Court File and Parties

COURT FILE NO.: CV-18-00611101

DATE: 2021-04-20

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: GORGE GEOVANNI GARCIA, SHERYL GERUNDIO SUAN, RUVIC IAN CORTEZ GERUNDIO, JOHN KIRK GERUNDIO SUAN, DANIEL ETHAN GARCIA and YOCHANAN DAVID GARCIA, BY THEIR LITIGATION GUARDIAN, GORGE GEOVANNI GARCIA, plaintiffs

AND:

DEVONTAE T. HARRISON and ROBIN BOLDERSON, Defendants

BEFORE: S.F. Dunphy J.

COUNSEL: I. Caley Ross, for the Defendant/Moving Party, Robin Bolderson Richard A. Levin, for the Plaintiffs/Responding Parties No one appearing for Mr. Harrison

HEARD at Toronto: April 20, 2021

REASONS FOR DECISION

[1] The defendant Mr. Bolderson brought this motion for summary judgment seeking to be removed from claims and cross-claims arising from a three-way motor vehicle accident that he was involved in. He did so before submitting himself to discovery and without filing his own evidence by way of affidavit. I dismissed his motion from the bench without calling upon the plaintiffs and indicated that I would provide short written reasons later in the day. These are those reasons.

[2] The accident in question occurred in 2016 on the on-ramp from Highway 401 to the Allen Road northbound. The first defendant’s automobile ended up colliding with the guardrail on the far side of the northbound lanes while Mr. Bolderson’s automobile was struck from behind by the plaintiff Mr. Garcia’s automobile. It would seem likely that Mr. Bolderson’s vehicle and the plaintiff’s vehicle were both reacting in some fashion to Mr. Harrison’s vehicle as it merged on to the Allen Road northbound lanes. Beyond that, little more can be said with confidence.

[3] The defendant’s motion for judgment followed the completion of the examination for discovery of the plaintiff Mr. Gorge Garcia and that of the first defendant Mr. Harrison – two of the three involved drivers. Mr. Bolderson elected not to appear for his previously agreed examination for discovery date in light of this intended motion for summary judgment.

[4] The defendant’s motion was supported by a lawyer’s double-hearsay affidavit. Not only did the lawyer in question have no direct evidence relevant to the issue of liability to offer but he relied in very significant measure upon the hearsay evidence of investigating police officers (referring in turn to untested statements taken from, among others, Mr. Bolderson) in purporting to describe how the accident unfolded. That untested, double-hearsay evidence can be afforded no weight where the direct evidence of Mr. Bolderson regarding these matters is available but has been quite deliberately withheld.

[5] In reaching my decision in this case, I have relied upon the helpful guidance of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7. While the summary judgment rules provide a motions judge hearing a summary judgment motion with access to an expanded range of fact-finding tools, I can only fairly apply these where the record is sufficiently developed to permit a fair and just determination of the issues raised on the merits. I can conclude that there is no genuine issue for trial if the process (i) allows me to make the necessary findings of fact, (2) allows me to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak para. 49. Further, a "process that does not give a judge confidence in his or her conclusions, can never be the proportionate way to resolve a dispute”: Hryniak at para. 57.

[6] The central question in this motion is whether the evidence before me allows me fairly to conclude that Mr Bolderson bears no liability whatsoever for the accident that occurred and its consequences. There is simply no way that I can fairly reach that conclusion at this stage.

[7] Accidents of this nature are difficult to pin down with precision and the assignment of liability is a potentially intricate process. The events in question typically occur in the metaphorical blink of an eye. Eye-witness accounts will often differ in material aspects. This does not necessarily reflect a want of sincerity or honesty of those doing their best to reconstruct with clarity what their minds actually recorded in a cloud of adrenaline-laced confusion. Forensic reconstruction of aspects of the accident by experts may be necessary to deal with some questions.

[8] Although a discovery timetable was set and agreed to, Mr. Bolderson decided that he had enough in hand to bring this motion after examining the plaintiffs for discovery and declined to submit to examination for discovery. That failing might have been excused had he filed an affidavit cross-examination upon which may have served much the same purpose, but he sought to short-circuit even that basic procedural step with this motion.

[9] It is thus early days to expect the plaintiffs’ evidentiary cake to be fully-baked. That is not to say that there will not be occasions where the evidence – or absence of evidence – is of such a glaring nature as to justify a defendant to require the plaintiff to assemble the necessary expert evidence sooner rather than later lest the case be judged without it. That is not the case here. Mr. Bolderson’s evidence is clearly a critical component of the evidentiary picture and this motion has been quite deliberately framed to try to shield that evidence from view.

[10] The plaintiff has access to his own eye-witness account of course. He also can access the discovery evidence of the first defendant. However, Mr. Bolderson’s evidence has only been made available in a derivative fashion via accounts related by a lawyer of notes made by investigating police officers and has not been tested in any way. The unexplained and unjustified absence of evidence from an obviously key witness entirely within the control of the moving party defendant raises questions for which the record provides no answer. Such circumstances fully justify a negative inference being drawn. I do not know what I do not know, but Mr. Bolderson does. His evidence ought to be have been provided and subjected to examination.

[11] The motion for judgment is dismissed with costs to the plaintiffs. The first defendant Mr. Harrison did not file any material on this motion and did not appear. His cross-claim survives as a consequence of my dismissal of this motion but he is not entitled to any costs.

[12] Regrettably, neither party came to the motion equipped with sufficient information to enable me to quantify costs. I entirely understand why this might be the case were offers to settle outstanding that a party would not wish to disclose to the judge until after a decision is rendered. However, where offers to settle are not a factor, counsel should always be prepared to discuss both what their clients ought to receive if they prevail and what costs they ought to pay if they do not. Sending a costs outline to the adverse party the day prior to a hearing would be a good practice even if not reciprocated. Indeed, it would be prudent practice to be prepared to answer that question even if an offer to settle is in play unless it is plain and obvious that the matter will be taken under reserve by the motions judge.

[13] I expect the parties to discuss the matter among themselves and attempt to resolve the matter of costs. Their attempts to “ballpark” costs before me after I gave my oral decision revealed a fairly large gap between the bid and ask, so I am asking them both to sharpen their pencils and make a good faith effort to reach a settlement on the issue. In the event they are unable to resolve costs amicably, the following timetable shall apply:

a. Plaintiff outline of costs and written submissions to be delivered to moving party defendant by May 4, 2021;

b. Moving party defendant outline of costs and written submissions in response to be delivered by May 11, 2021;

c. Reply if any to be delivered by May 14, 2021.

[14] Submissions shall be capped at five pages (three pages for true reply if necessary). Submissions shall be assembled by the plaintiff and submitted to me via my assistant with a copy to the moving party when sent. Authorities need not be appended if a hyperlink citation is provided.

S.F. Dunphy J.

Date: April 20, 2021