Court File and Parties

Court File No.: 197/15 Date: 2020/07/07 Ontario Superior Court of Justice

Between: Braden Moxam and Lisa Moxam, Plaintiff -and- John Anderson, Colleen Anderson, Bradley Gray, Regan Sholdice and Renee Sholdice, Defendants

Counsel: William Woodward, for the Defendant Bradley Gray Gregory Robson, for the Defendants John and Colleen Anderson

Heard: March 9, 2020

Before: George J.

Reasons for Decision on Summary Judgment Motion

[1] This action arises from two motor vehicle accidents; one on April 12, 2012, the other on March 27, 2013. The moving party Defendant – Bradley Gray (“Gray”) – was involved in the April 12 accident. He was driving a vehicle with several passengers, including the Plaintiff Braden Moxam (“Moxam”), when he collided with a vehicle operated by the Defendant John Anderson. The Statement of Claim alleges that Anderson failed to obey a stop sign before the collision, and that Moxam was injured as a result.

[2] The second in time - March 27, 2013 - does not involve Gray. This was a collision between a vehicle in which Moxam was once again a passenger. He pleads that this too caused him injury.

[3] Statements of Defence have been served and filed. Examinations for Discovery of Moxam, Anderson and Gray have all been completed.

[4] Gray moves for summary judgment. He claims that, insofar as his role in the April accident is concerned, there is no genuine issue requiring a trial. He argues that no evidence has been tendered that could sustain a finding of liability against him. In the alternative, he argues that the record is sufficient and permits me to engage the enhanced powers provided for in the Rules of Civil Procedure - as elaborated upon and clarified by the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7 – and find that he is not, and could not after a trial, be found liable. He argues that I am well equipped to resolve any questions or conflicts in the evidence.

[5] Moxam did not participate on this Motion and takes no position. Only the Anderson Defendants – Anderson together his wife and vehicle owner Colleen Anderson (collectively “Anderson”) - have responded. They oppose the motion. It is important to note that Anderson has commenced a cross-claim against Gray pleading that he was negligent by travelling at an excessive rate of speed and failing to avoid the collision when he could have done so with reasonable care.

[6] It is not disputed that Gray had the right of way and that Anderson is primarily responsible for the accident. Indeed, Anderson has since pleaded guilty to failing to stop at a stop sign. Anderson’s position is there is a genuine issue requiring a trial on the question of whether Gray bears some responsibility and, if so, to what degree.

[7] I will start by providing a brief review of the law governing summary judgment. Rules 20(3), 20.04(2) and 20.04(2.1) provide that:

20(3). A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

20.04(2). The court shall grant summary judgment if, (a) The court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence…

20.04(2.1). In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[8] As indicated earlier, Hryniak elaborates upon and provides some guidance in applying this rule. The proper approach is to, first, determine whether there is a genuine issue requiring a trial based only on the evidence before me, without recourse to the enhanced powers set out in r. 20.04(2.1). In this case, I am not prepared to grant summary judgment on that basis. On the record before me, and without engaging the enhanced powers, there does appear to be a genuine issue requiring a trial on the question of whether Gray bears any responsibility.

[9] As such, I will focus on the second step which requires me to determine if the need for a trial (on this question) can be avoided by using those powers. I am not to proceed down this path if to do so would be contrary to the interests of justice. Using them “will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole”; see Hryniak, para 66.

[10] Here are the facts. On April 12th Gray and his passengers, including Moxam, left his residence at 7:30 a.m. They were travelling to a high school hockey tournament. I am told that the temperature was below freezing and that there was medium-density fog. Gray deposes that, despite the fog, it was daylight and he was capable of seeing a fair distance off. Road surfaces were dry.

[11] The accident occurred at the intersection of Gideon Drive and Woodhull Road, where there is a stop sign controlling only the northbound/southbound traffic (on Woodhull). It is my understanding that Gideon Drive is a thoroughfare with, typically, moderate to heavy traffic. On the date in question Gray was travelling eastbound on Gideon towards the Woodhull intersection. He deposes that he was driving in a “safe and prudent manner”.

[12] There is a shrub line that runs along the south side of Gideon, near and leading up to the intersection, with an open field behind it. Gray deposes that as he approached the intersection he looked to his right and, at about 100 meters from Woodhull, he noticed what he later learned was the Anderson vehicle approaching the same intersection. Gray says that as he approached Woodhull he lost sight of Anderson because of the shrubbery but, given what he had just observed, he estimated that both would arrive at the intersection around the same time. Gray was concerned that Anderson was travelling too quickly. As a result, he says he removed his foot from the accelerator and slowed to approximately 75 km/hr (he estimates that beforehand he was travelling at most 10 km/hr above the 80 km/hr speed limit). Gray’s evidence is that as he approached the intersection, and cleared the shrub line – when he regained his view of Woodhull – he noticed that Anderson was not going to stop and was going to proceed through the stop sign, and intersection, at a high rate of speed. Gray says he “yelled out” to his passengers to “hold on” and forcefully applied his brakes. He estimates that his vehicle then slid for “one to two seconds” before making contact with the rear driver’s side of Anderson’s vehicle. He maintains that he could not safely avoid the collision. Gray’s vehicle spun into the intersection and Anderson’s went off the road and into a tree.

[13] The London Police Service became involved. Its investigation generated a ‘Motor Vehicle Accident’ Report which I have reviewed, along with Gray’s witness statement. Anderson was ultimately charged with failing to stop at a stop sign, contrary to s. 136(1)(a) of the Highway Traffic Act.

[14] I have also reviewed the discovery transcripts. Of note is Moxam’s evidence of January 8, 2017 where, at pgs. 28-30, you find this exchange:

Q. - Can you take us through what you remember of, about how the accident happened?

Moxam – So, we were heading down Gideon Drive, or Gideon Road, and…Yeah. I saw a passenger, or a vehicle coming from the right-hand side. It was slightly foggy, but not too bad, decent visibility, and we were approaching the intersection, and Mr. Gray then yelled out, or said out, something along the lines of, and excuse my language, “Oh, shit, hold on”, and then I believe he applied the brakes, and, then I don’t remember anything after that, I may have lost consciousness.

Q. - Was there anything going on in the vehicle that might have distracted Mr. Gray?

Moxam – No.

Q. – Do you know if Mr. Gray slowed down before the intersection?

Moxam – Like I said, I believe he applied the brakes before I presumably lost consciousness.

Q. – So, do you believe that he applied the brakes when he said something along the lines of “Oh, shit, hold on,” or…

Moxam – Yes.

[15] Upon a complete review of the affidavits and transcripts, there is no evidence that Gray was operating his vehicle in a problematic manner before the collision. For Anderson’s part, at least at his discovery, he could not recall any details about the accident nor its aftermath. In addition, I have reviewed his police statement, which he provided shortly after the accident. This is his exchange with the officer:

Q. – What happened

Anderson – I was travelling on Woodhull Rd. northbound. I was hit at the middle of the intersection maybe twice. I was pushed into the tree. That’s what I remember. I do recall it was very foggy.

Q. – Which direction were you travelling in?

Anderson – I was going south to north. I came up to Gideon on Woodhull.

Q. – How many people were in the vehicle with you?

Anderson – Just me.

Q. - How fast were you travelling at before the collision?

Anderson – 5 miles per hour. I was just coming through the stop sign there.

Q. – Did you stop for the stop sign?

Anderson? – Yes.

Q. – Did you see the other vehicle while you were stopped at the stop sign?

Anderson – Definitely not.

Q. – Which direction was the other vehicle travelling in?

Anderson – Towards Woodstock.

Q. – Which road was the other vehicle on?

Anderson – Gideon Dr.

Q. – Do you know how fast the other vehicle was travelling?

Anderson – Must have been flying, the kids said that. I can’t even estimate I have no idea.

Q. How many other vehicles were on the road at this time?

Anderson – There was another gentleman that stopped at the time of the accident. There was a small SUV that had stopped on the other side of the road. There was a car approaching up here. The usual morning traffic.

Q. – What were the weather conditions like?

Anderson – Extremely foggy, dry, minus 2 degrees.

Q. – What was your visibility like?

Anderson – Very poor.

Q. – How far in front of your vehicle could you see?

Anderson – Not far enough to see a fast approaching vehicle.

Q. – Where did you come to a stop on the road you were travelling on?

Anderson – Well there’s a stop sign, in fact I stopped probably 30 feet back there is a little turn off, a side thing with gravel. The stop sign is 10 ft from the road.

Q. – Did you stop at the line?

Anderson – I don’t know.

Q. – Why did you stop 30 ft back at the little turn off?

Anderson – I had to pee. I was heading into an appointment and had to pee.

Q. – Did you know you were approaching an intersection after you stopped to relieve yourself?

Anderson – Yes.

Q. – Did you stop before you entered the intersection?

Anderson – Yes.

Q. – Where did you stop before you entered the intersection?

Anderson – Right at the stop sign.

Q. – Do you know how far away the stop sign is from the intersection?

Anderson – 10 ft.

Q. – While you were stopped did you see any approaching traffic crossing in front of you?

Anderson – Definitely not.

Q. – How long were you stopped for?

Anderson – It’s the usual stop.

Q. – How far to each side of your vehicle could you see in the fog?

Anderson – I really can’t say. Not far enough to see an oncoming vehicle.

Q. – Are you injured?

Anderson – No.

Q. – Is there anything else you can add?

Anderson – Just that they had to be clipping for me not to see them. They were apparently going to a hockey tournament for 9am. God bless that nobody was hurt seriously.

[16] I will return to this in a moment – when I consider whether this record enables me to resolve any factual disputes and properly draw inferences - but as I allude to above this statement stands in stark contrast to his January 9th, 2018 discovery examination. You will find this exchange at pgs. 46 and 47 of that transcript:

Q. – All right. So, for instance, do you today remember leaving your house and getting into the Suburban and starting your trip to Don and Jen’s?

Anderson – No.

Q. - Alright. And the events leading to you travelling towards Komoka and being involved in this accident, you have no independent recollection of any of those events today?

Anderson – No.

Q. – Okay. And is there something that you remember after the accident? Like, is there a point in time where you, for instance, when you told us that Jen drove you back to your office, do you remember her doing that?

Anderson – No.

Q. Okay. All right. So, am I clear in my understanding from the time you wake up in the morning until sometime, perhaps, later in that day or the evening, you don’t have any memory of that today?

Anderson – No.

[17] As indicated, Anderson commenced a cross-claim against Gray. He pleads that Gray was negligent by travelling at an excessive rate of speed and by failing to take all reasonable steps to avoid the collision. He contends that there is some evidence that Gray saw his vehicle approaching the intersection and, therefore, it would have been reasonable for him to anticipate a possible collision and take some steps to avoid it. Anderson claims that the evidence could support a finding that Gray took no such steps.

[18] Anderson points to Gray’s own evidence, which confirms that he observed his vehicle when he was approximately 100 meters from the intersection, and his indication that he did not apply the brakes but rather removed his foot from the accelerator because he believed Anderson was approaching “too quickly”. He points to the evidence of one of Gray’s passengers who indicates that, from his perspective, the speed of Gray’s vehicle remained consistent. He also relies upon an Engineer’s report which concludes that Gray could have avoided the collision by braking at some point from when he noticed Anderson’s car approaching and when he arrived at the intersection.

[19] Anderson cites Gray’s testimony on discovery that he was going the speed limit – and certainly not more than 10km over – because of the road conditions and presence of fog, as well as the evidence of Gray’s son who estimates that his father was travelling anywhere from 80 to 100 km/hr.

[20] In addition, there is some evidence that Anderson knew this was a dangerous intersection which had been the scene of many other accidents. Anderson argues that while Gray knew some caution was required, he did not exercise any.

[21] He contends that Gray’s admitted need to get his passengers to a hockey game in Woodstock, for which they were running late, is also a factor to consider.

[22] Gray, on the other hand, points to Moxam’s evidence that visibility was “decent”, that he was able to see the stop sign as they approached the intersection, that nothing beforehand distracted Gray, and that to his recollection Gray did apply his brakes prior to the collision. And, as I pointed out earlier, there is no evidence to suggest that Gray was otherwise driving in an unsafe manner.

[23] On the questions raised – whether and to what extent Gray is responsible – is there a genuine issue requiring a trial? Before getting there, I must determine whether this is an appropriate case to use the enhanced powers and dispose of this question?

[24] Apart from Hryniak and the well-settled principles that always apply, there is some additional jurisprudential guidance. Gray relies upon the Superior Court decision in Mullins v. Butler, 2015 CarswellOnt 20819, and the Supreme Court case of Brownlee v. Harmon, 1952 CarswellOnt 395 (SCC). In Brownlee the court writes this:

While the decision of every motor vehicle collision case must depend on its particular facts, I am of the opinion what when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right of way and a collision results, if he seeks to cast any portion of the blame on B, the driver having the right of way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A’s disregard of the law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful skillful driver would have availed himself, and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origio mali.

[25] Gray argues that this passage is directly on point and captures precisely the question at hand.

[26] He also cites Toronto Railway v. King, 1908 CarswellOnt 313 (Ontario Judicial Committee of the Privy Council) where at para. 35 the court writes:

Traffic in the streets would be impossible if the driver of each vehicle did not proceed more or less upon the assumption that the drivers of all the other vehicles will do what it is their duty to do, namely, observe the rules regulating the traffic of the streets.

[27] While Toronto Railway was decided long ago, when the realities of transportation and vehicular traffic were very different, the principal I think has held up well. It is basic common sense. That does not mean in every case the dominant driver is absolved of all responsibility, but this represents a good starting point for us.

[28] The question can be reduced to whether I can, using the enhanced powers, make a determination about whether Gray should or could have done anything different upon noticing Anderson’s vehicle approach the intersection.

[29] On this record, here are the findings I can quite easily make (with some added commentary):

• Anderson bears primary responsibility.
• After noticing Anderson’s vehicle approach the intersection – and before he lost sight because of the tree/shrub line – while not applying his brakes, Gray did remove his foot from the gas to slow down. To be clear and specific, I accept Gray’s evidence that while he took his foot off the gas he did not feel it necessary to do anything further at that point given both he and Anderson were still a fair distance from the intersection. Consider the evidence of passenger Mr. Boersma who believes that when he first observed the Anderson vehicle they (Gray’s vehicle) was ¼ to ½ kilometers from the intersection. He estimates that Anderson’s vehicle was the same distance away.
• Nothing distracted Gray in the moments before the collision and he was, at the relevant time, operating his vehicle in a safe and prudent manner.
• Upon observing Anderson’s vehicle at the intersection, Gray applied his brakes in an attempt to avoid the collision which, as we know, was unsuccessful.
• The best evidence - which supports a finding - is that while there was some fog, visibility was “decent”. I arrive at this conclusion largely because of Moxam’s evidence that he could see the stop sign (that Anderson ignored) as they approached the intersection.
• Anderson’s evidence, on the whole, raises serious questions about, if not his credibility, most certainly his reliability. At his discovery examination he said he had no recollection of the accident nor of the events preceding or following it. His statement to the police indicates that he, first, stopped 30 feet before the intersection so he could relieve himself and, second, that he in fact did stop at the stop sign before proceeding through the intersection. However, this must be completely rejected. It makes no sense and contradicts every other piece of evidence. Meaning, to the extent there is any conflict in the evidence about this event or anything surrounding it, I can place no weight on Anderson’s version. This impacts my assessment of Anderson and Gray’s driving, the level of fogginess, and degree to which visibility was a contributing factor. In other words, I have no choice but to resolve in Gray’s favour any question that visibility played a role in Anderson’s failure to obey the traffic sign, or about his driving as he approached the intersection.
• Gray was charged with, and subsequently pleaded guilty to, failing to stop at a stop sign contrary to s. 136(1)(a) of the Highway Traffic Act. Gray submits that to not grant summary judgment, which would allow for a finding that he was somehow at fault, would constitute a different finding from what he styles the “first adjudication”, which would then undermine the credibility of the judicial process and thereby diminish its authority, credibility and defeat the aim of finality. While the plea and guilty finding are factors, I believe this overstates their significance. Which is to say that Anderson’s plea does not preclude a finding of liability against Gray. Anderson could have committed all the essential elements of the offence charged, and Gray could have contributed to the accident. Both can be true.

[30] Having made these findings, I deem it appropriate to use the enhanced powers afforded me in the rules and, in the result, find in favour of Gray. I appreciate that in some instances, when the servient driver disobeys a traffic sign, responsibility can be assigned to the dominant driver; see Sant (Litigation Guardian of) v. Sekhon, 2013 ONSC 2982, and Ashim v. Zia, 2014 ONSC 6460. As a general proposition that is of course true. However, this rests upon a finding that the dominant driver had a reasonable opportunity to avoid the collision but failed to do so. In this case the record is such that I can safely find that, short of coming to a complete stop before arriving at the intersection, there is nothing Gray could have done to avoid the consequences of Anderson’s admittedly bad driving. I am well equipped to make the finding that nothing that occurred before the accident, nor anything that Gray observed, would have led a reasonable driver to do anything different than what Gray in fact did. A trial is not required to resolve that issue.

[31] I concede that there are features of this case that weigh against the granting of partial summary judgment: The facts and issues on this motion are, not just closely intertwined with, but identical to those which will be decided at trial, which in most cases would run the risk of inconsistent verdicts and findings. And, of course, to grant this motion would not eliminate or materially shorten the trial’s length. No real efficiencies would be gained as the trial will proceed in any event. The point is, caution should always be used when addressing a request for partial summary judgment.

[32] That said, the test is the test. Is there a genuine issue requiring a trial? Which, in this case, mandates an examination of the request in the context of the litigation as a whole. And, upon weighing the evidence I heard against the underlying objectives set out in Hryniak, I find that this is one of those rare cases where partial summary judgment is called for. Which is to say, even after exercising an appropriate level of caution, there is no realistic possibility that a jury would find Gray in any way responsible for the collision. This is an unavoidable conclusion.

[33] The result may very well have been different if, as in the authorities cited and relied upon by Anderson, there was actually a contest between competing versions of events. But there is none. Anderson has no recollection of the events and brought nothing of direct value to this motion.

[34] For these reasons, Gray’s motion for partial summary judgment is granted. All claims and cross-claims as against Gray are dismissed.

[35] If the parties cannot agree on costs, I invite brief written submissions. These must not exceed 4 pages in length excluding a costs outline and any authorities relied upon. Gray has 20 days from the date of these reasons to serve and file his written argument. Anderson has 10 days from the receipt of Gray’s submissions. There is no right of reply.

Justice Jonathon C. George Released: July 7, 2020

COURT FILE NO.: 197/15 DATE: 2020/07/07 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Braden Moxam and Lisa Moxam Applicant -and- John Anderson, Colleen Anderson, Bradley Gray, Regan Sholdice, and Renee Sholdice Respondent REASONS FOR DECISION ON SUMMARY JUDGMENT MOTION George J. Released: July 7, 2020