Court File and Parties

COURT FILE NO.: C-1211/17

DATE: 2019-Jan-04

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN: Slavica Pavlovic, Plaintiff

AND

Ajay Vankar, Naresh Vankar and Mirko Pavlovic, Defendants

BEFORE: The Honourable Mr. Justice R. J. Nightingale

COUNSEL: No one appearing for the Plaintiff

L. Rodenburg, Counsel for the Defendant Mirko Pavlovic

R. Bickford and S. Sharples, Counsel for the Defendants Ajay Vankar and Naresh Vankar

HEARD: October 2, 2018

Endorsement

[1] The defendant Mirko Pavlovic brings this motion for summary judgment to dismiss the plaintiff’s action and the cross-claim of the co-defendants Vankar against him. The defendant Pavlovic states that he is not liable for a two vehicle motor vehicle accident that happened on February 2, 2011 at approximately 12:50 p.m. and that the co-defendants Vankar are solely liable for the plaintiff’s injuries and damages.

Factual Background

[2] The facts that are not in dispute are that defendant Pavlovic was the owner and driver of a motor vehicle that was traveling on the Highway 6 ramp where it merges onto the Highway 403 westbound traffic. The plaintiff, the spouse of Mirko Pavlovic, was a front seat passenger in that vehicle.

[3] At the time of the accident, the defendant Ajay Vankar was operating a motor vehicle owned by defendant Naresh Vankar traveling westbound on Highway 403.

[4] A collision took place between the two motor vehicles and the plaintiff sustained injuries as a result of that collision.

[5] The position of the defendants Vankar is that the collision took place in the right westbound lane of Highway 403 as the Pavlovic vehicle was merging into it. Accordingly, the defendant Pavlovic is at least partially liable for the plaintiff’s injuries.

[6] The position of the defendant Pavlovic is that the collision took place when the defendant Ajay Vankar lost control of his vehicle which then traveled across the snow-covered triangular area between the westbound lanes of Highway 403 and the Highway 6 on-ramp striking the Pavlovic vehicle when it was still on the ramp of Highway 6. The defendants Vankar accordingly are 100% liable for the plaintiff’s injuries.

[7] The plaintiff was served with the defendant Pavlovic’s motion for summary judgment but did not appear on the hearing of this motion and filed no responding materials opposing the motion to dismiss her action against the defendant Pavlovic.

[8] The defendant Pavlovic on his motion provided his evidence including his own affidavit evidence, excerpts from the sworn examination for discovery of the plaintiff, the affidavit and transcript of the cross-examination thereon of the independent witness Dr. Todd Ruhl and the affidavit evidence of Ivan Pavlovic, the defendant’s son who took photographs of that ramp merge area later that same afternoon.

[9] He also provided the affidavit evidence of his lawyer Mr. Haney which referred to excerpts from the police investigation report, excerpts from the examination for discovery of the defendant Ajay Vankar, some Google photographs of the scene including the road sign and the statement provided by the defendant driver Vankar to the investigating officer.

[10] In response, the defendant Ajay Vankar provided his own affidavit referring to his original statement provided to the police on the date of the accident of February 2, 2011 and his sworn evidence from his examination for discovery transcript, both of which contents he swore were true. He also provided an affidavit of an accident reconstruction engineer Mario Smolej including his report and the transcript of his cross-examination thereon. He also filed affidavit evidence of his lawyer Stephanie Sharples referring to the defendant Pavlovic’s statement to the police, excerpts from the police report of the collision and the transcript evidence of the parties examinations for discovery.

[11] Neither party provided any sworn affidavit evidence from any of the investigating police officer or officers. No evidence was provided that notice under Section 35 of the Evidence Act had been given to establish the contents of the police report, diagram and notes of the police officers as admissible business records.

Evidence of Mirko Pavlovic on the Motion

[12] The essential affidavit evidence of Mirko Pavlovic was that he was driving on the Highway 6 on-ramp approaching its merger with Highway 403 when the Vankar vehicle left the westbound lanes of Highway 403, went through a narrow snow covered area between the two highways and then onto the ramp into his lane of Highway 6 traffic colliding with his vehicle. He described seeing only snow flying towards him just before the impact and he did not actually see the Vankar vehicle because of that prior to impact.

[13] In his examination for discovery, he admitted that he had signed a statement to the investigating officer after the accident at the hospital. That statement was in the officer’s handwriting that suggested in one part that Pavlovic had just merged onto Highway 403 from Highway 6 which Pavlovic adamantly denied he ever said to the officer. Another part of the statement suggested he was driving on Highway 6 on the on-ramp to 403 Hamilton-bound. It stated he was in the right lane, saw a dark car on his left, tried to brake but the other vehicle went right into him. All he saw was a lot of snow and he thought the other driver had lost control. That evidence and the rest of the evidence on the motion is addressed in further detail below.

[14] The independent witness Dr. Todd Ruhl confirms that he was traveling behind the defendant Pavlovic vehicle on the Highway 6 ramp at approximately 20 km/h. He did not know what speed the Pavlovic vehicle was travelling but thought it was in the same range. He saw the Vankar vehicle that had been traveling westbound on Highway 403 leave that roadway and travel through the snow bank near the end of the Highway 6 ramp, enter onto the Highway 6 ramp and strike the Pavlovic vehicle being driven on that ramp before it merged onto Highway 403 on the driver’s side.

[15] Dr. Ruhl called 911 at the scene and spoke to Mrs. Pavlovic at the scene. He also spoke to an investigating police officer at the scene providing his evidence of what he observed of the accident.

[16] The transcript of the examination for discovery of the plaintiff Slavica Pavlovic confirms that she saw the Vankar vehicle cross over the snow-covered ditch area from the westbound Highway 403 lane into their lane on the Highway 6 on-ramp before their vehicle had reached the position where it merged onto Highway 403 colliding with their vehicle on that ramp. Her husband was travelling slowly because it was a snowy day.

[17] Her evidence is consistent with that of the independent witness Dr. Ruhl and of her husband the defendant Pavlovic. There was no challenge to her evidence or any suggestion that her vision was obscured or her memory was deficient of what she had seen.

[18] The photographs taken by Ivan Pavlovic three hours later that afternoon at approximately 4:00 p.m. show a large black piece of debris and a bent over traffic sign in that snow-covered area between the Highway 6 ramp before it merged into the westbound lane of Highway 403.

[19] The defendant Pavlovic as part of its motion for judgment referred to some of the evidence of Mr. Vankar from his examination for discovery in which he stated that his vehicle after he started to skid and lost control on Highway 403 did not go through the snow covered area and did not go on to the ramp for southbound traffic on Highway 6 before the impact. Vankar stated he only started to enter the right westbound lane of Highway 403 in the area of the merge lane south on Highway 6 when the Pavlovic vehicle came into that right lane colliding with his vehicle.

[20] The Defendant Pavlovic then submitted that that evidence was contradicted by Vankar’s statement to the investigating officer which suggested that after a car came close to him on Highway 403 on his right side, he moved slightly to the left to avoid a collision with it and then back to the centre of the lane when he lost control and began to spin before it collided with the Pavlovic vehicle. He is entitled to do so under Rules 31.11 and 39.04(1).

[21] I have only considered the affidavit evidence of Mr. Haney to the extent of his referring to certain excerpts from the transcripts of the examination for discovery of Ajay Vankar as part of his client’s motion for summary judgment, his alleged inconsistent statement to the investigating police officer and to the photographs of the scene.

[22] In particular, it is not appropriate to and I have not considered the affidavit evidence of Mr. Haney as to his belief that the point of impact actually took place on the Highway 6 ramp in the lane occupied by the Pavlovic vehicle or that the Vankar vehicle lost control before the collision with the Pavlovic vehicle.

[23] Similarly, the affidavit evidence of Stephanie Sharples, co-counsel for the defendants Vankar that she believes there is contributory negligence on the part of the defendant Mirko Pavlovic and that a finding of 100% liability against the Vankar defendants is not supported by the evidence has also not been considered by this Court.

[24] The evidence on a motion for summary judgment should be admissible evidence only. The Court should not consider the affidavit evidence of the parties’ lawyers on highly contentious issues including and in particular their legal opinions or argument on issues of liability which should be reserved for the factum. Mapletoft v. Service, [2008] O.J. No. 693; Sky Solar Canada Limited v. Economical, 2015 0NSC 4714.

Evidence of the Defendants Vankar on the Motion

[25] The defendant Ajay Vankar in his affidavit filed in response to the motion adopted his answers as being true from both his police statement and his examination for discovery. As the responding party to the motion for summary judgment, he is entitled to rely on that same examination for discovery evidence placed before the Court by the defendant Pavlovic. Lawless v. Anderson, 2010 ONSC 2723; Pereira v. Contardo 2014 ONSC 6894.

[26] The motor vehicle accident report and diagram completed by one of the investigating officers included in the affidavit of Ms. Sharples, Vankars’ counsel can be interpreted as suggesting that the impact took place in the right lane of Highway 403. However, it is noteworthy that the statement of Mirko Pavlovic to the officer is potentially ambiguous as to where his vehicle was at the time of impact i.e. still on the Highway 6 ramp or merging onto Highway 403. In addition, Pavlovic denied saying to the police officer that he was merging onto Highway 403 when the collision took place. Accordingly, the weight to be attached to that diagram with no sworn explanatory evidence from the officer is discussed and considered in further detail below.

[27] Mario Smolej is a licensed professional accident reconstruction engineer who provided his affidavit evidence for the defendants Vankar. He was not retained until three months after this motion for summary judgment was served. He reviewed the transcripts of the examinations for discovery of the parties, the police investigation documents, photographs of the vehicles and accident scene and the summary judgment motion affidavit materials of the defendant Pavlovic. He attended at the scene on March 15, 2018 and was cross- examined on his conclusions in his report.

[28] Mr. Smolej used a computer program PC Crash to simulate the motor vehicle collisions using the two different versions of the accident described by Vankar and Pavlovic. Most significantly, he could not and did not provide an opinion as to the likely point of impact. Rather, he simply determined that it was either on the Highway 6 ramp approaching Highway 403 in the area where the chevron road sign was damaged and a black piece of debris was observed which is the version of the defendant Pavlovic. Alternatively, he stated that the point of impact could be in the westbound right lane of Highway 403 at the beginning of where Highway 403 and Highway 6 merged which is the version of the defendants Vankar.

[29] He also commented on the calculated speeds of the vehicles at impact and the ability of the defendant Pavlovic to avoid the collision.

[30] Further details of all of this evidence provided by the parties are discussed below.

Summary Judgment Principles

[31] The onus is on the defendant Pavlovic under Rule 20 to establish on a balance of probabilities that there is no genuine issue requiring a trial with respect to whether there is any liability on his part in causing or contributing to the motor vehicle accident of February 2, 2011.

[32] On this motion, the Court is entitled to assume that the parties have provided all of the relevant evidence that will be presented at the trial and that there will be no further evidence. Each party must put his best foot forward and lead trump or risk losing.

[33] The Court on a summary judgment motion should first determine if there is a genuine issue requiring a trial based only on the evidence before the Court without using the discretionary fact-finding powers under Rule 20 (2.1). With these powers, the motion judge may weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence unless it is in the best interests of justice for such powers to be exercised only at trial. Hyrniak v. Mauldin, 2014 SCC 7, 2014 1 SCR 87.

[34] There will be no genuine issue requiring a trial if the summary judgment process provides the motion judge the evidence required to make findings of fact, apply the law to the facts and fairly and justly adjudicate the dispute in a more expeditious and less expensive proportionate procedure to achieve a just result.

[35] Accordingly, where the evidence presented on a summary judgment motion gives the judge confidence and conclusions to be drawn and allows the judge to find the necessary facts and resolve the dispute, proceedings at trial would generally not be proportionate, timely or cost effective.

[36] If the moving party has discharged the evidentiary burden of proving there is no genuine issue requiring a trial for its resolution, the burden shifts to the responding party, in this case the defendants Vankar, to prove that there is a genuine issue requiring a trial.

[37] There is no issue that summary judgment is available in motor vehicle negligence cases. Leis v. Clarke, 2017 ONSC 4360; Mayers v. Khan, 2017 ONCA 524.

Analysis

[38] On review of the affidavit evidence of the parties including their witnesses, given the conflicting evidence of the defendant Vankar regarding the point of impact taking place in the right westbound lane of Highway 403 and not on the Highway 6 ramp, I would not be satisfied based on that written record that the defendant Pavlovic has established that there is no genuine issue requiring a trial on his not being even partly liable for the collision.

[39] The issue before me is whether at the second stage of the summary judgment motion this is an appropriate case for the exercise of my discretion where I should be weighing the evidence, drawing reasonable inferences and evaluating the credibility of the parties in order to determine if the need for a trial can be avoided by using these tools to come to a fair and just result.

[40] In my view, it is appropriate that I weigh the evidence, draw reasonable inferences therefrom and evaluate the credibility of the parties for that purpose. I can do so without the necessity of a trial and hearing of oral evidence as there has been a detailed cross- examination of the independent witness Dr. Ruhl and of the defendant Vankar’s accident reconstruction expert Mr. Smolej and I have had the benefit of reviewing the transcripts of those cross-examinations.

[41] In addition, the parties themselves have provided their sworn evidence in affidavit form and detailed evidence from their examination for discovery transcripts and in particular with respect to their police statements.

[42] The sworn evidence of the plaintiff from her examination for discovery was admitted without challenge by the defendants Vankar and without any attempt or request to cross-examine her on her evidence.

[43] Both parties and in particular the defendants Vankar chose not to provide any sworn evidence from any of the investigating police officers who attended at the scene with respect to his/her investigation of the collision. I will deal with the appropriate admissibility and weight to be attached to the police diagram of the accident as noted below.

[44] In my view, nothing further would be gained by requiring a trial with the oral evidence of the parties and their witnesses given the state of the evidentiary record including the transcripts of the cross-examinations of some of the witnesses and of the examinations for discovery of the parties. There is no further or better evidence to call on the main issues at a trial including where the point of impact occurred in this collision and no suggestion that the evidence at a trial would change. Accordingly, the trial judge would be in no better position to make the necessary findings than this Court on this summary judgment motion. Aranas v. Kolodziel [2016] ONSC 7104.

[45] In particular, I do not accept the position of counsel for the defendants Vankar that since Dr. Ruhl’s evidence is crucial, given the two defendants’ version of the accident, the reliability of his testimony must be tested by way of oral testimony at trial.

[46] I also do not agree with their position that the plaintiff’s claim for substantial damages potentially in excess of their insurance policy limits confirms that this matter should proceed to trial and the hearing of oral evidence. The issues of liability and damages are separate and distinct issues.

[47] In my view, being able to assess the demeanour of the parties or the witnesses in the witness stand at a trial while they give their evidence orally would not likely be particularly helpful in determining the facts of this case. This is not a case where the suggestion is that either party intentionally may not be frank with the Court in giving his evidence but rather is likely one where both parties are simply attempting to provide their best recollection of what he said happened leading up to the collision. Moreover, a witness’s demeanour is of limited value because of its fallibility as a predicator of the accuracy of the witness’s testimony and because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with the courtroom. R. v. Hemsworth, 2016 ONCA 85.

[48] Accordingly, based on my assessment of the evidence before me, I can make the appropriate findings of fact and apply the law to the facts so as to fairly and justly adjudicate the liability dispute between the parties on this summary judgment motion.

[49] The plaintiff’s action against the defendant Pavlovic will be dismissed on this motion. If the defendant Pavlovic is also successful on this motion dismissing the co-defendants Vankars’ cross-claim thereby disposing of the liability issue between the co-defendants, the liability issue of the remaining defendants Vankar for the plaintiff’s injuries will essentially be resolved leaving only the issue of the plaintiff’s damages at trial. Summary judgment would accordingly meet the “interests of justice” element of Hyrniak as it would likely save significant time and expense at trial including not calling any liability witnesses, avoiding any duplicate and repetitive cross-examination of the plaintiff’s witnesses by counsel for the defendant Pavlovic in addition to that of counsel for the Vankars and any additional evidence on damages provided by the defendant Pavlovic.

[50] Although the defendants Vankar pled that the plaintiff was contributorily negligent in causing her own injuries for not wearing her seatbelt, they have lead no evidence on this motion suggesting or establishing that while the plaintiff’s and defendant Pavlovic’s uncontradicted sworn evidence is that she was. Accordingly, there should be no such issue on that at trial again leaving only the issue of the plaintiff’s damages caused by this accident.

[51] The evidence of the defendant Pavlovic, the plaintiff and the independent witness Dr. Ruhl is clear and consistent that the defendant Vankar vehicle lost control while traveling westbound on Highway 403, crossed the snow covered area between Highway 403 and the Highway 6 ramp and then collided with the Pavlovic motor vehicle as it was proceeding westbound on that ramp before the ramp began to merge into the right westbound lane of Highway 403.

Evidence of the Defendant Pavlovic

[52] In addition to his affidavit evidence, on his examination for discovery, the transcript of which was filed by the defendant Vankar on this motion, Mr. Pavlovic was clear that the Vankar vehicle lost control, went across the snow covered area and then onto the Highway 6 ramp where he was driving at approximately 40 km/h. The collision with the left side of his car happened on the Highway 6 ramp which was a minimum of 20 metres away from where it began to merge onto Highway 403.

[53] He referred to the photographs taken by his son later that day confirming the presence of snow in that area. He confirms he saw a lot of snow come at him from that snow covered area from the Vankar vehicle although he didn’t actually see the car go through that area before the impact.

[54] He strongly disagreed with the contents of the police statement suggesting he said that the accident happened in the right lane of Highway 403. He clearly said that he told the police officer that he was still on Highway 6 at the time of the collision. Although he admits it was his signature attached to one of the police officers notes of a statement he gave at the hospital he went to with his wife, he doesn’t remember signing it and disagreed with the statement that “I just merged on 403 Hamilton from Highway 6 north”. He explained that he did not remember if he was given an opportunity to read the statement before he signed it. He did not know at the time what the word “merge” meant. A review of his evidence on his examination for discovery indicates that English was not likely his first language. He clearly stated again he had not yet merged on Highway 403 the time of the collision. He did not adopt that police statement as being true or correct.

[55] As he was proceeding on the ramp, he looked behind, to the front and to his left side and did not see any cars on his left and only saw two cars behind him on the ramp. He had not yet started to steer his car over to the left to make the merge as he was still some distance away from where he could actually merge into the other lane.

[56] He also confirmed that the two cars traveling behind him stopped behind him after the accident on the shoulder of Highway 6 i.e., not of Highway 403. He also confirmed that the police spoke with one of the witnesses after the accident.

Evidence of the Plaintiff

[57] The sworn evidence of the plaintiff Slavica Pavlovic is clear and concise and totally supportive of and consistent with the evidence of the defendant Pavlovic. They were on their way to Hamilton for her husband’s doctor’s appointment. She was a passenger in the front seat while her husband was driving slowly on Highway 6 very close to Highway 403 at the time of the accident. She saw a lot of snow coming towards them thinking it could have been a snow plow cleaning snow on Highway 403. She then saw the car come through the snow and hit their vehicle twice on their side on the Highway 6 ramp.

[58] She remembered although she wasn’t sure after the accident that the yellow sign on the left side just before Highway 403 was bent or broken with a piece of the car that hit them hanging on that sign.

[59] She was clear in her evidence that there was still a ditch there between where the accident took place on the Highway 6 ramp before reaching Highway 403.

Evidence of Independent Witness Dr. Ruhl

[60] The affidavit evidence of the independent witness Dr. Ruhl who was traveling immediately behind the Pavlovic vehicle was clear and concise and not shaken or diminished in his cross- examination. He confirmed he was driving approximately 15 car lengths behind the Pavlovic vehicle along the Highway 6 ramp. The road conditions were poor with some snow coverage on Highway 403. He was traveling slowly and had no issues with his vision and his visibility ahead was not impacted in any way.

[61] He saw the Vankar vehicle come through the snow that had accumulated between the left side of the Highway 6 ramp and the right side of Highway 403 prior to their merging located near the end of the Highway 6 ramp. It created quite a puff of snow into the air and then went onto the ramp of Highway 6 striking the Pavlovic vehicle on the driver’s side. After the Pavlovic vehicle pulled off to the side of that ramp, he pulled in behind and spoke to Mrs. Pavlovic and called 911. The Vankar vehicle after impact had travelled further forward.

[62] The fact that he could not identify the appearance, colour, make or license plate of the two vehicles when he swore his affidavit in August 2016 in my view is of no consequence at all. He stated he probably could have identified the vehicles at the time of the collision in 2011 but could not now. He was not significantly challenged in cross-examination about what he actually saw of the accident happening between the two vehicles and stated his recollection of the accident was the same as it was when he swore his affidavit. He is clear from his evidence that the collision did not happen as suggested by the defendant Vankar with the impact in the right lane of Highway 403; it was on the Highway 6 ramp before it merged onto Highway 403.

Evidence of the Defendant Ajay Vankar

[63] The defendant Vankar’s affidavit confirmed that he gave a statement to the police after the collision referring to excerpts which he stated were true at the time and remains true today.

[64] Similarly, he confirmed that the evidence he gave on his examination for discovery on September 26, 2013 referring to excerpts that were true.

[65] He provided no other evidence.

[66] Both his police statement and his examination for discovery evidence confirm his evidence that when his vehicle started to encroach into the right lane of Highway 403, the Pavlovic vehicle was merging from the Highway 6 ramp into that same right lane impacting his vehicle on its passenger side.

[67] However, what is significant is what he stated also happened before the collision.

[68] In his police statement he stated that a red vehicle came close to the right side of his vehicle which led him to veer slightly to the left to avoid a collision with it. He then maneuvered his vehicle back to the center of the middle lane in which he was driving which resulted in his vehicle spinning. He was traveling 65 km/h.

[69] On his examination for discovery evidence, he said he was traveling 60 - 65 km/h because of the snowy conditions in the centre of three westbound lanes of Highway 403. There were wheel tracks in the three lanes of the roadway because of the snow. He described the third-party Nissan vehicle coming fast on the right looking like it was going to come into his lane and very close to his right side of his vehicle. He was scared that it might hit his vehicle. Accordingly, he moved his vehicle to the left to get away from it but staying within the centre lane.

[70] His evidence was that he then activated his right turn signal to move from the left side of the centre lane to the centre of that same lane “so it’s safer for everybody” and that he was not trying to get into the right lane.

[71] That evidence simply makes little or no common sense. There would be no reason to activate a turn signal to warn others of his intention to stay within the same lane of traffic.

[72] He then maneuvered back within the centre lane but his vehicle started to skid to the right “slightly” into the right lane. He could not control the skidding and he lost control at that point but stated he continued to travel westbound until after he got hit when still traveling approximately 70 km/h. He said that the Pavlovic vehicle merging into that right lane from Highway 6 then hit him on the right-hand side causing it to spin.

[73] What is significant is his affidavit evidence on this motion that his police statement is true. His maneuvering his vehicle back to the center of the middle lane after moving to the left to avoid a collision with the third-party vehicle resulted in his vehicle spinning clearly suggesting he lost control of it at that time before his vehicle struck the Pavlovic vehicle.

[74] Both versions accordingly confirm his loss of control of his vehicle before it struck the Pavlovic vehicle which is consistent with all of the defendant Pavlovic’s evidence indicated above.

[75] The only real discrepancy with his evidence and that of the defendant Pavlovic pertains to the location of the point of impact of the vehicles. The defendant Vankar denies ever entering fully into the right-hand lane of 403, crossing over the snow covered area and into the ramp lane of Highway 6 before it merged Highway 403 where the defendant Pavlovic, the plaintiff and his witness Dr. Ruhl say the collision occurred.

Evidence of Accident Reconstruction Expert Mr. Smolej

[76] In that regard, the evidence of the reconstruction engineer Mr. Smolej was of no significant assistance to the defendants Vankar.

[77] In cross-examination and in his report, Mr. Smolej made it clear that he was not able to determine the actual point of impact even using his computer based simulator PC Crash. His use of that program, the photographs and the damages to both vehicles confirmed that the location of the point of impact could be consistent with the versions of both the defendants Vankar and Pavlovic.

[78] He could not determine the point of impact because of the absence of any tire marks or gouges that remained on the roadway that he could check out and document and the absence of any police measurements or photographs as to where the point of impact occurred and the final rest positions of the vehicles.

[79] He concluded in his report and at page 18 of his cross-examination that at the time of impact, the Pavlovic vehicle was headed west southwest straight down the ramp of Highway 6 aligned with the ramp’s orientation. He also concluded that the Vankar vehicle after it lost control was headed in a northwest direction, not west as Vankar stated, at the time of impact. It was not travelling parallel with the lanes of Highway 403 at the time of impact.

[80] He admitted that the photographs of the bent chevron sign and debris show something that looks similar to a bumper cover that could have come from the Vankar vehicle as three quarters of the right side of that vehicle’s front bumper was not visible in the property damage photographs. Those photographs of the vehicle appear to confirm that that bumper was black. He concluded that although he expected to but did not see additional damage to the front of the Vankar vehicle, the Vankar vehicle may have hit the road sign as it crossed the ditch area. He conceded that if it did, that would strongly support the defendant Pavlovic’s version of the collision as the more likely of the two.

[81] He also confirmed in his cross-examination, contrary to his affidavit evidence, the presence of tire marks in the snow in the area of that sign shown in the photographs. He only stated that he “expected” that if the snow plow had gone through after the impact, the tire marks would have been covered up and accordingly suggested those marks may not be related to the Vankar vehicle.

[82] However, there is no evidence that a snow plow went through that area after the impact before the photos were taken about three hours later that afternoon and that even if so, that there was sufficient snow tossed to cover those tire tracks across that area. Moreover, those photographs in fact still show the presence of snow and tire tracks on the roadway surface.

[83] In summary, there is evidence of tire marks across the snow covered ditch area, damage to the chevron sign and presence of black debris as depicted in the photographs taken shortly after the accident. There is the plaintiff’s evidence confirming the sign damage and the piece of what she said was the Vankar car hanging on the sign at the scene and the photographs of the Vankar vehicle which depict the absence of most of its front black bumper. There is the absence of any evidence of a snow plow covering up the tire tracks before the photographs were taken 3 hours later.

[84] In considering all of that evidence, I am able to and draw the reasonable inference and conclude that the tire marks, sign damage and black debris in that snow covered area were likely caused by the Vankar vehicle crossing over it and hitting the sign after it lost control. That damage, black car debris and tire marks were not likely there as a matter of coincidence.

[85] Mr. Smolej stated that if the Vankar version of the collision was correct, the defendant Pavlovic should have detected the Vankar vehicle losing control if he had been looking over his shoulder and would have had an opportunity to react and avoid the accident by decelerating and steering to the right allowing Vankar to pass in front of him with no impact.

[86] However, the basis of his opinion included his assessment of the speed of the Vankar vehicle at between 15-25 km/h prior to impact. That was directly contrary to the clear evidence of Mr. Vankar who stated it was about 65 to 70 km/h at the time of impact on his examination for discovery and 65 km/h in his statement to the police.

[87] That opinion was also based on his estimates of the Pavlovic vehicle’s speed of 60 to 75 km/h at the impact when Pavlovic’s clear evidence was that it was under 40 km/h which is also consistent with the evidence of the plaintiff and that of Dr. Ruhl.

[88] Mr. Smolej’s opinion accordingly does not sound reasonable or realistic especially given that evidence, the very short distance between the middle lane of Highway 403 and the ramp of Highway 6 and Vankar’s own evidence that he was just slightly braking after he lost control and even if there may have been some deceleration of the vehicle when it crossed the short snow covered area between the roadways before impact.

[89] Mr. Smolej also admitted his two conclusions are that either Mr. Pavlovic was not doing what he said he was doing looking around him prior to the collision or that the Vankar scenario is not the scenario that happened. Pavlovic’s evidence is that he did look and only saw two vehicles behind him.

[90] However, in any event, Mr. Smolej readily conceded that if the defendant Pavlovic scenario of the collision was correct, he probably would not have been able to do anything to avoid the impact that occurred in his lane on the ramp of Highway 6. I will deal with that issue shortly.

[91] Mr. Smolej in suggesting some support for the Vankar scenario also referred to the police report and diagram which he said made no mention of the Vankar vehicle traveling over the snowbank onto the ramp of Highway 6 or there being damage to the chevron road sign.

[92] However, there was no sworn evidence from any of the attending police officers regarding their investigation of this collision. The police diagram and report for some unexplained reason makes no reference to the evidence of the independent witness Dr. Ruhl who called 911 and who spoke to one of the investigating police officers at the scene giving his evidence which clearly contradicts the conclusion suggested in the police diagram of the location of the point of impact.

[93] Moreover, the notes of one of the investigating police officers Constable Hart appears to confirm that the collision occurred “403 W/B ramp from Hwy 6” which can be interpreted to be on the Highway 6 ramp area. The notes do not say the collision happened in the right lane of Highway 403 and which accordingly can support the Pavlovic version and contradict the Vankar version of the accident. It also potentially appears to be contrary to the police diagram of the location of the point of impact in the accident. Officer Hart did not provide any sworn evidence on this motion regarding those notes nor was any source information for those notes provided.

[94] There is no evidence of any tire marks, gouges or measurements taken by any of the investigating police officers. The defendant Pavlovic denies adamantly that he told one of the investigating police officer that he had already merged or was merging onto Highway 403 when the collision took place.

[95] In addition, the conclusion of the investigating officer in the report was that the Vankar vehicle was proceeding too fast for the conditions and that Mr. Pavlovic was driving properly.

[96] The point where the vehicles ended up before the police arrived is likely of no consequence in determining the location of actual point of impact as suggested in the police diagram. The Pavlovic vehicle was found parked after the collision further west down the road near a retaining wall. The independent witness Dr. Ruhl confirmed that after the collision, Pavlovic drove his vehicle off to the side of the ramp before he stopped. Mr. Pavlovic said he stopped his car after the impact on Highway 6. The defendant Vankar on his examination for discovery also admitted Pavlovic did so stating he parked his vehicle on the right side shoulder of the merging lane. Moreover, Vankar also said at page 27 that once his own car came to a stop, he then drove his car to the shoulder or side of the road which would be farther west of the actual point of impact. He then clarified that somewhat saying after the impact that he “guided” the vehicle after impact onto the left side of the road coming to a stop on the shoulder.

[97] As a result of all this evidence, it would not be appropriate to place any reliance or weight on the police diagram and Vankars’ defence Counsel’s interpretation of it regarding the location of the point of impact especially given the ability but failure of the defendants Vankar to provide the relevant sworn evidence of any of the investigating police officers.

[98] Most significant is the evidence of Mr. Smolej that if the evidence of Dr. Ruhl is accepted that the Vankar vehicle went through the snow covered ditch and then onto the ramp of Highway 6 colliding with the Pavlovic vehicle, he would conclude that the more likely version of the collision favored the Pavlovic scenario over that of Vankar.

[99] That is exactly what the evidence of Dr. Ruhl is in both his affidavit evidence and in cross-examination. He was clearly an independent witness who was also proceeding cautiously behind the Pavlovic vehicle on the Highway 6 ramp. There was nothing obstructing his vision of what he saw. He provided his evidence to one of the investigating officers at the scene although unfortunately for some unknown reason, it did not form part of the police report completed by one of the investigating officers. His evidence including his credibility was not significantly challenged during cross-examination and he appeared to give his evidence in a full, frank and honest manner. For example, he conceded that there might be a few details that may be foggy but that otherwise his recollection of the accident when he swore his affidavit was clear.

[100] Dr. Ruhl also conceded the obvious that he could not remember the description of the vehicles involved now although he probably would have at the time of the accident. That does not mean anything as Mr. Vankar admitted he did not know what model or make of car Pavlovic was driving except he thought it was must be a gray colour but he couldn’t remember.

[101] No valid reason was provided for the Court not to accept Dr. Ruhl’s evidence in full as being completely accurate and I accordingly do.

[102] That evidence provides full corroboration and support for and is totally consistent with the evidence of not only the defendant driver Pavlovic but also the evidence of the plaintiff who was sitting in the front passenger seat of the Pavlovic vehicle and who also clearly saw what happened leading up to the collision.

[103] It is also not materially inconsistent with the opinion evidence of Mr. Smolej. In particular, Mr. Smolej only stated that there was a possibility, not a probability, the Vankar vehicle would pitch upwards going through the snowbank prior to impact. His suggestion that the vehicle damages do not reflect that is of no significance given the same possibility it did not pitch upwards.

[104] The evidence of the defendant Pavlovic, the plaintiff and Dr. Ruhl depicting how the collision occurred is also supported significantly as well by the defendant Vankar’s own evidence to the extent that he admits he lost control of his vehicle when traveling on the snow-covered slushy Highway 403 roadway with tire track conditions before colliding with the Pavlovic vehicle. It is also supported by the photographic evidence of the damage to the road sign and the presence of some black car debris and tire marks in that area that likely came from the Vankar vehicle.

[105] In my view, the conflicting evidence between the defendants Vankar and Pavlovic regarding the location of the point of impact can be addressed on the summary judgment motion with fairness and confidence in a more efficient and cost-effective way than that of a trial where no more evidence would likely be obtained on the liability issue than the evidence already before me on this motion. As indicated above, my not being able to assess the demeanor of the witnesses when giving this same evidence orally at a trial would likely have no bearing on my being able to make the appropriate findings of facts and conclusions on the evidence.

[106] There are a number of issues with respect to the reliability of the evidence of the defendant operator Vankar.

[107] His evidence that he operated his right turn signal when in the centre lane of Highway 403 with no intention to actually enter the right lane just before losing control of his vehicle lacks common sense and is also not likely true. That evidence colours the balance of his evidence, affecting its reliability and his credibility.

[108] His statement that he saw the Pavlovic vehicle enter the right lane of Highway 403 after he had already lost control of his vehicle is also certainly questionable and problematic. He admitted on pages 25 and 65 of his transcript that the first time he noticed the Pavlovic vehicle was when it hit him and he did not see it at all before the impact. He admitted he did not have much time to see exactly what the Pavlovic vehicle was doing. His admitted loss of control of the vehicle and then still traveling at approximately 70 km/h would suggest he could not reasonably and accurately state where the Pavlovic vehicle was at the time of impact.

[109] He first denied hitting the road sign but then immediately conceded that he simply did not remember if he did.

[110] His statement that he continued to travel westbound on Highway 403 after losing control of his vehicle is contradicted by Mr. Smolej who stated under both scenarios that he was not traveling parallel with the lanes of Highway 6 but rather in a northwest direction when not in control prior to impact.

[111] Lastly, his evidence would suggest that the defendant Pavlovic would have entered the right westbound lane of Highway 403 from the Highway 6 ramp almost immediately at the very beginning of their potential merge point. However, all of the photographs including those provided by Mr. Smolej and his evidence confirm that that ramp lane of Highway 6 does not actually complete its merge onto Highway 403 until well past a barrier wall on the right side of the highway which wall was approximately 100 metres west of the damaged chevron sign. There would be no need nor would it be logical for the Pavlovic vehicle in those snowy conditions to immediately cut over into that right lane of Highway 403 at that point from the Highway 6 ramp rather than make a gradual entry further down the road.

[112] For the reasons noted above, I accept the evidence provided by the defendant Pavlovic, Dr. Ruhl and the plaintiff that the accident happened as they stated with the collision impact occurring on the Highway 6 ramp of traffic before the defendant Pavlovic vehicle had begun to merge onto Highway 403.

[113] Mr. Vankar’s evidence is simply not reliable and in part lacks some credibility compared to that of the defendant Pavlovic’s evidence, the plaintiff and in particular, that of the independent witness Dr. Ruhl. I do not accept his evidence that the impact of the two vehicles occurred in the right lane of Highway 403. Accordingly, the evidence of Mr. Smolej is of no assistance to the defendants Vankar.

[114] There is no evidence on those findings that the defendant Pavlovic could have done anything to avoid the impact which is conceded by the evidence of Mr. Smolej. The only logical conclusion on the evidence is that the defendant Pavlovic was faced with an unforeseeable circumstance out of his control such that a reasonable person would not have been able to avoid the collision. There is no contributory negligence on the defendant Pavlovic in causing or contributing to the motor vehicle collision in question.

Conclusion

[115] Accordingly, the summary judgment motion of the defendant Mirko Pavlovic is hereby granted. The plaintiff’s action and the cross-claim of the co-defendants Vankar against the defendant Pavlovic are both hereby dismissed.

[116] If the parties are unable to agree on the issue of costs of this motion, the defendant Pavlovic shall file brief written submissions of no more than three pages in length together with a bill of costs and any relevant offers to settle within 15 days of the date of this decision.

[117] The defendants Vankar and the plaintiff will be similarly entitled to respond within 10 days thereafter.

[118] If no submissions are received within those timelines, the parties will be deemed to have settled the issue of costs.

The Honourable Mr. Justice R.J. Nightingale

Released: January 04, 2019