COURT FILE NO.: CV-17-4234 (Brampton) DATE: 2021-04-08
Ontario Superior Court of Justice
BETWEEN:
Ahmed Nur Plaintiff
-and-
Michael Johan Lange Defendant
Counsel: Dana Hyeseung Yoon, for the defendant No one appearing for the plaintiff
Heard: January 7, 2021 by video conference
Before: Chown J.
REASONS FOR DECISION
[1] This is a summary judgment motion brought by the defendant in a red-light-green-light motor vehicle accident case.
[2] The motion was originally scheduled to proceed in April 2020 but was adjourned to November 26, 2020. On that date the matter was in front of Justice Trimble, whose endorsement reads, in part:
Mr. Nur appeared today, self represented, although with a friend who translated for him.
The Defendant brought this motion for summary judgment. Mr. Nur has filed nothing in response. He and his lawyer parted ways in November 2018. Mr. Nur confirmed that he received the Motion Record on or shortly after 19 October 2020 when it was mailed to him, although he did not understand it.
This matter is adjourned to 7 January 2021, 10 am, regular motions list.
The motion is granted to permit Mr. Nur time to either a) retain a lawyer, or b) respond to the Motion.
The adjournment is peremptory to Mr. Nur, meaning that if he does not retain a lawyer, and regardless of whether he has filed any responding material, the Defendant’s summary judgment motion will proceed on that date.
If Mr. Nur retains counsel, the motion date may be adjourned by agreement of counsel.
[3] Counsel for the defendant advises that she has heard nothing further from Mr. Nur or anyone on his behalf. She sent a follow up email to him on December 23, 2020 and did not receive a response to her email.
[4] The hearing before Justice Trimble was by Zoom videoconference, as was the hearing before me on January 7, 2021 at 10:00AM.
[5] Mr. Nur did not attend the videoconference hearing on January 7, 2021. There were other motions on the list, and Mr. Nur did not appear at any point during the day.
Defence Evidence
[6] The motion materials include an affidavit from the defendant and an affidavit from an off-duty police officer who witnessed the accident, Detective Constable Pedro Vidinha. Both say the defendant had a green light and the plaintiff proceeded into the intersection on a red light.
[7] The accident occurred at the intersection of Scarlett Road and Lawrence Avenue West in Etobicoke. The defendant was northbound in a white Audi. The plaintiff was westbound in a grey or silver Audi. DC Vidinha’s affidavit indicates:
At the time of the collision, I was operating my motor vehicle in a northbound direction on Scarlett Road approaching the intersection with Lawrence Avenue West, in the City of Toronto. At that location, there are two northbound lanes on Scarlett Road. I was travelling in the thru lane, with the intention of making a left-hand turn onto westbound Lawrence Avenue West.
As I approached the intersection with Lawrence Avenue West, I was directly behind a white 2008 Audi A4 motor vehicle… I subsequently learned this vehicle was being operated by the defendant.
As my vehicle approached the intersection, the traffic light was solid green for northbound traffic. I slowed my vehicle in order to make the turn onto Lawrence Avenue West. At the same time, I observed the vehicle operated by the defendant continuing into the intersection. The light for northbound traffic remained green.
As the defendant's vehicle entered the intersection, I observed to my right in the westbound curb lane of Lawrence Avenue West a grey or silver 1999 Audi 42Q motor vehicle…, which I subsequently learned was being operated by the plaintiff. As the light facing northbound traffic remained solid green in colour, it is my belief the light facing the plaintiff was red.
The plaintiff's motor vehicle approached the intersection at a high rate of speed. It did not come to a stop. It began to turn right onto northbound Scarlett Road, and came into contact with the defendant's motor vehicle, which remained entirely within the northbound thru lane at the point of contact.
[8] The defendant’s evidence is to the same effect.
[9] The affidavits each include excerpts from the plaintiff’s examination for discovery. The affiants indicate that they have reviewed the transcript excerpts, and then respond to specific elements of the plaintiff’s discovery testimony with their own evidence on points of disagreement.
Use of Plaintiff’s Discovery Transcript Evidence
[10] The question this approach raises is whether the defendant’s transcript testimony becomes evidence that is inconsistent with the defence evidence, such that I have to weigh it. If the plaintiff’s discovery testimony is evidence that I should be considering, I would be required to weigh the evidence and evaluate its credibility under rule 20.04(2.1).
[11] For instance, the transcript reflects the plaintiff’s discovery testimony that he had a green light, and that it turned green just as he got to the intersection. It also reflects the plaintiff’s evidence that the defendant was speeding. There is conflict between the defendant’s affidavit evidence and the statements made by the plaintiff during his discovery.
[12] Rule 20.02(1) says the court can draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. Rule 20.02(2) says 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.
[13] In Pereira v. Contardo, 2014 ONSC 6894, the defendant brought a summary judgment motion. The defendant put the plaintiff’s discovery evidence and medical history and procedural history into the evidentiary record. The Divisional Court held at para. 42 that “when a party on a motion places his opponent’s discovery testimony into evidence, the evidence is available to be used by either party.”
[14] The court in Pereira cited Lawless v. Anderson, 2010 ONSC 2723 (aff’d without reference to this issue 2011 ONCA 102), where the moving party defendant in a summary judgment motion filed an affidavit from a law clerk which appended the entire transcript of the plaintiff. Justice David Brown held at para. 14 that:
Absent a clear statement by the moving party that he only intended to rely on certain portions of [the plaintiff’s] discovery transcript, it reasonably was open to the responding party to operate on the assumption that the entire transcript was in evidence as part of the moving party’s record and to take that into consideration in determining the contents of the responding party’s record. With the entire transcript in evidence, the responding party could use that evidence as she could any other evidence in the record. All of which is to say, if a party on a motion for summary judgment wishes to rely on limited portions of the examination for discovery of an opposite party, it should only include in its record the passages it intends to “read-in”. Otherwise, in the absence of a statement of limited use, the entirety of a filed transcript becomes part of the record available for use in the same manner as any other evidence filed on the motion.
[15] This approach was also followed by Justice Verbeem in Enns v. Goertzen, 2019 ONSC 4233 at para. 110 and by Justice Corthorn in Wong v. 10658987 Canada Inc., 2020 ONSC 2469 at para. 77 and Elmi v. Choukair, 2020 ONSC 1181 at para. 24.
[16] Here, the motion materials do not contain any statement of limited use for the excerpted portion of the transcript. However, it is clear that the defendant did not rely on the plaintiff’s transcript but rather included it so that the defendant and DC Vidinha could respond to the plaintiff’s anticipated evidence on the motion. It is apparent from the affidavits that the defendants do not rely on any part of the transcript, but rather they refute parts of it. Further, as Mr. Nur has not participated in the hearing, there is no basis to think Mr. Nur may have assumed he would be able to rely on the portions of the transcript that are in the supplemental motion record.
[17] The approach taken by the defendant was efficient. In the circumstances of this case, where the plaintiff’s factual position was known, it made sense to have the defence affiants respond to that anticipated evidence. This is especially so for DC Vidinha who is not an involved party. It can be difficult to secure the cooperation of such individuals and they ought not to be inconvenienced more than necessary, which would have been required if the defendant waited for Mr. Nur’s affidavit and then responded to that instead of to Mr. Nur’s discovery evidence. A better practice may have been to describe and refute the plaintiff’s anticipated evidence on the motion, or to include a statement of limited use in the motion materials. However, given the obvious intention of the defendant as to the use of the discovery transcript, in the circumstances of this case it is inappropriate to make use of the transcript as proof of the truth of its contents.
[18] In light of this conclusion, I have no evidence from Mr. Nur in response to this motion. The evidence filed by the defendant is compelling. There is no genuine issue requiring a trial.
The Need to Evaluate Credibility
[19] In the event that my conclusion on the use of the plaintiff’s discovery testimony is incorrect, I will proceed to evaluate the evidence on the motion, including Mr. Nur’s discovery testimony.
[20] Mr. Nur’s discovery testimony contradicts the evidence of the defendant and DC Vidinha and raises an issue of credibility. Under rule 20.04(2.1), I am entitled to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial.
[21] In Trotter Estate, 2014 ONCA 841, a summary judgment motion where there was “extensive and conflicting” evidence, the Court of Appeal cautioned against taking a conclusory approach and failing to make the findings of credibility necessary to support the decision. Justice Benotto stated at para. 54 to 55:
Since the evidence adduced by the appellants was capable of supporting an allegation of undue influence, it was incumbent upon the motion judge to explain why she rejected it. This, of necessity, requires a credibility analysis pursuant to the expanded judicial powers under rule 20.04(2.1) to weigh the evidence, evaluate the credibility of the appellants’ deponents and draw reasonable inferences.
It is not always a simple task to assess credibility on a written record. If it cannot be done, that should be a sign that oral evidence or a trial is required. The motion judge did not engage in a credibility analysis or attempt to provide conclusions on credibility. Where important issues turn on credibility, failure to make credibility findings amounts to reversible error. [Citations omitted.]
[22] She further stated at para. 72 to 76:
There will be no genuine issue requiring a trial when the written record (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: Hryniak, at para. 49.
The motion judge’s reference to “bald allegations” implies that the written record on its face was sufficient to conclude that there was no genuine issue requiring a trial. This would be the equivalent to dismissing the action at step one of Hryniak.
However, as set out above, the allegations were not bald. The evidence conflicted. The appellants’ evidence demonstrated a genuine issue requiring a trial.
At this point, a motion judge may, at her discretion, move to step two of Hryniak, where she must consider whether a trial can be avoided by using the powers granted under rules 20.04(2.1) and (2.2) to weigh the evidence, evaluate credibility, draw reasonable inferences and call oral evidence. These discretionary powers are presumptively available unless it is in the interest of justice to exercise them only at a trial.
In the present case, the motion judge recited the evidence but did not weigh it, evaluate it or make findings of credibility. Thus, even on the lower threshold of Hryniak, the approach was flawed.
Plaintiff’s Evidence and Credibility
[23] Mr. Nur testified at his discovery that the light changed from red to green for him immediately as he arrived at the intersection. He said that he slowed as he approached the intersection, but he was the first car at the intersection and he did not have to stop. He said the light stayed green for him the whole time. He testified that the other driver was speeding because he wanted to cross the intersection before the light turned red. He said, “before he [the defendant] came inside the intersection, and actually his light became – turned to red, but immediately he speeded up and I was already crossing because I had the green light, then that's why he collide with me.”
[24] This evidence obviously contradicts the evidence of the defendant and DC Vidinha. However, the interests of justice do not require a trial. In this case I am readily and confidently able to weigh the evidence and evaluate the credibility of the deponents on the available record because the defence evidence is more credible by a wide margin.
[25] In an area not related to the mechanics of the accident, Mr. Nur testified that four people attended the scene of the accident after having been called by the defendant. He said that one of these people was DC Vidinha. He said DC Vidinha gave him a ticket “because he was trying to please those guys who are his friends.” He said that one of the girls among these people was DC Vidinha’s girlfriend and the others were close to him, and he was trying to make them happy.
[26] In response, in his affidavit, DC Vidinha said, “At no time did I observe the presence of four other people in the company of the defendant following the collision” and, “If there were indeed four people who attended at the scene and were in the company of the defendant, these people did not include my girlfriend.”
[27] The defendant said, “At no time did I call anyone who then joined me at the scene following the collision.”
[28] Mr. Nur offered no support for his implausible allegation against DC Vidinha. He made a further unsupported and implausible allegation, saying DC Vidinha issued him a “fake ticket” which he hired a paralegal to address, claiming that the paralegal told him it was a fake ticket. DC Vidinha explained that he did charge Mr. Nur but the charge was withdrawn because he was not able to attend traffic court.
[29] Mr. Nur’s credibility is seriously impaired by his unsupported, implausible and sensational allegations against DC Vidinha. In contrast, DC Vidinha, an independent witness, has provided credible and persuasive evidence, supported by contemporaneous notes (which are also in the record). DC Vidinha’s evidence is also fully supported by the defendant.
[30] The evidence of DC Vidinha and the defendant was not challenged by cross examination.
[31] The plaintiff has not put forward an affidavit in this motion and thus has avoided exposing himself to cross examination.
[32] The totality of the evidence overwhelmingly favours the defendant’s position. There is no genuine issue requiring a trial.
Disposition
[33] Summary judgment is granted. The action is dismissed.
Costs
[34] The defendant has provided a bill of costs for the action totalling $10,555.10 on a partial indemnity basis, inclusive of HST and disbursements. This covers the pleadings through to discoveries. The disbursements of $3,214.62 include an interpreter and the cost of preparing the transcripts from the plaintiff’s discovery.
[35] The defendant has also provided a costs outline for the motion totalling $6,409.38 on a partial indemnity basis, inclusive of HST and disbursements. $1,199.38 of this amount was for disbursements.
[36] The disbursements and fees appear reasonable, but I will round down the amount claim for the costs award. The plaintiff shall pay the defendant the costs of this motion and of the action in the total amount of $16,000.
“Justice R. Chown”
Released: April 8, 2021