Court File and Parties
COURT FILE NO.: 14-59881 DATE: 2018/09/28
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Margaret Ozimkowski, Plaintiff – and – Luc Raymond, Defendant
COUNSEL: Shawn J. O’Connor, for the Plaintiff Michael J. L. White, for the Defendant
HEARD: June 27 and 28, 2018
REASONS FOR DECISION
RYAN BELL J.
Overview
[1] On January 23, 2012, Margaret Ozimkowski was involved in a rear-end motor vehicle collision on Wolf Grove Road, a rural road in Lanark County. The freezing rain from the day continued into the evening and the road was icy. Luc Raymond was driving behind Ms. Ozimkowski’s Jeep Liberty. Ms. Ozimkowski had just crested a hill on Wolf Grove Road when she saw emergency vehicle lights flashing at the bottom of the hill. She braked and just as her Jeep was coming to a stop, she was rear-ended by Mr. Raymond.
[2] Mr. Raymond has commenced a third party claim against The Corporation of the County of Lanark (the “County”) for contribution and indemnity. The County has defended the main action. Ms. Ozimkowski does not assert a claim against the County.
[3] A jury notice has been delivered in the main action.
[4] Ms. Ozimkowski moves for partial summary judgment against Mr. Raymond on the issue of liability. Mr. Raymond maintains that the liability of Ms. Ozimkowski and the County for the collision is a genuine issue requiring a trial in the action. In particular, Mr. Raymond asserts that the icy road is central to both the main action and the third party claim. The County was not a party to the summary judgment motion, although counsel on behalf of the County attended the first day of the hearing.
[5] For the following reasons, I am satisfied that the issue of liability between Ms. Ozimkowski and Mr. Raymond can be properly and efficiently disposed of on a motion for summary judgment. I am satisfied that as to liability in the main action, there is no genuine issue requiring a trial. This is an appropriate case for granting partial summary judgment because doing so will limit the evidence the jury will be required to hear and there is no risk of inconsistent findings between this decision and the third party action against the County. I grant summary judgment to Ms. Ozimkowski on the issue of liability and direct that the matter proceed to trial on the issue of damages.
Preliminary Issues
[6] Counsel for Mr. Raymond raised a preliminary issue relating to a document entitled “Ontario Winter Driving, Be Prepared, Be Safe (the “winter driving brochure”). There is no dispute that the winter driving brochure is an Ontario Ministry of Transportation document. Mr. Raymond admits the brochure’s authenticity. In his written submissions, counsel for Mr. Raymond contested the admissibility of the winter driving brochure on the basis that it is not a business record pursuant to the Evidence Act, R.S.O. 1990, c. E.23. In oral argument, counsel for Mr. Raymond agreed that the document is admissible but maintained that I should give it little or no weight. I advised counsel that I would indicate what weight, if any, I placed on the winter driving brochure in coming to my decision.
[7] Mr. Raymond has also initiated a motion to amend his pleadings. The pleadings motion was adjourned on consent, prior to the scheduled summary judgment motion. I advised counsel that I would address costs of the adjournment of the pleadings motion in the context of addressing costs of the motion for summary judgment.
Partial Summary Judgment
[8] 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.” 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 allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49).
[9] Hryniak does not alter the principle that on a motion for summary judgment, the court will assume that the parties have placed before it all of the evidence that the parties would present at trial.
[10] A motion for partial summary judgement should be considered a rare procedure that is reserved for an issue or issues that may be “readily bifurcated” from those in the main action and that may be dealt with expeditiously and in a cost effective manner (Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34).
[11] The advisability of the summary judgment process must be assessed by the motion judge in the context of the litigation as a whole. Where some of the claims against some parties will proceed to trial in any event, it may not be in the interest of justice to grant summary judgment against a single defendant. Granting partial summary judgment in such circumstances may run the risk of duplicative proceedings or inconsistent findings of fact (Hryniak, at para. 60).
Ms. Ozimkowski’s Evidence
[12] Ms. Ozimkowski was examined for discovery in May 2014. On January 23, 2012, she left work at approximately 5:15 p.m. for the drive home. She drove through Almonte to Wolf Grove Road. It was dark and raining heavily. She noticed that the roads were very slippery, so she slowed down in order to keep her vehicle under control. Ms. Ozimkowski came to a hill on Wolf Grove Road which, after the crest and the descent, has a curve in the road. When she came over the hill and started down the hill, she saw emergency vehicle lights flashing at the bottom. Ms. Ozimkowski was unable to see what was on the road ahead of her so she applied her brakes to stop her vehicle. Her antilock brakes engaged and the Jeep slid in the process of stopping. She came to a stop because “the roads were slippery and I couldn’t see what was in front of me.”
[13] Just as her vehicle was coming to a stop, Ms. Ozimkowski was struck from behind by Mr. Raymond’s vehicle. When she got out of the Jeep after the collision, she slipped while holding the door. While being attended to by the ambulance already on site, Ms. Ozimkowski saw that a car had gone off the road at the bottom of the hill. There were emergency vehicles on both sides of the road.
Mr. Raymond’s Evidence
[14] Mr. Raymond was also examined for discovery in May 2014. He described Wolf Grove Road as unlit and hilly, with curves that make it difficult to see the road ahead. He often encountered animals on the road. Mr. Raymond agreed that Wolf Grove Road is the kind of road where a driver has to be ready to stop because it is not easy to see what is ahead and there might be something unexpected on the road ahead.
[15] On his discovery, Mr. Raymond stated that he noticed “lots of ice” on Wolf Grove Road. He drove no less than 100 metres to 150 metres behind the traffic ahead of him. He noticed the brake lights of Ms. Ozimkowski’s Jeep come on at the top of the hill and he applied his brakes as well. According to Mr. Raymond, Ms. Ozimkowski’s Jeep stopped on the downhill side suddenly, just past a driveway. When he applied his brakes he was “no more than 150 metres away and no less than 100.” His vehicle slid when he applied his brakes and he could not stop.
[16] On April 16, 2016, Mr. Raymond changed his answer regarding his following distance from no more than 150 metres and no less than 100 metres to a following distance of 20 metres. At his second discovery in April 2016, Mr. Raymond stated that his following distance of 20 metres was based on engineer’s measurements taken at the site visit.
[17] In December 2017, Mr. Raymond delivered a report by a human factors’ expert, Thomas Smahel, of Human Factors North Inc. Mr. Smahel provided an opinion that the following distance which Mr. Raymond described to the police – “maybe 6 car lengths behind her” – was most likely the correct version of Mr. Raymond’s three different estimates.
[18] In March 2018, Mr. Raymond swore an affidavit in which he adopted Mr. Smahel’s suggestion that his statement to the police was most likely correct. In his affidavit, Mr. Raymond confirmed that there were emergency vehicles on each side of the road at the bottom of the hill.
The Expert Evidence
[19] Gordon Jenish of Jenish Forensic Engineering, retained on behalf of Ms. Ozimkowski after the 2014 examinations for discovery, concluded that if Mr. Raymond’s vehicle was travelling at 50 to 60 kilometres per hour, his stopping distance would have been 70 metres. If Mr. Raymond had been travelling 100 to 150 metres behind Ms. Ozimkowski, he would not have lost sight of it for the last 265 metres prior to the collision. Therefore, if he had braked in a normal fashion, Mr. Raymond would have been able to stop 70 metres behind Ms. Ozimkowski’s Jeep.
[20] The first Jenish report refers to the Ministry of Transportation’s Ontario Driver’s Handbook which states: “[w]henever you follow another vehicle, you need enough space to stop safely if the other vehicle brakes suddenly” and “[a] safe following distance is at least two seconds behind the vehicle in front of you.” Mr. Jenish noted in his report that these guidelines are for ideal conditions and that a prudent driver would follow at a distance greater than two seconds given the icy road conditions. Mr. Jenish concluded that if Mr. Raymond had used a following distance of two seconds behind the Jeep, Mr. Raymond would have been able to stop his vehicle without colliding with the Jeep.
[21] The two-second rule is also described by the Ministry of Transportation for Ontario in the winter driving brochure. The brochure advises “[i]n winter, especially during poor weather conditions, double the two-second rule.”
[22] Mr. Jenish delivered a second report to respond to Mr. Raymond’s changed testimony that his following distance was 20 metres. In his second report, Mr. Jenish concluded that: (i) 20 metres is much shorter than the two second recommended gap for ideal weather conditions; (ii) a more appropriate following distance given the weather and roadway conditions would be a gap of three seconds or more (resulting in a following distance of 42 to 50 metres); and (iii) even if Mr. Raymond had been travelling at the minimum recommended two second gap, he should have been able to brake to a stop safely behind Ms. Ozimkowski’s Jeep had he responded within a perception-response time in which drivers have been shown to respond under similar circumstances.
[23] Mr. Jenish delivered a third report which considered the following distance of “maybe 6 car lengths behind.” His opinion remained the same: assuming that Mr. Raymond had been following at a safe distance, that he responded within a perception-response time typical of drivers in this situation, and that he slowed at a level consistent with normal brake application, the collision could have been readily avoided.
[24] Mr. Jenish also delivered a report to respond specifically to that of Mr. Smahel.
[25] In addition to Mr. Smahel’s report, Mr. Raymond relies on: (i) a forensic weather report by James Young; (ii) a report by a transportation safety engineer to provide an opinion on the winter maintenance conducted on Wolf Grove Road; and (iii) two reports by David Porter, a senior forensic engineer at Jensen Hughes. With respect to the weather report, as between Ms. Ozimkowski and Mr. Raymond, there is no dispute concerning the weather conditions on January 23, 2012. The transportation safety engineer’s report is not relevant to the issue of liability between Ms. Ozimkowski and Mr. Raymond.
[26] Mr. Porter was retained by the defence to investigate the physical circumstances of the collision and to provide comments on the first two Jenish reports. In his first report, Mr. Porter concluded that the perception-response time indicated in the Jenish report is not applicable to Mr. Raymond’s response to the brake lights of Ms. Ozimkowski’s Jeep because Mr. Raymond did not initially detect that the Jeep was slowing aggressively. By the time Mr. Raymond recognized that he had to brake hard, he no longer had an opportunity to avoid the collision.
[27] In his second report, Mr. Porter concluded that Mr. Raymond was able to “brake lightly,” and slow at an acceleration level that was “markedly lower” than that of Ms. Ozimkowski.
No Genuine Issue Requiring a Trial Regarding Mr. Raymond’s Liability
(i) The Law on Rear-End Collisions
[28] Once a plaintiff has proven that a rear-end collision occurred, the evidentiary burden shifts from the plaintiff to the defendant, who must then show that she or he was not negligent. This analysis applies even where an emergency situation is alleged (Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at para. 19; Chernet v. RBC General Insurance Company, 2017 ONCA 337, at para. 10).
[29] The driver of the rear vehicle is required to anticipate that, for whatever reason, the vehicle ahead may stop:
Canadian jurisprudence recognizes a standard of care imposed upon a driver of the vehicle which follows another vehicle. The driver of that vehicle must keep a reasonable distance behind the vehicle ahead, must keep his or her vehicle under control at all times; must keep an alert and proper outlook; and must proceed at a speed which is reasonable relative to the speed of the vehicle in front. The following vehicle must anticipate that, for whatever reason, the vehicle ahead may stop. The reason need not be anticipated. The vehicle following must proceed with that care which will enable the vehicle to avoid colliding with the vehicle in front: Kosinski v. Snaith, [1983] S.J. 663 (Sask. C.A.) (Nadeau et al. v. Peters et al., 2015 ONSC 4419, at para. 39).
[30] The situations where the conduct of the vehicle in front contributes in whole or in part to the accident and serves to lessen or remove liability on the rear-ending vehicle are relatively rare. The few cases which have held drivers who rear-end another car not liable involve unusual circumstances in which negligent acts of third parties or the plaintiff have been sufficiently inappropriate, sudden, or unexpected to a reasonable driver so as to absolve the defendant and overcome the defendant’s burden of disproving negligence (Hew v. Sharman, 2017 ONSC 1482, at para. 24, citing Rahimi v. Hatami, 2015 ONSC 4266, at para. 14).
[31] A mere suggestion of liability on the part of the plaintiff is not enough to overcome the defendant’s burden on a motion for summary judgment. There must be evidence that gives at least “an air of reality” to a claim for negligence by the plaintiff (Rahimi, at para. 14).
(ii) The Facts and Evidence Relating to The Rear-End Collision
[32] Mr. Raymond submits that there is a genuine issue requiring a trial as to Ms. Ozimkowski’s liability for the collision. Mr. Raymond’s position is that Ms. Ozimkowski caused the accident by stopping her vehicle on an icy slope, in a live lane of traffic, without checking to determine if vehicles were travelling behind her or engaging her four-way flashers.
[33] Mr. Raymond bears the burden of disproving his own negligence. In my view, this is not one of those cases where the actions of the plaintiff were “sufficiently inappropriate, sudden or unexpected” so as to absolve the defendant of liability. On the evidence before me, there is no dispute that:
- Wolf Grove Road is hilly. It is the kind of road where it is not easy to see what is ahead.
- On the evening of January 23, 2012, Wolf Grove Road was icy, freezing rain was falling and it was dark.
- The distance from the top of the hill to the driveway where the collision occurred is between 120 to 140 metres.
- Ms. Ozimkowski slowed to a stop because she saw emergency lights flashing at the bottom of the hill and she could not see what was on the road in front of her.
- Mr. Raymond did not see the emergency lights flashing.
- Mr. Raymond saw Ms. Ozimkowski’s brake lights come on and he saw that the Jeep was slowing.
- Mr. Raymond was still travelling at approximately 40 to 50 kilometres per hour when his vehicle struck the Jeep.
[34] There is no dispute that Ms. Ozimkowski remained in her lane and was able to bring her vehicle to a controlled stop in the 120 to 140 metres from the top of the hill to the location where the collision occurred. I infer, based on these undisputed facts, that there was no aggressive braking by Ms. Ozimkowski. There is no evidence that Ms. Ozimkowski’s braking speed changed after Mr. Raymond saw her brake lights. There is no air of reality to Mr. Raymond’s claim – which also underlies the defence’s expert reports – that Ms. Ozimkowski braked aggressively.
[35] I also find there is no air of reality as to Mr. Raymond’s claim regarding his following distance. I do not find his evidence on this issue to be reliable or credible. He has changed his evidence as to his following distance three times. His evidence in April 2016 was as a result of engineer’s measurements taken at a site visit. His March 2018 affidavit simply adopted the suggestion of Mr. Smahel that the following distance Mr. Raymond described to the police was most likely the correct estimate. He has admitted that he is not good with estimating distances after an event has occurred.
[36] Mr. Raymond’s counsel referred me to the decision of Henderson J. in Frame, et al. v. Watt, et al. on the issue of conflicting expert opinions in the context of a summary judgment motion (2016 ONSC 718). In Frame, Henderson J. refused to grant summary judgment to a defendant in a multi-vehicle accident, and stated, at para. 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.
[37] The expert evidence in this case does not present me with the same difficulty that faced the court in Frame. I say this for two reasons. First, there is in my view, a real issue whether Mr. Smahel’s opinion would be admissible at trial. Counsel for Mr. Raymond submits that the admissibility of the opinion itself constitutes a genuine issue requiring a trial. I do not accept counsel’s proposition as it would, in my view, contradict the principle that on a motion for summary judgment, the parties are required to “put their best foot forward.” Second, and in any event, Mr. Smahel’s opinion is predicated upon Ms. Ozimkowski braking aggressively. I find that she did not do so.
[38] Mr. Porter’s opinions are predicated on the same, unsubstantiated assumption. The expert evidence tendered by the defence as to Mr. Raymond’s reaction time relies on Mr. Raymond’s own evidence as to his following distance. I have already determined that Mr. Raymond’s evidence in this regard is unreliable and not credible.
[39] Mr. Raymond has failed to persuade me that Ms. Ozimkowski was wholly or partially responsible for the accident. I find that Ms. Ozimkowski did not act negligently in bringing her Jeep to a stop given the road conditions that evening, the fact that she observed emergency vehicles at the bottom of the hill and the fact that she was unable to see in front of her. On Mr. Raymond’s own evidence, this was the kind of road where a driver had to be ready to stop because it is not easy to see what is ahead. Given this admission and the poor driving conditions that evening, Mr. Raymond’s evidence that Ms. Ozimkowski had no reason to stop is not credible. His position that “he could be forgiven for not seeing the flashing lights” does not discharge his burden of disproving his own negligence.
[40] Mr. Raymond was required to anticipate that the Jeep might stop (Nadeau, at para. 39), particularly given the weather and road conditions. He was required to proceed with the care which would have enabled his vehicle to avoid colliding with the Jeep in front. He did not do so. Based on Mr. Raymond’s inability to stop and avoid the collision and the expert evidence on behalf of Ms. Ozimkowski, I infer that he was following too closely behind Ms. Ozimkowski’s Jeep. Mr. Raymond was not acting reasonably, in all the circumstances (Martin-Vandenhende v. Myslik, 2012 ONCA 53, 287 O.A.C. 250, at para. 31).
[41] Mr. Raymond relies on the jury’s decision in Patterson v. Peladeau, 2018 ONSC 2625, 80 C.C.L.I. (5th) 213. In a motor vehicle personal injury action, the jury found the plaintiff 73 per cent contributorily negligent in the collision and the defendant 27 per cent at fault. Liability depends on whether the following driver was acting reasonably in the circumstances and, conversely, whether the lead driver was as well (Martin-Vandenhende, at para. 31). In my view, the jury’s decision in Patterson does not preclude summary judgment being granted in this case.
[42] Gon (Litigation guardian of) v. Bianco does not assist Mr. Raymond (2014 ONSC 7086, 124 O.R. (3d) 65). The third parties’ summary judgment motion was dismissed. Gilmore J. concluded that a determination of whether one of the third parties acted reasonably was one that should be left to the jury as there was evidence that her vehicle may not have been completely disabled, there were opportunities for her to pull out of the live lane of traffic, and her stop may not have been temporary, but rather one that involved her searching for her cell phone, and searching for and looking things up in her owner’s manual. The factual circumstances in Gon which led to the dismissal of the summary judgment motion were vastly different than those in the case before me.
[43] In summary, Mr. Raymond has failed to disprove his own negligence in the accident between his vehicle and that of Ms. Ozimkowski. In reaching this determination, it was not necessary for me to place significant reliance on the winter driving brochure. I note that the statements in the brochure as to the two-second rule corroborated Mr. Jenish’s expert evidence.
(iii) The Third Party Claim
[44] Mr. Raymond’s position is that I must consider the motion for summary judgment in the context of the litigation as a whole which includes the third party claim against the County. Counsel submits that in this case, granting summary judgment would not fully resolve the issue of liability and would create a material risk of inconsistent findings.
[45] I disagree. Mr. Raymond’s claim in his third party action is for contribution and indemnification under the Negligence Act, R.S.O. 1990, c. N.1. Ms. Ozimkowski is not a party to the third party action. She did not name the County as a defendant in the main action.
[46] In order to obtain indemnification or contribution, Mr. Raymond must first be found liable to Ms. Ozimkowski as a tortfeasor. I agree with the statement by counsel for Ms. Ozimkowski in his factum: “the finding of liability against him in the main action is an essential ingredient for his success in his claim in the third party action.”
[47] The issue in the third party action is not the defendant’s liability in negligence; instead, assuming the defendant is found liable in the main action, the issue in the third party claim is whether the defendant can show, based on equitable principles, that the third party should pay the defendant some of the damages the defendant is required to pay to the plaintiff (Placzek v. Green, 2009 ONCA 83, 245 O.A.C. 220, at paras. 34-38).
[48] In this case, the specific issues that will be determined in the third party action relate to the proper response time to service Wolf Grove Road and whether the County acted in accordance with that response time. What the County did or failed to do in relation to servicing Wolf Grove Road on January 23, 2012 is irrelevant to the dispute between Ms. Ozimkowski and Mr. Raymond. Given the different issues raised in the main action and in the third party claim, there is no risk of inconsistent findings if I were to grant summary judgment on the issue of liability in the main action. Counsel for Mr. Raymond did not identify any inconsistent findings that would result beyond his assertion that the condition of the roadway and the weather conditions are connected to both proceedings. The icy road conditions are not in dispute in the main action.
[49] The issues raised in the third party action are separate issues to be tried on a different basis. A jury trial is not available in the third party claim. The third party proceedings between Mr. Raymond and the County would not be duplicative of the liability issue in the main action. Granting partial summary judgment will limit the evidence the jury will be required to hear.
[50] This is an appropriate case for granting partial summary judgment.
Conclusion
[51] Summary judgment against Mr. Raymond on the issue of liability is granted to Ms. Ozimkowski. The action shall proceed to trial to assess Ms. Ozimkowski’s damages.
[52] Ms. Ozimkowski seeks her costs of the motion. Counsel for Ms. Ozimkowski has provided me with a costs outline which I have not reviewed. Counsel for Mr. Raymond shall provide me with a costs outline within 21 days of the release of this decision.
Madam Justice Robyn M. Ryan Bell