Court File and Parties
COURT FILE NO.: CV-14-00500055-0000 DATE: 20181030 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: FRANK CLARKE, Plaintiff AND: TORONTO TRANSIT COMMISSION, CHAD ERNEST, MCKENNA and CARLOS JARA SOSA, Defendants
BEFORE: Koehnen J.
COUNSEL: Allan Rouben and Andra Preda, for the Plaintiff Stephen Sargent, for the Defendant TTC and A. Serpa, for the Defendant Carlos Jara Sosa
HEARD: August 30, 2018
Endorsement
Overview
[1] The defendant Carlos Sosa brings this motion for summary judgment to dismiss the action against him.
[2] The action arises out of a motor vehicle accident in which Mr. Sosa’s car struck the plaintiff, Frank Clarke, as he was crossing the street. Mr. Sosa submits that Mr. Clarke was responsible for the accident because he darted into traffic, from behind a bus, against a red light. Mr. Sosa says he was entitled to proceed on the assumption that he had the right-of-way and that others would follow the rules of the road. [1]
[3] Mr. Clarke submits that, even if he did cross the street as just described, a trial is required to determine if and to what degree Mr. Sosa was contributorily negligent. Issues of contributory negligence require the trier of fact to determine whether Mr. Sosa was speeding as he approached the intersection, whether Mr. Sosa kept a proper lookout given the traffic configuration at the time and whether Mr. Sosa had been drinking from an empty beer bottle found in the driver’s side door panel of his car. Mr. Clarke submits that these issues cannot be resolved on a paper record.
[4] While Mr. Sosa may well be right in all of his submissions, I cannot reach a just and fair determination of those issues on a paper record. As a result I dismiss Mr. Sosa’s motion.
[5] The parties filed three reports from two highly skilled accident reconstruction experts. The experts disagree about the speed at which Mr. Sosa was driving. Resolving that issue requires a deeper understanding of complex mathematical calculations than is possible to obtain on a paper record. It may also involve determining which of the two experts is more credible. Assessing whether Mr. Sosa maintained a proper lookout or whether he had been drinking from the beer bottle in his car are classic issues of credibility.
Background Facts
[6] On Sunday July 16, 2013 Mr. Clarke, was a passenger on a bus operated by the Toronto Transit Commission. The bus was heading south on Keele St. Mr. Clarke got off the bus at Donald Avenue where there was both a bus stop and a traffic light. Mr. Clarke left the bus through the rear door, walked south on sidewalk to the front of the bus and walked in front of the bus to cross Keele St. He left the curb at something between a walk and a run depending on which evidence one accepts. It appears that the traffic light had changed to red for Mr. Clarke either just before he left the curb to cross Keele St. or as he was doing so.
[7] As Mr. Clarke was leaving the curb to cross Keele St., Mr. Sosa was driving south on Keele St. in the left lane. The bus from which Mr. Clarke had descended was stopped in the right lane. Mr. Sosa says he did not see Mr. Clarke as he walked southbound along the side of the bus or as he walked in front of the bus. The first Mr. Sosa says he saw of Mr. Clarke was when he emerged from the driver’s side of the front of the bus and crossed into the lane in which Mr. Sosa was driving.
[8] Mr. Sosa braked but it was too late. His car struck Mr. Clarke. The impact of the collision threw Mr. Clarke into the air and into the path of a bus that was proceeding north on Keele St. The bus was able to stop before its tires ran over Mr. Clarke, but he nevertheless sustained multiple injuries.
Analysis
[9] On a motion for summary judgment I am entitled to assume that the parties have placed before the court in some form, all the evidence that will be available for trial. On the basis of that record I am to decide whether I can make the necessary findings of fact, apply the law to the facts and achieve a fair and just adjudication on the merits: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (S.C.J.) aff’d 2014 ONCA 878 at paragraph 33. I cannot do so on the record before me.
[10] Mr. Clarke raised a number of issues that require a trial. I will focus on the three that struck me as most significant: (i) the speed at which Mr. Sosa was driving; (ii) Mr. Sosa’s conduct as he approached the intersection; and (iii) whether Mr. Sosa had been drinking in the car.
[11] All three questions go to the degree, if any, to which Mr. Sosa was contributorily negligent, even if I assume that Mr. Clarke was hidden from view by a stationary bus and darted into traffic against a red light.
i. The Speed at Which Mr. Sosa Was Driving
[12] The posted speed limit was 50 km per hour.
[13] The plaintiff’s expert says Mr. Sosa was driving between 54 and 58 km per hour and most probably 57 km per hour. In addition he opines that, had Mr. Sosa been driving 50 instead of 57 km per hour, Mr. Clarke would likely have finished crossing the street safely and the collision would likely have been avoided.
[14] Mr. Sosa says it was not possible that he was driving more than 45 km per hour. Mr. Sosa’s expert says he was driving 50 km per hour, applied the brakes within a reasonable reaction time after he saw Mr. Clarke and that the accident could not have been avoided.
[15] Both experts are highly qualified accident reconstruction experts.
[16] The two experts come to different conclusions because of different approaches and assumptions. Those differences have an impact on mathematical calculations which each expert performed to reach his conclusions. By way of example: both experts calculate the speed of Mr. Sosa’s car with reference to its appearance on video footage captured by a surveillance camera in the bus on which Mr. Clarke was a passenger. They calculate the speed of Mr. Sosa’s car by determining how long it takes for a particular point of Mr. Sosa’s car to pass from one reference point on the bus to another as captured by the surveillance video.
[17] The similarities stop there. The two experts use different camera angles. One uses the front edge of the car to calculate speed; the other uses the wheelbase from the front to the back of the car to do so. One uses a single reference point on the bus to calculate speed, another uses multiple reference points. One takes into account the effect of the rounded curve on the front of Mr. Sosa’s car upon the calculation of its speed, the other does not. In a reply report, the plaintiff’s expert adjusts his calculations to take into account the criticisms levied by the defence expert and arrives at no materially different conclusion than he did in his initial report.
[18] In addition, the two experts differ about the speed at which Mr. Clarke crossed the street. This leads to conflicting evidence about where the impact occurred. Police notes place the impact at one point. Both experts disagree with the police notes and with each other. The inter-relationship of Mr. Clarke’s speed and the speed of Mr. Sosa’s car is important because the combination of those two speeds help determine whether Mr. Clarke would have been struck by Mr. Sosa’s car had the latter been travelling at the speed limit.
[19] These reports raise a number of complex factual issues. The defence submits those issues can be resolved on a paper record. It is simply a matter of me reviewing the reports, assessing the mathematical calculations of each expert and determining which makes more sense.
[20] That is easier said than done and surpasses the limits of a summary judgment motion. The crucial factor on a motion for summary judgment is the extent to which a motions judge can make the necessary findings of fact, apply the law to the facts and achieve a fair and just adjudication on the merits.
[21] Judges are not accident reconstructions experts. While I may be numerate, my math skills, like those of the majority of lawyers and judges I have encountered, are not particularly sophisticated. I cannot perform or assess, on my own, complex mathematical calculations such as, for example, those required to calculate the difference that a rounded or square corner of a car would have on its speed. Whatever understanding I would derive from reading about complex mathematical calculations in an expert’s report would be haphazard. Counsel spent no material time during the motion walking me through the reports, explaining the calculations or demonstrating why one set of calculations was superior to another, other than the assertion by one side that using several reference points to calculate the speed of Mr. Sosa’s car was preferable to using only one reference point. While even that last proposition might sound “right” to a lay person, it is not necessarily so. Having several misleading reference points is not better than one reliable reference point. By that I do not mean to suggest that the expert who used several reference points used misleading ones. My point is simply that I have no level of confidence that my determination of that or any of the other issues involving the experts would be “fair and just” based simply on my reading of the reports.
[22] This is a case in which the admonition of the Court of Appeal in Baywood Homes Partnership v. Haditaghi (2014), 2014 ONCA 450, 120 O. R. (3d) 438 at paragraph 44 is particularly relevant:
“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.”
[23] For me to adjudicate this case solely by reading decontextualized experts’ reports and transcripts of their cross-examinations creates a significant risk that I would misunderstand or fail to see implications of what one expert or another was saying. There would be a substantial risk that unfairness would creep into the result.
[24] This is a classic situation where a finder of fact needs a slow, methodical explanation, in bite sized pieces, of what the experts did, why they did it and why their approach is superior to that of the opposing expert.
[25] This is also a classic situation in which logistical practicalities butt against the limitations of summary judgment. The motion records here came to five volumes which included three reports from accident reconstruction experts. While I may be able to acquire a better understanding of the issues if I had unlimited time to read the expert reports and the cross-examination transcripts many times over, judges simply do not have that luxury on summary judgment motions.
ii. Mr. Sosa’s Conduct as He Approached the Intersection
[26] The plaintiff points to the traffic configuration as Mr. Sosa was approaching the intersection and submits that it should have put Mr. Sosa on the alert and required him to slow down to below the speed limit and to scan the intersection. On discovery Mr. Sosa said he was looking straight ahead at all times.
[27] As Mr. Sosa approached the intersection, the southbound right lane was occupied by the bus from which Mr. Clarke had descended. The bus was stopped at the intersection. There was also a bus in each of the two northbound lanes on Keele Street at the intersection of Donald.
[28] On discovery Mr. Sosa said he was looking ahead at all times. The plaintiff submits that a driver who is approaching an intersection with three buses should slow down to below the speed limit and scan the intersection for pedestrians, especially given that his sightlines would be partially blocked by the buses.
[29] On discovery Mr. Sosa also maintained that the southbound light at the intersection was green (in his favour) at all times as he was proceeding down Keele St. Other evidence suggests that the light had changed just before or just as Mr. Clarke entered the intersection. These different possibilities would affect how Mr. Sosa might be cross-examined on the issue and what inferences a trier of fact may draw about the speed at which Mr. Sosa was driving.
[30] On the motion before me, much of the non-party “eye witness” evidence was contained in the notes of investigating police officers. The witnesses themselves did not swear affidavits. As a result the evidence from those witnesses is second hand and has not been subject to cross-examination.
iii. The Beer Bottle
[31] Among the photographs police took during their investigation was one that shows an open a beer bottle in the driver’s side door panel of Mr. Sosa’s car. Another photograph shows a mouthwash container on the driver’s floor mat. A third shows a bottle of green liquid in the passenger side door panel of Mr. Sosa’s car. There are no police notes that indicate Mr. Sosa was asked about the beer bottle.
[32] On discovery Mr. Sosa explained that a day or so before the accident he was driving through a park when he bumped into a friend. The friend had a bottle of beer in his hand which he asked Mr. did Sosa to throw away for him. Mr. Sosa took the bottle, put into his car and forgot about it. The plaintiff submits that this raises an issue of credibility on which he is entitled to cross-examine Mr. Sosa at trial.
[33] While I express no view on the merits of the issue, it strikes me that this does create an issue of credibility relevant to the allegations of contributory negligence.
Case Law
[34] The defendant submits that the question of whether Mr. Sosa was negligent and the extent of that negligence is largely a legal issue. A finding of negligence depends, however, on a close examination of the facts and fairly refined fact finding.
[35] Mr. Sosa cites a long list of cases in paragraph 51 of his factum in which courts have found that drivers were not negligent in cases analogous to the one before me. With one exception, all involved trials.
[36] The one exception is Gomez v. Vandelden 2016 ONSC 1966. It is distinguishable. Gomez involved a plaintiff who “faked” an accident. Independent eye witnesses said that the plaintiff pretended to have been hit by the defendant’s car when she clearly was not. Medical records showed that the plaintiff went to an emergency ward immediately after the accident but left after an hour without having been seen by a physician. Although there may have been issues of credibility in that case, they could be determined on a motion for summary judgment.
[37] The evidence in this case is significantly more complex than in Gomez.
[38] Having determined that I cannot resolve the issues on a paper record, I must then decide whether I should use the enhanced fact-finding procedures available under rule 20, including a mini trial, to determine the issues.
[39] There would be no efficiency gained in doing so. It would take just as much time in a mini trial as it would in a full trial to listen to examinations in chief and cross-examinations of witnesses and experts. I would need to hear eye witness evidence to help determine when the light changed and to help determine where the point of impact occurred. I would need to hear lengthy examinations in chief and cross-examinations of experts to determine the speed at which Mr. Sosa was driving. I would need to hear from Mr. Sosa about his approach to the intersection and the beer bottle.
[40] The only time saving that would arise is the time avoiding evidence on damages if I find that Mr. Sosa was not contributorily negligent. I was given no information about how long evidence on damages at a trial would take.
[41] If I proceeded by way of mini-trial, however, I would be depriving the parties of the benefit of a jury notice which has been served in this case. Once I have determined that the matter cannot be resolved on a paper record, the presence of a jury notice is a further factor to consider in determining whether to order a mini trial: Abuajina v. Haval, 2015 ONSC 7938 at paragraph 46; Mitusev v. General Motors Corp., 2014 ONSC 2342 at para 91.
Conclusion
[42] For the reasons set out above I dismiss Mr. Sosa’s motion for summary judgment. While it should be clear from my reasons, I underscore that none of the statements contained in these reasons should have any relevance to the trial itself. I have made no findings of fact or law on any issue except that this is not a matter appropriate for summary judgment.
[43] If the parties cannot agree on costs, Mr. Clarke may make submissions within 14 days of the release of these reasons. Mr. Sosa will have 7 days to respond. Mr. Clarke will have a further 5 days to reply.
Koehnen J. Date: October 30, 2018