COURT FILE NO.: CV-13-475467-00A1
DATE: 20210412
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TATE MORAN
Plaintiff
– and –
OTTAVIO FABRIZI, ELAINE INGLESON, AND ROBERTA BERIAULT
Defendant
– and –
DENNIS G. K. CHU and JOHN DOE
Third Parties
No one appearing for the plaintiff
David Zarek and Natasha Skupsky, lawyers for the defendant Ottavio Fabrizi
Todd McCarthy, lawyer for the third party Dennis G.K. Chu
HEARD: March 30-31, 2021
REASONS FOR DECISION
DIAMOND J.:
Overview
[1] A motor vehicle accident occurred on October 9, 2008 at the intersection of Rathburn Road and Perivale Road in the city of Mississauga, Ontario.
[2] The plaintiff, who was a minor at the time of the accident, was a passenger that day in a vehicle (“the minivan”) owned by his mother (the defendant Roberta Beriault) and driven on the date of the accident by his grandmother, the defendant Elaine Ingleson (“Ingleson”).
[3] A vehicle (“the Buick”) driven by the defendant Ottavio Fabrizi (“Fabrizi”) struck the minivan causing the plaintiff to suffer various injuries. After being sued by the plaintiff, Fabrizi commenced a third party action against Dennis G.K. Chu (“Chu”) for contribution and indemnity, alleging that Chu’s negligent operation of his vehicle (“the Nissan”) caused the motor vehicle accident between the minivan and the Buick.
[4] The main action settled. The plaintiff was paid the all-inclusive sum of $220,000.00 as a term of the settlement. None of the parties to the third party action take any issue with the reasonableness of the settlement amount.
[5] The trial of the third party action proceeded before me on March 30-31, 2021. I heard viva voce evidence from Fabrizi, Danielle Scire (“Scire”, Fabrizi’s girlfriend at the time of the accident), Chu and Christopher DeMaria (“DeMaria”, an independent third party witness). I also received evidence by way of read-ins from the examinations for discovery of Fabrizi and Ingleson.
[6] At the conclusion of the trial, I took my decision under reserve. These are my Reasons.
The Trial Evidence
[7] As I will address later in these Reasons, each of the trial witnesses gave different accounts of the accident, with the versions offered by Fabrizi/Scire and Chu being the most divergent.
Danielle Scire
[8] Scire testified that she and Fabrizi had been dating since April 2007. On the date of the accident, Scire was approximately 18 years old. Fabrizi was driving the Buick, which was owned by his father. Scire was in the passenger seat. They were on their way back to Fabrizi’s home from the grocery store.
[9] They were travelling northbound on Perivale Road, a two lane residential street. Approximately two stops signs before Perivale Road met up with Rathburn Road (a four lane street), Chu was driving the Nissan in front of them very slowly. According to Scire, she could see Chu talking on his cell phone while driving. She told Fabrizi that he should pass the Nissan. Fabrizi did, and went around the left side of the Nissan.
[10] Scire testified that after passing the Nissan, she turned around and saw Chu drive the Nissan through a stop sign, swerving his car and approaching the Buick. Chu appeared extremely angry, and then sped up to drive around the Buick and “block them in” where Perivale Road met up with Rathburn Road. Chu exited the vehicle, “hands flailing”. Chu’s vehicle was stopped diagonally straddling the Perivale Road left turn lane and the curb lane where the Buick was “pinned in”.
[11] Scire says that she and Fabrizi locked the doors and windows. Chu took off his sweater and was wearing a “wife beater” tank top. He was swearing, yelling, and punching and hitting the Buick.
[12] According to Scire, Fabrizi eventually reversed the Buick, and “escaped” by driving around the left side of the diagonally parked Nissan.
[13] Fabrizi tried to turn right onto Rathburn, but unfortunately struck the passenger side of the minivan. Scire gave evidence that Chu laughed at them after the accident occurred, and then drove off in the Nissan.
[14] Scire and Fabrizi are no longer common-law partners, although they have a child together. They lived in a common-law relationship for approximately nine years, and Scire admitted having discussed the incident with Fabrizi on several occasions during that period.
Ottavio Fabrizi
[15] To