BARRIE COURT FILE NO.: CV-19-297

DATE: 20210319

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CYNTHIA JONES

Plaintiff

– and –

LARRY JONES

Defendant

Diana Edmonds, for the Plaintiff

Amanda Lennox, for the Defendant

HEARD: January 12, 2021

CASULLO J.

Overview

[1] On June 17, 2018, the plaintiff was a passenger on the back of the defendant’s motorcycle. As they travelled along Interstate 53 (“I-53”) outside of the Town of Hawthorne in Douglas County, Wisconsin, USA, they collided with a deer.

[2] The plaintiff commenced an action in negligence against the defendant for damages sustained in the collision.

[3] The defendant brings this motion for summary judgment, seeking to dismiss the claim on the basis that there is no genuine issue for trial, as this was an inevitable accident.

Background

[4] The plaintiff and defendant are a married couple who enjoyed going on motorcycle trips. On this particular trip, they had travelled through Sarnia to the US, and were making their way to Minnesota, by way of Michigan and Wisconsin. They were driving a 2006 Harley Davidson Ultra Classic, which had not been modified. The windshield was designed so that the driver would look over top of it.

[5] The couple started out about 8:00 a.m. that morning. It rained most of the day. They had been re-routed a number of times due to extensive flooding. About 25 minutes before reaching I-53, on a smaller, secondary highway, the defendant saw at least two signs with flashing lights warning of Elk crossing.

[6] The defendant was wearing gloves and boots, along with a helmet and his regular eyeglasses. His helmet did not have a visor.

[7] I-53 is a four-lane highway, two lanes northbound and two lanes southbound, with a grassy median separating them. Beyond the narrow gravel shoulder lay tall grass, then deep ditches, and then forest.

[8] The rain was falling lightly as the defendant merged onto I-53 at about 3:00 p.m., reaching the posted speed limit of 65 MPH. He saw a white car about 5 car lengths ahead, travelling slower than he was. As he approached the white car it was kicking up spray over the motorcycle’s windshield and interfering with his vision. The defendant increased his speed to 70 MPH and passed the white car. When the defendant returned to the right lane, he maintained speed at 68 MPH. By his estimation this was about two minutes before the collision.

[9] At his examination for discovery the defendant recalled the following sequence of events once he passed the white car:

(a) He saw they were going to drive into a heavy wall of rain about a kilometre ahead;

(b) He turned his head to the left and told the plaintiff they were going to get wet, and turned his head back again to the direction they were travelling;

(c) He ducked his head low to see whether he had better visibility looking through the windshield than he did over the windshield;

(d) He lowered his eyes to check his gauges, preparing to turn on the four-way flashers if the weather got worse; and

(e) They struck what turned out to be a deer, although neither the defendant nor the plaintiff saw it before the collision.

[10] After passing the white car, but before hitting the deer, the defendant recalled looking in his rear-view mirror and noting that the white car was ten to twenty car lengths behind them. The discovery transcript does not clarify where this fact fits in to the sequence of events set out in paragraph 9.

[11] The defendant estimated the collision happened about one mile after merging onto I-53.

[12] The plaintiff was thrown from the motorcycle. She sustained serious injuries, and was hospitalized in the US for nine days before returning home to Canada.

Positions of the Parties

Defendant

[13] The defendant submits that this was an inevitable accident, caused by the sudden darting of the deer, and there was nothing he could have done to avoid it. Accordingly, there is no compelling evidence indicating that there is a genuine issue requiring a trial.

Plaintiff

[14] The defendant has not proven that the collision happened without any negligence on his part, and negligence can only be determined after a full hearing and viva voce evidence.

[15] In the alternative, if I determine that negligence is a genuine issue requiring a trial, it is within my discretion to resolve the issue of negligence based on the facts before me.

[16] Furthermore, the defendant has failed to demonstrate that the defence of inevitable accident is available to him under the law of Wisconsin.

The Legal Framework

(a) Summary Judgment

[17] Rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that a defendant may move for summary judgment dismissing all or part of a plaintiff’s claim.

[18] Rule 20.04(2)(a) provides that the court shall grant summary judgment if it “is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.”

[19] Rules 20.04(2.1) and 20.04(2.2) empower the court to weigh evidence, evaluate the credibility of a deponent, and to draw reasonable inferences from the evidence.

[20] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, the Supreme Court of Canada delineated the scope of the summary judgment power found in r. 20.04(2)(a):

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[21] The Court provided further direction at para. 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if 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 summary judgment process provides her with the evidence required 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.

[22] The unanimous panel in Hyrniak has articulated a road map for judges to follow when considering summary judgment motions. First, without using the expanded fact-finding powers, a judge is to determine if there is a genuine issue requiring a trial. If there is no genuine issue requiring a trial, summary judgment is granted.

[23] If the judge finds there is a genuine issue requiring a trial, then she must next determine whether the need for a trial can be avoided by using the new powers: to weigh the evidence, evaluate the credibility of a deponent, draw any reasonable inference from the evidence [Rule 20.04(2.1)], and hear oral evidence [Rule 20.04(2.2)].

[24] The motion judge may exercise these powers unless it is in the interest of justice that the powers be exercised at trial. For example, if there are claims against other parties which will move forward to trial, then it may not be in the interest of justice to grant summary judgment against a particular defendant. This will avoid duplicative proceedings or inconsistent findings of fact.

[25] The court is entitled to assume that the record before it is complete, and contains all of the evidence that a party would rely on at trial: see Broadgrain Commodities Inc. v. Continental Casualty Company (CAN Canada), 2018 ONCA 438, at para. 7.

(b) Governing Law

[26] The majority of the Supreme Court of Canada in Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022, at 1050, held that the lex loci delicti rule is to be applied to tort cases, thereby ensuring certainty and predictability of the law.

[27] Counsel agree that the substantive law to be applied in this matter is the law of Wisconsin. The issue is whether the law of inevitable accident is available to the defendant.

(c) Inevitable Accident

[28] When advancing the defence of inevitable accident, the onus is on the defendant to establish that the accident could not have been avoided. As the Supreme Court of Canada held in Rintoul v. X-Ray & Radium Industries Ltd., 1956 CanLII 16 (SCC), [1956] S.C.R. 674, at para. 10, to successfully make out a defence of inevitable accident, the moving party has the burden of demonstrating, on a balance of probabilities, that: (a) he/she had no warning or indication of the hazard, and could not be warned of the hazard by exercising reasonable care and skill, and (b) once the hazard was apparent, there were no reasonable steps open to the defendant such that the accident could not be avoided.

[29] The majority of the inevitable accident decisions dealing with wildlife on highways hail from the western provinces. In Olsen v. Barrett, 2002 BCSC 877, a matter similar to the case at bar, the plaintiff was a passenger on her husband’s motorcycle when he hit a deer. The plaintiff alleged that the defendant was looking to his right, and not straight ahead, just before the accident. In her view, had he been keeping a proper lookout, he would have seen the deer earlier and would have been able to take evasive action to avoid the accident.

[30] At his examination for discovery, the defendant said he thought he might have been able to avoid the deer if he had been looking straight ahead. The judge dismissed this as speculative, finding that the defendant would logically be sympathetic to, and supportive of, his wife’s claim against him.

[31] In dismissing the action, the judge in Olsen held that,

This is not a case where the defendant is presumed to have been driving negligently – because he crossed the centre line, for example; or left the roadway; or steered to avoid a small animal on the highway; or collided with the back of another vehicle.

[32] It can only be assumed then, that if there was evidence that the defendant in Olsen was driving negligently, the judge would not have dismissed the action at the summary trial stage[^1].

[33] In Tabaka v. Greyhound Lines, an injured passenger brought an action against the bus company after its driver hit a mother and calf moose on a highway in British Columbia. As in Olsen, the matter came was before the court in the form of a summary trial. Binder J. held that the following factors are relevant when considering whether a defendant was driving negligently: road conditions, weather, condition of the vehicle, experience, familiarity with the road, and speed: Tabaka v. Greyhound Lines of Canada Ltd., 1999 ABQB 894, at para. 9.

[34] In Telfer v. Wright, 1978 CanLII 1262 (ON CA), [1978] 23 O.R. (2d) 117 (C.A.) the defendant hit the plaintiff’s car after he blacked out and lost control of the car he was driving. The trial judge applied inevitable accident and dismissed the action. The Court of Appeal reversed the lower court, given that the defendant had, on prior occasions, experienced symptoms similar to blacking out, and he had reasonable grounds to anticipate it would happen again:

In circumstances such as the present, it is up to the defendant to rebut the inference of breach of duty and lack of reasonable care, and in most cases this is done by showing that there was no evidence of prior disability, or foresight of probable harm … He must not expose other persons to the risk or the possibility that he may suffer an attack of a kind that would impair his ability to control his motor vehicle as he proceeds on the highway.

Discussion

[35] Arguably, the onset of a medical emergency differs in form from an animal suddenly appearing on a highway. However, the principles set out by the Court of Appeal are equally applicable to the case at bar. For the following reasons, the defendant cannot explain how the collision could have occurred without his negligence:

(a) it had been raining the entire day of the collision. Instead of goggles, the defendant was wearing ordinary eyeglasses. His helmet did not have a visor;

(b) the defendant admitted at discovery that the spray coming up from the white car was interfering with his vision;

(c) the road surface was wet, and defendant was travelling above the speed limit;

(d) the defendant passed the white car, which was going slower than he was, presumably to compensate for weather conditions;

(e) less than half an hour before the collision, the defendant had seen two flashing signs warning of Elk crossing;

(f) the collision occurred in a forested, rural area;

(g) the defendant was travelling in unfamiliar territory; and

(h) the defendant was distracted in the seconds leading up to the collision: turning his head to tell his wife they were going to get wet, looking forward again and then ducking his head down to determine whether he could see better looking through the windshield rather than over it, and then tilting his head down slightly to check his gauges.

[36] In light of these factors, I find that whether the defendant was negligent is a genuine issue requiring a trial.

[37] Having made this determination, I must next consider whether, in the context of this matter, I should exercise my expanded fact-finding role with an eye to determining whether a trial can be avoided.

[38] As noted above, r. 20.04(2.1) empowers the motion judge to weigh evidence or draw inferences “unless it is in the interests of justice for such powers to be exercised only at trial.”

[39] As the Supreme Court stated in Hyrniak (at para. 28), the overarching goal remains to have “a fair process that results in a just adjudication of the issues.”

[40] I am mindful of the fact that a r. 20.04(2.1) determination will not finally dispose of the matter. A trial will be necessary to determine damages.

[41] Based on the record before me, it is reasonable to infer that the defendant was negligent. It was a rainy day, and he was operating his motorcycle without safety gear in the form of goggles, or a helmet outfitted with a visor. After merging onto I-53, it was open to the defendant to remain in the right-hand lane of traffic, at a safe distance behind other vehicles, as he had on the lesser highways travelled that day. Instead, he drove fast enough to catch up to the white car. When the spray from the white car interfered with his vision, the defendant sped up to pass it, and he continued to drive above the speed limit after returning to the right lane.

[42] I find that the defendant did not see the deer before he hit it because he was distracted. He was distracted either when he turned to tell the plaintiff they were going to get wet, or when he bent his head to see if his vision was clearer through the motorcycle’s windshield, or when he lowered his eyes to check his gauges.

[43] The defendant was warned of the potential for wildlife along the highway. He had seen flashing warning signs 25 minutes earlier, on a different highway. The collision happened in a rural, forested, area. It would was reasonable to assume that the risk of wildlife remained a live one, given the topography.

[44] The defendant has not discharged his burden of proving the collision happened without any negligence on his part.

[45] This r. 20.04(2.1) finding is in the interests of justice, serving as it does the goals of affordability and proportionality, in light of the litigation as a whole: Hyrniak, at para. 65. While it does not obviate the need for a trial, the trial will be considerably shortened.

Defence of Inevitable Accident a Genuine Issue Requiring a Trial

[46] If I am wrong in holding that the defendant’s negligence was an issue requiring a trial, and using my expanded r. 20.04(2.1) powers to make the negligence determination short of a trial, the defendant’s summary judgment motion would have failed in any event. The availability of the inevitable accident defence under Wisconsin law is a genuine issue requiring a trial.

[47] The defendant failed to address the conflict of laws issue in his material, although counsel addressed it during oral argument. The plaintiff, whose material did address the issue, raised a doubt as to whether inevitable accident is a viable defence in Wisconsin.

[48] According to American tort law, “the courts of several jurisdictions have criticized the unavoidable accident doctrine and have disapproved of or abolished the application of the doctrine in motor vehicle collision actions” (Am. Jur. 2d Negligence Instructions on “Unavoidable Accident”, 201 A.L.R. 5^th 92 Headnote (Westlaw).

[49] Other US jurisprudence suggests that the application of inevitable accident varies from state to state:

The proper test in ascertaining whether a jury instruction on unavoidable accident is proper, the court commented as it affirmed the verdict for the defendant, whether there is any evidence from which the jury could possibly conclude that the accident occurred without the negligence of anyone being the proximate cause.

In another case, where cows on the interstate highway were seen 60 feet ahead by a vehicle travelling 65 to 70 miles per hour, but the driver swerved and collided with the unseen cow in the ditch, it was not a reversible error to deny the subject instruction.

Am. Jur. 2d Negligence Instructions on “Avoidable Accident”:… 21 A.L.R. 5^th 82 (Westlaw) at p. 106, para. 35[a] & 35 [b].

[50] Abbott v. Truck Ins. Exchange Co., a decision of the Supreme Court of Wisconsin, held that it is,

An error to give the jury an instruction on inevitable accident when the evidence would not support a finding that both parties to the accident were free of negligence or if there was no evidence the accident happened without negligence.

Cases where such an instruction would be advisable would be rare.

Abbott v. Truck Ins. Exchange Co., 33 Wis. 2d 671 919670, 148 N.W. 2d 116 at p. 1, para. 1.

Conclusion

[51] To summarize:

1. There is a genuine issue requiring a trial in respect of the defendant’s negligence.

2. This is a proper case in which to apply the expanded powers of r. 20.04(2.1). in so doing, I find that the defendant’s negligence caused the collision.

3. The defendant’s motion for summary judgment is dismissed.

Costs

[52] The parties exchanged and filed bills of costs.

[53] Counsel are encouraged to agree on costs. If they are unable to do so, they may arrange a short costs hearing, before me, through the Trial Coordinator. Concise briefs are to be filed at least two days prior to the hearing. If no arrangements are made within 30 days for an appointment to speak to costs, there will be no order for costs.

CASULLO J.

Released: March 19, 2021

[^1]: British Columbia’s summary trial is similar to a motion for summary judgment in Ontario.