COURT FILE NO.: CV-17-580158
DATE: 20191008
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Nelson Thiruchelvam
Plaintiff
– and –
Harit Sohal, Purvi Qadri, Rinki Das, Kalpana Das and Mercedes-Benz Financial Services Canada Corp.
Defendants
D. Wilson for Plaintiff/Responding Party
M. Orlan for the Defendants/Moving Parties Rinki Das, Kalpana Das and Mercedes-Benz Financial Services Canada Corp.
T. De Sa for the Defendants/Responding Parties Harit Sohal and Purvi Qadri
HEARD: July 23, 2019
o’BRIEN, J.
REASONS FOR DECISION
Overview
[1] The Defendants Rinki Das, Kalpana Das, and Mercedes-Benz Financial Services Canada Corp (the “Moving Parties”) bring this motion for partial summary judgment. They are seeking to determine all issues of liability raised in the main action and cross-claim, as well as in a related action. This was a motor vehicle collision involving three vehicles. There are three issues on the motion: (1) whether it is advisable to grant partial summary judgment in the context of the litigation as a whole; (2) whether there is a genuine issue requiring a trial; and (3) if there is no genuine issue requiring a trial, whether the action should be dismissed against the Moving Parties.
[2] The motor vehicle collision at issue occurred on May 4, 2017, at the intersection of Hurontario Street and Bristol Road West, in Brampton, Ontario. The Plaintiff had stopped at a red traffic signal at the intersection, facing in an eastbound direction. The Defendant Sohal was driving northbound on Hurontario Street. She made a left hand turn onto Bristol Road West to proceed in a westbound direction and collided with the Defendant Rinki Das (“Das”), who was driving southbound on Hurontario Street. The Plaintiff alleges that both vehicles then lost control, with Sohal’s vehicle coming into contact with the Plaintiff’s vehicle.
[3] Das has brought a separate action against the Defendants Sohal and Qadri (the “Sohal Defendants”) in relation to the same collision, bearing Court File No. CV-18-00004708-0000 (the “Das action”). Das is represented by different counsel in that action. On this motion, the Sohal Defendants consented to the dismissal of this action against the Moving Parties, and to a without costs dismissal of their crossclaim against the Moving Parties. Counsel for the Sohal Defendants on this motion also represents them in the Das action and advised me that they agree that my determination of liability would be binding in the Das action. On the day this motion was heard, the Moving Parties also provided me with an affidavit of Patricia Sim, counsel for Das in the Das action. Ms. Sim advised that she was served with the material on this motion and that she agreed “that any finding on liability on the motion for summary judgment will be binding on the issue of liability in the Das action.”
[4] The Plaintiff submits that partial summary judgment should not be granted, as there are genuine issues requiring a trial. In the alternative, the Plaintiff seeks summary judgment against Das and asks this Court to apportion a percentage of liability to Das, which, in oral submissions, counsel estimated at 25-30%.
[5] In my view, it is appropriate to grant partial summary judgment in the context of the litigation as a whole. Further, there is no genuine issue requiring a trial. There are no conflicts or issues of credibility in the evidence. On an assessment of all of the evidence, I find that the action should not be dismissed against the Moving Parties. Rather, I conclude that the Defendant Rinki Das was partly liable for the collision. I assess her percentage of liability at 10%.
Partial Summary Judgment is Appropriate
[6] In this case, I conclude that partial summary judgment is appropriate in the context of the litigation as a whole. In Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d), the Court of Appeal outlined the concerns with granting partial summary judgment. These include the risk of duplicative proceedings and inconsistent findings. Justice Pepall further stated at para. 34: “A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner.”
[7] However, the Court of Appeal also has affirmed that the determination of liability, but not damages, in a motor vehicle accident case may be appropriate for partial summary judgment: see Ozimkowski v. Raymond, 2018 ONSC 5779, 297 A.C.W.S. (3d) 446, aff’d 2019 ONCA 435, 306 A.C.W.S. (3d) 212; Mayers v. Khan, 2017 ONSC 200, 275 A.C.W.S. (3d) 447; aff’d 2017 ONCA 524, 280 A.C.W.S. (3d) 447. Further, in the circumstances of this case, the parties have addressed any concerns about duplicative proceedings and inconsistent findings. That is, all Defendants in this action have agreed that my determination of liability on this motion will be binding in this action and also will be binding in the Das action. In these circumstances, a determination of liability on this motion will substantially narrow the issues at trial in both actions. Subject to the question of whether there is a genuine issue requiring a trial, addressing liability by way of this partial summary judgment motion is an efficient and appropriate procedure.
No Genuine Issue Requiring a Trial
[8] I am satisfied that there is no genuine issue requiring a trial with respect to determining liability in this case. The Moving Parties submit that there is no genuine issue requiring a trial on the basis that there is no conflicting evidence with respect to the collision. In addition, there would be no additional evidence on liability at trial.
[9] Although the Plaintiff argues there is a genuine issue requiring a trial, he did not make any persuasive submissions as to why a trial would be required. Indeed, he submits that there is no conflict in the evidence and no credibility issues. As an alternative position, the Plaintiff himself seeks summary judgment against Ms. Das and asks me to apportion liability against her.
Summary Judgment Principles
[10] In my view, I am able to determine the issues related to liability on the evidence before me. Pursuant to r. 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial. According to Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[11] The Supreme Court continues, at para. 50, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”
[12] The motion judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the fact-finding powers in rr. 20.04(2.1) and (2.2). If there appears to be a genuine issue requiring a trial, she should then determine whether the need for a trial can be avoided using the fact-finding powers. The fact-finding powers may be used provided that their use is not against the interests of justice: see Hryniak, at para. 66.
No Genuine Issue Requiring a Trial Here
[13] As set out in the decision of the motions judge in Mayers at paras. 22 and 24, summary judgment is available in motor vehicle negligence cases: “Each case will depend on its own facts, with the court determining, as required under Hryniak, whether the evidence led on the motion enables the court to find with confidence that there is no genuine issue requiring a trial.”
[14] Here, there are only two witnesses with knowledge of the issues affecting liability, Das and Sohal. The Plaintiff has no personal knowledge as to how either of the Defendants operated their vehicles. There is also no expert evidence.
[15] Much of the evidence regarding the collision is not in dispute. It is agreed that Sohal was driving her vehicle northbound on Hurontario Street. She was in the intersection in the left-turning lane so she could make a left turn westbound onto Bristol Road West. The Plaintiff had stopped at a red light eastbound on Bristol Road West. Das was driving her vehicle southbound in the passing lane. She was travelling at approximately 60 to 70 kilometres per hour. The weather was clear, and the roads were dry. Das entered the intersection while the light was green and did not slow down. Sohal turned left in front of Das in the intersection and Das’s vehicle collided with the passenger side of Sohal’s vehicle. Sohal did not see Das’s vehicle until she was in the process of making her turn. She acknowledged that she observed Das’s vehicle “a little too late” and that it was a mistake on her part. Following the collision, the police charged Sohal with an “Improper Left Turn.” Sohal ultimately pleaded guilty to and was convicted of “Unsafe Move” under the Highway Traffic Act, R.S.O. 1990, c. H.8.
[16] The facts in dispute relate to two issues. The first issue is whether Das’s view of the northbound left-turning lane was blocked as she approached the intersection. The second issue is how many vehicles turned left in front of Das prior to Sohal. I do not find any conflict in the evidence on these points. As I have detailed evidence from the only two witnesses who have knowledge of the collision and there is no conflict, I conclude that there is no genuine issue requiring a trial on these points.
[17] Das’s evidence was that as she approached the intersection, she observed a lineup of three vehicles in the northbound left-turning lane. Sohal was operating the second vehicle in the lineup. Das’s evidence was that she first saw these vehicles only a couple of seconds before the collision. She also testified that when she first saw these vehicles, the first vehicle in the lineup already had begun to make its turn and was partway across Das’s path. The first vehicle successfully passed by Das. When the first vehicle successfully made the turn, Sohal’s vehicle was moving forward, but initially did not follow through on the turn. Das believed Sohal’s vehicle was going to stop in the middle of the intersection to allow her to proceed through. Sohal then turned directly in front of Das and the collision ensued.
[18] However, Sohal’s evidence provides further information about what was occurring in the intersection. I agree with the Plaintiff that this evidence does not contradict Das’s evidence and I am able to reach conclusions about what occurred by reviewing the evidence as a whole. On the first issue of Das’s view of the left-turning lane, Sohal testified that as she proceeded towards Bristol Road West to make her left turn, either a southbound minivan or truck intending to make a left turn on southbound Hurontario partially blocked her view of other southbound traffic. That vehicle continued to prevent Sohal from seeing the southbound lanes of Hurontario, and she was unable to see behind that vehicle to see if other vehicles were approaching. When she decided it was safe to make a left turn, the truck or minivan was still partially blocking her view.
[19] There is no conflict on this evidence. Das did not disagree that a minivan or truck was in the southbound left turning lane. That is, she could not say whether Sohal’s evidence to that effect was correct or incorrect. However, Das was questioned thoroughly on this point and I am able to conclude that there was a truck or mini van in the southbound turn lane. Das agreed that when she was a few seconds north of the intersection, as she was travelling southbound, she does not recall whether there was anything blocking her view. Further, when she was about five to ten seconds north of the intersection, she did not have an explanation for not seeing the northbound left-turning vehicles. She agreed that those vehicles either were being blocked by a truck or minivan and she did not slow down, or those vehicles were “there to be seen” and she did not see them. She also testified that, had she seen any vehicles about to make left turns, she would have slowed down. She did not slow down. Given Sohal’s clear evidence that there was a minivan or truck in the southbound left-turn lane, and Das’s admissions that there might have been something blocking her view, and that she would have slowed down if she had seen the vehicles lined up, but she did not slow down, I conclude that a mini-van or truck was in the southbound left-turn lane, blocking both Sohal’s and Das’s views.
[20] Sohal also provided further evidence on the second issue, regarding the number of vehicles turning left in front of Das. Sohal testified that there were two or three vehicles in front of her vehicle, waiting to turn left. Although Das initially stated that there was only one vehicle turning left ahead of Sohal, later on she was not able to say that Sohal was wrong that there were two or three vehicles turning left ahead of her. As Sohal gave clear evidence of at least two vehicles turning left ahead of her, and as Das did not contradict this evidence, I am able to conclude that there were at least two vehicles ahead of Sohal.
[21] A final issue I need to consider is whether there is a genuine issue requiring a trial with respect to whether Das’s actions caused the collision. Specifically, the question is whether, on the evidence before me, I am able to determine what would have happened if Das had slowed down prior to entering the intersection. Although Das submitted that there was no time for her to brake once Sohal was in front of her, that does not address what would have happened if Das had slowed down prior to entering the intersection. I am not able to reach a conclusion on this point on the evidence before me without the additional fact-finding powers. However, by employing the r. 20.04(2.1) fact-finding power, I am able to draw a reasonable inference from the evidence. In my view, it is in the interests of justice to do so. As detailed below, there are a number of pieces of evidence that allow me to draw the inference. Neither party has argued that I am unable to draw the inference. Further, neither party has suggested that there will be any better evidence at trial on this point. Finally, the inference is about Das's actions. She was the one who initiated this motion and seeks for it to be determined by summary judgment.
[22] Sohal’s evidence is that when she first saw Das's vehicle, she believed it would be safer to accelerate to pass the vehicle instead of braking. She decided to speed up with the hope of getting through her turn before Das was in the intersection. She testified that she was not able to get through the turn and her vehicle was struck on the passenger side, in the middle of the vehicle.
[23] However, Das admitted that when she was five to ten seconds north of the intersection, if her view was blocked by a truck (which I have concluded it was) she should have slowed down. She agreed that it would have been “wiser” to slow down, because she might have been able to avoid the accident. Further, with respect to the vehicles turning left in front of her, Das agreed that, if she failed to see other vehicles turning left in front of her when she was more than two car lengths away from the intersection (which I have concluded she did), she was not paying proper attention to the roadway that day. In addition, if she had seen other vehicles cutting in front of her, that would have “really” led her to slowing down.
[24] On this point, I consider it appropriate to use my expanded fact-finding powers to infer that if Das had slowed down prior to entering the intersection, the accident would have been avoided. I make this inference based on the following findings:
a. Das agreed that she should have slowed down when she was five to ten seconds away (because of her obstructed view);
b. Das agreed that she should “really” have slowed down if she had seen other cars cutting in front of her when she was more than two car lengths away from the intersection;
c. In the meantime, Sohal was accelerating; and
d. Das’s vehicle hit Sohal’s vehicle in the middle, meaning that Sohal only needed enough additional time to clear the second half of her vehicle.
[25] On this evidence, Sohal needed very little time to make it through her turn. If Das had slowed down when she was five to ten seconds away, and/or “really” slowed down when she was more than two car lengths away, I infer that the accident would have been avoided.
Negligence of Das
[26] I find that Ms. Das was partially negligent with respect to the collision, although it is clear that most of the liability should be apportioned to Sohal.
[27] I recognize the heavy onus placed on drivers making a left-hand turn. According to Payne v. Lane, 1949 CarswellOnt 187 (Ont. H.C.), at para. 2, the left-turning driver “may turn into the path of approaching traffic only after having assured himself that he can do so in safety.” See also the decision of the motion judge in Mayers, at para. 32. Further, the onus described above is set out in s. 141(5) of the Highway Traffic Act: “No driver or operator of a vehicle in an intersection 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.” In this case, Sohal made an unsafe left turn and admits that it was an error on her part.
[28] However, where there is evidence of negligence on the part of a driver going through an intersection, that driver may be contributorily liable for the accident. An oncoming driver must take reasonable care to avoid an accident: see the decision of the motion judge in Mayers, at para. 32; Nowakowski v. Mroczkowski Estate, [2003] O.J. No. 650 (S.C.), at para. 81.
[29] In this case, I conclude that Das bears a small portion of the liability. As set out above, I have found that as Das approached the intersection, her view of the north-facing left-turning lane was obstructed by a mini-van or small truck. In addition, two or three vehicles turned left in front of her prior to Sohal’s vehicle. She was travelling at between approximately 60 to 70 kilometres per hour through the intersection. On cross-examination, she admitted it would have been wiser for her to slow down. In these circumstances, I conclude that she did not take sufficient care as she approached the intersection.
[30] In addition, as discussed above, I conclude that if Das had slowed down, her vehicle would not have collided with Sohal’s vehicle. In order to establish causation, the Plaintiff must meet the “but for” test. That is, the Plaintiff must show that the injury would not have occurred without Das’s negligence. The “but for” test must be applied in a robust, common sense fashion: see Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, [2012] S.C.R. 181, at paras. 8-9; Gardiner v. MacDonald Estate, 2016 ONSC 602, 263 A.C.W.S. (3d) 269, aff’d 2016 ONCA 968, 274 A.C.W.S. (3d) 221, at paras.145-146. A court is to weigh all the evidence presented and come to a factual determination as to whether the injury would have occurred “but for” the defendant’s negligence: Gardiner, at para. 146. Here, as set out above, I have inferred from the evidence that if Das had slowed down when she was five to ten seconds north of the intersection, she would not have collided with Sohal’s vehicle.
[31] In apportioning liability, I reiterate that the bulk of responsibility lies with Sohal. To determine an appropriate apportionment, I have considered other cases in which liability has been apportioned between drivers. In Gardiner, the court apportioned 20% liability to a bus driver who collided with an SUV. The bus driver, who was the dominant driver, had entered the intersection on a green light. The SUV, the servient driver, had entered on a red light. However, the bus driver was negligent in that he was travelling above the speed limit and in poor weather conditions. He also looked away from the road as he entered the intersection. In addition, he was held to the standard of a professional driver, taking into account that he was driving a public transportation bus, a very heavy vehicle.
[32] In Martin-Vandenhende v. Myslik, 2015 ONCA 806, 261 A.C.W.S. (3d) 490, the Court apportioned 10% liability to the Plaintiff for contributory negligence. There, the Plaintiff was struck from behind by the Defendant’s vehicle while she was turning left into a driveway. It was snowing heavily, and the roads were slippery. The Defendant vehicle was travelling too quickly and believed that when the Plaintiff veered slightly to the right and slowed down, she was inviting him to pass. He misjudged the situation and “played a major role in causing the accident”: Martin-Vandenhende, at para. 62. Similar to the heavy onus on the left-turning driver in this case, the vehicle attempting to pass had a “heavy onus” if he was to excuse himself from liability for the accident, given his greater opportunity to see the potential for a collision. However, the Plaintiff was negligent in that she failed to check whether she could turn left safely before doing so and failed to give adequate warning of her intention to turn left.
[33] In my view, 10% of the liability should be apportioned to Das in this case. As set out in Martin-Vandenhende, at para. 77, this apportionment is not the product of precise calculation, but comes from a common-sense consideration of the facts. On the facts of this case, there is no dispute that Sohal made an error in turning left when she should not have done so. She agrees that she misjudged and that it was an error. The onus was on her to turn left safely, including pursuant to the Highway Traffic Act. However, I apportion a small amount of liability to Das for failing to slow down as she approached a busy intersection, with a number of cars turning left in front of her and when her visibility of the vehicles turning left was compromised.
Costs
[34] Although the parties provided me with their costs outlines at the conclusion of the hearing, Plaintiff’s counsel requested the opportunity to make costs submissions in writing after receiving my decision. Accordingly, the Plaintiff will have 14 days from the release of this decision to provide his submissions of no more than three pages. Das then will have a further 7 days to provide responding submissions of the same length. Counsel for Sohal advised that she was not seeking costs. Submissions may be sent to my judicial assistant Anna Maria Tiberio at Annamaria.tiberio@ontario.ca.
Disposition
[35] For these reasons, I would dismiss Das’s motion and allow the Plaintiff’s cross-motion for summary judgment against Das. I apportion 10% of liability for the collision to Das and 90% to Sohal. This apportionment is binding on the Das action as well. Damages will be determined at trial.
O’BRIEN, J.
Released: October 8, 2019
COURT FILE NO.: CV-17-580158
DATE: 20191008
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Nelson Thiruchelvam
Plaintiff
– and –
Harit Sohal, Purvi Qadri, Rinki Das, Kalpana Das and Mercedes-Benz Financial Services Canada Corp.
Defendants
REASONS FOR DECISION
O’BRIEN, J.
Released: October 8, 2019