Court File and Parties
COURT FILE NO.: CV-15-542540
DATE: 20191018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FAINA DAINOV Plaintiff
– and –
JUNG-BAE LEE Defendant
Aliza Karoly, for the Plaintiff
Christopher Whibbs, for the Defendant
HEARD: August 15, 2019
Koehnen J.
Overview
[1] On December 26, 2013 the plaintiff and the defendant were involved in a car accident at the corner of Steeles Avenue and New Westminster Dr. in Toronto at approximately 6:30 PM. It was dark when the accident occurred. In addition, the traffic lights at the intersection were not operating. The damage to the vehicles appears to have been relatively minor. Neither police nor ambulance attended the scene.
[2] The defendant moves for summary judgment to dismiss the action based on the evidence provided by a dashboard mounted video camera in his car.
[3] The plaintiff submits that the video is inadmissible and that a trial is required to determine whether the defendant was negligent or contributorily negligent in causing the accident.
[4] I have concluded that this is a matter appropriate for summary judgment. There is no further evidence that will be available at trial other than the video, the testimony of the parties and potentially the defendant’s wife who was a passenger in the car at the time of the accident. The plaintiff and the defendant have already been examined for discovery. Both have sworn affidavits on the motion. I draw nothing from the absence of the wife’s evidence. I have based my decision on a combination of the video and the plaintiff’s evidence.
[5] I am satisfied from a combination of repeated viewing of the video and the plaintiff’s affidavit that the action should be dismissed.
[6] The following issues arise for determination:
A. Is the video admissible?
B. What rules of the road apply?
C. Who is at fault for the accident?
A. Is the Video Admissible
[7] The plaintiff relies on Nemchin v. Green, 2017 ONCA 634 to resist admission of the video. In that case, the Court of Appeal articulated the following principles at para. 11 for the admission of video evidence:
(a) The judge must be satisfied that the video is a fair and accurate depiction. Where only an excerpt of the video is tendered, the judge must be satisfied that it is fair, accurate and representative of the events it purports to depict.
(b) The judge must ensure that the video does not impair trial fairness.
[8] The plaintiff raises three objections to the video. First, she submits that the video does not show the defendant’s entire trip from his home to the accident scene. Rather, the defendant has edited out the section preceding the accident. The plaintiff submits that the earlier part of the video would have shown the hazardous nature of the blackout conditions.
[9] I do not regard that as a valid objection to admitting the video. With respect to the hazardous conditions at the time of the accident, both plaintiff and defendant agree that the roads were clear and were not slippery. Moreover, the first 26 seconds of the video show the defendant’s drive as he approached the intersection. It gives the viewer a sufficient sense of both the road conditions and the lighting in the area approaching the intersection and at the intersection. The plaintiff has not indicated why the conditions in the geographical area outside of the intersection or outside the area captured by the first 26 seconds of the video are relevant to an assessment of liability. What is relevant is the nature of the conditions at the intersection, and perhaps the area leading up to it; not the road conditions elsewhere.
[10] Second, the plaintiff submits that the video should not be admitted because the original video and the dashboard camera are no longer available. Without anything more, that does not render the video inadmissible. The plaintiff has advanced no evidence, or even a theory, to indicate why the original video or camera are necessary. She does not suggest the video has been doctored or edited apart from removing an irrelevant portion referred to in paragraph 9 above. The closest she comes to advancing a theory is that the camera would let the trier of fact know what limitations exist as a result of the camera’s field of view. If the plaintiff wishes to make submissions about the limitations of the video, she is as able to do so now and in fact did so.
[11] Third, the plaintiff submits that the video is unreliable because of its limited field of view. I will address those issues when analyzing the accident itself. While any video evidence has limitations, I am satisfied that the video is a sufficiently fair and accurate representation of the events and has no detrimental impact on trial fairness. I therefore admit the video into the record.
B. The Applicable Rules of the Road
[12] Section 135 of the Highway Traffic Act, R. S. O. 1990, c. H. 8, applies to intersections that are not controlled by a stop sign, yield sign or traffic control signal. Subsections (2) and (3) provide:
“(2) Every driver approaching an intersection shall yield the right of way to any vehicle in the intersection that has entered it from an intersecting Highway.
(3) When two vehicles enter an intersection from intersecting highways at approximately the same time, the driver on the left shall yield the right of way to the vehicle on the right.”
[13] Given that, at the time of the accident, the intersection was not controlled by a stop sign, yield sign or traffic control signal, one critical question to determine is which of the plaintiff or defendant entered the intersection first. That party has the right of way.
[14] If the plaintiff and the defendant entered the intersection at approximately the same time, the plaintiff was obliged to yield the right of way to the defendant because the defendant was on the plaintiff’s right.
[15] The plaintiff points to two further rules of the road. The first, section 145 (5) provides that no driver of a vehicle “shall turn left across the path of a vehicle approaching from the opposite direction unless he or she has afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision.”
[16] In addition, even a driver with the right-of-way must nevertheless be on the alert for hazards, including when approaching an intersection where traffic lights are not operating: Rautins v. Starkey, 2004 CanLII 41 173 (ONSC).
C. Who is at Fault for the Accident?
[17] On December 26, 2013 the defendant was driving southbound on New Westminster Drive towards Steeles Avenue. There had been an ice storm from which the city had not yet recovered. As a result of the storm, the traffic lights at the intersection of New Westminster Drive and Steeles Avenue were not working. The traffic lights were not flashing any colours but were completely dark. Despite the ice storm, both parties agree that the roads were not icy or slippery.
[18] Both parties agree that when traffic signals are not working, the intersection should be treated as a four-way stop.
[19] The video shows the defendant stopping at the intersection, albeit very briefly, at the 27-28 second mark. He then proceeds slowly into the intersection to make a left-hand turn.
[20] In oral argument, plaintiff’s counsel submitted that the video shows the plaintiff stopped at the intersection. I do not agree.
[21] In support of her submission, plaintiff’s counsel pointed to a still shot extracted from the video which is reproduced as the third photograph at tab C of her motion record. The photograph shows two cars, one white and a second darker car travelling from west to east along Steeles Avenue across the intersection. The photograph shows them in the middle of the intersection positioned perpendicular to a traffic median that runs north-south along New Westminster Drive. The cars are positioned on Steeles Avenue right at the traffic median. At the far-left side of the photograph there appear to be two head lights. Plaintiff’s counsel submits that this is the plaintiff’s car stopped on Steeles Avenue at the intersection.
[22] A viewing of the video does not bear this out. A comparison of the photograph to the video demonstrates that the photograph captures the video at the 24 second mark. The next car to go through the intersection from west to east along Steeles Avenue is seen on the video at the 31 second mark. If plaintiff’s counsel’s analysis of the photograph is correct, then that should be the plaintiff’s car. It is clearly not.
[23] The plaintiff submits that the video is unreliable because it does not show the plaintiff’s approach into the intersection. As with any camera, the video shows a limited field of view. It is, however, sufficiently broad to demonstrate that the defendant was far into the intersection before the plaintiff entered it.
[24] As I view the video, the defendant appears to have entered the intersection at the 29 second mark. The video shows the plaintiff’s car entering into view at the 33 to 34 second mark. When doing so, the plaintiff is passing the end of a traffic median that runs east-west along Steeles Avenue. The traffic median of necessity stops at the beginning of the intersection with New Westminster Drive. The plaintiff says she was either in the southernmost lane of Steeles Avenue, that is to say, the lane closest to the traffic median and the furthest away from the portion of New Westminster Drive from which the plaintiff was entering the intersection or in the centre lane. She believes she was in the southernmost lane and knows she was not in the curb lane (the northernmost lane).
[25] Given the relatively narrow field of view of the defendant’s dashboard camera, the defendant had had to be substantially far into the intersection to capture the plaintiff’s car passing the end of the median in either the centre or most southerly lane. Regardless of whether the plaintiff was in the centre lane or the southernmost lane of Steeles Avenue, the defendant was much further into the intersection than the plaintiff was before the video shows the plaintiff entering it.
[26] The video also shows a broken white line which traces the route that a car should take when making a left turn southbound from New Westminster Drive westbound onto Steeles Avenue. The broken white line is in the shape of an arc and traces the turn. Immediately before the collision, the defendant was well past the curve of the arced line which further demonstrates that the defendant had to be far into the intersection before the collision occurred.
[27] Although the video shows only a momentary glimpse of the plaintiff’s car as she passes through the end of the median along Steeles Avenue, she appears to be going at some speed. This appears inconsistent with her assertion that she was stopped at the intersection. Even if she did stop at the intersection, she should not have proceeded further while the defendant was in the intersection.
[28] Finally, the plaintiff says she was stopped in the intersection when the defendant’s car hit her car. The video does not bear this out. The video shows the plaintiff’s car hitting the defendant after which all movement stops. Had the plaintiff stopped before the collision on would expect to see the plaintiff’s car remain stationary but see continued forward movement on the video reflecting continued movement of the defendant’s car.
[29] In the foregoing circumstances I am satisfied that, pursuant to section 135 (2) of the Highway Traffic Act, the plaintiff had an obligation to yield the right-of-way to the defendant because the defendant had entered the intersection first. Even if the plaintiff and the defendant had entered the intersection at approximately the same time, the defendant clearly had the right-of-way because he was located to the right of the plaintiff.
[30] I am also satisfied that the defendant complied with the two additional rules of the road that the plaintiff relies on and which are referred to in paragraph 15 above. From the video it appears to me that the defendant kept a reasonable look out and was alert to hazards. He stopped before entering the intersection. He slowed as two cars passed in front of him even though he was in the intersection. I am also satisfied that the defendant gave the plaintiff a reasonable opportunity to avoid a collision. The defendant was far into the intersection when the plaintiff’s car passed the traffic median on Steeles Avenue. The plaintiff had ample opportunity to avoid the collision by letting the defendant proceed.
[31] In my view, a trier of fact would be in no better position at trial than I am on a motion to determine what occurred. As a result, summary judgment is appropriate. In view of my findings above, I would dismiss the action.
Costs
[32] The defendant seeks costs and disbursements of the entire proceeding fixed at $15,149.74 on a partial indemnity scale. The plaintiff sought costs on a partial indemnity scale of $17,741 for only the motion. The plaintiff has raised no objections to the quantum requested by the defendant. I have reviewed the defendant’s bill of costs and am satisfied that the costs are reasonable. I therefore fix costs and disbursements at $15,149.74 including HST payable by the plaintiff to the defendant.
Koehnen J.
Released: October 18, 2019
COURT FILE NO.: CV-15-542540
DATE: 20191018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FAINA DAINOV Plaintiff
– and –
JUNG-BAE LEE Defendant
REASONS FOR JUDGMENT
Koehnen J.
Released: October 18, 2019