REASONS FOR DECISION

[1] The defendants seek summary judgment dismissing the claim of the plaintiff on the basis there is no liability on the defendants. The plaintiff suffered personal injuries when struck by the defendants’ vehicle as a pedestrian. The accident occurred on April 29, 2015 at about 10:50 pm in the southbound curb lane of Yonge Street about 80 meters south of Wellesley Street.

Background

[2] For my purposes, the key liability evidence can be easily summarized. The plaintiff admitted when cross-examined on his affidavit that he was suffering with withdrawal symptoms from an anxiety reducing medication, Cymbalta, that was causing manic behaviour. In addition, he admitted trying to take crack cocaine that day and being involved in an altercation with individuals in a store adjacent to where he was struck. In answer to whether he saw the driver of the vehicle before the impact, his evidence was that he did “not recall” (at page 23, question 74 of Mr. Hubert’s cross-examination).

[3] The defendant operator, Mr. Ladha, was accompanied by a front seat passenger, Mr. Bedi, who confirmed they had stopped for a red light at Wellesley Street in the passing lane. Mr. Bedi moved into the curb lane after the light turned green and before the plaintiff “entered the roadway out of nowhere” (at paragraph 6 of his affidavit). In response to being asked if he saw the plaintiff prior to the collision, he testified “I did not” (at page 7, question 30 of his cross-examination).

[4] Mr. Ladha also deposed “a man appeared in front of my car on the road” (at paragraph 12 of his affidavit). In response to being asked if he saw the plaintiff prior to hitting him, he testified “I did not” (at page 6, question 22 of his cross-examination).

[5] William Weller was out on the balcony of his ninth floor residence on the south east corner of Yonge and Wellesley Streets smoking a cigarette when his attention was directed to the west side sidewalk of Yonge Street south of Wellesley Street by what turned out to be the plaintiff. The plaintiff was yelling and agitated, picking up a “teepee sign” and banging it to the ground before he “spun around and he literally went off the curb right into the right-hand lane of Yonge Street going south” (at page 8, question 34 of his cross-examination).

[6] Finally, the police investigation placed the point of impact 5 meters east of the west curb which was consistent with the evidence of those involved that the plaintiff was struck by the front center of the defendant’s van while in the southbound curb lane.

Analysis

[7] Counsel for the defendants relied on this evidence to demonstrate that Mr. Ladha had no opportunity to avoid the accident and has satisfied the applicable legal test under section 193(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 to show “the loss or damage did not arise through the negligence or improper conduct” of the defendant driver. Counsel for the defendants relied on the principle set out in Hryniak v. Mauldin 2014 SCC 7 which requires me to determine if there is a genuine issue for trial (at paragraph 66). To that end, I examined if the evidence “fairly and justly permits adjudication of the issue in a timely, affordable and proportionate” manner.

[8] Counsel for the defendants analogized the situation to that in Desbois v. Wood 2019 ONSC 3586 where the plaintiff cyclist southbound on an east sidewalk applied his rear brake cable as he approached the intersection. The brake cable snapped. He crashed into the front passenger side corner of the westbound defendant vehicle. In my view, those facts are quite distinguishable.

[9] I was also directed to Mayers v. Khan, 2017 ONSC 200 where Justice Glustein rejected the plaintiff’s evidence of making her left turn on an advance green before colliding with the defendant’s vehicle that entered the intersection from the opposite direction. This was in the face of an independent witness at the intersection who observed the plaintiff make her turn on an amber light. Again, those facts are distinguishable from what was before me.

[10] Following the approach in Hryniak v. Mauldin, I have concluded this is not an appropriate case for summary judgment. In my view, the nature of the evidence requires findings of credibility. The independent witness’s attention was brought to plaintiff by his loud and erratic conduct while across the street and nine stories up. However, Mr. Ladha did not see Mr. Hubert until he was in front of his vehicle. This raises whether Mr. Ladha was failing to keep a proper lookout, a boiler plate allegation of negligence contained in every well crafted pleading in motor vehicle personal injury matters. Further, liability for negligence can be apportioned. I was asked to conclude based on the evidence presented that no liability could rest on the defendants in the circumstances. I cannot do so for the reasons stated. This does not mean the trier of fact may well conclude no liability ought to rest on Mr. Ladha.

[11] The next issue to address is whether I should go beyond determining whether there is no genuine issue for trial and determine if a trial can be avoided by using the powers available under Rules 20.04 (2.1) and (2.2). Following the procedure in Hryniak v. Mauldin, supra, should I weigh the evidence, evaluate credibility and draw inferences? To that end, I raised with counsel whether they would consent to my determining the liability issue. Plaintiff’s counsel did not agree to same.

[12] The Motion Record indicates this action will proceed as a jury trial. In my view, to make a conclusion on credibility without actually hearing that the witnesses is inappropriate. Juries are given instructions at the outset of a trial to pay close attention to the evidence as it is introduced in order to judge the accuracy, completeness and truthfulness of it in order to determine what weight or value to give that evidence. A jury is also instructed to watch for any particular bias exhibited by a witness including what particular interest he or she may have in the outcome of the case. Similarly, they are to evaluate inconsistencies in the testimony.

[13] In the concluding charge to the jury, they are specifically told about how to weigh evidence, and what questions to ask themselves in considering the evidence. This includes identifying it is not the number of witnesses but the relative force or strength of the evidence of each witness. To that end, they may believe one witness over many. They can also accept all, part or none of what a witness has said. I, as the motions judge, am not able to do this on the material before me.

[14] Within her reasons, in Hryniak v. Mauldin, supra, Justice Karakatsanis cited access to justice as “the greatest challenge to the rule of law in Canada today” (at paragraph 1). This is based upon concerns most Canadians cannot afford to sue or defend themselves. Thus, she concluded a change in the approach to summary judgment was required and a “cultural shift” needed to provide timely and affordable access to the justice system (at paragraph 2).

[15] To the contrary, the Compulsory Automobile Insurance Act R.S.O., 1990 c. C. 25, has required owners of motor vehicles to have liability insurance with minimum third party limits and indemnity for all legal costs that a court assesses against the policy holder for the last several decades.

[16] Plaintiff’s counsel and law firms which have specialized in representing injured victims have increasingly resorted to advertising their services, many of whom promise their prospective clients they will not have to pay until or only when money is recovered on their behalf. This is likely related to the availability of contingency fee arrangements, as permitted by the profession’s governing body, the Law Society of Ontario. Further, it has become increasingly common and available for injured victims or their law firm to pay a premium for legal expense insurance. This insulates plaintiffs from an award of legal costs against them.

[17] My conclusion is that most motor vehicle personal injury disputes do not appear to be the subject of the threat identified by Justice Karakatsanis. In this case, it appears the parties have followed the requirement of putting forward the factual evidence that will be available at the trial. However, as raised in submissions, there is a concern that credibility will be important and, as indicated by Justice Lauwers in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 “Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive and unfairness enters, in a way that would not likely occur at a full trial where the trial judge sees and hears it all”.

[18] Having concluded this is not a proper case for summary judgment, consideration needs to be given to the direction by Justice Karakatsanis whether to utilize trial management powers as provided in Rule 20.05. However, I return to this matter being a motor vehicle personal injury jury action. In my view, juries are well suited to address the issues of liability and damages presented in these matters. I would note there does not appear to be any economies to applying trial management criteria. I have made no findings of fact on the evidence. This matter appears to be well served by having it proceed in the normal course. Further, there is no need to seize myself of this matter given Toronto judges are assigned to teams organized by subject matter and reviewed each year. There is less likelihood of delay if the full team of judges hearing civil matters are available should the parties require this matter proceed to trial.

Costs

[19] At my request (in the absence of Cost Outlines), the parties discussed and agreed the successful party should be awarded $7,500.00 inclusive of fees, HST and disbursements. This amount is payable by the defendants to the plaintiff forthwith.

Mr. Justice G. Dow

Released: October 9, 2019

COURT FILE NO.: CV-17-574112

DATE: 20191009

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SEAN PIERRE HUBERT

Plaintiff

– and –

SALIM LADHA AND TRILLIUM BEVERAGE INC.

Defendants

REASONS FOR DECISION

Mr. Justice G. Dow

Released: October 9, 2019

Hubert v. Ladha et al. 2019 ONSC 5542

Case Summary

REASONS FOR DECISION

Background

Analysis

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 2