COURT FILE NO.: CV-18-1094
DATE: 2020-11-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CINDY DA COSTA ABREU
- and –
Paul DeLuca, Counsel for the Responding Party/Plaintiff
KIMBERLEY GINGERICH and KEITH GINGERICH
Aryeh Samuel, Counsel for the Moving Party/ Defendants
HEARD: August 5, 2020
The Honourable Justice C.D. Braid
REASONS ON MOTION FOR SUMMARY JUDGMENT
I. OVERVIEW
[1] Kimberley Gingerich and Cindy Da Costa Abreu were involved in a motor vehicle accident. Ms. Abreu sued both Ms. Gingerich and her husband Keith Gingerich, who owned the vehicle.
[2] The defendants move for summary judgment. They ask the court to determine the issue of liability in their favour and dismiss the entire action. If this matter is to be resolved by way of summary judgment, I must make findings of credibility on the issue of whether Ms. Abreu stopped before entering the intersection where the collision occurred. I must have confidence that I can fairly resolve the credibility issues by way of summary judgment.
[3] The following issues arise on this motion:
A. Is there a genuine issue requiring a trial?
B. Should the court exercise its powers under Rule 20.04?
[4] For the reasons set out below, I find that there is a genuine issue for trial, and I am unable to fairly assess credibility. The motion for summary judgment is dismissed.
II. FACTS
[5] In support of this motion, the parties have filed the following material that is relevant to liability:
i. Affidavits and transcripts of examinations for discovery of Ms. Gingerich and Ms. Abreu;
ii. Affidavits and transcripts of cross-examinations of several witnesses;
iii. The entire police investigative file, including statements made by Ms. Gingerich, Ms. Abreu, and five independent witnesses; and
iv. Reports of the plaintiff’s expert.
1. Facts That Are Not in Dispute
[6] The following facts are not in dispute:
• On September 2, 2016, the plaintiff Ms. Abreu and the defendant Ms. Gingerich were both approaching the same intersection in their respective vehicles. Ms. Gingerich was driving a vehicle owned by Mr. Gingerich.
• The roads that intersected had two through lanes in either direction, as well as dedicated right and left turn lanes on all sides. Effectively, there were 16 possible lanes of traffic approaching the intersection at the same time.
• The traffic control signals governing the intersection were not operational and were blank.
• Ms. Gingerich was travelling northbound and Ms. Abreu was travelling westbound.
• Elizabeth Reyes and her passenger, Meylin Zelaya, were in a vehicle directly to the left of Ms. Gingerich, with both vehicles in through lanes travelling northbound. The Reyes vehicle entered the intersection at approximately the same time as the Gingerich vehicle.
• Anna DeSouza was travelling westbound and was in the left-hand turn lane. She was on the intersecting road to the right side of Ms. Gingerich’s vehicle.
• Cody Freriks and Jack Devine were in a hydro truck directly to the right of the DeSouza vehicle, travelling westbound in a through lane.
• The Abreu vehicle entered the intersection from a through lane directly to the right of the hydro truck.
• The Abreu and Gingerich vehicles collided in the intersection. The impact pushed the Gingerich vehicle into the Reyes vehicle that had been travelling beside the Gingerich vehicle.
• The vehicles came to rest within the northeast corner of the intersection. The plaintiff’s expert Mr. Jennings stated that it did not appear that the vehicles travelled excessively far from the area of impact.
• The Abreu vehicle sustained extensive driver side damage; the window was smashed; it was no longer driveable; the airbags did not deploy.
• The Gingerich vehicle had damage to the front end; the passenger side bumper was cracked; it was still driveable; the signals were not impacted.
• Cst. Trussler of the Waterloo Regional Police Service arrived after the collision to investigate.
2. Evidence of the Plaintiff Ms. Abreu
[7] Ms. Abreu was driving a Toyota Scion. She had not previously been at an intersection where traffic signals were not operational. There were many rows of traffic built up, so she had to wait her turn as vehicles proceeded through the intersection. She knew the lights were out and that she should treat the intersection as a four-way stop, but many vehicles were entering the intersection in an almost random manner.
[8] Ms. Abreu states that she stopped before the crosswalk at the intersection, did not see any other vehicles in the intersection, proceeded into the intersection and was struck in a T-bone style collision. She told police that she was travelling at 40 km/hr. She did not see the vehicle that struck her until the impact occurred.
3. Evidence of the Defendant Ms. Gingerich
[9] The defendant Ms. Gingerich was driving a Dodge Ram truck. The vehicle was approximately two years old, and she was a regular driver of the vehicle. There were no mechanical issues with the vehicle on the date of the accident. The brakes, steering and lights were fully operational. She was not in a rush and was not distracted while driving. The weather was sunny and clear with no precipitation, and road visibility was not an issue.
[10] Ms. Gingerich stated that, as she approached the intersection, she could see that traffic was backed up due to the failure of the traffic lights. She admits that this was not an “easy intersection.” She stated that she treated it like a four-way stop, waited until the intersection was clear, and did not proceed into the intersection until it was safe for her to do so. She looked in all directions to ensure the intersection was empty, and was already more than half way through the intersection when the Abreu vehicle struck her vehicle.
[11] When Ms. Gingerich was asked where she was looking when she began proceeding into the intersection, she answered “straight in front of me”, and did not recall scanning the intersection to see if someone may have improperly entered it.
[12] Ms. Gingerich stated that she was going about 20 km/hr and did not have time to react and avoid the collision. She did not see the Abreu vehicle prior to impact.
4. Evidence of Cst. Trussler, Investigating Officer
[13] Cst. Trussler provided an affidavit on this motion. Based on his investigation, Cst. Trussler noted that there was no evidence to suggest anything other than that Ms. Abreu failed to yield. He identified Ms. Abreu as the at-fault driver and charged her under s. 135(2) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, for failing to yield the right of way. The officer did not take Ms. Abreu’s statement until after he had issued her a ticket. Ms. Abreu later pled guilty to the lesser offence of making an unsafe move under s.142(2) of the Act. The agreed statement of facts from the guilty plea have not been provided as evidence on this motion.
[14] The officer did not charge Ms. Gingerich with any offence.
5. Evidence of Cody Freriks
[15] Cody Freriks swore an affidavit on the motion and was cross-examined. He was driving an elevated hydro truck (akin to the height of a transport truck), in the left through lane travelling immediately behind the Abreu vehicle. He was paying careful attention to the intersection because it had to be treated like a four-way stop. He rides a motorcycle, so he tends to look around intersections before entering.
[16] As he approached the intersection, he saw that there were two or three vehicles stopped in the lane in front of Ms. Abreu. He began paying close attention to the Abreu vehicle when he believed that it was not going to stop behind the other vehicles waiting at the intersection. As the Abreu vehicle approached the stopped vehicles in the left lane, it moved into the right through lane where there were no cars. Ms. Abreu proceeded toward the intersection and did not stop. It appeared that she accelerated into the intersection.
[17] Mr. Freriks saw the Gingerich vehicle stop and then enter the intersection. The Abreu vehicle proceeded into the intersection after Ms. Gingerich was already driving through the intersection. He estimated that Ms. Gingerich was going approximately 25 km/h and Ms. Abreu was going 25 to 30 km/hr. Ms. Gingerich could not have seen the Abreu vehicle approaching the intersection because it came out from beside three vehicles that were stopped in the left through lane and then entered the intersection when it was not safe to do so. He stated that the accident would not have occurred but for the Abreu vehicle not stopping, and that Ms. Gingerich had no opportunity to avoid the collision.
6. Evidence of Anna DeSouza
[18] Anna DeSouza swore an affidavit on the motion and was cross-examined. She was in the left-hand turn lane directly to the left of the hydro truck operated by Mr. Freriks. Drivers were taking turns going through the intersection but not necessarily in the correct order, which made it difficult for her to move forward. She was proceeding with extra caution because cars were moving into the intersection out of order. She was not sure where the Abreu vehicle came from; she did not see or recall in what manner the Abreu and Gingerich vehicles entered the intersection or what speed they were travelling; she did not see which lane Ms. Abreu’s car was in before the collision. She does not have a specific recollection of the Abreu or the Gingerich vehicles stopping prior to entering the intersection.
[19] Ms. DeSouza was not sure who was at fault, and did not know if Ms. Gingerich could see the Abreu vehicle before impact. She saw the actual collision and was shocked at the severity of the impact because everyone else was moving really slowly through the intersection. Based only on the severity of the impact, she believed that Ms. Gingerich was travelling too fast in the circumstances of the lights being out.
7. Evidence of the Plaintiff’s Expert, William Jennings
[20] William Jennings was hired by the plaintiff to reconstruct the accident, determine factors that contributed to the collision and to comment on the opportunity for avoidance. Mr. Jennings swore an affidavit on the motion and was cross-examined.
[21] In his initial report, Mr. Jennings noted that the side airbags in the Abreu vehicle would be expected to deploy if the vehicle was struck in the side by another vehicle travelling at a speed of about 20 to 30 km/hr. He concluded that the Gingerich vehicle was likely travelling at about 20 to 30 km/hr or less, and that the Abreu vehicle was likely travelling at about 25 to 30 km/hr or less at the time of the collision. He also concluded that Ms. Gingerich entered the intersection approximately 2.5 seconds before Ms. Abreu.
[22] Mr. Jennings expressed the following opinions in his initial report, keeping in mind the average perception-response time for typical drivers:
a) If the Abreu vehicle did not stop before entering the intersection, the collision was likely unavoidable for Ms. Gingerich.
b) If the Abreu vehicle stopped before entering the intersection, there was sufficient time available for Ms. Gingerich to respond by braking prior to colliding with the Abreu vehicle.
[23] In his second report, Mr. Jennings considered Ms. DeSouza’s statement that the Gingerich vehicle was travelling too fast at the time of the collision. I have significant concerns about the opinions provided in this report, which I shall address in more detail below.
8. Statements from Other Independent Witnesses
[24] The following witnesses gave statements to police but have not provided evidence on the motion. Their statements are merely hearsay:
i. Elizabeth Reyes and her passenger, Meylin Zelaya, were in a vehicle in the lane directly to the left of Ms. Gingerich. They stopped next to the Gingerich vehicle and proceeded into the intersection at the same time. They were almost across the intersection to the other side when Ms. Abreu’s car came in front of them, although they did not see it prior to the collision. The Reyes vehicle was struck in the collision, but Ms. Reyes and Ms. Zelaya are not parties to this action.
ii. Jack Devine was a passenger in the elevated hydro truck driven by Mr. Freriks. He told police that Ms. Abreu’s car did not stop before it entered the intersection. The Gingerich vehicle was already travelling through the intersection and was past the middle of the intersection - almost to the other side - when the collision occurred. Ms. Gingerich was unable to stop in time.
III. ANALYSIS
A. Is There a Genuine Issue Requiring a Trial?
[25] Pursuant to Rules 20.04(2)(a) and (2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court shall consider the evidence submitted by the parties and may exercise any of the following powers for the purpose of determining whether there is a genuine issue requiring a trial, 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.
[26] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 66, the Supreme Court of Canada set out a “roadmap” for the proper approach to a summary judgment motion:
On a motion for summary judgment, the judge should first determine whether there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the evidence permits the court to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).
If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest 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.
[27] While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary. The discretionary nature of this power gives the judge flexibility in deciding the appropriate course of action: see Hryniak v. Mauldin.
[28] What is fair and just depends on the nature of the issues and the nature and strength of the evidence. There is an obligation on each party to “put its best foot forward.” The responding party must present its best case or risk losing: see Canada Mortgage and Housing Corp. v. Greenspoon, 2015 ONSC 6882, 64 R.P.R. (5th) 99, at para. 28.
[29] In order to decide whether Ms. Gingerich should be assigned any liability, I must determine whether Ms. Gingerich could or should have done anything differently to avoid the collision. To make that determination, I am required to make a finding of fact regarding whether Ms. Abreu stopped before entering the intersection. According to the expert, if Ms. Abreu stopped, Ms. Gingerich may have had an opportunity to brake and avoid the collision. However, if Ms. Abreu did not stop, Ms. Gingerich had no opportunity to avoid the collision.
[30] Based only on the evidence before me on the motion, and without using any fact-finding powers, I find that there is a genuine issue requiring a trial. I am unable to resolve credibility issues to determine the question of whether Ms. Abreu stopped before entering the intersection.
B. Should the Court Exercise its Powers Under Rule 20.04?
[31] There is a genuine issue for trial regarding whether Ms. Abreu stopped before entering the intersection. The finding of fact on this particular issue will impact whether Ms. Gingerich had an opportunity to avoid the collision.
[32] The defendants submit that the court has been provided with a significant volume of evidence, and that there is no further evidence to call with respect to liability. They argue that this court is well-placed to weigh the evidence, draw reasonable inferences and evaluate credibility without the necessity of a trial or oral evidence.
[33] I have the following concerns about the evidence presented on the motions:
a) Failure to Comply with the Rule in Browne v. Dunn
[34] The parties have failed to properly cross-examine opposing witnesses on the critical issue of whether Ms. Abreu stopped before entering the intersection. The century-old rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K. H.L.), requires a party seeking to impeach the credibility of a witness to put contradictory evidence to the witness during cross-examination, in order to provide the witness with an opportunity to respond to and explain the contradiction. The rule is intended to provide fairness to the witnesses and the parties, by preventing counsel from suggesting that a witness’s story ought not to be believed without allowing the witness the opportunity to address the inconsistency.
[35] Ms. Abreu was examined for discovery approximately one year before she swore her affidavit on this motion. She was not cross-examined on her affidavit. During her discovery, counsel for the defendants did not suggest to Ms. Abreu that she was untruthful or mistaken when she said that she stopped before proceeding into the intersection. Counsel did not put the contradictory statements of Mr. Freriks and Mr. Devine to the witness when she was being examined.
[36] On the other hand, the plaintiff challenges the credibility and reliability of Mr. Freriks’ evidence. She suggests, during submissions, that Mr. Freriks could not have seen the Abreu vehicle approach the intersection, change lanes and enter the intersection at the same time that he saw the Gingerich vehicle stop and enter the intersection, all while noting its approximate speed up to the time of impact. Mr. Freriks explained his attentiveness to the movement of the vehicles and his evidence was unchallenged during cross-examination. Plaintiff’s counsel had an opportunity to cross-examine Mr. Freriks, and did not suggest that it was not plausible for Mr. Freriks to have seen the actions of both the Abreu and Gingerich vehicles. Counsel did not put the contradictory statement of Ms. Abreu to the witness when he was being cross-examined.
[37] The question of whether Ms. Abreu stopped before entering the intersection is one that must be determined by assessing credibility. Ms. Abreu and Mr. Freriks provide contradictory evidence regarding whether Ms. Abreu stopped before entering the intersection. Although they were asked questions, neither of them was challenged on their evidence regarding this point. No suggestion was made that they may be mistaken or untruthful. Although the plaintiff suggests in her factum that Mr. Freriks’ evidence is not plausible, that suggestion was not put to him during his cross-examination. The examination of these witnesses was insufficient to make a credibility assessment on this issue. I decline to evaluate credibility without a fulsome cross-examination of these witnesses.
b) Problems with the Expert Evidence
[38] Mr. Jennings, expert for the plaintiff, did not review the complete unredacted police file. He did not consider statements of at least three witnesses taken by police on the day of the collision. He agreed that, given the different descriptions of how the collision occurred, it would be critical to examine and consider the evidence of all witnesses. His opinions can be given little weight since he did not review the entirety of the available evidence.
[39] In his second report, Mr. Jennings considered the following statement contained in the affidavit of Ms. DeSouza: “I believed at the time that the red truck [Gingerich vehicle] was travelling too fast considering the circumstances at the intersection.” It is notable that, during cross-examination on this affidavit, Ms. DeSouza later acknowledged that she did not actually see the Gingerich vehicle prior to impact. She merely believed that the Gingerich vehicle was going too fast because of the severity of the impact. For reasons that are unclear, Mr. Jennings was not provided with Ms. DeSouza’s clarification of her evidence.
[40] In his first report, Mr. Jennings specifically found that, because the airbags failed to deploy, Ms. Gingerich was likely going between 20 to 30 km/hr at the time of the collision. Ms. DeSouza’s lay opinion, based solely on the severity of the impact, is inconsistent with the findings of the expert. The fact that Mr. Jennings later relied on Ms. DeSouza’s statement renders his second report completely unreliable and likely inadmissible.
c) Evidence Not Properly Tendered
[41] The police notes refer to a statement of Mr. Devine, who was in the hydro truck with Mr. Freriks. He appears to have critical evidence to offer regarding the issue of whether Ms. Abreu stopped before entering the intersection. However, the defendants have not filed a sworn affidavit from Mr. Devine, so his statement is inadmissible hearsay.
Conclusion Regarding the Exercise of Powers under Rule 20.04
[42] In light of the evidentiary problems on this motion, I am not prepared to exercise my discretion to make findings of credibility, weigh the evidence or draw reasonable inferences. The record is insufficient to make the required determinations.
IV. CONCLUSION
[43] For all of these reasons, the motion for summary judgment is dismissed.
V. COSTS
[1] In the event that the parties cannot agree as to costs, they are directed to provide written submissions. The submissions shall be no longer than two typed pages, double-spaced, in addition to any relevant Bill of Costs and written Offers to Settle. The plaintiff shall provide costs submissions by November 27, 2020, and the defendants shall provide any response by December 11, 2020.
[2] In the event that submissions are not received from either party by December 11, 2020, costs shall be deemed settled. Costs submissions shall be filed by email to Kitchener.Superior.Court@ontario.ca, and marked for the attention of Justice Braid.
Braid, J.
Released: November 6, 2020
COURT FILE NO.: CV-18-1094
DATE: 2020-11-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CINDY DA COSTA ABREU
- and –
KIMBERLEY GINGERICH and KEITH GINGERICH
Respondent
REASONS ON MOTION FOR SUMMARY JUDGMENT
CDB
Released: November 6, 2020