COURT FILE NO.: 6182/15 (Chatham)

DATE: 20180130

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jeffrey Boudreau

Plaintiff

– and –

Richard Hiltz

Defendant

Jerry F. O’Brien and Emily Wunder, for the Plaintiff

Amanda Smallwood, for the Defendant

HEARD: August 22, 2017

REASONS ON MOTION FOR PARTIAL SUMMARY JUDGMENT

Verbeem J.:

I Nature of the Action and the Motion

[1] The plaintiff brings this motion for a partial summary judgment determining that the defendant is entirely liable for a motor vehicle accident in which the plaintiff sustained injury. The specifics follow.

[2] On November 3, 2013, the plaintiff, Jeffrey Boudreau, was operating a motorcycle in the City of Chatham. As he drove westbound on Grand Avenue West approaching its intersection with Woods Street, the defendant Richard Hiltz, who was operating a Ford Fusion automobile, made a sudden left turn from eastbound Grand Avenue West towards northbound Woods Street, cutting directly across his path of travel. Mr. Boudreau’s motorcycle collided with the left front end of the defendant’s vehicle. The plaintiff deposes to losing consciousness after being thrown from the motorcycle.

[3] Mr. Boudreau asserts that the accident has caused him to suffer a number of significant serious and permanent neurological, neuropsychological, cognitive, psychological, sensory and physical injuries and impairments. As a result, he now seeks damages for the various pecuniary and non-pecuniary losses that he alleges were caused solely by the defendant’s negligent operation of his vehicle.

[4] The defendant has delivered a jury notice. He primarily resists the motion on the basis that there is a genuine issue for trial, concerning the plaintiff’s alleged contributorily negligence. He contends that the issue should be left for the jury to determine.

[5] In the reasons that follow, I will: identify and detail the evidence available on this motion; set out the legal principles applicable to the defendant’s summary judgment request; explain why the evidentiary record permits me to arrive at a fair and just determination of the liability issues in the action; set out the legal principles applicable to the determination of the issues of the defendant’s alleged negligence and the plaintiff’s alleged contributory negligence; and explain my reasons for determining that the defendant is solely at fault and liable for the subject accident.

II The Available Evidence

[6] The plaintiff has adduced an extensive evidentiary record which includes:

a) An affidavit of James Allingham (a lawyer practicing together with plaintiff’s counsel), sworn April 12, 2017. Mr. Allingham provides a narrative history of the action and of the defendant’s charge and conviction of an offence pursuant to s. 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (turn not in safety) as a consequence of the accident. Mr. Allingham also estimates the amount of time that will be required at trial to adduce the necessary evidence relating to issues of liability, in the event that partial summary judgment is not granted. Finally, he appends, as an exhibit to his affidavit, a copy of the transcript of the defendant’s examination for discovery conducted on December 7, 2015;

b) An affidavit of Robert Higgins sworn April 10, 2017. Mr. Higgins is a retired Ontario Provincial Police officer retained by plaintiff’s counsel to document the accident scene through various photographs and measurements, which are referenced and appended as exhibits to his affidavit;

c) An affidavit sworn by the plaintiff on April 12, 2017 in which he deposes, among other things, to: the circumstances surrounding the accident; the nature of the injuries and impairments that he asserts he sustained as a result of the accident; and the manner in which those injuries and impairments have impacted his life. The evidence adduced with respect to the subjects of injury and impairment is extensive. However, I do not make any factual findings with respect to the nature and extent of the plaintiff’s accident-related injuries. Such findings are not necessary to determine the issues on this motion;

d) An affidavit sworn by Emmallee Morton on March 29, 2017. Ms. Morton witnessed the accident from her vantage point as a passenger in a vehicle travelling eastbound on Grand Avenue West (the same direction that the defendant’s vehicle was travelling before it commenced its left-hand turn);

e) An affidavit sworn by Dava Robichaud on March 23, 2017. Ms. Robichaud, who is Ms. Morton’s mother, was operating the motor vehicle in which Ms. Morton was a passenger at the time of the accident;

f) An affidavit sworn by Al Smith on April 10, 2017. At the time of the accident, Mr. Smith was seated on the patio of a commercial establishment located in close proximity to the accident scene. He provides evidence of his observations including the conduct of the plaintiff immediately before the collision.

g) An affidavit sworn by Emily Wunder (a lawyer practising together with plaintiff’s counsel) on August 3, 2017, in which she deposes to a conversation she had with Crown prosecutor Brenda Mercer on July 25, 2017. Ms. Mercer was the Crown prosecutor of record on February 18, 2014, when the defendant was convicted of the above referred Highway Traffic Act offence, in absentia.

[7] The defendant adduced the following evidence:

a) His affidavit sworn June 20, 2017; and

b) Excerpts of the transcript of the plaintiff’s examination for discovery held on December 7, 2015.

[8] On August 4, 2017, the defendant was cross-examined on his affidavit. Neither the plaintiff nor any of the affiants who swore evidence in support of his motion for summary judgment were cross-examined by the defendant.

[9] I will summarize the available evidence below.

(a) Evidence of Jeffrey Boudreau

[10] On November 3, 2013 at approximately 4:00 p.m. Mr. Boudreau was operating a motorcycle, travelling westbound on Grand Avenue West in Chatham, Ontario. As he approached Grand’s intersection with Woods Street, an eastbound vehicle suddenly turned left in front of him and a collision ensured. In the vicinity of that intersection, Grand Avenue West is comprised of: two westbound lanes – a curb lane and a centre lane; and three eastbound lanes – a curb lane, a centre lane and a left turn lane that commences slightly west of Woods Street and continues up to Sandys Street. The intersection forms a “T”, with Woods located to the north of Grand Avenue West. It is controlled by a stop sign governing southbound traffic on Woods Street. The intersection is situated immediately to the west of Grand Avenue West’s intersection with Sandys Street, which is controlled by a set of traffic signals that includes advance green lights for left-turning traffic in all directions.

[11] In his affidavit, the plaintiff describes the circumstances surrounding the accident as follows:

a) Prior to the collision, he was the first vehicle stopped in the centre westbound through-lane for a red light governing westbound traffic at the intersection of Grand Avenue West and Sandys Street;

b) Once the light turned green, he proceeded through the intersection and continued westbound in the centre lane of Grand Avenue West as he approached its intersection with Woods Street;

c) He first saw the defendant’s vehicle, which was travelling east on Grand Avenue West, when it was approximately five car lengths west of Woods Street. At that time, it was travelling in the centre eastbound through-lane. Its left turn signal was not active. The defendant did not indicate that he intended to do anything other than continue straight on Grand Avenue West;

d) Suddenly, the defendant’s vehicle began to turn left from the centre eastbound through-lane, towards northbound Woods Street. In doing so, it cut immediately in front of the plaintiff as he travelled westbound;

e) The plaintiff had no time to brake or avoid a collision with the defendant’s vehicle. His motorcycle struck the left front area of the defendant’s vehicle and he was thrown some distance away.

[12] At his examination for discovery, conducted on December 7, 2015, the plaintiff testified, among other things to the following:

a) Prior to arriving at the intersection of Sandys Street and Grand Avenue West he had been travelling westbound on Grand Avenue West for approximately a mile and a half;

b) He stopped for a red light governing westbound traffic at Grand Avenue West’s intersection with Sandys Street. He was the first vehicle stopped at the light;

c) Once the light turned green, he continued straight through the intersection in the westbound centre lane. He did not change lanes between the time he left the intersection of Grand Avenue West and Sandys Street up to the point of the collision. He was travelling approximately 40 kilometres per hour at the time. He does not recall any other westbound traffic on Grand Avenue West between Sandys Street and the collision site;

d) As he approached Woods Street, he noticed the defendant’s vehicle coming straight in the opposite direction. As the plaintiff came “even” with a house located at the corner of Woods Street and Grand Avenue West, he observed the defendant swerve suddenly across the centre yellow line dividing east and westbound traffic and turn in front of him;

e) He first saw the defendant’s vehicle in the centre eastbound lane of Grand Avenue West when it was five car lengths west of Woods Street. He did not observe an active turn signal on the defendant’s vehicle. It appeared that the defendant was going to proceed straight. At the “last minute” the defendant turned towards Woods Street and the plaintiff struck his vehicle;

f) He had no time to apply his brakes or avoid the collision once the defendant suddenly swerved into a left-hand turn in front of him.

(b) Evidence of Emmalee Morton

[13] At approximately 4:00 p.m., on November 3, 2013, Ms. Morton was a front seat passenger in a vehicle operated by her mother, Dava Robichaud, which was travelling eastbound on Grand Avenue West towards Woods Street in the curb lane. Ms. Morton observed the defendant’s vehicle in the centre eastbound lane.

[14] As they travelled eastbound, she observed the traffic signal governing eastbound traffic on Grand Avenue West at its intersection with Sandys Street turn from red to green. Then she observed a motorcycle travel westbound on Grand Avenue West through the intersection. The motorcycle was proceeding in a “normal manner and was not speeding”.

[15] The defendant’s vehicle, which had been travelling in the eastbound centre lane, abruptly turned left in front of the westbound motorcyclist. She did not observe an active left-turn signal on the defendant’s vehicle at any point in time, nor did she observe the defendant’s vehicle merge from the centre line into the eastbound left-hand turn lane before it initiated the turn. She testifies that the defendant’s left turn “caught me completely off-guard”.

[16] As soon as the defendant’s vehicle made its sudden left-hand turn the motorcycle collided with the car. She directly observed the collision and she states that the motorcyclist had no chance to avoid it.

[17] After the collision, her mother pulled into a parking lot. The police and an ambulance quickly arrived at the scene. As she was standing in the parking lot, the defendant approached her and stated something like “that bike came out of nowhere, right?” She did not agree with that suggestion. She provided a statement to police.

(c) Evidence of Dava Robichaud

[18] On November 3, 2013 at approximately 4:00 p.m., Ms. Robichaud was driving eastbound on Grand Avenue towards its intersection with Woods Street. As she did so, she noticed that the traffic signal governing eastbound traffic at the intersection of Grand Avenue West and Sandys Street was red. She also observed a motorcycle in the oncoming westbound traffic lane, which was stopped at the red light. As she proceeded towards Woods Street the light at Grand Avenue West and Sandys Street turned green for east and westbound traffic and the motorcyclist proceeded through the intersection. She paid particular attention to the motorcyclist and observed him to be driving at an appropriate rate of speed and in a normal, controlled manner. He did not accelerate quickly. As she continued driving she heard a loud bang and knew that the motorcyclist had been hit. Her daughter, Emmallee Morton, who was a front seat passenger in her vehicle, said “my God, the car just hit the bike”. Ms. Robichaud pulled over and her daughter called 911.

(d) Evidence of Al Smith

[19] On November 3, 2013 at approximately 4:00 p.m., Mr. Smith was sitting on the patio of the Montreal House, a restaurant located at the northwest corner of Grand Avenue West and Sandys Street. He was situated approximately 50 feet from Grand Avenue and he had a clear view of the intersection of Grand Avenue West and Woods Street.

[20] Mr. Smith is a motorcycle enthusiast. While he was on the patio he looked up when heard a motorcycle and then saw the plaintiff proceeding westbound on Grand Avenue West. Based on his observations, together with his own motorcycle-related experience he concluded that the bike had “just hit second gear,” it was not speeding and the driver was driving in a safe and normal manner. Mr. Smith did not see the car turn in front of the motorcycle but he heard “the bang of the crash” and then observed the plaintiff lying on the road.

(e) Affidavit Evidence of Robert Higgins

[21] Mr. Higgins has appended several photographs to his affidavit which are said to fairly and accurately depict the roads in and around the intersection of Grand Avenue West and Woods Street, as they appeared at the time of the collision. Several of the photographs depict the respective vantage points of motorists in the pre-collision positions of both the plaintiff and defendant. Mr. Higgins also took various measurements in and around the subject intersection, which are detailed in his affidavit and related exhibits.

(f) Evidence of Emily Wunder

[22] Ms. Wunder deposes that on July 25, 2017 she attended on Crown prosecutor, Brenda Mercer, who was the prosecutor at the time the defendant was convicted in absentia, of an offence contrary to s. 142(1) of the Highway Traffic Act. Ms. Wunder provided Ms. Mercer with a transcript of the Provincial offence proceeding dated February 18, 2014, together with a copy of the Provincial Offences Court sign-in sheet for February 18, 2014. She advised Ms. Mercer, among other things, that the defendant testified during his examination for discovery and again in his affidavit sworn on June 20, 2017 that: he attended court on his scheduled trial date; before his trial took place he spoke to the prosecutor who then told him he was “free to go”; and he eventually learned that he had been convicted after he left, when he subsequently received a notice in the mail.

[23] After reviewing the documentation noted above, Ms. Mercer advised Ms. Wunder that she did not have a specific recollection of the date in question, but she is certain that she would not have told a defendant who requested a trial for a Highway Traffic Act offence that he was “free to go” prior to the commencement of the trial, especially when a Crown witness was present in court waiting to testify, as the plaintiff was in this instance.

(g) Affidavit Evidence of the Defendant Richard Hiltz (sworn June 20, 2017)

[24] Mr. Hiltz acknowledges that he was involved in a motor vehicle accident on November 3, 2013 at the intersection of Grand Avenue West and Woods Street, in Chatham, Ontario. Immediately prior to the collision he was travelling eastbound on Grand Avenue West. As he approached its intersection with Sandys Street, the traffic light governing east-west travel turned red and oncoming westbound traffic stopped. There was no active oncoming westbound traffic.

[25] Just as he approached Woods Street, he decided to turn left onto it because all westbound traffic had stopped for the light at Sandys Street. He activated his left-turn signal and commenced his turn. As he began to execute the turn, his brother Bob, who was a front seat passenger in his vehicle, shouted “watch out.” In response, the defendant “slammed on the brakes”. He came to a complete stop with the front wheels of his vehicle in the oncoming westbound centre-lane and the back of his vehicle remaining in the eastbound left-turn lane. While it was in that position, his vehicle was struck by the plaintiff’s motorcycle.

[26] Immediately prior to the collision, he actually observed the oncoming westbound motorcycle, which was positioned very close to the centre line separating Grand Avenue’s east and westbound lanes. The motorcyclist appeared to manoeuvre to his own right to avoid the defendant’s stopped vehicle. The motorcycle hit the left fender mount of his vehicle. The motorcyclist flew over the hood of his car and landed on the ground 10 to 15 feet away from it.

[27] The defendant estimates that he was initially travelling at approximately 50 kilometres per hour, but he slowed down when he saw the red light at Sandys Street. He estimates that he was travelling at approximately 25 kilometres per hour as he braked to make the left turn onto Woods Street.

[28] The defendant did not see the motorcycle before his brother shouted “watch out.” He believes that there was no active westbound traffic on Grand Avenue West before he began to execute his turn because all east and westbound traffic was stopped for the red light at Sandys Street.

[29] The defendant does not know where the motorcycle came from. He asserts that after the collision, he was approached by an unidentified lady who claimed to have witnessed the incident. The defendant asked her where the motorcycle came from and she pointed to the Montreal House parking lot.

[30] The defendant believes that the plaintiff had sufficient time to avoid the collision either by moving to the right or, alternatively, applying his brakes. The defendant does not believe that the plaintiff made any attempt to stop prior to the collision. Instead, the plaintiff appeared to turn to the right to try to go around the defendant’s vehicle.

[31] Police attended the accident scene. The defendant deposes that he did not provide a statement to police. He was ticketed for an “unsafe left turn”. He attended traffic court on the scheduled trial date and spoke with a Crown prosecutor who advised him that he was “free to go.” The defendant left the courthouse without formally appearing before the court. He later learned that he was convicted in absentia and he paid the imposed fine.

[32] In his affidavit, the defendant offers his “theory of how this accident took place.” He speculates that the motorcycle “may have come out of the parking lot of the Montreal House at the same time I was going to make my left turn. The plaintiff would have been looking to his left (to the east), as that is the traffic that would have affected him and, therefore, he would not have seen me.” Curiously, the defendant chose not to put his “theory” to the plaintiff in cross-examination.

[33] The defendant further deposes that his vehicle was “there to be seen” and that it was at a complete stop when the plaintiff was more than two car lengths away from it. The defendant observes that only one-third of his vehicle was in the westbound lane and therefore, only one-third of his vehicle would have impeded the plaintiff’s path. The defendant testifies that the westbound curb-lane was available to the plaintiff to travel around his stopped vehicle. The plaintiff did not do so. The defendant believes that there was sufficient time for the motorcycle to come to a complete stop before the collision. He says that had the plaintiff: been keeping a better lookout; noticed his left turn signal; and observed that his vehicle was completely stopped “slightly” into the westbound lane of travel, the plaintiff could have avoided the collision.

(h) Cross-examination of the Defendant (August 4, 2017)

[34] On August 4, 2017, the defendant was cross-examined on the affidavit he swore in the context of this motion. During his cross-examination, the defendant conceded that contrary to his affidavit evidence, he did provide a signed statement to police after the accident. He explains that he did not recall doing so at the time he swore his affidavit.

[35] Further (and apparently for the first time in this proceeding), the defendant disclosed that when he made his decision to turn left onto Woods Street, he was travelling directly behind a large commercial vehicle (the same height as an 18-wheeler) that was also travelling eastbound on Grand Avenue. He states that as it approached Sandys Street, the commercial vehicle slowed and moved into the eastbound left-turn lane, which is where the defendant had originally planned to turn left. As a result, he decided to turn on Woods Street because he did not want “to be stuck” behind that vehicle. He estimates that he was travelling at a distance of “one or two car lengths or less” behind the commercial vehicle, when he started his left turn onto Woods Street. The presence of the truck partially obstructed his view of westbound traffic on Grand Avenue West including the plaintiff’s position within his own lane of travel, which he estimates to be one to two feet away from the line dividing east and westbound traffic.

[36] Mr. Hiltz originally testified that he was reminded about the presence of the commercial truck by his brother sometime in May 2017, after the motion for summary judgment was served but before he swore his affidavit in response. He agrees that he did not depose to the presence of the commercial vehicle in his affidavit. He explains that omission by stating “nobody asked me about it.”

[37] The defendant also concedes that he failed to identify the presence of the commercial vehicle in the evidence that he gave at his examination for discovery. Instead, he gave evidence to the contrary. Specifically, he testified that there were no vehicles in front of him as he travelled eastbound on Grand Avenue West, starting from the time he turned onto that street until the time of the accident. He agrees that his evidence in that regard was never corrected before his cross-examination. The defendant now maintains that there were also other eastbound vehicles travelling in front of the commercial vehicle before the collision.

[38] As his cross-examination progressed, the defendant’s evidence concerning the timing of the recovery of his memory of the commercial vehicle evolved. Ultimately, he settled on the proposition that he likely recovered his memory of that vehicle sometime in August 2017 and not before he swore his affidavit on this motion, as he had initially testified. He agrees that he did not disclose his recovered memory to anyone before his cross-examination. Mr. Hiltz testified that when he finally remembered the presence of the commercial vehicle, he did not advise his counsel about it because he does not have access to a phone. Rather curiously, later during the course of his cross-examination a cellular phone on his person began to ring. Initially he refused to answer questions with respect to the providence of the phone but when pressed, he disclosed that the phone belonged to his son and he had access to it “on occasion”.

[39] During his cross-examination, the defendant confirmed that he became aware of the presence of the motorcycle only after his brother yelled “watch out.” He then braked and brought his vehicle to a complete stop. He concedes that he probably did not see the motorcycle for the first time until he was actually in the process of braking after his brother shouted. Initially, he denied the suggestion that he “slammed” on his brakes. He continued to maintain that position even after being confronted with evidence that he gave at his examination of discovery in which he testified that he “slammed the brakes on.” Eventually, he conceded that he did “slam on the brakes.”

[40] The defendant agrees that left-hand turns must be executed in a manner that does not interfere with oncoming traffic. At the time that he slammed on his brakes, he was travelling approximately 25 kilometres per hour. He looked up and saw the motorcycle and hoped that it would not hit him. He agrees that an emergency situation existed at that point. After he slammed on his brakes, the motorcyclist attempted to go around his vehicle by crossing the centre line and entering the eastbound left-hand turn lane. He then returned to his original lane of travel and the impact occurred.

[41] Later in his cross-examination, the defendant identified Emmallee Morton as the witness who he believes indicated that the plaintiff came from the parking lot of the Montreal House. The defendant testifies that after the accident he asked “Emmallee” where the motorcycle came from and in response, she pointed east towards the parking lot. He agrees that when that happened, they were standing at a location that was west of both the Montreal House parking lot and the intersection of Sandys Street and Grand Avenue West.

[42] In explaining his conviction in absentia, the defendant testifies that he attended court on the day scheduled for his trial with an intent to defend the charge solely on the basis of challenging the validity of the Highway Traffic Act, at large. He acknowledges that he saw the plaintiff at court that day and understood that he was a Crown witness. The defendant says that he met with the Crown, and without being able to recall any of the other specifics of their interaction, he asserts that the Crown told him he was “free to go,” which he interpreted to mean that he could leave the courthouse. He left the courthouse without knowing specifically whether the matter would be adjourned. He was convicted in absentia. He received a certificate of conviction and elected to pay the fine rather than appeal the disposition. He did not obtain legal advice about appealing the conviction. When confronted with evidence that Ms. Mercer advises that she would never tell a defendant who requested a contested trial that they were “free to go” before that trial was conducted, Mr. Hiltz states “if she was here, I would call her a liar. . . because those were her exact words.”

(i) Evidence of the Defendant at his Examination for Discovery

[43] The defendant made the following admissions at his examination for discovery:

a) He originally intended to drive eastbound on Grand Avenue West to its intersection with Sandys Street where he intended to turn left. He spontaneously decided to turn left onto Woods Street because it was faster;

b) As he proceeded on Grand Avenue West before the collision he did not see Mr. Boudreau’s motorcycle, at all. He repeatedly stated “there was no motorcycle” and finally he testified “I never saw a motorcycle on Grand Avenue, period”;

c) He did not see Mr. Boudreau’s motorcycle before commencing his left turn onto Woods because he was looking for pedestrians crossing Woods Street instead of observing oncoming traffic;

d) As soon as he began his left turn his brother yelled “watch out.” He did not see the plaintiff’s motorcycle before his brother yelled. In response, he slammed on his brakes. He would not have started his turn if he had seen the oncoming motorcycle;

e) He had been travelling at 50 kilometres per hour along Grand Avenue West but slowed to 25 kilometres per hour during his turn. He does not know how fast the motorcycle was travelling prior to the collision;

f) His left turn across the plaintiff’s path of travel left the plaintiff with only two options: braking or trying to go around his vehicle;

g) After he turned left in front of the plaintiff’s motorcycle, the plaintiff attempted to avoid an impact by moving to his own right to go around the defendant’s vehicle [this evidence is in conflict with the defendant’s evidence on cross-examination in which he states the plaintiff moved to his own left into the eastbound lane];

h) The motorcycle collided with the front grill and left front fender of the defendant’s vehicle. The collision occurred in the westbound centre lane of Grand Avenue West, which was the plaintiff’s lane of travel. At the time of the collision, the defendant had completed one-third of his left turn and the front bumper of his vehicle was seven or eight feet from the line dividing the westbound centre lane from the westbound curb lane;

i) The plaintiff, who was wearing a helmet, landed 10 to 15 feet away from the point of impact when he “stopped rolling”.

[44] In the context of the foregoing evidence I will determine whether partial summary judgment ought to be granted by first reviewing the legal principles applicable to a motion for such relief.

III The Legal Principles Applicable to a Motion for Summary Judgment

[45] Rule 20.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, provides that:

A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.

[46] Rules 20.04(2)(a) and (2.1), in part, provide:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;

Powers

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at trial:

1. Weighing the evidence.

2. Evaluating the credibility of the deponent.

3. Drawing any reasonable inference from the evidence.

[Emphasis added.]

[47] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Karakatsanis J. observes that the judicial determination of civil disputes must embrace processes other than a traditional trial where such processes may result in more accessible, proportional, timely and affordable modes of adjudication that yield fair and just resolutions of such disputes. Several principles emerge from Hryniak, including the following:

a) The procedure used to adjudicate a civil dispute must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interest involved then it will not achieve a fair and just result (para. 29);

b) A genuine issue requiring a trial will not exist when the judge is able to reach a fair and just determination of an action on the merits, on a motion for summary judgment. This will occur when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result [than a trial] (para. 49);

c) When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost-effective. However, a process that does not provide a judge with confidence in her conclusions can never be a proportionate method to resolve a dispute (para. 50);

d) On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony [pursuant to r. 20.04(2.2) in Ontario] is often sufficient to resolve material issues fairly and justly (para. 57);

e) The standard of fairness is, therefore, not whether the procedure utilized to resolve the parties’ dispute is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute (para. 50).

f) The fact-finding powers under r. 20.04(2.1) and (2.2) are discretionary and are presumptively available to the motion judge. They “may” be exercised unless it is in the interest of justice for those powers to be exercised only at trial (para. 45);

g) In determining whether “it is in the interest of justice” that the r. 20.04(2.1) fact-finding powers only be exercised at trial, the motion judge may be required to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial (including the cost and speed of both procedures). The determination may also involve a comparison of the evidence that will be available at trial and the evidence available on the motion, as well as the opportunity to fairly evaluate that evidence. However, even when the evidence available on the motion is limited, there may be no reason to think better evidence will be available at trial (para. 58);

h) When a judge is able to fairly and justly adjudicate a claim through the use of the new fact-finding powers it will generally not be against the interest of justice to do so. What is “fair and just” turns on the nature of the issues, the nature and strength of the evidence and the correspondingly proportional procedure, in all the circumstances (para. 59);

i) In considering whether the use of the fact-finding powers accords with the “interest of justice” a judge must consider the consequences of the motion in the context of the litigation as a whole. For instance, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact. Conversely, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost efficient approach (para. 60);

j) On a motion for summary judgment the judge should first determine if there is “a genuine issue requiring trial” based only on the evidence before her, without using the new fact-finding powers. If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the fact-finding powers under r. 20.04(2.1) and (2.2). She may, at her discretion use those powers provided that their use is not against the interest of justice (para. 66); and

k) While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary, thereby giving the judge some flexibility in deciding the appropriate course of action in the context of a particular motion (para. 68).

[48] Notwithstanding the “culture shift” away from the primacy of trial and towards a proportional adjudicative process that yields a fair and just result, there will still be cases that must go to trial. Evidence by affidavit prepared by the parties’ legal counsel can obscure the affiants’ authentic voice making the judge’s task of assessing credibility and reliability difficult. Accordingly, the motion judge must take care to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantial unfairness enters the procedure in a way that would not likely occur in a full trial, when the judge sees and hears it all: see Yusuf (Litigation guardian of) v. Cooley, 2014 ONSC 6501, 123 O.R. (3d) 474, at paras. 8 and 21, and Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 44.

[49] The evidentiary principles applicable to motions for summary judgment that were developed prior to the enactment of the current provisions of r. 20.04 continue to apply. The motion judge must still take a “hard look” at the evidence to determine whether the moving party has met its onus to demonstrate that there is no genuine issue requiring a trial. Each party must still put its best evidentiary foot forward and submit cogent evidence to support or oppose the relief sought. The motion judge is entitled to assume the record contains all the evidence the parties will adduce at trial. The responding party cannot reasonably rely on the position that a genuine issue requiring a trial exists because additional supportive evidence may emerge at trial: see Kolosov v. Lowe’s Companies Inc., 2016 ONSC 1661, at para. 33, aff’d 2016 ONCA 973; Aranas v. Kolodziej, 2016 ONSC 7104, at para. 34; Mazza v. Ornge Corporate Services Inc., 2015 ONSC 7785, at paras. 48–50, aff’d 2016 ONCA 753.

[50] Summary judgment motions are decided by evidence of the facts and, if appropriate, by reasonable and permissible inferences drawn from those facts (i.e. not by speculation about the facts): see Chernet v. RBC General Insurance Company, 2017 ONCA 337, at para. 12.

[51] Failure to cross-examine on affidavits or to otherwise challenge evidence placed in the record by an adverse party may have an adverse impact on a party to a summary judgment motion: see Mazza (ONSC), at para. 51.

[52] Where an issue is otherwise appropriately determined by summary judgment, it must be granted even if a jury notice has been delivered, unless what remains after an issue is summarily decided is a disembodied question without context or which would require the same evidence to be repeated before the jury: see Mehlenbacher v. Cooper, 2017 ONSC 3434 at paras. 38–40.

IV The Principles Applied

[53] For the reasons that follow, I am satisfied that the evidentiary record on this motion adequately permits me to fairly and justly adjudicate the issue of liability for the accident, with confidence. The available evidence allows me to:

1. Make the necessary findings of fact to determine the issue of liability for the accident; and

2. To apply the relevant legal principles to the facts, as found.

[54] In addition, summary judgment represents the most proportionate, the most expeditious and the least expensive means to achieve a fair and just determination of the issue of liability for the accident (and the defences asserted in that regard) on the merits.

[55] In arriving at that conclusion, I am mindful that: (1) there are discrepancies within the defendant’s evidence, as he has given it at various points in time; (2) there is some conflict between the evidence of the defendant, on the one hand, and the totality of the evidence of the plaintiff and the independent witnesses Ms. Morton, Mr. Smith and Ms. Robichaud on the other hand; and (3) the defendant chose not to challenge through cross-examination, any of the evidence adduced by the plaintiff on this motion.

[56] Nonetheless, I am satisfied that the moving party has met his onus to demonstrate that there is no genuine issue that requires a trial in order to fairly determine the issue of liability for the accident. As a result, summary judgment must be granted in accordance with r. 20.04(2)(a) of the Rules. I reach that conclusion only after considering the totality of the evidence before me and for the reasons that follow.

[57] The issue of liability for the accident is discrete and severable from the remaining liability issue (i.e., whether the plaintiff’s claim is exempted from the application of the statutory immunity otherwise enjoyed by the defendant against an award on account of non-pecuniary general damages pursuant to s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8, as amended, the so-called “threshold”) and all issues related to damages. The remaining issues of “threshold and damages” do not raise a genuine issue with respect to the defendant’s liability for the accident. Although the “threshold” issue and all damage issues remain to be determined in the action, I am confident that when those issues come before the court, they can be determined without the need for the parties to adduce the extensive evidence that was developed in the context of this motion on the issue of liability for the accident.

[58] Further, I am satisfied that the evidence contained in the written record before me likely constitutes the evidentiary record that would be developed at trial, as it relates to the issues on this motion. I am satisfied that summary judgment on the issue of liability for the accident will narrow the scope of the disputed issues at trial and that it will result in a fair and just determination of that issue through a proportionate process that is less expensive and more expedient than determining the issue at trial.

[59] Consistent with the foregoing, I will now set out the parties’ respective positions with respect to the apportionment of fault for the accident followed by my reasons for concluding that the plaintiff has met his onus to demonstrate that there is no genuine issue that requires a trial with respect to the defendant’s liability, in negligence, for the accident and no genuine issue that requires a trial with respect to the absence of contributory negligence on his own part. The available record allows me to find, with confidence, that the defendant was negligent and the plaintiff was not. I will explain

V Position of the Parties

a) The Plaintiff

[60] The plaintiff submits that he has met his onus to demonstrate that there is no genuine issue requiring trial with respect to the issue of liability for the accident. He posits that on the available evidence, liability rests entirely with the defendant. The impact occurred in the plaintiff’s established lane of travel. The evidence demonstrates that the motorcycle collided with the left front corner of the defendant’s vehicle, consistent with the impact occurring very early in the defendant’s turn and before the right side of his vehicle was exposed to the plaintiff’s path of travel. In turn, that evidence supports an inference that the plaintiff had no opportunity to take reasonable steps to avoid the collision, as Ms. Morton testified.

[61] The plaintiff submits that the evidence of all of the witnesses, including the defendant, supports a finding of negligence against the defendant even before the evidence related to his Highway Traffic Act conviction is considered. The defendant elected not to cross-examine any of the plaintiff’s witnesses and he did not adduce any evidence from his brother whom he says witnessed the plaintiff’s conduct immediately prior to the collision. The plaintiff suggests that an adverse inference ought to be drawn that had the defendant adduced evidence from his brother it would not have supported his position.

[62] The defendant admits that he was obligated to execute his left turn in a manner that did not interfere with oncoming traffic. However, he concedes that he failed to see the oncoming motorcycle before he started his left turn. The defendant also concedes that he would not have commenced the left turn if he had been aware of the motorcycle’s presence in the westbound lane. He concedes that by the time he saw the motorcycle, an emergency situation had been created and he acknowledges that in response, the motorcyclist attempted to avoid the collision.

[63] Finally, the plaintiff submits that the defendant’s conviction for the offence of “turn not in safety” stands as prima facie evidence of his negligence.

[64] On the issue of contributory negligence, the plaintiff’s own evidence, which is confirmed by each of the three independent witnesses, establishes that immediately prior to the accident he was proceeding westbound in a safe manner at approximately 40 kilometres per hour. The defendant turned suddenly from the centre eastbound through-lane in a manner that did not afford him an opportunity to avoid the collision. There is simply no evidence that, in all of the circumstances, the plaintiff breached the applicable standard of care.

[65] Further, the defendant’s own admissions foreclose the existence of a genuine issue requiring trial with respect to the plaintiff’s alleged negligent conduct. For example, at his examination for discovery the defendant deposed that there was no traffic travelling in front of him and nothing obstructing his view of westbound traffic as he proceeded towards the intersection of Grand Avenue West and Woods Street. In order to explain his failure to perceive the plaintiff prior to commencing his turn, the defendant offered a theory that the plaintiff entered onto Grand Avenue West from the parking lot of the Montreal House. His “theory” is not founded in any observations that he personally made. Instead, it results from his interpretation of a gesture that he says that Ms. Morton made post-accident. He did not cross-examine her on that point, or at all.

[66] Conversely, in the context of his cross-examination, the defendant testified that he was travelling one to two car lengths behind a slow-moving large commercial vehicle immediately prior to commencing his left-hand turn onto Woods Street. Although the plaintiff contests that evidence, he posits that even if it was accepted, the defendant would have attempted to execute a left turn across opposite lanes while his view of oncoming traffic was completely obstructed. On that evidence, the plaintiff would have had even less of an opportunity to take evasive action after the defendant’s vehicle, previously hidden by the commercial vehicle, suddenly invaded his lane of travel.

[67] Finally, the plaintiff submits that a jury notice does not insulate the defendant from the potential for partial summary judgment on the issue of liability.

b) The Defendant

[68] The defendant’s submissions are primarily focused on the existence of a genuine issue requiring a trial on the issue of contributory negligence. He submits that there are inconsistencies within the evidentiary record and as a result, the court ought to conclude that it is unable to confidently make findings of fact. The defendant asserts that when faced with a conflict in the evidence on a summary judgment motion, the court cannot resort to picking one parties’ version of events over the other on the basis of which version is “more plausible” or which is more “in keeping with common sense.” Conclusory reasoning of that ilk, standing alone, is not a proper basis to make credibility findings where sworn statements are in conflict on a fundamental issue and significant amounts of money are involved: see Marsland Centre Limited v. Wellington Partners, 2017 ONCA 631, at para. 10.

[69] The defendant submits that the plaintiff invites the court to engage in the impermissible reasoning described above, in order to resolve the following fundamental inconsistencies in the evidence:

a) The colour of the light for eastbound traffic on Grand Avenue West at Sandys Street, at the time the defendant was approaching the intersection of Grand Avenue West and Woods Street. The defendant states that his decision to turn left a Woods was informed by the light turning red. The plaintiff deposes the light was green;

b) Whether the plaintiff emerged from the parking lot of the Montreal House. The defendant submits that during his cross-examination, he did not resile from his own theory in that regard. The plaintiff and the independent witnesses testify that the motorcycle consistently travelled westbound on Grand;

c) Whether the defendant’s vehicle was at a complete stop when the impact occurred. The defendant states that he was at a complete stop when the plaintiff was still two car lengths away from him. The plaintiff’s evidence does not confirm that the defendant’s vehicle was fully stopped before the collision.

[70] The defendant submits that the conflicting sworn evidence in this case requires viva voce testimony for proper adjudication. In addition, as it relates to the final point set out above, the defendant submits that the plaintiff had a reasonable opportunity to avoid a collision because his vehicle was at a complete stop when the plaintiff was two car lengths away from it. The defendant suggests that the plaintiff could have moved to his own right and gone completely around the defendant’s vehicle, particularly as there is no evidence that there were cars in the westbound curb lane of Grand Avenue at that time.

[71] The defendant also submits that his recent evidence with respect to the presence of a large commercial vehicle now provides an explanation for his inability to see the plaintiff’s motorcycle prior to turning. If a jury accepts that evidence, the defendant theorizes that the plaintiff could be found contributorily negligent for travelling too close to the centre line, in circumstances where oncoming vehicles (specifically the large commercial vehicle) could frustrate the ability of other motorists to see him.

[72] Finally, the defendant submits that his conviction for a Highway Traffic Act offence does not extinguish the possibility that the plaintiff was partially liable for the accident. In addition, although his conviction affords prima facie proof of fault in this proceeding, that presumption is rebuttable. Based on the operable circumstances in this instance, re-litigation of the issue of whether he made his turn “in safety” does not constitute an abuse of process: see Shah v. Becamon, 2009 ONCA 113, 94 O.R. (3d) 297, at para. 18.

VI Disposition

[73] The plaintiff has met his onus to demonstrate that there is no genuine issue requiring a trial with respect to the defendant’s negligence. I am able to reach that conclusion without resort to the fact-finding powers prescribed by r. 20.04(2.1) of the Rules and without reliance on the evidence of the defendant’s conviction. I reach my conclusions for the following reasons.

[74] The plaintiff asserts that he has suffered significant injuries and impairments as a result of Mr. Hiltz’s negligent operation of his vehicle. To succeed, the plaintiff must establish on a balance of probabilities that: the defendant owed him a duty of care; the defendant breached that duty by failing to act in accordance with a reasonable standard of care; and the defendant’s breach of the standard of care caused the plaintiff to suffer loss or damage that he would otherwise not have suffered “but for” the breach.

[75] In defence of the claim, the defendant asserts that the injuries and losses the plaintiff has suffered as a result of the accident, if any, were caused, in part, by the plaintiff’s failure to operate his motorcycle in accordance with a reasonable standard of care. In other words, the plaintiff was contributorily negligent. The defendant bears the onus of establishing the plaintiff’s alleged contributory negligence on a balance of probabilities.

[76] The defendant does not dispute that he owed the plaintiff a duty of care. Drivers owe others a legal duty to take care in the use and operation of their vehicles and to avoid causing harm and damage through their unreasonable operation of same. A driver breaches his duty of care if he fails to exercise the standard of care required of a reasonably prudent person, in all of the circumstances. The precise scope of reasonable and unreasonable conduct in the context of a specific set of facts is an issue for the trier of fact.

[77] Before engaging in a left-hand turn, a driver is generally required to ensure that the turn can be safely made: see Younes v. Nikzad, 2010 ONSC 2488, at paras. 6 and 11. The driver’s onus in that regard is a heavy one. A driver may turn into the path of approaching traffic only after having assured himself that he can do so in safety: see Payne v. Lane, [1949] O.J. No. 65, at para. 7, Caci v. MacArthur, 2008 ONCA 750, 93 O.R. (3d) 701, at para. 22.

[78] In addition to a driver’s common law duty, as set out above, sections 142(1) and 141(5) of the Highway Traffic Act impose statutory duties on left-turning drivers to ensure that the anticipated turn can be safely made. Although breach of a statutory duty may not, in isolation, conclusively evidence negligence, the existence of a statutory duty on a driver to engage or refrain from certain conduct serves to inform the scope of the appropriate standard of care. In that regard s. 142(1) of the Highway Traffic Act provides:

The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.

[79] Clearly, s. 142(1) of the Highway Traffic Act obligates a driver to determine whether the intended turn can be made in safety before turning. It also requires the driver to signal the intended turn if another vehicle may be affected by the intended movement: see Martin-Vandenhende v. Myslik, 2015 ONCA 806, 343 O.A.C. 110. When his vision is unobstructed, a driver executing a left-hand turn has an obligation not only “to look” but “to see” what is clearly visible. When there is nothing obstructing a driver’s vision, he will be negligent if he fails to see what is otherwise clearly visible: see Swartz Bros. Ltd. v. Wills, [1935] S.C.R. 628, at p. 634; Juneja v. Samra, 2016 ONSC 5502.

[80] Section 141(5) of the HTA prohibits a left-turning driver at an intersection, from turning across the path of a vehicle approaching from the opposite direction unless she has afforded a reasonable opportunity to the driver of the approaching vehicle to avoid a collision.

[81] Consistent with the principles set out above, the defendant Hiltz was under a very heavy onus to ensure that his intended left turn from Grand Avenue to Woods Street could be safely made before he commenced the turn. The available evidence conclusively establishes that he failed to reasonably discharge his duty in that regard, on either version of events that he has sworn to in this proceeding (i.e. that there were no other eastbound vehicles in front of him, as he approached the intersection and his more recent narrative, that he was actually travelling one to two car lengths or less behind a slow-moving commercial vehicle). Mr. Hiltz was negligent in attempting to execute the turn. I am able to reach that finding without resort to the fact-finding powers available pursuant to r. 20.04(2.1) for the following reasons.

[82] First, on the available evidence I am satisfied that immediately prior to the accident, the plaintiff proceeded westbound on Grand Avenue West from a point east of Sandys Street in the centre lane of westbound traffic. That finding is supported by the unchallenged evidence of: the plaintiff; Ms. Morton; and Ms. Robichaud. The defendant admits that he does not know where the plaintiff came from prior to the collision and he has advanced no evidence from his brother on the point.

[83] The defendant’s “theory” that the plaintiff emerged from the Montreal House parking lot is entirely based on his interpretation of a post-accident pointing gesture that he now attributes to Ms. Morton. The foundational evidence in that regard is weak. The defendant testifies that when he allegedly asked Ms. Morton where the plaintiff came from, she pointed to the east. If that is true, then given where she was situated at the time, Ms. Morton would not only have been pointing in the direction of the Montreal House parking lot but also in the direction of the intersection of Grand Avenue West and Sandys Street. The latter accords with the actual location that the plaintiff proceeded from prior to the collision, according to the sworn evidence of each of Ms. Morton, Ms. Robichaud and Mr. Boudreau.

[84] More fundamentally, Ms. Morton does not testify to “pointing out” any location to the defendant while they were at or near the accident scene. Notably, the defendant did not identify Ms. Morton as the person who pointed to the parking lot until his cross-examination, which was conducted after Ms. Morton swore her affidavit. The defendant chose not to cross-examine Ms. Morton and therefore, his suggestion that she pointed to the Montreal House parking lot was never put to her in the context of this motion.

[85] In the end, the totality of the evidence supports a finding that the plaintiff proceeded in a westbound direction on Grand Avenue West through its intersection with Sandys Street and he continued west on Grand Avenue West immediately prior to the collision. There is no cogent evidence to the contrary. The defendant’s belief that the plaintiff may have emerged from a parking lot, at its highest, is a speculative theory without meaningful evidentiary support.

[86] The totality of the evidence also supports a finding that the plaintiff was operating his motorcycle in a safe and reasonable manner prior to the collision. There is no evidence that the plaintiff was speeding or otherwise careless in his operation of the motorcycle. To the contrary, the plaintiff deposes that he was travelling at approximately 40 kilometres per hour prior to the defendant’s sudden left-hand turn. Ms. Morton, Ms. Robichaud and Mr. Smith all testified that the plaintiff was operating the motorcycle in an appropriate manner and that he was not speeding. Their evidence is unchallenged. The defendant first observed the plaintiff’s motorcycle after he commenced his turn and only when the collision was imminent. For reasons that remain unclear, no evidence was adduced from the defendant’s brother.

[87] In the context of the foregoing, on the defendant’s original evidence that no vehicles were travelling eastbound in front of him prior to the collision, the defendant is negligent for failing to see the plaintiff’s motorcycle before he embarked on the left-hand turn and for failing to ensure that the left-hand turn could safely be made before he embarked on it.

[88] The plaintiff’s presence in the centre westbound lane was notorious. Before the collision, Ms. Robichaud and Ms. Morton held a similar vantage point to that of the defendant. They each observed the plaintiff in the westbound centre lane, even while the plaintiff was at the intersection of Grand Avenue West and Sandys Street. Clearly, the plaintiff was there to be seen. The defendant is unable to account for his failure to see the plaintiff prior to beginning his left-hand turn at 25 kilometres per hour, other than to say that as he did so, he was looking for potential hazards on Woods Street. In short, the available evidence supports a finding that the defendant failed to maintain a proper lookout for oncoming traffic prior to initiating his left-hand turn.

[89] Additionally, there is no genuine issue with respect to whether the defendant discharged his heavy onus to ensure that his left-hand turn could be made in safety before engaging in that turn. He did not. The defendant admits that he was obliged to make a left-hand turn in a manner that did not interfere with oncoming traffic. He further testifies that had he seen the plaintiff’s motorcycle before he started his left-hand turn he would not have commenced it. In his examination for discovery and affidavit evidence, he offers no explanation for his failure to see the plaintiff before turning immediately in front of him. The plaintiff provides unchallenged evidence that the defendant’s turn was unanticipated. Emmallee Morton provides unchallenged evidence that the defendant’s turn caught her completely off-guard. The defendant says that he did not see the plaintiff until the motorcycle was approximately two car lengths away from his vehicle. The motorcycle struck the front left corner of the defendant’s vehicle. All of this evidence suggests that the defendant began to execute his left-hand turn when the motorcycle was very close to the intersection of Grand Avenue West and Woods Street. The available evidence establishes that it was not safe for the defendant to attempt to turn when he did.

[90] Finally, since the defendant did not see him, the plaintiff’s presence in the oncoming lane of traffic did not factor into the defendant’s decision to initiate the turn. The defendant was unable to consider factors such as the plaintiff’s speed and lane position before he commenced the turn. For reasons which I will more fully set out when disposing of the contributory negligence issue, I am satisfied that the defendant commenced his turn without first affording the plaintiff a reasonable opportunity to avoid the collision.

[91] Even on the defendant’s second version of events (i.e. the presence of a large slow-moving commercial vehicle), I remain of the view that there is no genuine issue that requires a trial to determine whether he was negligent. He was. The defendant suggests that the presence of the commercial vehicle obstructed his pre-accident view (and likely his brother’s view) of oncoming westbound traffic. Eventually, he decided in very short order to turn left onto Woods Street. He began to execute that turn at 25 kilometres per hour (on his evidence) at a time when his view of westbound traffic was still largely obstructed by the presence of the truck. Without an unobstructed view of oncoming traffic, the defendant was not in a position to ensure that his left turn could be made in safety before he blindly steered across the centre westbound lane of traffic. On his evidence about this version of events, the defendant attempted to turn left across two lanes of oncoming traffic when he was not in a position to ascertain the number and position of any oncoming vehicles and their respective speeds and distances from the intersection and without any ability to afford the drivers of such vehicles a reasonable opportunity to avoid a collision. I am satisfied a reasonable driver would not engage in such perilous conduct.

[92] In the result, on either version of the defendant’s evidence, he failed to act in accordance with a reasonable standard of care, in circumstances where the collision would not have occurred “but for” his breach of the requisite standard of care.

[93] In arriving at these findings, I am mindful that there are some conflicts in the evidence surrounding the circumstances of the accident including: whether the defendant initiated his turn from the eastbound centre through-lane or the eastbound left-hand turn lane and whether the defendant activated his turn signal before he initiated his turn. It is unnecessary to resolve those conflicts in order to arrive at findings with respect to the defendant’s negligence. However, they must be addressed when determining whether there is a genuine issue requiring a trial with respect to the plaintiff’s alleged contributory negligence, which I will address below.

[94] I am satisfied that the plaintiff has established that there is no genuine issue with respect to whether he was contributorily negligent in relation to the accident. On the available evidence, I find that he was not. I have resorted to the fact-finding powers available pursuant to r. 20.04(2.1) in order to arrive at that finding. I will explain.

[95] The onus is on the defendant to establish on a balance of probabilities that the plaintiff was contributorily negligent. In left turn situations, the law requires both the turning driver and the oncoming driver to take reasonable care to avoid an accident. Both drivers have a duty to use reasonable care in the circumstances and to drive sufficiently slowly so as to be able to come to a safe stop within their range of view: see Nowakowski v. Mroczkowski Estate, at paras. 82–83.

[96] Both the plaintiff and Ms. Morton depose that the defendant did not signal his intended turn onto Woods Street and that he commenced the turn from the eastbound centre through-lane. As a result, the turn caught each of them by surprise. If I were to accept their respective evidence on those points, together with their unchallenged and uncontradicted evidence (and that of Ms. Robichaud and Mr. Smith) indicating that the plaintiff was operating his motorcycle properly and at an appropriate rate of speed prior to the collision, I would conclude that there is no genuine issue requiring a trial on the issue of contributory negligence. However, their evidence about the defendant’s actions is contradicted by other evidence on this motion.

[97] Mr. Hiltz deposes that he signalled his left turn and moved to the left-turn lane before executing it. The plaintiff testifies that he saw the defendant’s vehicle when it was five car-lengths west of the intersection of Grand Avenue West and Woods Street. If it was found that the defendant’s turn signal was activated and his turn was initiated from the turning lane, then in my view, a triable issue exists over whether the plaintiff reasonably ought to have slowed his motorcycle as he approached the intersection or have otherwise taken precautionary steps to avoid a collision, in the event that the defendant executed a left turn in front of him.

[98] In fairness to the plaintiff and Ms. Morton, I appreciate that they were not directly challenged with the defendant’s evidence on those points through cross-examination or at all. Nonetheless, a conflict in the evidence remains.

[99] Although I find that the evidentiary conflict regarding the turn signal and the defendant’s use of the left turn lane results in a “genuine issue” it is not one that requires a trial to determine. In this instance, the issue of contributory negligence can be fairly and justly determined through the fact-finding powers available on this motion and it is in the interest of justice to do so. In reaching that conclusion I have considered the following.

[100] There may be as many as seven witnesses who will give evidence at trial on issues related to the defendant’s allegation of contributory negligence (the plaintiff, the defendant, Emmallee Morton, Ms. Robichaud, Mr. Smith, Mr. Higgins and perhaps the defendant’s brother who is said to have been present in the defendant’s vehicle at the time of the collision). Adducing viva voce evidence from each of the seven anticipated witnesses will invariably add to the length and expense of a trial, which based on the evidence related to damages that is before me, appears to otherwise involve complex medical issues. The record does not disclose a compelling reason to believe that the evidence on the liability issues at trial will differ from the evidence adduced on this motion. The defendant has chosen not to challenge any of the evidence adduced by the plaintiff through cross-examination. The defendant has chosen not to adduce evidence from his brother.

[101] I remain mindful that the defendant posits that the issue of liability for the accident (including contributory negligence) is an exceptionally important one, particularly in light of the significant quantum of damages claimed by the plaintiff. I also remain mindful that in his statement of defence, the defendant has expressly denied that: the plaintiff is entitled to claim for non-pecuniary damages; the plaintiff has suffered a loss of income or loss or loss of earning capacity; and the plaintiff is entitled to claim for healthcare expenses. The defendant also expressly denies that the plaintiff has suffered any damages or alternatively, he states that the damages claimed by the plaintiff are grossly excessive, too remote and/or unrelated to the accident. Accordingly, if the defendant’s pleaded positions with respect to the plaintiff’s lack of entitlement to damages and/or the minimal quantum of the plaintiff’s damages are accurate, the determination of the issue of liability for the accident will have a relatively modest impact on the ultimate disposition in this proceeding. In any event, I am satisfied that the issues with respect to “fault” for the accident are completely severable from the damages issues to be determined at trial.

[102] As a result of the foregoing, in all of the circumstances summary judgment remains a proportional method to fairly and justly determine the issue of contributory negligence and it is fair and just to utilize the fact-finding powers available pursuant to r. 20.04(2.1), where necessary to determine that issue. In doing so, I find that no genuine issue with respect to the plaintiff’s alleged contributory negligence remains. I will explain.

[103] First, I accept the plaintiff’s evidence that the defendant did not signal his intended left-hand turn onto Woods Street before he initiated the turn. I also accept the plaintiff’s evidence that the defendant suddenly commenced the left turn from the eastbound centre through-lane of Grand Avenue West and as a result, the plaintiff had no advanced notice of the defendant’s intent to turn left at Woods Street. Reasonably, in those circumstances the plaintiff had no basis for concluding that the defendant would attempt to turn left in front of him.

[104] The plaintiff’s evidence is consistent with the evidence of Ms. Morton, who observed the accident unfold in front of her from a similar vantage point to the one held by the defendant. She testifies to: the plaintiff’s appropriate operation of his motorcycle prior to the collision; the defendant’s failure to engage his turn signal prior to the collision; and that the defendant commenced his left turn from the centre through-lane of eastbound Grand Avenue West, rather than the available left-turn lane. She observed the defendant turn abruptly in front of the plaintiff, which caught her completely off-guard. The collision occurred as soon as the defendant made his sudden turn. She says that the plaintiff had no chance to avoid the collision.

[105] I accept Ms. Morton’s evidence in its entirety. Her evidence is internally consistent and it was not challenged by the defendant through cross-examination. The defendant’s failure to cross-examine Ms. Morton is particularly curious because he now identifies Ms. Morton as the only source for his theory that the plaintiff emerged from a parking lot. Ms. Morton’s sworn evidence contradicts that assertion. She does not depose that she observed the plaintiff’s vehicle in the Montreal House parking lot at any time. Instead, consistent with evidence given by the plaintiff, she testifies that the plaintiff travelled westbound on Grand Avenue West through its intersection with Sandys Street. I find Ms. Morton’s evidence to be particularly compelling because she held a clear and relatively close vantage point from which she observed the collision and the events immediately preceding it. Her ability and opportunity to observe those events has not been challenged by the defendant. There is no evidence that indicates that she is biased, unobjective or that she otherwise has an interest in the outcome of this proceeding.

[106] Important aspects of Ms. Morton’s evidence are confirmed by the evidence of her mother, Ms. Robichaud, including: the presence of the plaintiff’s vehicle in a stopped position at the intersection of Grand Avenue West and Sandys Street shortly before the collision; the sequencing of the traffic signals on Sandys Street before the collision; and the normal and controlled manner and speed with which the plaintiff proceeded prior to the collision. Ms. Morton’s evidence is also confirmed by observations made by independent witness Al Smith, including his observation that the motorcycle passed in front of the Montreal House on Grand Avenue West, from the east and the safe and appropriate manner with which the plaintiff proceeded.

[107] Ms. Robichaud and Mr. Smith were well positioned to make the observations that they did. Their respective opportunities and abilities to make the observations to which they testify were not challenged by the defendant in cross-examination or otherwise. There is no evidence to suggest that either of them are motivated by bias or that they have an interest in the outcome of the proceeding. In all the circumstances, I find the evidence of both Ms. Robichaud and Mr. Smith compelling and I accept it.

[108] The only evidence that conflicts with the evidence of Ms. Morton and Mr. Boudreau about the manner in which the accident occurred comes from the defendant. I have considered the plaintiff’s evidence and the evidence of the independent witnesses in the context of the totality of the evidence including the defendant’s evidence before determining whether and to what extent I accept it.

[109] I have also considered the defendant’s evidence in the context of the totality of the evidence before determining where and to what extent I accept it. After doing so, I am compelled to reject both versions of the defendant’s evidence with respect to the manner in which the accident occurred for the following reasons.

[110] The defendant has provided inconsistent sworn evidence about an exceptionally important aspect of the circumstances surrounding the accident – specifically, whether he had an unobstructed view of oncoming westbound traffic before he began his left turn.

[111] At his discovery, the defendant unequivocally deposed that there were no eastbound vehicles in front of his vehicle as he travelled along Grand Avenue West, prior to the collision. At his examination for discovery the defendant did not testify that his decision to turn onto Woods Street was motivated by the presence of another eastbound vehicle turning left at Sandys Street. His subsequent affidavit evidence does not refer to the presence of a large commercial vehicle.

[112] When he was cross-examined on his affidavit, he testified to the travelling one to two car lengths or less, behind a slow-moving commercial vehicle as he approached Woods Street. He then testified that the presence of this vehicle partially obstructed his view of westbound traffic, thereby accounting for his failure to observe the plaintiff’s motorcycle before the collision. He also identifies the commercial vehicle as his motivation to turn left at Woods Street. Until his cross-examination he had not disclosed those elements of his current narrative.

[113] After considering the defendant’s evidence in the context of all of the evidence, I reject his evidence that immediately before the collision his view of westbound traffic was partially obstructed by a slow-moving commercial vehicle. In all the circumstances, I do not find that evidence to be credible. In reaching that conclusion I have considered:

1. The motor vehicle accident report does not disclose the presence of a slow-moving commercial vehicle at or immediately before the collision;

2. Neither the plaintiff nor any of Ms. Morton, Mr. Smith and Ms. Robichaud depose to the presence of a commercial vehicle travelling eastbound in front of the defendant’s vehicle, at any point in time. Further, neither Ms. Morton or Ms. Robichaud depose to any obstructions to their view of westbound traffic as they proceeded eastbound on Grand Avenue. To the contrary, they were both able to see the plaintiff’s motorcycle at the intersection of Grand Avenue West and Sandy Street and Ms. Morton was able to continuously observe it as it travelled west towards Woods Street, up to its point of impact with the defendant’s vehicle. None of the independent witnesses were challenged on their observations. The defendant’s failure to cross-examine them on the presence of a “vision obstructing” commercial vehicle is troublesome because he did not testify to that version of events until his own cross-examination.

3. The evidence establishes that the defendant gave a statement to police immediately after the accident and to a representative of his own insurer sometime thereafter. There is no evidence that the defendant disclosed the presence of a “vision-obstructing” commercial vehicle when he gave either of those statements.

4. The defendant has given sworn evidence in this proceeding that contradicts his assertions that prior to the accident there was a vehicle directly in front of him that obstructed his view of westbound traffic.

5. Mr. Hiltz has not adduced any evidence from his brother who is said to have been a passenger in his vehicle at the time of the accident. As a result, the plaintiff requests that I draw an adverse inference. In all the circumstances, I am persuaded that the requested adverse inference should be drawn and I do so for the following reasons. The defendant suggests that his brother is in a position to offer evidence helpful to him on the liability issues by corroborating the presence of the commercial vehicle. The defendant relies on the presence of this vehicle not only to diminish his own culpability for the accident but to anchor one of his theories of contributory negligence. The defendant first raised the corroborating significance of his brother’s potential evidence about the commercial vehicle in his own evidence during cross-examination. The defendant has offered no explanation as to why he did not adduce any evidence from his brother, with whom he lives, in the context of this motion.

In all the circumstances, I draw an inference that had the defendant adduced evidence from his brother, it would not have assisted the defendant by corroborating his late-breaking evidence about the presence of a large commercial vehicle, which in turn, undermines the defendant’s credibility.

6. The defendant’s credibility and the reliability of his evidence is further impaired by other aspects of his own evidence. In the course of this proceeding the defendant has given conflicting evidence on issues other than the presence of an eastbound commercial vehicle including: whether he gave a statement to police; whether he slammed on his brakes immediately before the collision; whether the plaintiff moved to his own left or own right immediately before the collision; and whether he has access to a telephone that would have allowed him to contact his lawyer when he “remembered” the commercial vehicle.

[114] As a result of the foregoing, I conclude that the defendant’s evidence concerning the presence of a commercial vehicle is incredible and I reject it. Further, I am left with serious concerns over the defendant’s credit at large and the accuracy of the evidence he has given in the context of this motion (even where it does not conflict with other portions of his evidence).

[115] Based on my concerns over the defendant’s credibility and the reliability of his evidence and because his evidence conflicts with other evidence from the plaintiff and independent witnesses that I do accept, I also reject the defendant’s evidence that: he activated his left turn signal before he commenced his left turn; he moved into the eastbound left turn lane before he commenced the left turn; his vehicle was fully stopped when he was struck by the plaintiff’s motorcycle; and the light governing east and westbound Grand Avenue traffic at its intersection with Sandy Street had turned red very shortly before the accident occurred. Accordingly, I find that the plaintiff did not have a reasonable opportunity to avoid the collision, once the defendant’s negligent conduct created an emergency situation.

[116] Further, for the following reasons I do not give effect to the defendant’s submission that the plaintiff was contributorily negligent because he failed to engage in reasonable evasive actions to avoid the collision.

[117] First, the defendant has not evidenced or even identified any specific act that the plaintiff reasonably could have engaged in order to successfully avoid the collision.

[118] The defendant’s counsel submits (without evidence) that after the defendant’s vehicle stopped, the plaintiff could have then steered to his right and entered the vacant westbound curb lane in order to avoid the collision. However, there is no evidence to demonstrate that such a manoeuvre could have been successfully executed within the short period of time it would have taken for the plaintiff’s motorcycle to close a distance of two car lengths while travelling at 40 kilometres per hour.

[119] In addition, the defendant has never put any of his theories about the actions that he submits the plaintiff could have undertaken to avoid the accident, to the plaintiff in cross-examination.

[120] Second, the defendant provides evidence, albeit inconsistent on the point, that the plaintiff did attempt to take evasive action before impact – either by turning to his right or his left. Again, there is no evidence that “reasonably,” the plaintiff could have done anything to have avoided the collision, in all of the circumstances.

[121] Finally, in advocating that there is a genuine issue requiring a trial on the issue of contributory negligence, the defendant relies heavily on the result in Nash v. Sullivan et al., (1974) 1 O.R. (2d) 133 (C.A.). Following my determination that the defendant’s view of westbound traffic was unobstructed, the result in Nash has no application in this instance.

[122] In the result, I am not prepared to infer that the plaintiff is contributorily negligent in the complete absence of evidence of the existence of a reasonable opportunity for the plaintiff to have avoided the impact after the defendant created an emergency situation by negligently commencing a left-hand turn across the plaintiff’s path of travel.

VII Summary of Findings

[123] In conclusion, for the foregoing reasons, I find as follows. Prior to the accident the plaintiff was travelling in a safe and prudent manner at approximately 40 kilometres per hour. The defendant made an unsignalled left turn immediately in front of the plaintiff’s path of travel. The defendant initiated his turn from the eastbound centre through-lane of traffic on Grand Avenue West and specifically not from the dedicated eastbound left turn lane that was available to him. The plaintiff did not have any advance notice of the defendant’s intention to make a left-hand turn. The defendant initiated his left turn almost immediately before the collision occurred. The plaintiff had no opportunity to avoid the accident. The plaintiff did not breach his duty to act in accordance with a reasonable standard of care. The accident was caused solely by the defendant’s failure to act in accordance with a reasonable standard of care, specifically by:

1. Failing to ensure that his left turn could be made in safety before he commenced the turn;

2. Failing to signal his intention to turn left before he did so;

3. Failing to initiate his left turn from the dedicated eastbound left turn lane; and

4. Failing to see the plaintiff’s motorcycle approaching in a westbound direction, in circumstances where the plaintiff was plainly there to be seen (and was seen by occupants of another eastbound vehicle in close proximity to the defendant’s vehicle);

5. Failing to afford the plaintiff a reasonable opportunity to avoid the collision.

[124] Factual liability for the motor vehicle accident rests entirely with the defendant.

VIII Nature of the Order

[125] For the foregoing reasons an order will go granting partial summary judgment in favour of the plaintiff on the issue of liability for the motor vehicle accident, and specifically adjudging and determining that the motor vehicle accident between the plaintiff and defendant that occurred on November 3, 2013 at the intersection of Grand Avenue West and Woods Street in the Regional Municipality of Chatham-Kent, in the Province of Ontario was caused solely as a result of the negligence of the defendant Richard Hiltz, in the operation of his motor vehicle.

[126] The action may proceed to trial on the issues of the plaintiff’s entitlement to the damages that he claims to have suffered as a result of the defendant’s negligence, in accordance with, among other things, the provisions of the Insurance Act, including but not limited to s. 267.5(5) of that Act and related regulations and an assessment and quantification of such damages, if any.

IX Costs

[127] In accordance with the normative approach to costs the plaintiff as the successful party is presumptively entitled to his costs of this motion. The parties submitted costs outlines on the hearing of the motion. The plaintiff may deliver additional costs submission of no more than three pages, double-spaced 12-point font within 30 days addressing any other relevant issues related to costs that are not set out in his costs outline. The defendant may deliver responding submissions to the plaintiff’s costs outlines or any additional submissions made by the plaintiff, of no more than five pages, double-spaced 12-point font within 30 days of delivery of the plaintiff’s submissions. The plaintiff may deliver reply submission of no more than two pages, double-spaced 12-point font within 15 days of the defendant’s submissions.

Gregory J. Verbeem

Justice

Released: January 30, 2018

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jeffrey Boudreau

Plaintiff

– and –

Richard Hiltz

Defendant

REASONS FOR JUDGMENT

Verbeem J.

Released: January 30, 2018