COURT FILE NO.: CV-14-512987
DATE: 2018/12/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
scott Marshall
Plaintiff
– and –
robert heatherington, all canada crane rental corp., gary craig and WESTERN ASSURANCE COMPANY
Defendants
Annette Uetrecht-Bain, for the Defendant Gary Craig
Louise A. James, for the Defendant All Canada Crane Rental Corp.
HEARD: December 14, 2018
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] In this motor vehicle personal injury action, the Defendants, All Canada Crane Rental Corp. (“Canada Crane”), bring a summary judgment motion to have the Plaintiff, Scott Marshall’s, claim and the Defendant, Gary Craig’s, crossclaim dismissed.
[2] In my opinion, there are genuine questions requiring a trial and for the reasons that follow, Mr. Heatherington’s and Canada Crane’s motion is dismissed.
B. Procedural Background
[3] The accident or accidents occurred on October 1, 2012.
[4] On October 1, 2012, Mr. Marshall was injured in a two-vehicle motor-vehicle accident or he was injured in a three-vehicle motor-vehicle accident. On October 1, 2012, Mr. Craig was involved in a one motor-vehicle accident or he was involved in two discrete motor-vehicle accidents. On October 1, 2012, Mr. Heatherington was involved in one motor-vehicle accident or he was involved in two discrete motor-vehicle accidents, or he was simply the witness to one motor-vehicle accident involving Mr. Marshall and Mr. Craig.
[5] On September 26, 2014, Mr. Marshall commenced an action against Mr. Craig, Canada Crane, and John Doe, who was later identified as Robert Heatherington.[^1]
[6] On October 6, 2015, Mr. Heatherington and Canada Crane served their Statement of Defence, which included a crossclaim against Mr. Craig. They also served a Jury Notice.
[7] On October 12, 2015, Mr. Craig served his Statement of Defence, which included a crossclaim against Mr. Heatherington and Canada Crane. He also served a Jury Notice.
[8] Examinations for discovery were completed in 2015, and after the examinations for discovery, Mr. Heatherington and Canada Crane retained Jason Young of Advantage Forensics to complete an accident reconstruction and to opine about the cause of the accident involving Mr. Marshall. Mr Young is a bio-engineer and an expert about how a vehicular collision could cause personal injuries.
[9] In May 2018, Mr. Marshall set the action down for trial and filed his Trial Record.
[10] In July 2018, Mr. Heatherington and Canada Crane brought the summary judgment motion now before the court.
[11] The summary judgment motion was supported by an affidavit of Myle Nguyen, an associate lawyer at Genest Murray LLP, lawyers for Mr. Heatherington and Canada Crane. Annexed to Ms. Nguyen’s affidavit was the expert report and curriculum vitae of Mr. Young.
[12] In response to the summary judgment motion, Mr. Marshall delivered an affidavit from Michelle Arzaga, a lawyer with Pace Law Firm, the lawyers for Mr. Marshall.
[13] In response to the summary judgment motion, Mr. Craig delivered an affidavit from Jessica C. Grant, a lawyer with McCague Borlack, the lawyers for Mr. Craig.
[14] The pre-trial conference is scheduled for July 12, 2019.
[15] The trial is scheduled for November 25, 2019 and the estimated trial duration is 15 days.
[16] The summary judgment motion was argued on December 14, 2018.
C. Facts
[17] There are three versions or different accounts of the events of October 1, 2012. There is also an accident reconstruction and bio-engineering opinion of Mr. Young.
[18] Before, describing the different versions, it is uncontested that one or more motor vehicle accidents occurred involving Mr. Marshall, Mr. Craig, and Mr. Hetherington. After the accident or accidents occurred, it seems that the parties felt at that time that Mr. Hetherington was not at fault, and he left the scene of the accident. Mr. Marshall and Mr. Craig exchanged contact information, and Mr. Marshall drove off to report to work. He did not go for medical treatment, and it was not until that afternoon that he felt pain. He was unable to continuing working. He left the job site, and suffering from a chronic pain injury, he has never returned to work.
[19] Mr. Heatherington’s version is that he was travelling southbound on Highway 410 in a Ford Van owned by Canada Crane. Mr. Heatherington’s vehicle was travelling in the far-left lane behind Mr. Craig’s vehicle. The cars ahead, which were travelling at the speed limit, abruptly came to a halt. Mr. Heatherington braked. He saw Mr. Craig’s vehicle, which was immediately ahead of his own, strike Mr. Marshall’s vehicle. Then, Mr. Heatherington’s vehicle came to a halt. He was unsure of whether while stopping his vehicle, it might have touched Mr. Craig’s vehicle. Mr. Heatherington got out of the van. There was no damage to the rear plastic bumper of Mr. Craig’s vehicle or to the front metal bumper of Mr. Heatherington’s vehicle, and he and Mr. Craig agreed that Mr. Heatherington had not struck the Craig vehicle because neither the rear of the Craig vehicle nor the front of the Heatherington vehicle were damaged and there was no signs of the vehicles having collided. Mr. Heatherington did not file a Collision Report. Mr. Heatherington left the scene and reported the incident to his employer, Canada Crane.
[20] Mr. Heatherington filed an accident report with Canada Crane as follows:
Was driving on 401 south. I was in the far lane on a paved road. The two men in front of stop short and they hit one another. The guy in the second car rear-ended the first guy. I then applied my brakes but couldn’t stop soon enough. I then taped [sic tapped] the guy in front of me car #2 bumper.
[21] Mr. Marshall’s version of the accident was that he travelling southbound on Highway 410 in his 2008 Nissan Altima. The vehicle was travelling in the far-left lane. The cars ahead, which were travelling at the speed limit, abruptly came to a halt. Mr. Marshall braked and came to a stop. He looked in his mirror and saw Mr. Craig’s vehicle bearing down fast. Mr. Marshall braced himself and his vehicle was struck from the rear. He got out of his own vehicle and saw Mr. Craig and Mr. Heatherington speaking. He spoke to Mr. Craig. At the time, Mr. Marshall did not perceive any personal injury. They discussed the property damage and whether an insurance claim would be made. Then Mr. Marshall went to work.
[22] In his Self-Reporting Collision Report, Mr. Marshall described the accident as follows:
I stopped for traffic and was hit from behind from Mustang and Mustang was hit from All Crane Van.
[23] Mr. Craig’s version of the accident was that he was travelling southbound on Highway 410 in his 2000 Ford Mustang. The vehicle was travelling in the far-left lane behind the Marshall vehicle. The cars ahead, which were travelling at the speed limit, abruptly came to a halt. Mr. Craig braked. He says that his vehicle came to a complete stop. He says that his vehicle did not strike the Marshall vehicle until his own vehicle was struck hard from the rear by the Heatherington vehicle. Mr. Craig says that his vehicle was pushed into Mr. Marshall’s Nissan.
[24] In his Self-Reporting Collision Report, Mr. Craig described the accident as follows:
I was headed south on #410 highway when traffic came to a sudden stop and I was hit by a white full-sized van from behind and pushed into a black Nissan. No damage to the van or my car and no visible damage to the Nissan.
[25] Mr. Young studied the examination for discovery transcripts and other evidence produced by the parties, and he analyzed whether the collision or collisions could have caused Mr. Marshall to be injured. Taking into account the fact that the front bumper of the Heatherington vehicle was made of steel and the rear bumper of the Craig vehicle was made of plastic and that there was no damage to either vehicle, Mr. Young concluded that the Heatherington vehicle was not involved in any accident. Mr. Young further concluded that if the Heatherington vehicle did hit the Craig vehicle, then the collision could have accelerated the movement of the Craig vehicle by at most, 7 km/hour, which, in his opinion, would have no effect on the collision between Mr. Craig’s vehicle and Mr. Marshall’s vehicle. Thus, Mr. Young’s opined that the Mr. Heatherington’s vehicle did not contribute to the motor accident involving the vehicles of Mr. Marshall and Mr. Craig or that its contribution was negligible.
D. Position of the Parties
[26] Mr. Heatherington and Canada Crane submits that there is no genuine issue for trial that Mr. Heatherington did not cause or contribute to the causing of the accident and to the personal injuries suffered by Mr. Marshall and, therefore, Mr. Marshall’s claim and Mr. Craig’s counterclaim should be dismissed.
[27] Mr. Craig submits that the case at bar is not appropriate for a summary determination and that there should be a trial. In the alternative, Mr. Craig submits that if the case is appropriate for determination, then the judgment should be that Mr. Marshall’s claim against both Mr. Craig and Mr. Heatherington should be dismissed with the result that the crossclaims would also be dismissed.
[28] Mr. Marshall does not oppose the dismissal of Mr. Craig’s crossclaim against Mr. Heatherington provided that the court determines which of Mr. Craig or Mr. Heatherington bears liability for the collision involving Mr. Marshall’s vehicle. Mr. Marshall submits that it is appropriate and possible on this summary judgment motion for the court to determine which party was responsible for the accident.
E. Jurisdiction to Grant Summary Judgment
[29] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04 (2.1) states:
20.04 (2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[30] In Hryniak v. Mauldin[^2] and Bruno Appliance and Furniture, Inc. v. Hryniak,[^3] the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers introduced when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.
[31] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04 (2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in the case.[^4]
[32] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial.[^5] Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment.[^6]
F. Discussion
[33] I shall begin my analysis of whether or not the case at bar is appropriate for a summary judgment by considering the utility, if any, of the opinion evidence of Mr. Young, which was annexed as an exhibit to an affidavit from an associate lawyer of the lawyer of record of Mr. Heatherington.
[34] On a motion for summary judgment, the moving party and the responding party may rely on supporting affidavits as in the case of other motions. Under rule 20.02(1), the affidavits may be made on information and belief, but on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. However, evidence of an expert witness may not be provided by the information and belief evidence of an affiant because the responding party should have the opportunity to cross-examine the expert.[^7]
[35] There was no opportunity on this summary judgment motion to cross-examine Mr. Young and, therefore, for the purpose of this summary judgment motion, I shall give no weight to his expert report.
[36] Ignoring, Mr. Young’s opinion, there are numerous genuine issues requiring a trial.
[37] Ignoring Mr. Young’s opinion and also recognizing that there are substantial issues of credibility and reliability associated with the three differing accounts of the accident or accidents, I have insufficient evidence to allow me to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in this case, which also include the possibility that there was no negligence or fault by either Mr. Craig or Mr. Hetherington.
[38] The case at bar is not a case where using the powers under rules 20.04(2.1) and (2.2) would be in the interest of justice. The use of these powers will not necessarily lead to a fair and just result and the use of these powers will not serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[39] Although in Hryniak v. Mauldin, the Supreme Court of Canada commanded a very robust summary judgment procedure, it did not foreclose lower courts from simply dismissing the summary judgment motion and ordering that the action be tried in the normal course.[^8] Where there are genuine issues for trial and the lower court concludes that employing the enhanced forensic tools of the summary judgment procedure would not lead to a fair and just determination of the merits, the court should not decide the matter summarily.[^9]
[40] I am unable to fairly decide this case summarily. In the immediate case, a trial is necessary to end the coyness and tactical maneuvering of the parties as demonstrated by Mr. Marshall’s position on the summary judgment motion that he did not oppose Mr. Heatherington being let out of the action provided that Mr. Craig was found liable and by Mr. Craig’s position on the summary judgment motion that he also did not oppose Mr. Heatherington being let out of the action provided that Mr. Marshall’s action was dismissed in its entirety.
[41] I should add that I would have come to the same conclusion had Mr. Young proffered his opinion by affidavit and been cross-examined before the motion. Mr. Young’s opinion was dependent, in part, on his interpretation of the testimony of the parties on their examination for discovery, which when repeated at trial may or may not be similarly interpreted by the trier of fact.
G. Conclusion
[42] For the above reasons, Mr. Heatherington’s and Canada Rental’s motion is dismissed.
[43] If the parties cannot agree about costs, they may make submissions in writing, beginning with Mr. Craig’s submissions within twenty days from the release of these Reasons for Decision, followed by Mr. Heatherington’s and Canada Crane’s submissions within a further twenty days.
Perell, J.
Released: December 18, 2018
COURT FILE NO.: CV-14-512987
DATE: 2018/12/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
scott marshall
Plaintiff
– and –
robert heatherington, all canada crane rental corp., gary craig and WESTERN ASSURANCE COMPANY
Defendants
REASONS FOR DECISION
PERELL J.
Released: December 18, 2018
[^1]: Mr. Marshall amended his Statement of Claim on May 12, 2016 to add Mr. Heatherington as a defendant. With the joinder of Mr. Heatherington, Mr. Marshall’s claim against the Defendant, Western Assurance Company, was dismissed without costs.
[^2]: 2014 SCC 7.
[^3]: 2014 SCC 8.
[^4]: Campana v. The City of Mississauga, 2016 ONSC 3421; Ghaeinizadeh (Litigation guardian of) v. Garfinkle Biderman LLP, 2014 ONSC 4994, leave to appeal to Div. Ct. refused, 2015 ONSC 1953 (Div. Ct.); Lavergne v. Dominion Citrus Ltd., 2014 ONSC 1836 at para. 38; George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001.
[^5]: Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 CanLII 814 (ON CA), 18 O.R. (3d) 481 (C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11.
[^6]: Toronto-Dominion Bank v. 466888 Ontario Ltd., 2010 ONSC 3798.
[^7]: Dutton v. Hospitality Equity Corp., [1994] O.J. No. 1071 (Gen. Div.).
[^8]: Gubert v. 1536320 Ontario Ltd., 2015 ONSC 3294.
[^9]: Ecoconcepts Management Services Inc. v. Peel Condominium Corp. No. 260, 2017 ONSC 2004; Gon (Litigation guardian of) v. Bianco, 2014 ONSC 7086 at paras. 41-47; Mitusev v. General Motors Corp., 2014 ONSC 2342 at para. 79; Yusuf (Litigation guardian of) v. Cooley, 2014 ONSC 6501, leave to appeal refused 2015 ONSC 3244 (Div. Ct.); Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 at para. 44.