COURT FILE NO.: CV-15-93268-00

DATE: 20190611

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LIONEL CLAUDE DESBOIS

Plaintiff/Respondent

– and –

BONITA WOOD

Defendant/Moving Party

N. Hamilton, for the Plaintiff/Respondent

M.W. Chadwick and R.J. Campbell, for the Defendant/Moving Party

HEARD: April 4, 2019

DAWE J.

1The plaintiff Lionel Desbois was riding his bike on the sidewalk when he approached an intersection where the defendant Bonita Wood had stopped her SUV in the crosswalk in order to make a right-hand turn. Mr. Desbois tried to stop his bike by applying his rear brake but the cable snapped, rendering the brake inoperable. He crashed into Ms. Wood’s SUV and was injured.

2Mr. Desbois acknowledges that he was partly responsible for the accident but maintains that Ms. Wood was also negligent. She denies any negligence on her part and moves for summary judgment dismissing Mr. Desbois’s action against her.

3Both parties ultimately agreed that the evidence bearing on the question of Ms. Wood’s negligence is unlikely to be appreciably different or better after a trial, and that this issue is therefore amenable to summary judgment. They also agree that if the action against Ms. Wood is not summarily dismissed there will need to be a trial on the issue of Mr. Desbois’s damages. Accordingly, both parties invited me to summarily decide the issue of Ms. Wood’s negligence pursuant to Rule 20.04(2) of the Rules of Civil Procedure and then, if necessary, direct a trial under Rule 20.04(3) on the issue of damages.

4As explained further below, the parties substantially agree on the underlying facts. The disagreement between them over whether Ms. Wood was negligent ultimately hinges on three relatively narrow questions, namely:

(i) Whether a reasonable and prudent motorist in Ms. Wood’s situation would have performed visual checks that would have led to her seeing Mr. Desbois riding towards her on the sidewalk at an earlier time than Ms. Wood actually did see him;

(ii) Whether a reasonable motorist and prudent motorist who had seen Mr. Desbois earlier would have acted any differently than Ms. Wood actually did; and

(iii) Whether Ms. Wood’s actions once she did see Mr. Desbois, moments before the collision, fell short of the standard of care that would be expected of a reasonable and prudent motorist in her position.

5For the reasons set out below, I would answer all three questions in the negative. In my view, Ms. Wood was not negligent and is entitled to summary judgment in her favour.

I. The evidence

A. The accident scene

6The accident at issue occurred on the afternoon of October 2, 2013 at the northeast corner of the intersection of Garden Street and Bradley Drive in Whitby. Garden Street is a main four-lane thoroughfare that runs approximately north-south, while Bradley Drive is a smaller residential street which runs approximately east-west at the point where it intersects Garden Street. Traffic on Garden Street has the right of way at the intersection, while westbound vehicles approaching on Bradley Drive must stop at a stop sign. There is a crosswalk on Bradley Drive a short distance west of this stop sign, and a vehicle stopping line marked on the Bradley Drive roadway between the stop sign and the eastern edge of the crosswalk.

7The sidewalk on the east side of Garden Street is separated from the main roadway by a wide grass verge. Mr. Desbois estimated the width of the grass verge as ten to twelve feet, and photographs taken by the police after the accident show it to be slightly narrower than the length of a police SUV.

8The police photographs also reveal that on the date of the accident a westbound motorist who stopped at the intersection behind the marked stop line on Bradley Drive would only have been able to see a small part of the Garden Street sidewalk to the north of the intersection because his or her view of the sidewalk further to the north would have been obstructed by dense foliage on the property on the northeast corner.

9A motorist stopped behind the stop line would also not have a good view of traffic on Garden Street because the stop line is separated from the Garden Street roadway by the width of the crosswalk and the grass verge. Accordingly, a motorist who wanted to turn right onto Garden Street would first have to stop behind the stop line to ensure that the crosswalk was clear, and then have to proceed forward and probably come to a second stop in the crosswalk in order to check and wait for northbound vehicle traffic before making the turn.

B. The accident

10During the early afternoon of October 2, 2013, Ms. Wood was on her way to visit her mother in a senior’s home. She drove her Lexus SUV west along Bradley Drive, intending to make a right-hand turn onto Garden Street and drive north. When she approached the Garden Street intersection she stopped at the stop line behind the crosswalk, and then “inched forward” into the crosswalk “after checking left to right as you do when you’re at an intersection”. She then came to a second complete stop in order to check for traffic on the Garden Street roadway.

11At this same time, Mr. Desbois was riding his bicycle southbound on the sidewalk on the east side of Garden Street, north of Bradley Drive. He was riding an “old used mountain bike” that someone had given him and that he had fixed up. Mr. Desbois estimated that when he first saw Ms. Wood’s SUV pull into the crosswalk on Bradley Drive he was approximately 500 yards north of the intersection.¹ Ms. Wood had not seen Mr. Desbois when she checked the sidewalk to her right while she was stopped behind the stop line. However, from this position her view north up the sidewalk would have been obstructed by the foliage on the northeast corner property and she would have been unable to see Mr. Desbois, who on his account was several hundred metres away.²

12When Mr. Desbois saw that Ms. Wood’s SUV was blocking the crosswalk he stopped pedalling his bike and began coasting. The sidewalk on Garden Street north of Bradley Drive has a slight slope to the south, and he was going downhill. When he was about 50 yards away – which on his estimate took about 30 seconds – he noticed that Ms. Wood was looking to the south, away from him. He closed the distance further and when he was about 25 feet away tried to stop his bike by applying his rear brake. As he did so his rear brake cable snapped, which apparently left him with no functioning brakes.³

13From this point on, Mr. Desbois’s and Ms. Wood’s accounts are somewhat different. On Mr. Desbois’s evidence, once he realized that his brakes had failed he swerved to his right onto the grass verge to the west of the sidewalk, intending to pass in front of Ms. Wood’s SUV.⁴ However, as he did so she moved her vehicle forward about two feet. He may have shouted “stop”, although he did not recall doing so.⁵ Mr. Desbois was unable to steer his bike far enough around the front of Ms. Wood’s SUV to avoid coming into contact with her vehicle. He crashed his bike into the front passenger side corner of her SUV and fell into the roadway, sustaining a broken collarbone.

14Ms. Wood recalls that she first saw Mr. Desbois when he shouted “stop”, which caused her to slam on her brakes and turn her head to see Mr. Desbois and his bike heading towards her, just moments before the bike crashed into the front of her SUV. Her recollection is that by this time she had already turned fully onto Garden Street and her vehicle was facing north. However, this aspect of her account is contradicted by the location where the police later found and photographed Mr. Desbois’s bike lying on Bradley Drive between the crosswalk and Garden Street. Both parties agree that this is almost certainly very close to where the collision took place.

15The police also interviewed and took a statement from a man named Alan Allpress, who had been sitting on the east side of Garden Street south of Bradley Drive and was the only other witness to the accident. Mr. Allpress told the police that he had seen Ms. Wood’s SUV proceed slowly into the intersection and then heard a man yell: “Stop, stop”. He then saw Mr. Desbois on his bike collide with the passenger side of Ms. Wood’s vehicle.

C. Findings of fact

16Rule 20.04(2.1) permits me to weigh the evidence, evaluate the credibility of deponents, and draw reasonable inferences from evidence unless I am satisfied that the interests of justice require that these things only be done at a trial. In my view, it is appropriate in the circumstances here for me to exercise these fact-finding powers to the limited extent that I must do so to make the necessary findings of fact.

17Although I did not have the advantage of seeing or hearing Mr. Desbois or Ms. Wood testify, I am satisfied that when they swore their affidavits and were cross-examined on them in 2016 they were both doing their best to recall what would at that point have been a distant, quickly-unfolding and distressing event. I am satisfied that any deficiencies or inaccuracies in their evidence can properly be treated as matters of reliability rather than of credibility. I am also satisfied that Mr. Allpress, whose evidence does not add a great deal to the overall picture but is of some significance on the question of whether Mr. Desbois shouted before the collision, was doing his best to be truthful and accurate when he was interviewed by the police shortly after the accident.

18I generally accept Ms. Wood’s evidence except in relation to the question of where her SUV was situated at the time of the collision, where her account is contradicted both by Mr. Desbois’s evidence and by the police photographs. On this factual issue I find Mr. Desbois’s evidence to be more reliable.

19I also generally accept Mr. Desbois’s account. However, I prefer Ms. Wood’s evidence on the question of whether Mr. Desbois yelled “Stop” moments before the collision, which Mr. Desbois did not remember doing but which was confirmed by Mr. Allpress. Mr. Desbois conceded in his affidavit that although he did not recall doing this he was satisfied that he “must have done so at that time”.

20I also have some reservations about the accuracy of Mr. Desbois’s various estimates of distance, time and speed, which cannot all be simultaneously reconciled with one another.⁶ This is not meant as a criticism of Mr. Desbois, since these kinds of estimates are notoriously difficult for witnesses to make accurately at the best of times, and Mr. Desbois never suggested that his estimates were anything more than rough approximations. I accept Mr. Desbois’s estimates on this latter footing but do not attach any significant weight to his precise numerical figures.

21On my assessment of all of the evidence, the most likely sequence of events that led up to the collision can be summarized as follows:

• Ms. Wood approached the intersection, came to a stop behind the stop line east of the crosswalk on Bradley Drive, and checked the sidewalk in both directions. From this position her view up the sidewalk to the north was blocked by the foliage on the corner property, and Mr. Desbois was at this point too far north for Ms. Wood to be able to see him;

• After Ms. Wood confirmed that the crosswalk was clear, she pulled her SUV into the crosswalk and came to a second stop in order to check the traffic on Garden Street before making her right-hand turn. The front of her vehicle would have been a short distance east of the Garden Street roadway, and from her position seated in the driver’s seat the crosswalk and the Garden Street sidewalk would now have both been slightly behind her;

• In this second stopped position Ms. Wood’s view up the sidewalk to her north was no longer blocked by the foliage on the corner property, and if she had turned her head to look in that direction she would have been able to see Mr. Desbois approaching on his bike. However, doing so would have required her to rotate her head almost fully to her right and look over her right shoulder out the rear passenger side window;

• Ms. Wood checked to her left and right for vehicle traffic on the Garden Street roadway, but did not perform a right-hand shoulder check to look up the sidewalk to the north. As a result, she did not see Mr. Desbois coming south on the sidewalk on his bicycle. He was at this point still a considerable distance away from her, although perhaps somewhat less far away than his own estimate of 500 yards;

• Since Ms. Wood was intending to make a right hand turn and drive north, her attention was mainly directed to her left as she looked for oncoming traffic in the northbound lanes of Garden Street;

• Ms. Wood remained stopped in the crosswalk for some time, although not necessarily for as long as Mr. Desbois’s estimate of 30 seconds;

• When Mr. Desbois was roughly 25 to 50 feet away from the intersection he tried to stop his bike by applying his rear brake but the brake cable snapped. Mr. Desbois then veered to his right onto the grass verge, intending to steer in front of Ms. Wood’s SUV;

• At roughly the same time, Ms. Wood began to move forward to start making her right turn onto Garden Street. She did so after satisfying herself that there was no oncoming traffic in the northbound lanes;

• When Mr. Desbois saw her SUV moving forward he shouted: “Stop”. Ms. Wood heard him and immediately applied her brakes, so that her vehicle only moved forward a few feet before stopping again;

• Mr. Desbois was unable to adjust his course sufficiently to avoid a collision and struck the front passenger side corner of Ms. Wood’s vehicle;

• This entire final sequence of events – from the time that Mr. Desbois’s brake cable broke to the time of the collision – happened very quickly, in no more than a few seconds.

II. Analysis: was Ms. Wood contributorily negligent?

22Sections 193(1) and (2) of the Highway Traffic Act provide:

193(1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.

(2) This section does not apply in cases of a collision between motor vehicles or to an action brought by a passenger in a motor vehicle in respect of any injuries sustained while a passenger.

Since Mr. Desbois’s bicycle was not a motor vehicle, it is Ms. Wood’s burden to establish that the collision “did not arise through [her] negligence or improper conduct”. However, since the underlying facts are largely undisputed, this is not a case that ultimately stands or falls on the location of the onus of proof. Rather, the real issue I must determine is whether, on the facts as I have found them, Ms. Wood’s actions and inactions fell below the standard of care that would be expected of a reasonable and prudent motorist in similar circumstances.⁷

23As McLachlin C.J.C. noted in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 3:

A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach.

In the case at bar, it is undisputed both that Ms. Wood owed a duty of care to Mr. Desbois and that Mr. Desbois was injured as a result of his collision with Ms. Wood’s SUV. The main issue I must determine is whether Ms. Wood breached her duty of care towards Mr. Desbois. However, my analysis will also touch on the related question of whether the alleged breaches of her duty were causally linked in fact and in law to the collision that injured Mr. Desbois.

24Counsel for the plaintiff, Mr. Hamilton, argues that Ms. Wood was negligent in three interrelated ways. First, he argues that once Ms. Wood pulled her SUV into the crosswalk she had an obligation to look up the sidewalk to the north. Had she done so, she would have observed Mr. Desbois approaching on his bicycle, since he was “there to be seen”. Second, he argues that Ms. Wood was negligent by remaining in the crosswalk blocking Mr. Desbois’s path for as long as she did. Third, he argues that she was negligent in starting to advance into her turn “when it was clear that doing so would block [Mr. Desbois’s] path and cause a collision”.

25As discussed below, I do not accept any of these arguments.

26Motorists and cyclists who enter into an intersection plainly have a duty to take reasonable steps to ensure that they can do so safely. It is undisputed that Ms. Wood initially complied with this duty when she stopped behind the stop line on Bradley Drive and checked both ways for oncoming pedestrian or other traffic entering the crosswalk before driving her vehicle into the crosswalk. From her position behind the stop line she could not have seen Mr. Desbois riding his bike on the sidewalk because he was still a long distance away to the north and her view up the sidewalk was obstructed by the foliage on the corner property. However, because Mr. Desbois was still far away from the intersection his presence did not make it unsafe for Ms. Wood to enter the crosswalk in the manner that she did. Nothing she did up to this point was unreasonable.

27After entering the crosswalk Ms. Wood came to a second stop with the front of her SUV a short distance east of the Garden Street roadway. Mr. Hamilton argues at this point Ms. Wood should have performed a second visual check of the northbound sidewalk. I accept that there will be situations where a reasonable and prudent motorist who has just entered a crosswalk will have a duty to continue checking the adjacent sidewalk. However, the need to conduct such further checks is in my view highly context-specific. In my opinion, in the particular situation Ms. Wood found herself in it was not incumbent on her to continue watching for persons approaching the intersection on the north sidewalk. I reach this conclusion having regard to the following factors:

• It was the middle of the afternoon and the weather was good, so anyone approaching the intersection on the north sidewalk would have had no difficulty seeing that Ms. Wood’s SUV had now occupied the crosswalk. (Indeed, Mr. Desbois had no difficulty observing her vehicle when he was still a considerable distance away from the intersection);

• Since it would have been obvious that Ms. Wood was about to either turn onto Garden Street or cross Garden Street to continue driving west along Bradley Drive, anyone approaching on the north sidewalk who was unwilling to wait for her to clear the crosswalk before they crossed Bradley Drive could reasonably be expected to go behind her vehicle rather than proceeding in front of her and directly into her expected path of movement;

• The Garden Street and Bradley Drive intersection was not a high-traffic pedestrian area where it might have been reasonable for Ms. Wood to anticipate a surge of pedestrians suddenly trying to cross Bradley Drive by passing both ahead of and behind her SUV;

• In order to look north up the sidewalk, Ms. Wood would have had to twist her head and shoulders to her right and look over her right shoulder, which she could not do while simultaneously watching for oncoming vehicles in the northbound Garden Street lanes to her left.

28In my view, a reasonable and prudent driver in Ms. Wood’s situation would do what Ms. Wood herself did: namely, focus her attention on whether there was any northbound vehicle traffic approaching from her left that would prevent her from making the right turn onto Garden Street in safety. Once Ms. Wood had safely occupied the crosswalk, it was reasonable for her to expect that anyone approaching the intersection on the north sidewalk would see her and take due care to avoid creating a dangerous situation. In these particular circumstances I believe it was reasonable for Ms. Wood to disregard the remote prospect of a dangerous situation materializing from the sidewalk to her right, and to instead focus her attention on avoiding the dangers that might arise to her left.

29Mr. Hamilton placed considerable reliance on Pelletier v. Ontario, 2013 ONSC 6898 and White v. Aransibia, 2003 CanLII 4139 (Ont. S.C.J.) as standing for the proposition that cyclists and motorists who enter an intersection and collide with one another will both be negligent if they fail to see one another when each is “there to be seen”. However, these cases both involved collisions between cyclists and motorists who arrived at and entered an intersection more or less simultaneously, having each failed to see the other. In contrast, in the case at bar Ms. Wood arrived at the intersection and occupied the crosswalk long before Mr. Desbois got there. Although she did not see him coming because she did not look in his direction once her view north up the sidewalk was no longer obstructed, it was in my view reasonable for her to assume that anyone approaching the intersection from the north sidewalk would see her vehicle and would act accordingly. Indeed, Mr. Desbois did see Ms. Wood’s SUV in plenty of time to stop his bike or go around her safely, and would have done so but for the unexpected failure of his bike brake and his panicked response of swerving to his right and trying to cut in front of her vehicle rather than to steering his left and passing behind her SUV.

30In my opinion, this is a critical factual distinction. In both Pelletier and White v. Aransibia, the defendant motorist’s failure to see the oncoming cyclist rose to the level of negligence not only because the cyclist was “there to be seen”, but also because a reasonable motorist who had seen the approaching cyclist would have acted differently and probably avoided the collision. In contrast, I do not believe that a reasonable and prudent driver stopped in the crosswalk who did see Mr. Desbois approaching on his bike on the sidewalk a few hundred metres away would have done anything differently from what Ms. Wood – who did not see him – actually did herself. Rather, such a reasonable driver would reasonably expect in these circumstances that Mr. Desbois would take appropriate steps to avoid a collision.

31In my view, it follows directly from this that a reasonable and prudent driver stopped in the crosswalk who was about to turn right would also not be under a duty to maintain a lookout for people on the sidewalk to the north. Rather, the driver’s primary duty would be to watch for oncoming traffic to his or her left in order to make the right turn in safety. Since the driver could not look in both directions simultaneously and would have no reason to act any differently even if there was someone approaching from far away on the north sidewalk, I do not believe a reasonable person in this particular situation would consider it necessary to check the sidewalk to the north.

32It follows from this that I do not believe that Ms. Wood was negligent by failing to perform a right shoulder check for persons on the sidewalk far to the north of the intersection after she entered the crosswalk and came to her second stop. Moreover, even if she ought to have performed such a check, I do not think her doing so would have changed anything that happened next, since even if she had seen Mr. Desbois approaching she would not have had any good reason to act any differently as a result of this knowledge.

33Accordingly, even if her failure to look up the sidewalk at this point was a breach of her duty of care – contrary to my main conclusion that it was not – this breach was not causally linked in fact and in law to the subsequent collision.

34I also do not accept the plaintiff’s related argument that Ms. Wood was negligent by keeping her vehicle stopped in the crosswalk for as long as she did. As discussed above, I do not consider Mr. Desbois’s estimate that Ms. Wood remained stopped in the crosswalk for 30 seconds to be particularly accurate. However, I also do not believe that it would have been negligent in the circumstances here for Ms. Wood to have remained in the crosswalk for that length of time. Even if she had seen Mr. Desbois approaching down the sidewalk on his bike, this would not have reasonably caused her to apprehend any particular danger from his presence. As noted above, I accept Ms. Wood’s evidence that she moved forward to start her turn once she was satisfied that there was no oncoming traffic in the northbound lanes of Garden Street. In my view, a reasonable and prudent driver in this situation would have done the same, even if this driver had also known that Mr. Desbois was approaching down the sidewalk on his bike.

35The plaintiff’s argument, in essence, is that if Ms. Wood had seen Mr. Desbois when he was still a long distance away up the sidewalk this would have triggered a further obligation on her part to make her turn more quickly in order to get out of his way. The flaw in this argument, in my view, is that a reasonable and prudent driver in Ms. Wood’s position had to balance the risks and potential harms of acting too soon against the risks and potential harms of acting too late. In the circumstances here, this involved balancing the danger of possibly making an unsafe turn into oncoming traffic against the remote risk that Mr. Desbois would fail to stop his bike or steer it safely around the back of her stopped vehicle. If Ms. Wood did not think it was safe to proceed with her turn, it would in my view have been unreasonable for her to rush into her turn in order to clear the crosswalk more quickly.

36I do not mean to suggest by this that it will always be reasonable for a stopped motorist to remain stopped indefinitely. There will be many situations where remaining stopped will create a foreseeable hazard that will outweigh the potential risks associated with moving. In my view, however, this was simply not one of those situations.

37Mr. Hamilton’s final argument is that Ms. Wood was negligent by moving forward even after she saw Mr. Desbois on the grassy verge heading towards her. As he puts it in his factum:

[A] reasonable driver in the circumstances would stay stopped to allow the cyclist to pass in front, despite having the right of way.

While I agree that it would have been unreasonable for Ms. Wood to have continued driving forward even after she realized that Mr. Desbois was trying to steer in front of her, I am satisfied that this is not what she actually did. As discussed above, the most reasonable construction of the evidence is that after Ms. Wood started to move forward she heard Mr. Desbois yell “Stop”, and she then reacted by slamming on her brakes so that her SUV only moved forward about two feet. I agree with Ms. Wood’s counsel that there was nothing more she could realistically have done at that point to avoid the collision.

38To the extent that Mr. Hamilton’s argument is that Ms. Wood was negligent by moving her SUV forward in the first place, this presupposes that she had a duty to know that Mr. Desbois was trying to steer around the front of her SUV even before he alerted her to his presence by shouting “stop”. As discussed previously, I do not accept this premise.

39I am accordingly satisfied that Ms. Wood has met her burden under s. 193(1) of the HTA of establishing that the accident, and Mr. Desbois’s resulting injuries, did not arise through her “negligence or improper conduct”. She is in my view entitled to summary judgment in her favour and to the dismissal of the plaintiff’s action.

40I would invite the parties to provide me with written submissions on costs. I would ask that Ms. Wood’s counsel provide their written costs submissions within two weeks of the date of the release of this judgment. Mr. Desbois’s counsel will then have two weeks to file his response, and Ms. Wood’s counsel may then file a reply within one week.

Dawe J.

Footnotes

1. 1In his affidavit Mr. Desbois estimated the distance as 100 yards, but in cross-examination revised his estimate upwards to 500 yards.
2. 2In this regard, it does not matter whether Mr. Desbois was 100 yards away, as per his affidavit, or 500 yards away, as per his cross-examination testimony, since from Ms. Wood’s position behind the stop line she would not have been able to see him at either distance. Based on the police photographs, I would estimate that the furthest she would have been able to see north up the sidewalk from her position would have been less than 15 metres.
3. 3There is no specific evidence about whether Mr. Desbois’s bicycle had a front brake. However, the Highway Traffic Act does not require non-motorized bicycles driven on the highway to have front brakes (s. 64(3)).
4. 4It is common ground that s. 140(6) of the HTA prohibits cyclists from riding their bikes “across a roadway within a pedestrian crossover”.
5. 5In his affidavit, Mr. Desbois explained that he did not recall shouting anything but stated that he did not dispute the evidence of Ms. Wood and another witness, Alan Allpress (discussed below), that Mr. Desbois shouted: “Stop”. Although Mr. Desbois resiled from this acknowledgment in cross-examination and denied yelling anything, I am satisfied that Ms. Wood and Mr. Allpress’s accounts are more reliable on this point.
6. 6If Mr. Desbois started out 500 yards away from Ms. Wood and then coasted 450 yards (412 metres) in 30 seconds, his average speed would have been almost 50 km/h, which would be a very high speed for a coasting cyclist and is much faster than Mr. Desbois’s own estimate that he was travelling at between 10 to 25 km/h.
7. 7See, e.g., Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 at para. 69.