COURT FILE NO.: 17-62028 DATE: 2020-08-19
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
MORGAN SHELDON, WILLIAM SHELDON, SANDRA SHELDON and ALLETTE BEAULIEU a minor by her Litigation Guardian Sabrina Seibel No one appearing for the Plaintiffs Plaintiffs
- and -
ERIC JEAN-LOUIS BEAULIEU, GLORIA SCHERER, FIRST CANADA ULC, GEORGE'S BODY SHOP LIMITED and THE REGIONAL MUNICIPALITY OF NIAGARA Branko Kurpis for the Moving Parties, Gloria Scherer and First Canada ULC Sachin Persaud for the Responding Party, The Regional Municipality of Niagara Defendants/Moving Parties/Responding Party
HEARD: August 4, 2020
Corrected Decision: The text of the original judgment was corrected on August 21, 2020. The third sentence of para. [10] has been corrected to indicate, “It was not appended to an affidavit sworn by the expert.”
RULING ON SUMMARY JUDGMENT MOTION
P. R. SWEENY J.
Overview
[1] This is a motion for summary judgment brought by the defendants Gloria Scherer and First Canada ULC to dismiss the claim against them. The Regional Municipality of Niagara opposes this motion. The plaintiffs and co-defendants consent to the motion.
[2] This claim arises out of a motor vehicle accident which occurred on January 28, 2016. A vehicle owned by the defendant Eric Jean-Louis Beaulieu, in which the plaintiff was a passenger, travelled into the oncoming lane on Highway 20 near Thorold, Ontario. The vehicle was struck by an oncoming school bus driven by the defendant Gloria Scherer and owned by her employer, First Canada ULC.
[3] The moving parties assert that this is an appropriate case to grant summary judgment. The responding party asserts that it is not appropriate to grant summary judgment because there are facts in dispute, there is no evidence from the plaintiff personally, and the authorities are against granting partial summary judgment. In the alternative, the respondent asserts that if summary judgment is appropriate, I should find liability on the moving parties.
[4] In this case, when examining the evidence available, I am satisfied there is no genuine issue requiring a trial and this an appropriate case to grant summary judgment dismissing the claim against the moving parties. This is the proportionate, most expeditious, and least expensive method to achieve a just determination of the issue.
The Law
[5] Rule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides:
(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; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
(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 a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[6] In Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, at paras. 140-141, the court addressed the appropriate application of the rule as follows:
[140] Hryniak and the companion case of Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126, established a two-step process on a summary judgment motion:
• First, the motion judge asks whether there is a genuine issue requiring a trial, based only on the evidence before the court, and without using the new fact-finding powers under rr. 20.04(2.1) and (2.2.), to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence. There will be no genuine issue requiring a trial when the evidence on the motion allows the judge to make the necessary findings of fact and to apply the law to the facts, and where granting summary judgment is a proportionate, more expeditious, and less expensive means to achieve a just result: Hryniak, at para. 66; Bruno, at para. 22.
• Second, if there is a genuine issue requiring a trial, the motion judge should then ask whether a trial can be avoided by using the new fact-finding powers to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence. The motion judge has a discretion to use these powers where it would lead to a fair and just result and would serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole: Hryniak, at para. 66; Bruno, at para. 22.
[141] Hryniak did not change the established evidentiary obligation on a motion for summary judgment for each party “to put its best foot forward”: see Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434, aff’d [1997] O.J. No. 3754 (Ont. C.A.); 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670, 83 B.L.R. (5th) 186, at para. 49, leave to appeal refused, [2018] S.C.C.A. No. 391. The summary judgment judge is entitled to assume that the evidentiary record is complete and that no more evidence would be available at trial: see Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 17; Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292, 137 O.R. (3d) 570, at para. 54; and Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438, 80 C.C.L.I. (5th) 23, at para. 7.
No Genuine Issue for Trial
[7] The issue before me is whether the bus driver fell below the standard of a reasonably prudent driver in this case and, if so, did that conduct cause or contribute to the plaintiff’s injuries.
[8] The evidence of the defendant driver is that:
He turned his vehicle’s steering wheel to follow a bend in the road and as he turned his wheel he felt like he went from being on a road to an ice rink. His vehicle went sideways and the school bus came around the bend at the exact same time. His vehicle definitely slid because of ice. The bus was fully within its own lane. His vehicle was entirely in the eastbound lane at the point of impact.
[9] The evidence of the bus driver is that:
She was travelling under the speed limit on Highway 20. Although there is some uncertainty as to whether the speed limit was 60 km/h or 50 km/h at the location of the collision, she was travelling less than 50 km/h.
As she approached the curve where the collision occurred, she stated: “I went into the curve and noticed a car coming in the opposite direction heading west. And as I was coming out of the curve they were coming in and they kind of appeared to have lost control and spun right across in front of the bus.”
She said she took her foot off the accelerator and hovered over the brake and then applied the brake as the impact occurred. She did not apply the break before the collision because that risk putting the bus into a spin. At some point prior to the impact, she took her foot off the gas and hovered over the brake.
[10] The responding party relies on the expert report of Thomas Smahel. There are issues with respect to the admissibility of this report. It was not appended to an affidavit sworn by the expert. On this basis, the moving party says the evidence is not admissible. I accept that it is not appropriate to put forth the evidence of an expert merely as an exhibit to an affidavit of some other person. For that reason alone, it would be inadmissible.
[11] Even if the report were admissible, I am satisfied that it does not raise an issue requiring a trial. The essential portion of the report on this issue reads as follows:
Ms. Shearer said that she was carefully watching the trajectory of the approaching Buick from the time that it moved onto the westbound shoulder and then veered across the road and into her path. Ms. Shearer said she thought about taking her foot off the accelerator as the Buick enter the shoulder and then veered across the eastbound lane, but she did not take her foot off the accelerator until the Buick crossed the centre line. In my opinion the movement of the Buick towards her onto the shoulder and then veering across the westbound lane should have been perceived as a potential hazard to Ms. Shearer requiring a response (i.e., lifting her foot from the accelerator) before the Buick crossed the centre line. An earlier response could have reduced the impact force of the collision.
[12] The report merely states that an earlier response could have reduced the impact force of the collision. In order for there to be liability, there must be a breach of duty and damages arising from that breach of duty. The link is causation. In my view, there was no breach of duty. However, even if I assume a breach, the expert’s evidence still does not establish causation. There is no evidence that if the bus driver had taken her foot off the accelerator earlier, the plaintiff would not have sustained the injuries she did. The expert does not say the collision would not have occurred. There is an onus to prove that a different speed at the point of impact would have led to no or fewer injuries. I am entitled to assume there would be no more evidence at the trial. There is no evidence of an accident reconstruction expert dealing with speed and the force at the time of impact (see Diebel v. Cox and Hordyk, 2012 ONSC 599). There is no evidence on causation.
[13] The responding party also points to Lloyd v. Bush, 2020 ONSC 842, 1 M.P.L.R. (6th) 281 as support for its position that the bus driver was negligent. In that case, the court found that the truck driver that struck the plaintiff’s vehicle was 33% liable for the collision that occurred. In Lloyd, the defendant driver acknowledged that he was driving too fast on a snow-covered road with no visible lane demarcations. Mew J. specifically focused on that evidence in making his decision. It is also of note that in Lloyd, the defendant driver had already settled with the plaintiff, and the issue for the judge was the crossclaim against the municipality.
[14] Lloyd is clearly distinguishable from this case. Here, there is no evidence of excessive speed, and no admission from the defendant driver.
Partial Summary Judgment is Appropriate
[15] Although the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 and the Court of Appeal in Butera v. Chown, Cairns LLP, 2017 ONCA 83, 137 O.R. (3d) 561 warned against the dangers of granting partial summary judgment, I am satisfied that the comments of the court in Butera do not preclude the granting of this partial summary judgment. The liability of this defendant can be readily bifurcated from those in the main action and may be dealt with expeditiously and in a cost-effective manner. This will not delay the main action and expend resources for a motion that does not determine all of the issues of the action. This is a discrete issue that has been brought to me for determination cost-effectively. The amount of judicial time expended is not out of proportion to the result obtained. There is unlikely to be any inconsistent findings. The fact that the bus driver may be an important witness at the trial does not mean that she needs to be a party or that there will be any inconsistent findings.
[16] In Butera, at para. 34, the court noted that “[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.”
[17] That is the exact situation on this motion for summary judgment.
Conclusion
[18] I am satisfied that there is no liability on the moving parties for the plaintiff’s injuries. Accordingly, summary judgment is granted dismissing the claim against the moving defendants.
Costs
[19] The parties have agreed that the successful party is entitled to costs fixed in the amount of $12,000, all-inclusive. Therefore, the defendant, the Regional Municipality of Niagara shall pay to the defendants, Shearer and First Canada ULC, costs fixed in the amount of $12,000 all-inclusive forthwith.
Sweeny J.
Released: August 19, 2020
COURT FILE NO.: 17-62028 DATE: 2020-08-19 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: MORGAN SHELDON, WILLIAM SHELDON, SANDRA SHELDON and ALLETTE BEAULIEU a minor by her Litigation Guardian Sabrina Seibel Plaintiffs - and – ERIC JEAN-LOUIS BEAULIEU, GLORIA SCHERER, FIRST CANADA ULC, GEORGE'S BODY SHOP LIMITED and THE REGIONAL MUNICIPALITY OF NIAGARA Defendants RULING ON SUMMARY JUDGMENT MOTION Released: August 19, 2020