Court File and Parties

COURT FILE NO.: CV-15-00535118 DATE: 20181212 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Dayana Pagano Plaintiff – and – Chantal Emily Anderson and Augustine K. Yik Defendants

COUNSEL: Jonathan S. D. Wakelin, for the Plaintiff Brendan Haynes and Serena Genova, for the defendant, Chantal Emily Anderson Joanna L. Cox, for the defendant, Augustine K. Yik

HEARD: September 11, 2018

BEFORE: C. J. Brown, J.

Reasons for Decision

[1] The defendant, Chantal Emily Anderson (“Anderson”) brings this motion for an order for summary judgment dismissing the action and crossclaim as against her.

[2] The plaintiff, Dayana Pagano (“Pagano"), seeks an order for a ruling that the co-defendant Anderson is at least 1% liable or, in the alternative, a trial to determine and apportion liability.

[3] The defendant Augustine K. Yik (“Yik”) takes no position on the moving party’s motion except as to costs.

[4] This action arises from a motor vehicle accident (“MVA”) which occurred on February 22, 2014. All vehicles were proceeding southbound on the Don Valley Parkway in Toronto. The traffic was, according to the plaintiff, “stop and go” and the plaintiff alleges that Anderson was travelling at a higher rate of speed than conditions allowed.

[5] Pagano was a rear-seated passenger in Anderson’s vehicle, which was rear-ended by Yik. A second passenger, Ebony Sutherland, Anderson’s cousin, was seated in the front, next to Anderson. She is not a party to this action.

[6] Pagano was allegedly seriously injured in the MVA and commenced this action against both defendants, Anderson and Yik. Anderson cross-claimed against Yik. Yik did not cross-claim against Anderson.

[7] The defendant, Yik, offered to admit liability in exchange for limiting the claim to his policy limits, subject to the seatbelt and threshold defences. However, the plaintiff’s counsel refused to limit liability on the ground that the total claim may exceed Yik’s policy limits. Hence, this summary judgment motion was brought.

Positions of the Parties

[8] Anderson seeks an order for summary judgment, dismissing the action as against her. It is her position that the MVA was caused by Yik having rear-ended her vehicle. Anderson submits that the long-established principle is that the onus is on the driver of a rear-ending vehicle to satisfy the court that the collision did not occur as a result of his or her negligence, and relies on Beaumont v Ruddy, [1932] O.R. 441 (Ont. C.A.). Anderson submits that the Ontario Superior Court has recently been making findings of liability in rear-end accidents, and submits that this is a case which lends itself to such a finding.

[9] Counsel for the plaintiff states that the evidence of the various parties, which is conflicting as regards the actions of the vehicles takes the MVA outside of a simple rear-end collision, making credibility important. The plaintiff, Pagano, seeks an order for a ruling that Anderson clearly bears at least 1% liability, or alternatively, an order for a trial by judge alone to determine and apportion liability.

[10] It is of note that Yik, in his statement of defence, alleges negligence on the part of the defendant, Anderson. He alleges, in his pleading, that Anderson was travelling too closely to the vehicle in front of her, stopped suddenly and abruptly, failed to keep a proper lookout and made a sudden, unexpected manoeuvre or a manoeuvre without proper warning.

[11] A jury notice was served by Yik. Examinations for discovery of the three parties have been completed. Based on the submissions of the counsel for the defendant, Yik, and examinations for discovery, all three parties confirmed that the moving party was at a complete stop. Counsel for the plaintiff had indicated at examinations for discovery that he would speak with the remaining passenger, Ebony Sutherland, to obtain her version of events.

Evidence Given on Examination for Discovery and Thereafter

[12] I have reviewed the motion records of the parties, as well as the examination for discovery transcripts. There is conflicting evidence as regards ultimate causation.

[13] This evidence includes the following:

1. Conflicting estimates of the interval from stop to impact between Anderson, who estimated she was stopped for 10 to 20 seconds and two of three other witnesses, who indicate that the interval was 3 to 4 seconds;
2. Conflicting evidence as to whether there was an emergency stop, which is Anderson’s position and three other witnesses who indicate that she made an abrupt stop for no reason;
3. Conflicting evidence about whether Anderson commenced and then aborted an evasive manoeuvre, veering out of her lane and to the left and then back, in order to avoid rear-ending the vehicle in front of her, which may have affected the defendant, Yik’s reaction time and any evasive action that he may have taken;
4. Evidence as regards whether or not Anderson was following too closely;
5. Evidence as regards breaking times and speeds of Anderson and Yik.

[14] It further appears that Anderson, in her examination for discovery, admitted that when she stopped she was only one half car length away from the vehicle ahead of her, which resulted in her veering to the left.

[15] Following examinations for discovery, the other passenger in the vehicle, Ebony Sutherland, was contacted as regards the circumstances of the accident and her evidence as regards the driving movements of the defendant, Anderson. I have reviewed the transcript of the telephone conversation provided by Ms Sutherland, which further confirms that there is conflicting evidence as regards the drivers’ actions.

Summary Judgment

The Law

[16] Pursuant to Rule 20, summary judgment shall be granted where there is no genuine issue requiring a trial.

[17] In Hyrniak v Mauldin, 2014 SCC 7, [2014] S.C.J. No. 7, the Supreme Court of Canada determined that there would be no genuine issue requiring a trial where a judge is able to reach a “fair and just determination on the merits” of the case. This will be the case where the process: (1) permits the judge to make the necessary findings of fact on the basis of the evidence adduced, (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.

[18] Pursuant to Hyrniak, the motion judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the court, without using the new fact-finding powers set forth in Rule 20.04. There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportional procedure. If there appears to be a genuine issue requiring a trial, the motion judge should determine if a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). The judge may, at his or her discretion, use those powers, provided that doing so does not offend the interest of justice, i.e., that it will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[19] In this regard, I am cognizant of and have taken into consideration the findings of Karakatsanis J. addressing the “interest of justice” requirement in Hryniak v Maulden, supra., at paragraphs 48-51, as follows:

The “interest of justice” inquiry goes further and also considers the consequences of the motion in the context of the litigation as a whole. For example, 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 negative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a party could significantly advance access to justice and be the most proportionate, timely and cost-effective approach.

[20] The moving party bears the onus of establishing that there is no triable issue. However, a responding party must “lead trump or risk losing”: 1061590 Ontario Limited v Ontario Jockey Club, [1995] O.J. No. 132, 21 O.R. (3d) 547 (Ont. C.A.). The responding party may not rest on the allegations or denials in the pleadings, but must present by way of affidavit or other evidence, specific facts and coherent, organized evidence demonstrating a genuine issue. The motions judge is entitled to assume that the record contains all evidence that the parties will present if there is a trial. It is not sufficient for the responding party to say that more and better evidence will be available at trial. The court must take a “hard look” at the evidence to determine whether there is a genuine issue requiring a trial.

[21] The Court of Appeal has recently held that a motion for partial summary judgment is a “rare procedure”:

A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner. Such an approach is consistent with the objectives described by the Supreme Court in Hyrniak, and with the direction that the rules be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. : Butera v Chown Cairns LLP, 2017 ONCA 783, 2017 CarswellOnt 15856; Espresso Tax Credit Fund III Limited Partnership v Arc Stainless Inc., 2018 ONSC 415, 2018 CarswellOnt 462.

The Law regarding Rear-End Motor Vehicle Accidents

[22] While there is a presumption of negligence as regards a vehicle rear-ending the vehicle in front of it, this presumption may be displaced based on the evidence regarding the circumstances of the accident.

[23] As stated in Martin-Venenende v Myslik, at paragraph 31:

[31]… The common law principle enunciated in Beaumont v Ruddy does not prescribe that the following driver is always at fault if he or she runs into another from behind. It simply states that generally speaking this will be the case and shifts the onus to the following driver to show otherwise. There is no principle of law of which I am aware that automatically fixes the following driver who runs into another vehicle from the rear with liability “no matter what [the lead driver] chooses to do, within [his or] her own lane.” Subject to the law’s general bias in favour of fault on the part of the following driver and the “following too closely” jurisprudence, liability – as in any negligence case – depends upon whether the following driver was acting reasonably in the circumstances and, conversely, whether the lead driver was as well.

Martin-Venenende v Myslik, 2012 ONCA 53, 2012 O.J. No. 346

[24] In determining the circumstances of a motor vehicle accident, the necessity of being able to stop in the event of an emergency, and the reasonableness of a driver’s actions, the test to be applied is to look at the circumstances and see what a reasonable and prudent driver would do: Whiddon v Wickstrom, 1948 O.W.N. 336; Kashuba v Ey, 1992 CanLll 6153 (ABQB), R.S.O. 1990, c. I.8, s. 275 (4). Each case must be decided upon its own facts: Rahimi v Hatami, 2015 ONSC 4266.

Analysis

[25] In the circumstances of this case, with the evidence before me, I find that there is a genuine issue requiring a trial. I am unable to reach a fair and just determination on the merits of the case, based on the record before me. I am not able to make the necessary findings of fact as regards liability on the basis of the evidence adduced or to apply the law to those facts.

[26] Based on the evidence that is currently before this Court, it is not possible to fix liability or contribution to liability by percentages. There appears to be conflicting evidence as regards the circumstances surrounding the motor vehicle accident and the actions of the defendant driver, Anderson. While she states that she was stopped prior to being rear-ended for 10 to 20 seconds, there is other evidence which suggests that it was a matter of a few seconds only, and that she made an abrupt stop just before she was rear-ended, and may have veered in and out of the line of traffic. Depending on which evidence is found credible, and which evidence is relied upon by the court, there may or may not be some liability on Anderson. Based on all of the evidence before this Court at this juncture, it is not possible to make a definitive finding in that regard.

[27] I note that there will be an issue of seatbelt and threshold defences. The plaintiff stated in her examination for discovery that she was wearing a seatbelt and, just prior to the accident, had moved the seatbelt forward so that she could reach over into the front seat to change the music on the radio. As regards the defendant’s liability, in my view, it is necessary that both defendants be involved in this action. In my view, the plaintiff’s ability to recover 100% of their damages could be seriously compromised if only one tortfeasor remains in the action as the court may be called upon to determine the relative percentages of liability between the two drivers, in the event that evidence arises that would suggest negligence on the part of each. The evidence of all parties will be required in order for the court to properly apportion liability pursuant to the Negligence Act for any damages found to exist: see Kanagalingam v Jayakumar, 2017 ONSC 2480, para 34.

[28] In the circumstances of this case, with the evidence before me, including the conflicting evidence regarding the actions of the two drivers and the timing of those actions, as set forth above, I find that there are genuine issues requiring a trial. I am unable to reach a fair and just determination on the merits of the case, based on the record before me. I am not able to make the necessary findings of fact as regards liability on the basis of the evidence adduced or to apply the law to those facts. This case requires a full evidentiary record and potentially, assessments of credibility. I do not find that summary judgment, in the circumstances of this case, is a proportionate, more expeditious and less expensive means to achieve a just result. Further, I do not find that a trial could be avoided by resorting to the powers of this Court pursuant to Rules 20.04(2.1) and (2.2).

[29] Based on my observations above, I dismiss the summary judgment motion and order that this action proceed expeditiously to trial. Further, I urge the defendants to cooperate in an attempt to settle the action as against the plaintiff such that the trial can be devoted simply to an apportionment of liability as between the defendants. If that is not possible, this matter is to proceed as quickly, cooperatively and expeditiously as possible to trial.

[30] As regards costs, I would reserve the costs of this motion to the discretion of the trial judge, once the issues at trial have been determined.

C. J. Brown J. Released: December 12, 2018