COURT FILE NO.: 2453/14, 2117/16
DATE: 2020/01/31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shaysta Haidari
Plaintiff
-and-
Dena Sadeghi-Pour, Enterprise Rent-A-Car, Laurie Simpson, Terry Simpson, Chad Daniel Seney, Country Side, David Revington, Amanda Mesko, Donald Dunham, Philip Kuffner, Clayton and Mary McQuirter, Henry Wollenzen, Helen Roach Heaton, Michael Bruce Gilbert, EMCEA Inc., Aaron Visser, John Doe/Jane Doe, Corporation of the Township of Warwick, Seven Star Express Line Ltd., Satnam Gill, 6519768 Canada Inc. o/a Fleet 001, Triton Assets Limited, Scott McCallum, Her Majesty the Queen in right of Ontario o/a as O.P.P., Kenneth Saunders, Point Dedicated Services, Motonori Kuda, Woodbridge Holdings Inc., Michael Foster, Scaletta Sand & Gravel Ltd., Wells Fargo Equipment Finance Company, Roynat Inc., Kenneth Trumble, Carol McLaughlin, Firas Al-Wahami, 6233317 Canada Inc., Guy Marchesseault, Les Huiles Bellachesse, David Prowse, Ronald Brown, John Harbarenko, Sarmindger Singh Gill, 2119621 Ontario Inc., Al Amal Transport Inc., Randolph Hills, D.C. Leasing Ltd., Hardial Singh Sanghera, Keert Aulakh Transport Inc., Galib Transport Inc., Larry Hofstetter, and Earl Hardy Trucking
Defendants
Tricia McAvoy, for the Plaintiff
Jocelyn-Rose Brogan, for the Defendants Scott McCallum & Her Majesty the Queen in Right of Ontario
Janet Clermont, for the Defendants Satnam Gill, 6519768 Canada Inc., o/a Great Nanak Incorporated & Wastehaul Transport Inc.
Kevin Bunt, for the Defendants Chad Seney and Country Side Transportation
Anthony Bedard, for the Defendants Clayton McQuirter & Mary McQuirter
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John Harbarenko
Plaintiff
-and-
The Corporation of the Township of Warwick, The County of Lambton, Mario Bibic, Seven Star Express Line Ltd., Satnam Gill, 6519768 Canada Inc. o/a Great Nanak Incorporated, Wastehaul Transport Inc., Scott McCallum, Her Majesty the Queen in Right of Ontario, Kenneth Howard Saunders, Point Dedicated Services LLC, Motonori Kudo, Woodbridge Holdings Inc., Estate of Ronald W. Brown, Jane Doe, and John Doe
Defendants
Anna Szczurko, for the Plaintiff
Jocelyn-Rose Brogan, for the Defendants Scott McCallum & Her Majesty the Queen in Right of Ontario
Janet Clermont, for the Defendants Satnam Gill, 6519768 Canada Inc., o/a Great Nanak Incorporated & Wastehaul Transport Inc.
HEARD: August 22 & 23, 2019
REASONS FOR DECISION ON SUMMARY JUDGMENT
GEORGE J.
[1] This is a summary judgment motion brought by three defendants across two actions – court file number 2453/14 (“Harbarenko Action”) and court file number 2117/16 (“Haidari Action”). Both arise from a multi-vehicle accident that occurred on Highway 402 on January 19, 2012.
[2] The Plaintiff John Harbarenko (“Harbarenko”) was the driver of a black Honda CRV. He claims that he suffered serious and permanent injuries as a result of the collision. He issued his Statement of Claim on January 10, 2014. Those moving for summary judgment include the Defendants Satnam Singh Gill, 6519768 Canada Inc. o/a Great Nanak Incorporated and Wastehaul Transport Inc. (“Gill”), and Scott McCallum and Her Majesty the Queen in Right of Ontario (“McCallum”).
[3] The Plaintiff Shaysta Haidari (“Haidari”) was a passenger in a 2011 silver Nissan driven by Dena Sadeghi-Pour (“Pour”). She claims to have suffered serious and permanent injuries as a result of the collision. She issued her Statement of Claim on February 14, 2014. Those moving for summary judgement include the Defendants Gill, McCallum, as well as Chad Seney and Country Side Transportation Inc. (“Seney”).
[4] In the Haidari action the Defendants Clayton and Mary McQuirter (“McQuirter”), while not themselves moving for summary judgment, took an active role on this motion. They argue that I should decline to weigh in on these motions until oral and documentary discovery is complete. Their counsel’s submissions were most helpful in distinguishing between the various Defendants. In fact I adopt his suggestion that the Defendants be placed into one of three distinct categories: Those who were in vehicles “downstream” (eastward of the main body of vehicles); those in vehicles involved in the “main body” of the collision; and those in vehicles that were “upstream” (westward) from the main body.
[5] To be clear, their position that summary judgment is premature relates primarily to the Defendants Gill and McCallum as their vehicles were involved in the main body. While, in their written materials at least, they argue summary judgment may be appropriate for those Defendants in vehicles that were either downstream and upstream, they suggest that, given Seney and Mary McQuirter have provided conflicting versions of events, and since that factual dispute cannot be resolved on the record as it now stands, summary judgment is not available to Seney. However, in their counsel’s oral argument he seems to hold out the possibility that I can, irrespective of the differences between Ms. McQuirter and Seney’s evidence, cut Seney loose. That is, I might be in a position to conclude that whatever occurred between Ms. McQuirter and Seney did not impact the main body of vehicles, which is where both Plaintiffs landed.
[6] In any event, I will begin by providing a brief description of the collision and this matter’s procedural history, and thereafter set out each party’s position.
[7] As indicated, both actions arise from a multi-vehicle collision that occurred on January 19, 2012 on Highway 402 east of Sarnia. It occurred in the eastbound lanes at or near the Nauvoo Rd. exit and involved approximately 30 vehicles including passenger cars, transport trucks, and emergency vehicles. It was snowing heavily and the road was snow covered. Driving conditions were poor and visibility limited.
[8] This accident actually resulted in four separate actions although, as indicated, I am addressing only two.
[9] Haidari was a rear-seat passenger in a vehicle operated by Pour and owned by Enterprise Rent-A-Car. This vehicle was travelling eastbound and was involved in what I have referred to as the main body of the collision.
[10] Harbarenko was operating a vehicle travelling eastbound. He was also involved in the main body.
[11] Gill was operating a 2005 Freightliner transport owned by Great Nanak Inc. and hauling a trailer owned by Wastehaul Transport. He was travelling eastbound and was also involved in the main body. In his materials he claims that when he came upon the accident scene he slowed down, eventually stopping on the right shoulder without coming into contact with any other vehicle. As I understand it, he was then rear-ended by another tractor-trailer and then a second vehicle. At no point did he come into contact with either the Harbarenko or Haidari vehicles.
[12] Gill’s position is that, as it relates to him, there is no genuine issue requiring a trial. He denies being responsible in any way for the collision and seeks an order for summary judgment dismissing all claims and crossclaims as against him.
[13] Seney is employed by Country Side Transportation Inc. as a driver. On the date in question, and in the course of his employment duties, he was operating a Country Side vehicle. He was travelling eastbound from Michigan to Kitchener in order to deliver a load of flour to one of Country Side’s customers. In his written materials he claims to have come upon a slowed vehicle in the right lane, which I understand was Ms. McQuirter. He deposes that he then moved into the left lane in order to pass Ms. McQuirter, but before he was able to complete the pass Ms. McQuirter lost control of her vehicle and began to spin out. Seney says Ms. McQuirter then entered the left lane ahead of him and that he applied his brakes in order to avoid her. He subsequently moved back into the right lane at which point, at least according to him, Ms. McQuirter struck the left front axle of his truck and then the left front axle of his trailer. Ms. McQuirter then spun out again and came to rest on the median while Seney came to a stop on the eastbound shoulder.
[14] Seney deposes that after he came to a stop, and after exiting his vehicle, he had difficulty seeing ahead because of the weather conditions. He says he faintly noticed emergency lights ahead and that, at least where he was, the eastbound lanes remained open as he noticed passing vehicles. After re-entering his truck he says he could hear, but not see, vehicles colliding. No vehicle, other than Ms. McQuirter’s, made contact with Seney’s truck.
[15] Seney’s position is that, as it relates to him, there is no genuine issue requiring a trial. He denies being responsible in any way for the collision and seeks an order for summary judgment dismissing all claims and crossclaims as against him.
[16] McCallum is a police officer and member of the Ontario Provincial Police (“OPP”). On the date of the accident he was on duty and operating a marked cruiser. He was the sole occupant. As he approached the accident scene he says all of the eastbound lanes were blocked ahead of him. He says he became immediately concerned that a tractor-trailer, which was travelling about three hundred meters behind him, was going to drive past him and collide with the vehicles ahead. He observed an ambulance and fire truck parked partially in the left lane, in front of the accident scene.
[17] In an attempt to avoid a collision he activated his emergency lights and moved into the left lane. He indicates that it became apparent that the truck behind him was not going to be able to stop. He was then struck by the truck which he estimates was travelling at about 70 to 80 km/hr. This, he says, propelled him into another truck. He does not know which truck struck him nor which truck he rear-ended. He does not know whether his cruiser was struck again after he exited. What he does know is that after he left the cruiser vehicles continued to crash into the wreckage.
[18] McCallum’s position is that, as it relates to him, there is no genuine issue requiring a trial. He denies being responsible in any way for the collision and seeks an order for summary judgment dismissing all claims and crossclaims as against him.
[19] McQuirter is not moving for summary judgment. Their position, however, is that, with the exception of Seney, this motion is premature. They argue that there is too much conflicting evidence and that given discoveries are not yet complete I am not sufficiently equipped to weigh that conflicting evidence. With respect to the Defendants Gill and McCallum they argue that their motions should either be dismissed or adjourned to allow for the completion of examinations. If I decide the latter is appropriate, they submit the court would be better positioned to assess Gill and McCallum’s motions as there would then be a complete evidentiary record. At this point we simply do not have one.
[20] Haidari submits that all motions should be dismissed with costs. She argues that, as this is a request for partial summary judgment, if granted we run the risk of inconsistent verdicts at trial. She further argues, similar to McQuirter, that the evidentiary foundation is insufficient and comprised mostly of hearsay. She points out that, in her action only two Defendants have been examined for discovery and that undertakings from those that have been examined are incomplete and or unsatisfied. Her position is there are several genuine issues requiring a trial.
[21] Harbarenko’s position mirrors Haidari’s. He asks that these motions be dismissed with costs. As it relates to the Defendants moving against him – Gill and McCallum – he submits that there remains a genuine issue requiring a trial. His theory is that, while his vehicle did not impact theirs, their respective decisions to stop where they did closed all available routes of escape, which leaves open the possibility that a jury will apportion some liability to either or both of them. To allow them out at this point, when the trial will proceed in any event, undermines the administration of justice and creates a substantial risk of inconsistent verdicts.
[22] I will begin by setting out the law that applies to summary judgment.
[23] The relevant portions of r. 20 of the Rules of Civil Procedure provide that:
20.01(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.
20.02(1) An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01 (4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.
20.02(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.
20.04(1) 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 a trial;
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[24] Further to the Supreme Court’s direction in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 there is no genuine issue requiring a trial when “the judge is able to reach a fair and just determination on the merits of 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.”
[25] There is no requirement that the evidence on this motion be equivalent in quality to that which will be tendered at trial. The right question to ask is, whether the evidence that has been presented allows me to resolve the dispute fairly. The first step is to determine whether - on the evidence before me and taken at its highest - there is a triable issue. If I find that there is, I must then go on to consider whether a trial can be avoided by using the enhanced powers set out in r. 20.04(2.1); such powers being presumptively available and not reserved for exceptional cases.
[26] As it is the simplest and most straightforward question, I am going to first address Seney’s request to be released from the Haidari action. I will start by pointing out that Haidari’s Statement of Claim alleges no specific negligent act by Seney. Seney deposes that he brought his vehicle to a stop on the shoulder after he was struck by Ms. McQuirter. The evidence is otherwise clear in that Seney did not strike, and was not struck by, any other vehicle. The evidence also establishes that Seney did not see, and could not have seen, what I will call the main collision and has nothing of value to offer us about what happened to the Haidari vehicle. As such, there is no evidence to support a finding that Seney did, or failed to do, anything that caused or contributed to the collision involving Haidari.
[27] I appreciate the McQuirter position – shared by Haidari - which is there is a conflict between the evidence of Ms. McQuirter and Seney, but this is of no consequence to either Haidari’s claim or McQuirter’s defence. It appears as if their positions rest on the theory that emergency response vehicles had to respond and tend to their collision thereby contributing to the mess ahead which, they argue, requires a finding of who was at fault, Seney or McQuirter? While it is true that I cannot resolve this dispute on the record before me, I do know that neither of them blocked the road nor made contact with any of the vehicles in the main body. In my view, their collision was so far removed from the main body of vehicles as to be irrelevant. Seney’s summary judgment motion is granted. All claims and crossclaims as against Seney and Country Side are, therefore, dismissed.
[28] I turn now to Gill, who is a Defendant in both the Harbarenko and Haidari actions. At the material time he was operating a tractor-trailer owned by 6519768 Canada Inc. His evidence is that immediately before the accident he was travelling eastbound in the right lane. He says he slowed to approximately 20 to 30 km/hr at which point a tractor-trailer with the logo “7 Star Express” passed him in the left lane. This passing truck then lost control and struck an emergency vehicle on the left shoulder sending it into the ditch. Gill deposes that as the passing truck lost control he was able to steer to the right and come to a rest on the right shoulder. He did not come into contact with any other vehicle. There is no evidence that he at any point lost control of his vehicle. Once he came to a stop, he activated his four-way flashing lights.
[29] After noticing a marked police cruiser his vehicle was struck from behind pushing it forward. He was then struck a second time which led him to exit his vehicle and rush to the south ditch, away from the accident scene.
[30] In the police accident reconstruction report, its author notes that damage to Gill’s vehicle is present only in the rear left corner of its trailer. This, Gill argues, is consistent with his evidence that he was rear-ended. The officer who completed the collision analysis concluded that Gill’s vehicle was slowing as it approached the collisions ahead and pulled over to the right. According to Gill, this is when he activated his flashing lights. He argues that the police investigation confirms his evidence that he did not impact any other vehicle, including those occupied by the Plaintiffs.
[31] As I understand it, this is the sequence of events. First, Gill slowed after he noticed and approached the collision ahead. Next, he pulled over onto the shoulder and activated his flashing lights. Next, a police cruiser (McCallum) is struck by another tractor-trailer. Next, the same truck that struck the cruiser strikes the rear of Gill’s truck. Next, the vehicle occupied by Haidari, after stopping in the right lane some distance behind by Gill’s truck, is struck by a propane tanker. Lastly, Harbarenko’s vehicle then struck the propane tanker that had just hit the Haidari vehicle.
[32] The essence of Gill’s position is this. As it is clear from the police investigation that this accident was caused by weather and road conditions and other drivers’ failure to properly alter their speed to account for this, and since all of the evidence points to him adjusting his speed appropriately, he cannot be held responsible for what transpired. He submits that there is no need for a trial to determine this. The record as it now stands - even though discoveries and undertakings are not complete - allows me to engage the enhanced fact-finding powers and amply supports a finding that he is not responsible, and could not possibly be found so, after a trial.
[33] Harbarenko’s theory is that it could be held, after a trial, that Gill contributed to the closing off of all available escape routes. He claims that there is a genuine issue requiring a trial. In support, he points to the fact that the OPP accident reconstructionist noted that firefighters who parked on the right (south) shoulder caused two lanes of traffic to be funnelled into one. Meaning, Gill’s decision to park in, what he says, was the only route of escape for vehicles behind him was ill-advised and potentially contributed to the escalation of the crash and resultant injuries.
[34] He argues that to grant partial summary judgment and release Gill now would create a real risk of inconsistent trial verdicts on the question of liability apportionment. More than that, however, is the concern that this is simply premature. He correctly observes that discoveries are not yet complete and that several undertakings remain outstanding. He argues that Gill’s credibility and the reliability of his account remain important considerations and that additional witnesses continue to be identified.
[35] Haidari’s theory mirrors Harbarenko’s. She argues that Gill’s evidence leaves unanswered questions. She highlights the fact that he, in his affidavit, indicates that he saw a “7 Star Express” truck hit an EMS vehicle on the left shoulder but failed to remember this when cross-examined. She also stresses the fact that there was a chain of collisions that occurred behind him and after he had stopped. She highlights inconsistencies as between his account and that of others who were close by. For example, Kenneth Saunders (who struck Gill from behind) describes a different sequence of events. He says he had no choice but to strike the rear of Gill’s trailer. Mr. Saunders claims that if Gill’s trailer was not there, he would have had the room and ability to enter the ditch and avoid the other vehicles he struck.
[36] Before engaging in my analysis relative to Gill, I am going to recount McCallum’s position and the evidence relevant to him, as these two Defendants are, in my view, similarly situated.
[37] As indicated, at the time of this accident McCallum was a police officer and member of the OPP. He was operating a marked police cruiser. He was cross-examined on the contents of his affidavit and testified to these salient points:
― As he approached the crash scene the eastbound 402 lanes were blocked from shoulder to shoulder.
― Upon arrival he was concerned that a tractor-trailer, which he noticed approaching from behind, was going to sail past him and strike the vehicles ahead which included an ambulance and fire truck, which were partially in the left lane ahead of the crash vehicles. He notes also that there were people outside of their vehicles standing nearby.
― Because of that concern, and in an attempt to prevent a crash, he activated his lights hoping the approaching truck would notice and stop.
― Before coming to a complete stop he realized that the approaching truck was not going to avoid a crash. The truck subsequently rear-ended him while travelling at what he estimated to be between 70 and 80 km/hr. He was then propelled forward into another tractor-trailer. At the time he gave his testimony he did not know which truck hit him nor which truck he hit.
― Out of fear that other vehicles would soon join the pile up he quickly exited his car and ran to the median.
― While he does not know if his cruiser was struck after he exited, he does know that its ultimate resting place was in the back of the trailer he was propelled into.
― Once out of the cruiser and on the median, vehicles continued to pile into the wreckage.
[38] McCallum’s motion materials refer extensively to Gill’s evidence, which I have already addressed.
[39] His position is summarized in his factum (Haidari action) at para. 26:
- These defendants submit that the evidence supports that they did not cause or contribute to the collision in which the plaintiff alleges that she was injured, for the following reasons:
a. Mr. McCallum did not lose control of the police cruiser prior to being rear-ended.
b. Mr. McCallum positioned the police cruiser in the left lane with its emergency lights activated in an attempt to warn the oncoming tractor-trailer of the accident ahead, and to provide some protection to the ambulances and fire truck.
c. Had Mr. McCallum positioned the police cruiser in any different way, the outcome would be no different. The eastbound lanes were already completely blocked off with wreckage. No vehicles could get through. The oncoming tractor-trailer would have continued to drive into the wreckage.
d. [Haidari’s] evidence is that Ms. Pour stopped on the right shoulder of the road, [her] car was then rear-ended, and eventually a propane tanker landed on top of [their] vehicle. The evidence of both Mr. McCallum and [Satnam Gill] support that Mr. McCallum was in control of the police cruiser and positioned in the left lane before being rear-ended. The police cruiser was not the rear-ending vehicle to [Haidari’s] car.
e. Appendix A to the mvar depicts the approximate resting positions of most of the involved vehicles, which presumably also reflects their order of arriving on the accident scene (with the exception of a few, which does not include Mr. McCallum or the plaintiff). The resting position of the police cruiser (vehicle #15) is in the left lane partially under the vehicle operated by Mario Bibic. The resting position of the plaintiff’s car (vehicle #26) is on the right side off the road in the ditch, to the west of the police cruiser. The photographs within the police file corroborate the positioning of the police cruiser and the plaintiff’s car after the collisions occurred as depicted in Appendix A of the mvar. In combination, the evidence of Mr. McCallum, [Haidari], Mr. Gill, Appendix A of the mvar, and the photographs within the police file, support that the collisions involving the police cruiser are distinct from the collisions involving the plaintiff’s car.
[40] As it relates to Harbarenko McCallum takes an almost identical position which is, given there is no evidence that he ever lost control of his vehicle, and given the fact he was in a stopped position before being struck, he cannot be found liable. He argues that the positioning of the propane tanker – which Harbarenko argues is critical to the question of McCallum’s liability – is irrelevant as it has no bearing on whether he caused or contributed to the collision Harbarenko was involved in.
[41] Harbarenko’s position in relation to McCallum is identical to his position in respect of Gill. That is, a trial is required to determine whether McCallum contributed to the closing off of all available escape routes for those vehicles ultimately involved in the collision. He cites the work of the OPP accident reconstructionist claiming the evidence discloses that McCallum intentionally came to a complete stop in front of a tractor-trailer, despite their being limited visibility. He refers to McCallum’s evidence that he could not recall whether he turned his lights and siren on before stopping in front of the truck. He also references a police supplementary collision report which indicates that the “roads were extremely slippery and stopping quickly was not possible”, and specifically Officer Ives indication that “due to the carnage there were no escape routes available leaving the eastbound vehicles only stopping distance to avoid colliding with the others”.
[42] He argues that Officer Ives’ conclusion necessarily means that McCallum contributed to the closing off of escape routes for other motorists. He points to the evidence of Mr. Saunders – who was operating a tractor-trailer – who indicated on discovery that he had to steer into Gill’s truck in order to avoid McCallum’s cruiser.
[43] From Harbarenko’s perspective, the bottom line is this: Discoveries are not yet complete and undertakings remain outstanding, which makes this motion at best premature. Apart from that he argues partial summary judgment is not appropriate in any event given the risk of inconsistent verdicts at trial.
[44] Haidari’s position is identical to Harbarenko’s. In support she relies upon the following: First, on cross-examination McCallum claims that the tanker trailer completely blocked the road from shoulder to shoulder, which, she argues, is inconsistent with all of the other information we have. Second, she highlights the fact that McCallum says visibility was poor while simultaneously claiming he could see 200 to 300 metres behind and ahead of him. Third, she cites Mr. Saunders evidence that when he came upon McCallum’s cruiser it was perpendicular in the eastbound lanes, across both traffic lanes.
[45] Before setting out my analysis of the issues raised on this motion, I will address McQuirter’s suggestion that I adjourn this hearing to allow for the completion of discoveries and undertakings. I decline to do this. The moving party Defendants made the decision to proceed with this motion at this time. Therefore, the issues they raise will rise or fall on this record. It would not be appropriate, in these circumstances, to allow the Defendants to shore up the record and get what amounts to another crack at this.
[46] Now on to the ultimate question, which is, as it relates to each of McCallum and Gill, is there a genuine issue requiring a trial?
[47] I address this earlier but there are two steps. First, I must determine whether there is a genuine issue requiring a trial based on the record before me. Second, if there is, I must decide if this an appropriate case to use the expanded powers available under r. 20.04 which permits me to assess credibility, weigh evidence, and make a final determination. While recourse to these enhanced powers is not reserved only for rare and exceptional cases there is a threshold to meet. I must ask these two questions. First, is the record sufficient to allow me to make the necessary findings of fact and apply the law to those facts? Second, does summary judgment represent a proportionate, more expeditious and less expensive means to achieve a just result?
[48] I believe it is fairly obvious that, based on the record itself and taking it at its highest, there is a genuine issue requiring a trial. Which leaves the question of whether I should avail myself of the enhanced fact-finding powers.
[49] Before addressing that directly, it is important that everyone understand I am alive to the risks of granting summary judgment when the litigation will proceed in any event as against other Defendants. In addition, I recognize that proportionality lies at the heart of this which requires that I consider the nature of the issues, nature and strength of the evidence, and to generally consider whether summary judgment makes sense in the circumstances.
[50] Partial summary judgment, while not prohibited, is risky because it runs the risk of defeating the very essence of Hyrniak v. Mauldin 2014 SCC 7, [2014] 1 SCR 87, which is, in my view, designed to achieve appropriate, timely and affordable justice. What complicates this case is, to cut McCallum and Gill loose is not going to eliminate the possibility that a jury will apportion liability to either or both of them. Each of them will form a part of the trial whether they participate as parties or not. The jury will hear about them, what they did, and what happened to their vehicles.
[51] I agree with McCallum and Gill in one sense. That is, the case against each of them is not particularly strong, and from where I stand it will be a tall order for the Plaintiffs to convince a jury to accept their position as it relates to these two Defendants. The theory that they are, at least in part, responsible because they cut off possible escape routes, is an interesting position in light of the extreme weather conditions. However, I do not believe I can fairly make that determination at this stage and on this record.
[52] I appreciate that from McCallum and Gill’s perspective granting summary judgment would be a more cost-effective and expeditious way to address the issues that impact them. But that is not the only consideration. If, irrespective of my view of the evidence, it would be open to a jury to find each of them partly responsible, and if I am not now equipped to do what the jury will be tasked with doing, it would be irresponsible to short circuit this and foreclose the Plaintiffs from advancing their argument.
[53] It is the number of Defendants, nature of the accident, and the fact granting summary judgment would not end this proceeding, that leads me to conclude that it is not appropriate in this instance. Consider the courts comments in the Superior Court decision of Mason v. Mongenais 2018 ONSC 1477 where at para 19 the presiding Justice writes this:
It readily follows that where a trial is required involving the same parties, the same witnesses providing the same evidence about the same facts in issue as are relied upon for summary judgment, the risk of duplication and inconsistent outcomes is particularly acute. In such cases, the benefits of summary judgment as a cost saving or tool for efficiency are lost since a trial is required on all the same facts among all the same parties anyway.
[54] That is it exactly. Were McCallum and Gill the only Defendants I may have held a different view. But they are not. And while it was not unreasonable for McCallum and Gill to advance the argument they have, in the particular circumstances of this case it is simply far too risky to grant them, and them only, summary judgment because it is indisputable that the record at trial will be more expansive than it is now and that fact alone causes me to question my own gut reaction about the strength of the Plaintiffs’ case against them. That is, on this record I simply do not have confidence that I can make the findings of fact necessary to resolve the dispute.
[55] Apart from the risk of inconsistent findings the Court of Appeal in Butera v. Chown Cairns LLP, 2017 ONCA 783 notes these additional problems with partial summary judgment:
First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of a motion for partial summary judgment. A delay tactic, dressed as a request for partial summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the action and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is also always the possibility of an appeal.
Second, a motion for partial summary judgment may be very expensive. The provision for a presumptive award for an unsuccessful summary judgment motion that existed under the former summary judgment rules has been replaced, thereby removing a disincentive for bringing partial summary judgment motions.
Third, judges, who already face a significant responsibility addressing the increase in summary judgment motions that have flowed since Hyrniak, are required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action.
Fourth, the record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial therefore increasing the danger of inconsistent findings.
[56] And that is precisely what is happening here. While I do not believe for one moment that the moving party Defendants brought this motion as a delay tactic, it has had the effect of delaying a final resolution of this matter, which is already long in the tooth, and of course it has raised the spectre of an appeal which is quite prevalent in motions like these. This is in addition to the risk of inconsistent findings and the practical reality that to rule in favour of the moving party Defendants would not completely dispose of the matter.
[57] This is why the court in Butera concluded 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 in the main action and that may be dealt with expeditiously and in a cost-effective manner.”
[58] The only thing I am confident about is in separating Seney’s situation from that of both McCallum and Gill. With respect to the former not only does the evidence support a dismissal of all claims, given Seney’s location vis-à-vis the main body of vehicles bifurcating this action makes sense and will in no way impact the trial, whenever it occurs. That is not easily done for either McCallum or Gill. The decisions they made, and the location of their respective vehicles, does not lend itself to such a bifurcation.
[59] In the result the summary judgment motion brought by each of McCallum and Gill are dismissed. Seney’s summary judgment motion is granted. All claims and cross-claims as against Seney and Country Side are therefore dismissed.
[60] With respect to costs the parties may provide written submissions. These are not to exceed five pages in length excluding a costs outline and any authorities relied upon, and are to be served and filed on these deadlines:
― Seney to file within 25 days of receipt of these reasons.
― Harbarenko and Haidari each to file their submissions – which shall contain both their response to Seney and request for costs against the other moving party Defendants – within 15 days of their receipt of Seney’s submissions.
― Gill and McCallum to file their submissions within 15 days of Harbarenko’s or Haidari’s – whichever is received last.
[61] There is no right of reply.
Justice Jonathon C. George
Justice Jonathon C. George
Released: January 31, 2020
COURT FILE NO.: 2453/14, 2117/16
DATE: 2020/01/31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shaysta Haidari
Plaintiff
-and-
Dena Sadeghi-Pour, Enterprise Rent-A-Car, Laurie Simpson, Terry Simpson, Chad Daniel Seney et al.
Defendants
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John Harbarenko
Plaintiff
-and-
Corporation of the Township of Warwick, County of Lambton, Mario Bibic, Seven Star Express Line Ltd., Satnam Gill et al.
Defendants
REASONS FOR DECISION on SUMMARY JUDGMENT
George J.
Released: January 31, 2020