Court File and Parties
COURT FILE NO.: C-4701-16 DATE: 2019-05-06 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Mark Lavallee, Plaintiff – and – Kristopher Purdy, The Corporation of The City of Greater Sudbury, John Doe and TD Home and Auto Insurance Company, Defendants
Counsel: Celeste Courville, counsel for the Plaintiff Patrick Brennan, counsel for Kristopher Purdy and The Corporation of The City of Greater Sudbury
HEARD: April 23, 2019
REASONS FOR DECISION
GAUTHIER J.
Background
[1] The action arises from a motorcycle accident that occurred when an unidentified motor vehicle allegedly suddenly came to a stop in front of the plaintiff’s motorcycle, prompting the plaintiff to “lay down” his motorcycle, as a result of which the plaintiff sustained injuries.
[2] The plaintiff’s lawsuit names the unidentified driver, as well as the driver of an ambulance who was behind the plaintiff, as well as the ambulance driver’s employer, The Corporation of the City of Sudbury.
[3] Those defendants, Purdy and The City of Greater Sudbury, (the “defendants”) seek a dismissal of the claims and cross-claims against them, pursuant to the summary judgment rule 20.04 (2)(a) under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[4] The responding party, (the “plaintiff”) opposes the motion, and suggests that it would have been in a position to bring a summary judgment motion itself, against the moving parties.
Facts
[5] The accident occurred on September 3, 2014, at approximately 10:15 p.m.
[6] The following six paragraphs are taken, verbatim, from the moving parties’ factum.
(i) On September 10, 2014, Purdy, an ambulance driver was on duty at the Van Horne Ambulance Depot in Sudbury alongside his partner Todd Teddy. At 10:00 p.m., they were dispatched to a Code 4 Life Threating Situation.
(ii) Since Purdy was responding to a Code 4 situation, the flashing lights on the ambulance were engaged throughout his trip, and Purdy engaged the ambulance’s siren intermittently and altered its tones as the situation required.
(iii) At the same time, the plaintiff was riding a motorcycle westbound on Brady Street with a friend, Daniel Rheaume (“Rheaume”). Brady Street is a four-lane, east/west road with two westbound lanes. The plaintiff and Rheaume were stopped in the westbound through lane for a red traffic light at the intersection of Brady Street and Minto Street. There was a single vehicle stopped ahead of the plaintiff and Rheaume in the through lane, and two vehicles stopped in the curb lane to the right of the plaintiff and Rheaume. The light turned green, and the plaintiff began to drive forward just as Purdy’s ambulance was turning onto Brady Street.
(iv) The ambulance entered Brady Street from Shaughnessy Street, approximately 82 meters east of the intersection where the plaintiff had been stopped.
(v) The plaintiff heard the ambulance siren before the ambulance turned onto Brady Street and came into his rear-view mirror.
(vi) When the light facing the plaintiff turned green, he and Rheaume proceeded through the intersection, and then attempted to maneuver towards the curb lane to make way for the ambulance.
[7] The statement of claim, among other things, alleges the following negligence on the part of Purdy, for whose negligence The City of Greater Sudbury is liable:
(i) Failing to follow the guidelines for emergency response vehicles;
(ii) Failing to activate the lights and siren on the ambulance in a timely manner to allow other vehicles, in particular, the Plaintiff’s vehicle, to move out of the way safely;
(vi) Such further and other grounds of negligence as will be determined after examinations for discovery and documentary disclosure.
[8] Essentially, the case against the moving parties is that the accident would not have occurred if Purdy had maintained a constant siren warning while approaching the vehicles in question, and if he had been proceeding at a lesser speed, and had remained a greater distance behind the vehicles involved.
Defendants’ Position
[9] The plaintiff has provided no evidence to establish any wrongdoing on the part of Purdy, or any causal connection between Purdy’s actions in operating the ambulance on the night of September 3, 2014, and the accident. There was no contact between the plaintiff, his motorcycle and the ambulance.
[10] All that the plaintiff has offered is his vague belief, and that of Rheaume, unsubstantiated by any admissible evidence, that the ambulance “startled” the drivers around them, causing the driver directly in front of the plaintiff to panic and brake suddenly. This in turn forced the plaintiff to have no choice but to “lay down” his motorcycle.
[11] The expert evidence prepared by Walters Forensic Engineering (“Walters”), and relied upon by the plaintiff is based on nothing more than unsupported speculations which are inconsistent with the evidence tendered, and, thus, do not constitute proper expert opinion evidence.
[12] The defendants suggest that the Walters report sets out three conclusions based purely on such speculation:
(I have borrowed liberally from the defendants’ factum)
(i) Startled Drivers
Walters opines that the accident was caused by the driver of the vehicle in front of the plaintiff being startled and braking suddenly. The report says this:
…the approach of the ambulance likely resulted in stress or panic for some of the westbound drivers on Brady Street. Furthermore, it is our opinion that this observation by the drivers resulted in unexpected actions from them which created unsafe conditions contributing to Mr. Lavallee’s motorcycle crash.
[13] There is no admissible evidence about the perceptions or reactions of the drivers around the plaintiff’s and Rheaume’s motorcycle at the time. In fact, the drivers of the vehicles around the plaintiff and Rheaume have never been identified. There is no evidence of their driving experience, the speed at which they were proceeding, or their physical or other reactions to the ambulance’s approach.
[14] Rheaume’s evidence of his conversation with the unidentified driver (which I will discuss later in the context of the position of the plaintiff) is inadmissible hearsay, and cannot found the basis for the Walters opinion that Purdy was negligent in the operation of the ambulance and the equipment, thus causing the accident.
[15] In addition, Walters’ opinion about the ambulance “startling” the drivers, or causing them stress or panic, is in contradiction to the evidence of the plaintiff and Rheaume that they, in fact, heard the ambulance’s sirens before they saw it approaching them.
(ii) Purdy’s violation of procedure
[16] The Walters’s report provides the following opinion:
… Mr. Purdy’s operation of the ambulance was in violation of Section 4 of the Greater Sudbury Paramedic Services Policy and Procedure Manual as he created unsafe traffic conditions for Mr. Lavallee.
[17] Walters has not identified any source for this conclusion, nor is any reference made to the Greater Sudbury Paramedic Services Policy and Procedure Manual, save and except for Section 4 referred to above.
[18] The authors of the Walters report profess no expertise in the operation of an ambulance or responding to life threatening emergency calls. They are not qualified to offer an opinion on the interpretation of the Paramedic Services Policy and Procedure Manual, the use of ambulance sirens, or the standard of care applicable to the operation of emergency response vehicles, such as an ambulance.
[19] In contrast, it is the unchallenged evidence of Purdy (an ambulance driver with more than seven years’ experience), as well as the evidence of his supervisor, Jennifer Amyotte (who has nearly 30 years’ paramedical experience, and is the Commander of community paramedicine and professional standards for the Paramedic Services of the Community Safety division for The Corporation of the City of Greater Sudbury) that it is standard practice to activate an ambulance siren intermittently, and not continuously. The activating of the siren and the alteration of its tone is governed by the circumstances, and, together with the lights, are meant to gain the attention of other occupiers of the roadway, in order to allow the ambulance to respond to potentially life-threatening situations.
(iii) Purdy’s excessive speed and approach to traffic.
[20] The Walters report concludes that Purdy should have been operating the ambulance at a slower speed, and/or that he should have stayed further back from upcoming traffic:
It is our opinion that Mr. Purdy could have avoided the crash by approaching the traffic ahead of him at a slower, more consistent rate of speed.
It is finally our opinion that Mr. Purdy could have stayed further back from the traffic to provide more time for the passing lane vehicles to merge right.
[21] The author of the report could not specify what the appropriate rate of speed would have been in the circumstances except to say that it would have been below the speed limit. As he approached the intersection, the ambulance’s speed, which had never exceeded 43 km/hr, was 25 km/hr, and was then reduced to 13 km/hr as it crossed the intersection through which the plaintiff had already proceeded.
[22] The ambulance’s speed was reduced gradually, not requiring any abrupt or sudden stop. Additionally, at the point in time when the plaintiff laid down his motorcycle, the ambulance was at least four car lengths away from it.
[23] Walters’ opinion on speed also fails to take into account that the ambulance was responding to a life threatening medical emergency.
[24] As there is no factual or legal connection between the actions of Purdy, and the accident itself, the moving parties have established that there is no genuine issue requiring a trial, and, as the plaintiff has failed to tender evidence that does create a genuine issue requiring a trial, the defendants submit that summary judgment should be granted as requested.
Plaintiff’s Position
[25] The manner in which the ambulance approached the traffic, including the plaintiff’s and Rheaume’s motorcycles, caused the accident which occurred on September 3, 2014.
[26] The plaintiff’s evidence is that although he was not startled by the ambulance, he was concerned about getting run over because of its speed, and not having anywhere to pull over, when the unidentified driver suddenly braked. Rheaume was able to manoeuver around that vehicle, but the plaintiff was not, and had to “lay down” his motorcycle, causing him to sustain injuries.
[27] Rheaume’s evidence, on behalf of the plaintiff is that
We were behind the unidentified driver when he slammed on his brakes, causing both Mark and I to apply our brakes and manoeuver around him….With the unidentified vehicle stopped in front of Mark and the ambulance coming behind him, he had to lay his bike down to avoid hitting the unidentified driver and/or to avoid being hit by the ambulance…
The ambulance came to a stop about 10 feet behind Mark. I believe the driver of the ambulance had to slam on his brakes to avoid hitting Mark.
[28] Rheaume’s evidence also includes an alleged conversation he had with the unidentified driver, during which the unidentified driver said this:
The ambulance was totally at fault. Where did they come from? I saw the ambulance, I panicked and slammed my brakes.
[29] The plaintiff also relies on Walters’ engineering report already referred to in the course of these reasons.
[30] The expert’s conclusions are that:
(i) Had Purdy used his siren continuously on approach to the traffic ahead of him, from Shaughnessy Street, he would have reduced the chances of startling the drivers with the siren when he reached the intersection, and, the traffic would have been less likely to perform the actions which contributed to the accident.
(ii) The manner in which the ambulance approached them likely resulted in stress or panic for some of the westbound drivers, resulting in unexpected actions by them, creating unsafe conditions contributing to the accident.
(iii) The accident could have been avoided if Purdy had approached the traffic ahead at a slower speed than he did; and
(iv) If Purdy had stayed further back from the traffic to provide more time for the passing lane vehicles to merge right, the accident would not have happened.
[31] The plaintiff points out that the qualifications of the author Walters’ report permit him to offer opinions on human reactions in accident situations; specifically, it permits him to offer the opinion that he did about the stress and “startling” of the drivers and their reaction to it.
[32] The plaintiff reminds me of the provisions of r. 53.03(2.1) which permits a qualified expert to base his or her opinions on factual assumptions, such as the authors of the Walters report did.
[33] The plaintiff further suggests further that it does not make any sense that the unidentified driver would suddenly brake unless he was startled and reacted in panic, as he said he did.
[34] The evidence of both the plaintiff and Rheaume is that they believe the motorist(s) were startled by the ambulance, thus causing them to stop abruptly, ultimately causing the plaintiff to take the evasive action he did, which was to lay down his motorcycle.
[35] The plaintiff suggests that the hearsay statement of the unidentified driver is admissible as the “best evidence” available, and thus, can properly form the basis for the assumptions made by the Waters report, in support of its conclusions.
[36] As there is conflicting evidence as to whether motorists were startled or not by the manner in which the ambulance approached the intersection, there is a genuine issue requiring a trial, and the plaintiff request that the court dismiss the defendants’ motion.
Rule 20.04 and the Law Governing Summary Judgment
[37] This motion is governed by the provisions of r. 20.04, which read:
20.04 (2) The court shall grand summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
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 a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
Oral Evidence (Mini-Trial)
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentations.
Only Genuine Issue Is Amount
(3) Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the court may order a trial of that issue or grant judgment with a reference to determine the amount.
Only Genuine Issue Is Question Of Law
(4) Where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly, but where the motion is made to a master, it shall be adjourned to be heard by a judge.
Only Claim Is For An Accounting
(5) Where the plaintiff is the moving party and claims an accounting and the defendant fails to satisfy the court that there is a preliminary issue to be tried, the court may grant judgment on the claim with a reference to take the accounts.
[38] The Court of Appeal summarized the principles governing summary judgment motions, established in Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.J. No. 7, as follows, in Broadgrain Commodities v. Continental Casualty Company, 2018 ONCA 438:
On a summary judgment motion the parties are expected to put their best foot forward and the court will assume that all necessary evidence has been tendered. See Chernet v. RBC General Insurance Company, 2017 ONCA 337, 11 M.V.R. (7th) 1, at para. 12; and Airex Inc. v. Ben Air System Inc., 2017 ONCA 390, 48 C.B.R. (6th) 200, at para. 17. A motion judge is entitled to presume that the evidentiary record is complete and there will be nothing further if the issue were to go to trial: Dawson v. Rexcraft Storage & Warehouse Inc., 111 O.A.C. 201, at para. 17; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 27, 33-34, aff’d 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97; and Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292 at para. 54. A motion judge is not required to resort to the summary judgment enhanced powers to remedy a party’s evidentiary shortcomings.
[39] The approach to summary judgment motion has been characterized as “the road-map approach”. See Boland v. Lyle, 2016 ONSC 7418, at para. 12:
On a motion for summary judgment under Rule 20.04, 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. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). 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 new powers under Rule 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. Their use will not be against the interest of justice if they 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.
Analysis and Conclusion
[40] For the reasons that follow, I conclude that summary judgment should be granted, dismissing the action as against the moving parties.
[41] While the Walters report lays the blame for the accident clearly at the feet of Purdy, the report and its conclusions are highly problematic.
[42] The conclusion that had Purdy used his siren continuously, and not intermittently as he did, the accident would likely not have happened, is unsupported by any admissible evidence.
[43] The author of the report has assumed that at least one driver was startled by the sound of the siren on Brady Street, and suffered stress/panic, slamming his brakes, which resulted in the plaintiff having to lay down his motorcycle, during which process he was injured.
[44] This assumption is not based on any admissible evidence. The statement from the unidentified driver, as related by Rheaume is tendered for the truth of its content, and is clearly inadmissible hearsay.
[45] The Supreme Court of Canada in R. v. Abbey, [1982] 2 S.C.R. 24, held that, while experts are permitted to base their opinion on some inadmissible evidence, before any weight can be attributed to that opinion, “the facts upon which they base their opinion must be proved by admissible evidence.” (see p. 45).
[46] In R. v. Lavallée, [1990] 1 S.C.R. 852, Wilson J. concluded that R. v. Abbey stood for the following four propositions dealing with expert evidence in paras. 48-52:
An expert opinion, is admissible if relevant, even if it is based on second-hand evidence.
This second-hand evidence [hearsay] is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based.
Where the [psychiatric] evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion.
Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist.
[47] As long as there is some admissible evidence to establish the foundation for the expert’s opinion, the opinion cannot be totally ignored. However, the more the expert has relied on facts not proven in evidence, the less weight the trier of fact will attribute to it.
[48] The conclusion relating to “startling” other drivers is not supported by any other evidence. The plaintiff’s own evidence is that neither he nor Rheaume was “startled” by the ambulance’s siren. In fact, the plaintiff became aware of the oncoming ambulance as a result of hearing its intermittent siren before the ambulance turned onto Brady Street. There is no evidence that any other driver, but the unidentified driver ahead of the plaintiff, was startled, and conducted itself in a panicked manner. There was no contact between any of the vehicles that were present that night, and the ambulance came to a stop some four car lengths away from the plaintiff.
[49] The opinion that Purdy did not meet the standard of conduct expected of his on the night in question is likewise not supported by any evidence. In fact, the standard in the industry is:
…to utilize a siren as necessary and rotate through siren tones in order to gain the attention of surrounding vehicles while responding to a high priority call. The purpose of the lights and siren on an ambulance are to gain attention to allow the ambulance to respond to potentially life-threatening situations: Affidavit of Jennifer Amyotte, sworn March 2, 2018, at para. 6.
[50] Subsection 4.07 of the Greater Sudbury Paramedic Services Policy and Procedure Manual, considered in the Walters report deals with the use of a siren:
…to provide ample warning to other vehicular traffic of an Emergency vehicle approaching…when the vehicle operator determines that the use of the siren will assist in responding to an emergency call.
[51] The evidence establishes that the plaintiff clearly heard the ambulance’s siren before it came into view in his rearview mirror, on Brady Street. The question then becomes how the unidentified driver immediately ahead of the plaintiff could not have also heard it.
[52] It should also be noted that it was dark when the events in question occurred, and it is established that the flashing lights of the ambulance were on continuously from the time the ambulance left the ambulance depot on Shaughnessy Street until it came to a stop behind the plaintiff’s motorcycle.
[53] There is no evidence that those flashing lights were not visible to the westbound traffic ahead of the ambulance on Brady Street.
[54] The opinion that the ambulance’s speed was excessive is likewise unsupported by any evidence. In fact, the evidence discloses that at no time, from leaving the Van Horne ambulance depot until it came to a complete stop behind the plaintiff’s downed motorcycle, did the ambulance’s speed exceed 43 km/hr (in a 50 km/hr zone). This maximum speed was reached when the ambulance was 42 meters from the intersection that the plaintiff had crossed before the motorcycle went down. The ambulance’s rate of acceleration on Brady St. at the 42-meter distance was 0.08g, which is below the normal rate of acceleration of 0.1g. All of this is according to the Walters report.
[55] Further, based on the Walters report calculations, when the ambulance reached the intersection of Brady and Minto, it had decelerated to 25 km/hr. The ambulance’s speed as it crossed the Minto Street intersection, (behind the plaintiff who had already crossed same) was reduced to 12 km/hr. There is no evidence of a sudden stop by the ambulance. Rather, the ambulance came to a stop gradually, some four car lengths behind the motorcycle.
[56] At that point in time, according to the plaintiff’s estimation, his final position (with the motorcycle down) was approximately 10 feet behind the unidentified vehicle. Walters opines that “…Mr. Lavallee likely underestimated this distance based on our assumptions.”
[57] As well, the plaintiff’s statement that the ambulance was coming up behind him at “full tilt” is explained in the Walters report:
It is our opinion that the ambulance was likely travelling faster than Mr. Lavallee in the period leading up to the crash. The speed difference between Mr. Lavallee and the ambulance, the decreasing gap size between the two vehicles and Mr. Lavallee’s initial observation of an ambulance accelerating toward him while he was stopped were likely factors which contributed to Mr. Lavallee’s observation that the ambulance was approaching at “full tilt”.
[58] As already stated, the ambulance’s rate of acceleration on Brady St. was below the normal rate of acceleration, according to the Walters report. And, the ambulance had decelerated to 25 km/hr when it reached the Minto St. intersection, which the plaintiff had already crossed, and further decreased its speed to 13 km/hr as it crossed the intersection.
[59] I make the same observations of the impact of the above evidence on Rheaume’s description that the ambulance got “right on them”. The Automatic Vehicle Location (AVL) video of the ambulance recorded the relevant data, ie. speed, distance, activation/deactivation of siren, and provides the best evidence of the ambulance’s speed and its approach to the westbound traffic. The data does not support the position put forward through the testimony of the plaintiff and Rheaume, and in fact, contradicts it.
[60] While the report might provide some evidence in support of the plaintiff’s position that Purdy was negligent, thus raising a genuine issue requiring a trial, I can attribute very little, if any, weight to the conclusions reached in the Walters report. Virtually all of the assumptions made by the authors of the report in support of the conclusions reached, are based on inadmissible hearsay and opinion. They are also, as I have already observed, not supported by the best evidence we have, which is the AVL video.
[61] The plaintiff has failed to lead sufficient admissible evidence to establish any wrong doing on the part of Purdy, or any caused connection between Purdy’s actions and the plaintiff’s injuries. Even assuming that the unidentified driver braked suddenly in front of the plaintiff, this does not, without more, establish any wrongdoing on the part of Purdy.
[62] Accordingly, the motion is granted and the action as against the moving parties is dismissed.
[63] If the parties are unable to agree on costs, counsel may contact the trial-coordinator within 21 days to arrange a hearing date before me. I will require bills of costs and copies of all offers of settlement. If an appointment to argue the issue of costs is not sought from the office of the trial coordinator within 21 days, the parties will be deemed to have settled the issue of costs as between themselves.