COURT FILE NO.: CV-13-494866 DATE: 20180802 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Adam Dunbar Gardner Plaintiff – and – John Doe Driver, John Doe Owner and TD General Insurance Defendants

COUNSEL: Patricia Sim for the Plaintiff Tessie Kalogeras for the Defendant TD General Insurance

HEARD: July 20, 2018

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] On December 18, 2011, while driving a grey Ford Focus on Highway 401 in the City of Toronto, Adam Gardner was in an automobile accident. At the same time, while driving his grey Honda Accord on the Highway 401, Glengarry Curtis was involved in the same accident.

[2] There are four possible causes of the accident involving Mr. Gardner and Mr. Curtis. First, Mr. Gardner solely caused the accident. Second, Mr. Curtis solely caused the accident. Third, Mr. Gardner and Mr. Curtis together caused the accident. Fourth, an unknown vehicle caused the accident.

[3] Mr. Gardner’s position is that the cause of the accident was the unknown vehicle, and notwithstanding that he knew that Mr. Curtis was involved in the accident, Mr. Gardner did not sue Mr. Curtis. Instead, Mr. Gardner sued only the driver and owner of the unknown vehicle; i.e., John Doe Driver and John Doe Owner. Because an unknown vehicle driver was involved in the accident, Mr. Gardner joined TD General Insurance, which is the motor vehicle insurer of the Gardner vehicle, as a defendant.

[4] Under s. 265(1) of the Insurance Act, if an unknown vehicle is the sole cause of the accident, then TD Insurance would be liable for $200,000 under its insurance policy. However, if an identified vehicle is found to be liable, then the insured cannot recover under the insurance policy.

[5] Six and a half years after the accident, TD Insurance now brings a summary judgment motion to have Mr. Gardner’s action against it dismissed.

[6] For the reasons that follow, I grant TD Insurance’s motion, and I dismiss Mr. Gardner’s action.

B. Procedural and Evidentiary Background

[7] The accident involving Mr. Gardner and Mr. Curtis occurred on December 18, 2011.

[8] On December 13, 2013, Mr. Gardner commenced an action against John Doe Driver, John Doe Owner, and TD Insurance. The action against TD Insurance was pursuant to: (a) the OPCF 44R (Family Protection Coverage) of his insurance policy; and (b) s. 265 of the Insurance Act. Mr. Gardner’s claim under OPCR 44R has recently been abandoned, and I shall say no more about it.

[9] On January 16, 2014, TD Insurance served a Notice of Intent to Defend. By letter to Mr. Gardner’s counsel, TD Insurance requested a copy of the Motor Vehicle Accident Report.

[10] On March 6, 2014, TD Insurance received a copy of the Accident Report.

[11] On March 11, 2014, there was an exchange of emails between the lawyers for the parties, and the lawyers agreed that Mr. Gardner would amend his Statement of Claim to add Mr. Curtis as a defendant and that Mr. Gardner would discontinue his claim against TD Insurance. As will be seen, however, this agreement did not come to fruition.

[12] On March 27, 2014, Mr. Gardner brought a motion to add Mr. Curtis as a defendant. The motion was to be returnable on July 30, 2014.

[13] On May 30, 2014, Mr. Gardner advised TD Insurance that he was withdrawing his motion. Mr. Gardner’s position was that an unknown vehicle was the cause of the accident and not Mr. Curtis.

[14] On October 17, 2014, TD Insurance delivered a Statement of Defence and Crossclaim against the driver of the unknown vehicle, which it identified as Mr. Curtis.

[15] On August 20, 2015, Mr. Gardner was examined for discovery.

[16] On March 18, 2016, TD Insurance issued a Third Party Claim against Mr. Curtis.

[17] On November 22, 2016, Mr. Curtis was examined for discovery in the Third Party Proceeding.

[18] On June 8, 2017, TD Insurance brought this motion for summary judgment.

[19] TD Insurance’s motion for a summary judgment was supported by: (a) affidavits of Michael Furyk dated June 8, 2017 and March 1, 2018; (b) an affidavit of Betty Curtis, Mr. Curtis’ wife, dated June 7, 2017; and (c) an affidavit of Constable Ham-Chi dated June 7, 2017.

[20] Mr Furyk is a lawyer with Blouin, Dunn LLP, lawyers for TD Insurance.

[21] Constable Ham-Chi was the police officer who attended at the scene of the accident and who prepared the Accident Report and who took statements. He has been a police officer since 1990 when he began his career working for the Toronto Police Force. In 2001, he began work for the Ontario Provincial Police.

[22] Mr. Gardner resisted the summary judgment motion, and he relied on: (a) his own affidavit dated August 9, 2017; (b) an affidavit dated August 9, 2017 from Andrew Jia; and (c) an affidavit dated August 9, 2017 from Laura Avard-Gardner, who is Mr. Gardner’s wife.

[23] Andrew Jia is a lawyer with Grillo Barristers P.C., Mr. Gardner’s lawyers.

[24] On August 24, 2017, Mr. Gardner was cross-examined.

[25] On September 5, 2017, Mr. Curtis was cross-examined.

[26] On February 8, 2018, Constable Ham-Chi was cross-examined.

[27] The summary judgment motion was argued on July 20, 2018.

C. Facts

1. Undisputable or Admitted Facts

[28] The accident occurred on December 18, 2011 at approximately 7:30 p.m., which is nighttime in December.

[29] Hwy 401 is a lighted highway. The accident occurred in the express lanes at a location where the express lanes of the highway are three-lanes. The highway was clear and dry. The weather was clear and cold. The traffic conditions were medium.

[30] At the time of the accident, Mr. Gardner (born 1984) was driving a Ford Focus eastbound in the far-left lane of the three-lanes of Highway 401 near Port Union Road. He was insured with TD Insurance under a motor vehicle insurance policy no. 77801124 held by his father, who was the registered owner of the vehicle.

[31] At the time of the accident, Mr. Curtis (born 1941) was driving a Honda Accord eastbound in the middle lane of the highway. Mrs. Curtis (born, circa 1943) was in the front passenger seat. Mr. Curtis’s automobile insurer was Allstate Insurance under policy no. 059045667.

[32] Constable Ham-Chi arrived at the scene of the accident. The scene of the accident was also attended by an ambulance and by fire fighters in case of a vehicle fire. There was no fire.

[33] The Curtises were shaken up but suffered no injuries from the accident.

[34] Mr. Gardner was injured in the accident, and he was taken to Rouge Valley Hospital by ambulance. He was treated for a cut on his forehead. He sustained a concussion and tissue injuries to his neck, back, and right shoulder.

[35] After Mr. Gardner’s discharge from the hospital, he went home, but he returned to the hospital where he met Constable Ham-Chi. Constable Ham-Chi met with Mr. Gardner and his wife at the hospital and took a statement.

[36] Constable Ham-Chi substantially prepared his Accident Report on the date of the accident, which was his normal practice, but the report was not completed until December 24, 2011.

[37] There are no known witnesses to the accident other than Mr. Gardner and the Curtises.

[38] No criminal or motor vehicle driving charges were laid against Mr. Gardiner or Mr. Curtis.

2. Mr. Gardner’s Account of the Accident

[39] Mr. Gardner’s account of the accident was that he had finished referring a hockey game at an arena in the north end of Toronto and he was going home. He had friends coming over for dinner. He was sober and not under the influence of any drugs. He was wearing his corrective lenses eyeglasses.

[40] Mr. Gardner’s vehicle was travelling around 110 km/hr in a 100 km zone. He was wearing his seat belt. His vehicle was in the passing lane of the highway. He saw a speeding unknown vehicle, the type of which he could not identify, coming up from behind on the right-hand side either in the middle lane or the far-right lane. He was drawn to notice the unknown vehicle in his rear-view mirror because of the noise being made by it. He believes that it may have had a modified and noisy muffler. The noisy unknown vehicle cut into Mr. Gardner’s lane. The unknown vehicle struck the front right side of the Gardner vehicle. The Gardner vehicle spun out of control. While out of control, the Gardner vehicle struck the Curtis vehicle, which was in the middle lane of the highway. Rotating, Mr. Gardner’s vehicle crossed three lanes of the highway. It slammed into the cement barrier. The vehicle was turned 180 degrees and was facing westbound. At the same time, the Curtis vehicle slid across two lanes and into the cement barrier. There was a second collision; a third vehicle, another unknown vehicle, struck the Curtis vehicle causing a chain reaction and a front-end collision between Mr. Gardner’s vehicle and Mr. Curtis’ vehicle. Mr. Gardner’s vehicle was damaged on both the right and left side and in front as a result of the several collisions. Mr. Gardner blacked out when his vehicle struck the cement barrier, and the second impact caused his head to strike the steering wheel or the windshield. When he regained consciousness, he spoke to Mr. Curtis.

[41] After the accident, Mr. Gardner was taken to the hospital by ambulance and after his treatment, he and his wife met with Constable Ham-Chi, who took a statement that was signed by Mr. Gardner but appears to have been written by his wife in the third-person. The statement reads:

Adam was driving in the left hand passing lane eastbound on the 401. A vehicle swerved into his lane. He does not know if the vehicle made contact with his own vehicle. He doesn’t know if he made contact with the other vehicle that that caused the cars to spin or if he spun his wheel to avoid being hit. His vehicle lost control and he spun across three lanes of traffic and wound up facing west in the far right-hand lane. Adam’s driver side was against the concrete wall. When he was stopped, the other vehicle was hit by another car into his car. Adam called 911, and an ambulance came on scene.

3. Mr. Curtis’ Account of the Accident

[42] Mr. Curtis’ account of the accident was that he and his wife were driving home on Highway 401. They were coming from the Toronto International Airport, where they just returned from a trip to Florida. The Curtis vehicle was moving at between 105 to 110 km/hr in the middle lane of the highway, when his vehicle was struck by Mr. Gardner’s vehicle, which had moved from the left lane to strike the Curtis vehicle on the front left fender. Mr. Curtis believes that the collision with the Gardner vehicle was caused by the Gardner vehicle. Mr. Curtis did not observe another vehicle in front of him in the middle lane that cut off the Gardner vehicle. As a result of the collision of the vehicles, the Curtis vehicle slid to the right across two lanes of the highway. As the Curtis vehicle approached the cement barrier, it was struck a second time by an unknown blue-coloured vehicle, which continued eastbound and disappeared. The Curtis vehicle came to a rest against the cement barrier and was facing the Gardner vehicle that had spun 180 degrees. The Curtises got out of their vehicle and went to see if Mr. Gardner was injured. Mr. Gardner was bleeding from a cut on his forehead and Mrs. Curtis gave him Kleenex to stem the bleeding. Mr. Gardner told the Curtises that he had been cut off by a fast-moving car that had moved from behind him and then cut him off.

[43] Mr. Curtis gave a signed statement to Constable Ham-Chi at the scene of the accident. The statement read:

We were hit from behind by a car unknown and forced across the inside (lane three) a second time by the grey car. Gentleman in the grey car had a head wound. My wife and I were unhurt.

[44] Mr. Curtis made notes and drafted a statement sometime after the accident. The statement was as follows:

Report of car accident in which my wife and I were involved on December 12, 2011, taken from notes written by me the day after the accident.

My wife (Betty Curtis) and I (Garry Curtis) were driving east on the 401 Highway at approximately 7:30 p.m. We were in the middle lane following traffic at approximately 105 to 110 KPH. Our car was suddenly hit by a car coming from the outside lane into the middle land. The force of the hit forced my car over the inside lane and close to the barrier, still facing east. When we got stopped and were about to leave our car, we were hit again from behind and forced closer to the barrier, with my right front fender a couple of feet away from the barrier and my back bumper slightly on the inside lane. My first thought was that we had been hit again by the same car. We finally were able to get out of our car and that was when I saw Adam Gardner’s car several feet in front of our car, facing west. He was sitting in the driver’s seat. My wife and I went over to him to see if he was all right and noticed that he had a cut on his forehead. She gave him Kleenex to help stem the bleeding. He told us that he had been forced out of his lane and into me by a fast-moving car which was behind him in the outside lane. In the meantime, we were approached by a gentleman whose car was parked behind Mr. Gardner’s car facing east. He checked to see if everyone was okay and when he saw that we were, he proceeded to put several triangular reflective safety signs up the road behind my car. I asked him if he had witnessed the accident, but he said he had not, and just helping. I was unable to get his name. It was as we were talking, that an OPP officer arrived followed by an ambulance and fire truck. The officer (#10787) was soon followed by other police officers and either firemen or ambulance personnel. They all checked to see if everyone was okay. The first officer asked us what happened. He asked me how many cars were involved. I told him that there just the two cars, Mr. Gardner’s and ours. The officer told me he felt that a third car was involved, and he showed me that the car that Mr. Gardner was driving was gray and third car looked to be blue from the sample where he had hit us. The trunk of our car had been pushed into the back of our car. The blue car was not in sight. After being questioned by police, Mr. Gardner was taken to hospital by ambulance. Our car was towed to a Shell Gas Station on Hwy 2, from where we phoned my son to ask him to come to get us and drive us home. Upon his arrival, my son was allowed to get the contents from our trunk and glove compartment. The police officer returned my licence and insurance papers and we left for home. Betty and I were shaken up and I had heat burns on the back of both of my thumbs (presumably from the air bag deployment, but neither of us were seriously hurt. Our car was a write-off.

4. Mrs. Curtis’ Account of the Accident

[45] Mrs. Curtis’ account of the accident was that at the time of the accident, she was in the front passenger seat. The Curtis vehicle was in the middle lane, when, she says, suddenly, the car was hit by Mr. Gardner’s vehicle moving from the passing lane into the middle lane of the highway. Before the collision, Mrs. Curtis did not see any cars in front of their vehicle that moved into the passing lane. As a result of the collision, the Curtis vehicle was moved towards the cement barrier on the right shoulder of the highway. Near the shoulder, there was a second collision when an unknown vehicle struck the rear of the Curtis vehicle propelling it forward. The unknown vehicle left the scene of the accident. Mrs. Curtis got out of the vehicle and spoke to Mr. Gardner.

5. Constable Ham-Chi’s Investigation of the Accident

[46] Constable Ham-Chi arrived at the scene of the accident around 7:35 p.m. He spoke to Mr. Gardner, made notes and took a statement from him. He spoke to Mr. Curtis, made notes and took a statement from him. He observed the condition of the highway and investigated the location of the accident and the damage to the vehicles.

[47] Constable Ham-Chi’s concluded that there was an initial collusion between the Gardner vehicle and the Curtis vehicle in which Mr. Gardner’s vehicle made contact with the Curtis vehicle causing both vehicles to slide toward the right shoulder of the highway. After this first collision, an unknown blue vehicle rear-ended the Curtis vehicle and pushed both vehicles against the right shoulder cement barrier. The unknown blue vehicle that struck the Curtis vehicle left a transfer of blue paint on the Curtis vehicle. The unknown blue vehicle left the scene of the accident and was the only unknown vehicle involved in the accident.

[48] It is to be noted that in the Accident Report, Constable Ham-Chi makes no mention of an unknown vehicle being involved in the first collision. Under cross-examination, he said that it was possible that an unknown vehicle was involved and he said it was possible that there could be other explanations of the collision, but there was no physical evidence to support these alternative explanations.

[49] Constable Ham-Chi’s schematic sketch of the accident is set out below

[50] The translation of the schematic sketch is: Gardner vehicle (V1) is moving eastbound on the express lanes of Hwy 401 in the passing lane (L1). The Gardner vehicle makes contact with the Curtis vehicle (V2), which was moving eastbound on Hwy 401 in the middle lane (L2). Both vehicles slide to the right shoulder of the highway. Then, an unknown vehicle (?V3), which is moving eastbound in the far-right lane (L3), strikes the Curtis vehicle causing it to collide with the Gardner vehicle (now facing westbound) and moving the Gardner vehicle against the right-side cement barrier.

D. Discussion

1. Is the Case Appropriate for a Summary Judgment?

[51] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04 (2.1) states:

20.04 (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:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[52] In Hryniak v. Mauldin, 2014 SCC 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers introduced when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[53] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04 (2.1) and (2.2). As a matter of discretion, the motions judge may 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 their use 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. To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in the case. Campana v. The City of Mississauga, 2016 ONSC 3421; Ghaeinizadeh (Litigation guardian of) v. Garfinkle Biderman LLP, 2014 ONSC 4994, leave to appeal to Div. Ct. refused, 2015 ONSC 1953 (Div. Ct.); Lavergne v. Dominion Citrus Ltd., 2014 ONSC 1836 at para. 38; George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001.

[54] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial. Dawson v. Rexcraft Storage & Warehouse Inc., [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 18 O.R. (3d) 481 (C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11. Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment. Toronto-Dominion Bank v. 466888 Ontario Ltd., 2010 ONSC 3798.

2. Analysis of the Evidence

[55] For this summary judgment motion, there is one genuine issue and depending on the determination of that issue, there could be a second genuine issue. However, as I shall explain, neither the first or the second genuine issue require a trial.

[56] The one genuine issue is whether on the balance of probabilities an unknown vehicle was a cause of the accident. If the answer to that issue is negative, then TD Insurance is not liable to Mr. Gardner. If the answer to that genuine issue is positive, then TD Insurance would be liable, unless it were to prove that Mr. Curtis’ vehicle was also a cause of the accident, in which case TD’s Insurance policy is not engaged and it is not liable.

[57] Mr. Gardner, Mr. Curtis, and Mrs. Curtis are all credible witnesses in the sense that they are not lying and in the sense that they respectively genuinely believe that their own account of the accident is true. With the exception of their competing views about whether an unknown vehicle was the cause of the accident, the accounts of the accident of Mr. Gardner, Mr. Curtis, and Mrs. Curtis are not very different.

[58] While there are some inconsistencies, after interviews, examinations, and cross-examinations, Mr. Gardner and Mr. Curtis did not depart much from or fundamentally change their account of the accident. With the further passage of time and the fading of memories and the hardening of positions, there is nothing to be gained by a reprise of their evidence before a jury.

[59] In the case at bar, I have all the evidence I need to make a just and fair determination of which account of the accident is true. The case at bar is an appropriate case for summary judgment. There are no additional witnesses of the accident, and both parties are to be taken as having put their best evidentiary foot forward for the purposes of the summary judgment motion.

[60] In the case at bar, the issue of which account of the accident is the true one is not a matter of the honesty of the witnesses; rather, it is a matter of the reliability, plausibility, consistency, and congruence of their evidence about the accident considered along with the physical evidence and a common-sense appreciation of the physics and dynamics of the accident. In the last regard, neither party proffered any expert evidence from an accident reconstruction expert, but Constable Ham-Chi’s investigation evidence is of assistance in reconstructing what occurred.

[61] While under cross-examination, Constable Ham-Chi conceded that it was possible an unknown vehicle caused the initial collision. However, most anything foreseeable is possible - but not necessarily probable - and Constable Ham-Chi found no physical evidence to support the probability that an unknown vehicle caused the first collision. Constable Ham-Chi’s own determination and reconstruction of the accident was that Mr. Gardner’s vehicle struck Mr. Curtis’ vehicle causing one to spin and the other to slide across the highway into the cement barrier.

[62] From a common-sense view of the physics and dynamics of what is known of the accident. Mr. Gardner’s account that an unknown vehicle caused the first collision does not make temporal or spatial sense.

[63] It is not plausible that an unknown vehicle came from behind Mr. Gardner’s and Mr. Curtis’ vehicles to cut across the path of both vehicles, striking the right side of Mr. Gardner’s vehicle and causing the Gardner vehicle to rotate toward the right shoulder of the highway and Mr. Curtis’ vehicle to slide to the right shoulder. Constable Ham-Chi’s schematic sketch, which does not involve an unknown vehicle in the first collision, is on the balance of probabilities the far better and accurate and probable account of the accident.

[64] On the balance of probabilities, Mr. and Mrs. Curtis’s account of the accident having been caused, not by an unknown vehicle. but by Mr. Gardner’s vehicle striking the Curtis vehicle on the left side causing both vehicles to move toward the right shoulder of the highway is the true account of the accident.

[65] I am confident, as I must be on this particular summary judgment motion, that the accident was not caused by an unknown vehicle.

[66] So that there is no doubt, I am also confident on this summary judgment motion that even if an unknown vehicle was involved, on a balance of probabilities, Mr. Curtis’ driving of his vehicle was not a cause of the accident. There is no basis for TD Insurance to be liable, and its summary judgment motion should be granted.

E. Conclusion

[67] For the above reasons, Mr. Gardner’s action should be dismissed.

[68] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with TD Insurance’s submissions within twenty days from the release of these Reasons for Decision followed by Mr. Gardner’s submissions within a further twenty days.

Perell, J.

Released: August 2, 2018