for the defendant unfairly and incorrectly limited the scope of cross-examination of the defendant on his affidavit filed on the motion.

[27] The defendant filed an affidavit on the motion, as one would expect. Counsel for the plaintiff cross-examined him on that affidavit, as one would expect. Approximately one year prior to the cross-examination on the affidavit on the motion, the defendant had been examined for discovery. During the cross-examination on the defendant’s affidavit on the motion, counsel for the defendant repeatedly objected to questions, and refused to have the defendant answer questions, on the basis that questions had already been asked at his discovery on the same issues.

[28] Some of the areas where counsel for the defendant refused to have the defendant answer questions during the cross-examination on his affidavit filed on the motion included: which vehicle stopped first at the intersection as between the defendant’s vehicle and the vehicle at the westbound stop sign; whether he looked for eastbound traffic on Van Horne (i.e., in the direction the plaintiff was coming from); how far down Van Horne the defendant could see (i.e., to the west – where the plaintiff was coming from); how many times the defendant looked to the right (the direction the plaintiff was coming from); and, whether the defendant had any explanation for why he did not see the plaintiff’s vehicle. These questions are central to the issues in this motion, that is, how the collision occurred and the credibility and reliability of the defendant’s version of events.

[29] With respect, a refusal to answer questions at a cross-examination on an affidavit filed in a motion on the basis that the question was previously asked at an examination for discovery is inappropriate and not founded in the rules of evidence. The defendant made a choice to file an affidavit on the motion. The plaintiff was entitled to cross-examine on any issues relevant to the motion. Given that the motion was a summary judgment motion respecting liability, asking questions about the defendant’s version of events of the collision was appropriate, and indeed central to the motion.

[30] It does not matter if these issues had been explored at the prior discovery. Indeed, an effective method of cross-examination is to test a witness’ consistency, or lack of consistency, over different occasions of giving their evidence. Counsel for the defendant’s refusals to have the defendant answer questions on issues at the heart of the factual issues relating to liability denied the plaintiff the opportunity to test the defendant’s evidence, and denied the court a full record for the motion.

[31] I have considered whether my concern in this respect could be remedied by requiring the defendant to submit to a further cross-examination on the motion. However, in light of the my concerns explained in the rest of these reasons about deciding this case on a written record, I find that it would not be an efficient use of resources to order a further cross-examination of the defendant on his affidavit on the motion. My concerns about granting summary judgment in this case would not be allayed by a further cross-examination of the defendant.

[32] In summary, neither the plaintiff nor the defendant is a perfect witness. Both are consistent in the central core of their evidence about how the collision occurred. Both have some inconsistencies in aspects of their evidence. As between the plaintiff and the defendant, setting aside for a moment the evidence of Mr. Zabudsky, I find that this is a case where I do not have confidence that I can fairly decide the credibility issues on a written record.

2) Is the evidence of the third party witness, Mr. Zabudsky, sufficient to tip the credibility scales in the defendant’s favour?

[33] The defendant’s argument regarding Mr. Zabudsky’s evidence relates to the defendant’s characterization of Mr. Zabudsky as an “independent” witness. The defendant argues that I should accept Mr. Zabudsky’s evidence as credible because (according to his evidence) he does not know either party and is independent.

[34] I accept that the relative independence or lack of independence of a witness is a factor that is relevant in considering his or her credibility. However, it is not a factor that stands alone. It must be considered in the context of other factors relevant to the witness’ credibility, including the consistency of the witness’ evidence, whether the witness’ evidence is consistent or not with other evidence in a case, and so on.

[35] On the record in this case, I find that the defendant’s argument puts more weight on Mr. Zabudsky’s asserted independence than that factor can bear in assessing credibility.

[36] I find that there are some questions I have in relation to Mr. Zabudsky’s credibility and reliability. I am not holding that I do not believe him, but rather that there are genuine issues in relation to his credibility that lead me to find that it is not appropriate to determine the credibility issues in this case on a paper record.

[37] According to both the plaintiff and the defendant, after the collision they moved their cars out of the intersection and into the parking lot of a nearby school. Mr. Zabudsky, on his own evidence and that of the defendant, waited at least 30 minutes after the collision before he went to speak to the defendant. He did this after the plaintiff had left the area. Mr. Zabudsky says that he parked his car and waited by a tree during the 30 minutes or so before he approached the defendant.

[38] Mr. Zabudsky’s explanation for waiting, given both in his cross-examination on his affidavit filed on the motion, and previously in an email to counsel for the plaintiff, was that he wanted to see if the police would be called, as he preferred to become involve as a witness when the police were there, and it seemed like a minor “fender-bender” and both drivers seemed fine. Although this explanation for waiting is plausible, in the sense that one can understand that some individuals may not wish to become involved in potential conflict following a collision in the absence of the police, it does raise the issue that Mr. Zabudsky claims to have witnessed the collision, but was never seen at the scene by the plaintiff, either during the collision, or during the time she and the defendant spoke in the school parking lot after the collision.

[39] Further, there are aspects of Mr. Zabudsky’s evidence that are inconsistent with the defendant’s evidence. Mr. Zabudsky’s evidence is inconsistent with the defendant’s on the issue of whether Mr. Zabudsky waved the defendant through the intersection. Mr. Zabudsky denied in cross-examination that he made any physical communication with the driver of the brown car (the defendant) at the intersection. The defendant testified in his examination for discovery, when asked who had the right of way to go as between himself and the vehicle at the westbound stop sign: “We looked at each-other and he signaled me to go.” In the cross-examination on his affidavit filed on the motion, the defendant described this as, “we looked at each other, and he waived [sic] me on, and I made my left turn.”

[40] The defendant testified that it took him two to three minutes to complete his turn. As noted above, this seems an unusually long time to make a left turn from a stop sign. But in any event, it is inconsistent with the evidence of Mr. Zabudsky. Mr. Zabudsky testified in cross-examination that the defendant’s car stopped at the stop sign for about 3 seconds, and then that it took the defendant about 10 seconds to make his left turn.

[41] As with the defendant, I point out these issues with respect to Mr. Zabudsky’s evidence not for the purpose of saying that his version of events is less credible than the plaintiff’s, but to show the difficulty this case poses for the court to decide on a paper record.

[42] This case lacks objective evidence of the circumstances of collision, such as investigative evidence from the collision scene, or accident reconstruction evidence. In these circumstances, where the plaintiff and defendant have conflicting versions of events, I am not confident that I can accept Mr. Zabudsky as a credible witness primarily on the basis of his asserted independence.

[43] I have reviewed the cases cited by counsel for the defendant where summary judgment has been granted in circumstances involving a motor vehicle collision where the plaintiff and defendant had opposing versions of who was at fault, and thus required the resolution of issues of credibility. Every case must be decided own its own facts, and no two cases are exactly alike. On reviewing the cases cited by counsel for the defendant, I find that each involves some factor that assists the court in finding one party’s version more credible than the other, such as: an admission by one of the parties (Aranas v. Kolodziej, 2016 ONSC 7104); some clearer objective evidence such as a police investigation and the presence or absence of scene findings supporting one version of events (Chernet v. Galaites, 2016 ONSC 4023); or the absence of the types of inconsistencies between the evidence of the defendant and an independent witness which are present in this case (Mayers v. Khan, 2017 ONSC 200).

[44] In this case, there is nothing of that nature. There was no police investigation. There is no forensic evidence from the scene or accident reconstruction evidence. And for the reasons I have outlined, I am not satisfied that Mr. Zabudsky’s evidence is sufficient to fill that gap.

[45] Whether or not credibility issues can be fairly resolved on a summary judgment motion is a case by case assessment. In the circumstances of this motion, for the reasons I have outlined, I find that I am unable to fairly decide the credibility issues in this case. I find that I am unable to fairly make the necessary findings of fact on the paper record on the motion.

Will using the court’s expanded fact-finding powers under rule 20 allow me to resolve this matter by way of summary judgment?

[46] As required by Hryniak and rule 20, I have considered whether using the court’s expanded fact-finding powers on a summary judgment motion would allow me to fairly resolve the credibility issues in this case on a summary judgment motion. In particular, I have considered whether I should order a mini-trial on the issue of liability. In the circumstances I decline to do so. I accept that on a mini-trial I could hear from the three witnesses relevant to liability (the plaintiff, defendant and the third party witness). I accept that if I heard from them, I would likely be in a position to assess credibility and make factual findings in relation to liability.

[47] However, in considering whether to order a mini-trial on the issue of liability, I must consider the possible outcomes. The court cannot pre-judge the outcome of the mini-trial. In this case, there are at least two possible outcomes if a mini-trial is ordered. If, after holding a mini-trial on the issue of liability I were to find the defence evidence credible, then judgment would be granted in favour of the defendant and it would resolve all of the issues in the action. However, if after holding a mini-trial on the issue of liability I were to find the plaintiff’s evidence credible, then liability would be decided in her favour, but this would not fully resolve the action. Rather, there would still have to be a trial of the issue of damages. I note as well, given the issues about whether the defendant was keeping a sufficient lookout, there is also the possibility that the court could come to the conclusion that responsibility is shared, which would also require a trial on the issue of damages. Thus, ordering a mini-trial has the potential to result in two proceedings (the mini-trial and then the trial on damages in the event the plaintiff prevails on the mini-trial). This would increase expense and time, rather than make for a more efficient proceeding. I find that this potential for bifurcation of the trial weighs against ordering a mini-trial on the issue of liability.

[48] For these reasons, I find that there is a genuine issue requiring a trial. The motion for summary judgment is dismissed.

[49] As I am now familiar with the issues in this matter, I will seize myself. However, if in the process of obtaining a trial date it turns out that scheduling the trial before me will delay the trial, then it would be preferable that the trial proceed before another judge on an earlier date.

Costs

[50] The plaintiff seeks partial indemnity costs of the motion in the amount of $15,669.68 including HST and disbursements.

[51] Pursuant to the Courts of Justice Act, s. 131(1), the court has a broad discretion when determining the issue of costs. Rule 57.01(1) of the Rules of Civil Procedure sets out the factors to be considered by the court when determining the issue of costs.

[52] The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Counsel for Ontario. I have considered these factors, as well as the principle of proportionality, keeping in mind that the court should seek to balance the indemnity principle with the fundamental objective of access to justice.

[53] Although this was a motion of moderate complexity, it was of significant importance to the plaintiff, as her entire action would have been dismissed had the defendant prevailed on the motion.

[54] An important factor in assessing the quantum and proportionality of costs is the reasonable expectation of the parties, in particular the party who is being ordered to pay costs. In this case, the portion of the defendant’s costs outline in relation to costs of the motion sought costs of approximately $21,000.00 attributable to the motion on a partial indemnity basis. I note that this amount is greater than the quantum of costs sought by the plaintiff, which is approximately $15,000.00, if awarded on a partial indemnity basis. In my view, this speaks to the reasonableness and proportionality of the quantum of costs sought by the plaintiff. My review of the costs outlines and hours spent by counsel on both sides confirms this conclusion.

[55] Considering all of the circumstances, I find that it is appropriate that the defendant pay costs of the motion to the plaintiff on a partial indemnity basis. I find that an appropriate and proportionate award of costs in all of the circumstances, including the nature and complexity of the motion and the reasonable expectations of the parties, is that the defendant shall pay the plaintiff’s costs of the motion in the amount of $15,000.00, inclusive of disbursements and HST. The costs are payable within 30 days in accordance with rule 57.03(1)(a) of the Rules of Civil Procedure.

Copeland J. Date: July 13, 2018