Court File and Parties

COURT FILE NO.: 2510/16

DATE: 20210716

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Adam Tishenko, plaintiff

AND:

Kevin Walper and Municipality of Middlesex Centre, defendants

BEFORE: Aston J.

COUNSEL: Keri T. Grenier for the plaintiff Andrew L. Keesmaat for the Mr. Walper Tara Pollitt for Municipality of Middlesex Centre

HEARD: June 7, 2021 (virtually) at London

ENDORSEMENT

Factual Background and Issues

[1] Shortly after 9:00 a.m. November 27, 2014, the defendant Walper was driving his pickup truck westbound on Oxbow Drive. At the same time the plaintiff was southbound on Coldstream Road, approaching the intersection with Oxbow Drive. The speed limit for both drivers was 80 km per hour.

[2] The plaintiff was approaching a STOP sign. The defendant was not.

[3] Mr. Walper says he first noticed the plaintiff’s vehicle when they were both a few hundred feet from the intersection. He then turned his attention back to the road ahead. He says he was nearly into the intersection when he next saw the plaintiff’s vehicle and realized it was not going to stop. He braked hard and steered left but struck the plaintiff’s vehicle on the driver’s side as it crossed the centerline of Oxbow.

[4] The plaintiff was badly injured. He has no memory of the collision. His last memory, from about 10 minutes before the collision, is that he had lost his way. He had missed a turn and was looking for a highway. He cannot say if he stopped or slowed down at the STOP sign, or even if he noticed it.

[5] No one else witnessed the collision.

[6] In this action, the plaintiff claims that Mr. Walper could have avoided the collision, or at least that the collision would have been less severe, if Mr. Walper had been driving at the speed limit and had been paying proper attention. Mr. Walper’s position is that he had no reasonable opportunity to avoid the crash.

[7] The plaintiff’s claim against the municipality is that it was negligent with respect to the design and maintenance of the intersection.

[8] Mr. Walper brings this motion for summary judgment. He asks that both the plaintiff’s claim against him and the municipality’s cross claim against him be dismissed. The municipality chose not to actively participate in this motion. It concedes that if the plaintiff’s claim against Mr. Walper is dismissed then its cross claim ought to be dismissed as well.

[9] Mr. Walper’s liability to the plaintiff and to the municipality all boils down to a single question of fact: driving prudently could Mr. Walper have avoided the collision, or alternatively mitigated the severity of the collision?

[10] Can that question be answered now on a motion for summary judgment or is there a genuine issue necessitating a trial?

[11] The parties agree on the test to be applied on a summary judgment motion. The court starts with a determination of whether it has all the necessary evidence to “fairly and justly adjudicate the dispute”, then considers whether the summary procedure is a more expeditious, less expensive and proportionate alternative. I am entitled to weigh the evidence, evaluate credibility and draw reasonable inferences “unless it is in the interests of justice” that those powers be exercised only at trial. In this case neither party has suggested that the court should resort to its other powers under rule 20.04(2.2). I can assume on this motion that the parties have placed before the court all the evidence that will be available at trial.[^1]

[12] The plaintiff’s response to this summary judgement motion raises the following issues:

1. Do the conflicting expert reports raise a genuine issue requiring a trial?;

2. Are there credibility concerns that raise a genuine issue requiring a trial?; and

3. Should summary judgment be refused because the plaintiff’s claim against the municipality will remain ongoing?

Do the conflicting expert reports raise a genuine issue requiring a trial?

[13] The plaintiff relies on two expert reports. The first, the “TNS report” of April 30, 2019, addresses the design and maintenance of the intersection. One of its specific conclusions is that trees and bushes on the northeast corner of the intersection restricted the line of sight between the two drivers and reduced the defendant’s ability to avoid a collision. In that sense, it is helpful to Mr. Walper’s position. The TNS report is also helpful to his position in another way: the expert confirms that intersections such as the subject intersection are designed for “prevailing operating speeds”, not speed limits. The road design parameters for county roads like these, including specifically sight-line requirements, typically assume speeds of 10-20 kms to hour over the posted speed limit.

[14] The posted speed limit on Oxbow Drive was 80 km per hour. The electronic data recorder (EDR) on the Walper vehicle, included in the police material, recorded information about his speed leading up to impact as well as brake pedal application before impact. The EDR reported a constant speed of 85 km per hour approaching the intersection, the application of brakes for about 1 second before impact and a last recorded speed before impact of 47 km per hour.

[15] The plaintiff’s second expert report, the “MEA report” questions the accuracy of the EDR and concludes that Mr. Walper’s approach speed was between 83 and 90 km per hour.

[16] The defendant’s expert report of March 15, 2021, the “30 Forensic report”, disputes that particular conclusion, asserting that the 85 km per hour recorded is accurate within 2 km per hour up or down and that the most likely speed is the recorded speed of 85 km per hour.

[17] Even assuming the MEA conclusion of 83 to 90 km per hour, Mr. Walper was driving at a speed below “prevailing operating speeds” on this particular road and at a speed that is presumptively safe according to the plaintiff’s other expert. Driving over the speed limit will only constitute negligence if the speed prevented the driver from taking reasonable measures to avoid the collision. (See Cooper v Garrett, 2009 BCSC 35, 2009 B.C.S.C. 35 at para.42 and Smith v Safanyos, 2018 ONCA 760 at paras 127-128.) In this case there is no reliable evidence to prove that fact.

[18] I accept the plaintiff’s submission that it is generally very difficult on a summary judgment motion to resolve an issue where there are conflicting expert opinions. This case is an exception.

[19] I have done a painstaking review of the expert reports filed. If I was required to make findings of fact on this conflicting evidence, I would be inclined to find the 30 Forensic report as more compelling. However, it is not necessary for me to address the conflicting opinions in the expert reports because the MEA report – the plaintiff’s only evidence on the critical issue of Mr. Walper’s ability to avoid the collision – is not reliable and fails to prove the point. The conclusion in the MEA report rests on an untenable fundamental assumption and I give it no weight.

[20] In fairness to Ms. D’Addario, the author of the MEA report, my conclusion has nothing to do with her credibility or expertise. The frailty of her evidence stems from the terms of her retainer and the fundamental assumption she was required to adopt. She was asked to express an opinion based on the theory that the plaintiff came to a stop, or near stop, at the STOP sign.

[21] The assumption that the plaintiff came to a stop, or near stop, is contrary to the only evidence on this point. Mr. Walper’s evidence is that the plaintiff did not stop or even appreciably slow down before entering the intersection.

[22] Quite apart from Mr. Walper’s evidence, the notion that the plaintiff came to a stop, or near stop, “at the STOP sign” is contrary to any reasonable inference and to everyday driving experience because the STOP sign was located 14 meters back from the intersection at a place where trees and bushes created a partial obstruction of the intersecting road. Anyone driving south on Coldstream Road approaching Oxbow Drive would only have had a completely unobstructed view of Oxbow traffic heading west if the driver pulled forward from the STOP sign closer to the edge of the intersection.

[23] Some of the pictures in the motion record, taken by the plaintiff’s father November 30, 2014, validate this conclusion. The photo at p.197 of the record depicts the view to the left for a driver stopped at the STOP sign. The photos at pages 200 and 204 depict how far a driver southbound on Coldstream would have to pull forward from the STOP sign to see oncoming traffic to his or her left. The photo at p.208 illustrates how far forward a vehicle southbound on Coldstream needs to be to be clearly visible to anyone westbound on Oxbow.

[24] Even without any obstruction, there is no plausible reason for a driver to stop 14 meters back from an intersection, where it would be more difficult to judge whether it was safe to enter the intersection, than from a spot closer to that intersection. Without a Stop Line or crosswalk, a driver is required by s.136 of the Highway Traffic Act to pull up closer to the crossroad. That is consistent with common sense and everyday driving experience.

[25] The fundamental assumption of Ms. D’Addario that the plaintiff came to a stop, or near stop, 14 meters shy of the intersection is significant because the plaintiff could not have achieved the speed he was travelling at impact (even the disputed low speed of 30 km per hour) in the 6 meters or less between the northern edge of the intersection and the point of impact midway through the intersection. In order to achieve the speed needed to support the conclusion Mr. Walper had time to avoid the collision Ms. D’Addario needed to include a ramp or runway of about 13 meters between the STOP sign and the intersection itself. This speculative and unrealistic assumption about where the plaintiff stopped, or nearly stopped, completely undermines Ms. D’Addario’s ultimate opinion that the defendant had time to react and avoid the collision.

[26] Furthermore, if the plaintiff had stopped at or near the intersection, as opposed to 14 meters back from that intersection, Mr. Walper would have seen him at that location but would not have perceived the plaintiff as a hazard at that moment. The Tishenko vehicle would only appear to be a hazard upon entering the intersection from a stopped or nearly stopped position. For the plaintiff to get up to his impact speed of 30 km per hour (or more) in the 6 meters or so to the point of impact (even assuming that is physically possible) would only give Mr. Walper split second reaction time.

[27] Although the MEA report recites the “possibility” that the plaintiff stopped, or came to a near stop, 14 meters back from the intersection at the location of the STOP sign, that scenario is only “possible” in the sense that it is not impossible, however unlikely. In any event, Mr. Walper’s liability cannot rest on speculation or possibility. The MEA report simply fails to prove on a balance of probability that Mr. Walper had a reasonable ability to avoid the collision.

Are there credibility concerns that raise a genuine issue necessitating a trial?

[28] The plaintiff challenges the credibility of Mr. Walper.

[29] Mr. Walper said he was driving at the posted speed limit, but the EDR recorded his speed at 5 km per hour over that speed limit and, according to the REA Forensic report, he may have been travelling as much as 90 km per hour.

[30] The plaintiff speculates that Mr. Walper was distracted because he was on his cellphone. The evidence clearly refutes that speculation. His call records confirm that he was on his phone at 9:16 a.m. but clearly this was after the collision had occurred. The two 911 calls came in at 9:13:50 or sooner. Mr. Walper’s assertion that his call was after the collision had occurred is also confirmed by the person he called. It is frankly troubling that the affidavit filed by the plaintiff on this motion omits any reference to the 911 calls and makes a completely unfounded allegation notwithstanding the clear evidence to the contrary.

[31] The plaintiff points out that Mr. Walper was driving while his license was suspended and that he may not have been wearing his seatbelt. I decline to draw any adverse inference from that evidence. Those facts are simply not relevant to the question of whether Mr. Walper had a reasonable opportunity to avoid the collision.

[32] Mr. Walper was questioned on an examination for discovery. He was then questioned again by cross-examination on his affidavit in support of this motion. He gave a statement to the police at the scene. The plaintiff has not identified any significant inconsistency in his answers.

[33] The plaintiff’s submission that a trial judge would be in a better position to assess credibility or the reliability of the evidence now before the court has not been demonstrated. That submission is based on hope and speculation but nothing more. There is no credibility issue necessitating a trial.

Should summary judgment be refused because the plaintiff’s claim against the municipality will remain ongoing?

[34] At paragraphs 59 and 60 of Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court sounded a note of caution in granting summary judgment, even in cases where the motion judge felt confident in the ability to make findings of fact using the “new” fact-finding powers. It pointed out that partial summary judgment runs the risk of duplicative proceedings or inconsistent findings of fact. In such a case the use of the expanded fact-finding power of the motion judge might not be “in the interest of justice”. In this case I have resorted to that expanded fact-finding power, at least to a limited extent, so I need to consider the impact on the ongoing litigation of granting the defendant’s summary judgment motion.

[35] The municipality’s cross claim against Mr. Walper is based on the same theory advanced by the plaintiff – that Mr. Walper had a reasonable opportunity to avoid the collision. Having found that he did not, that cross claim ought to be dismissed.

[36] However, I need to consider the ongoing nature of the litigation and the potential for conflicting findings of fact. The expert evidence in this case identifies a partially obstructed view as do several of the photographs filed. Though there is no evidence from the municipality on this motion I must assume the possibility that it will present evidence that any trees and bushes on the northeast corner of the intersection are immaterial because they did not cause or contribute to the collision.

[37] Mr. Walper’s own evidence is that his view of the plaintiff’s vehicle was not obstructed, but that evidence begs the question of “When?”. His view was not obstructed when both vehicles were a couple of hundred feet back from the intersection. His view was not obstructed when the plaintiff was close to the edge of the intersection and about to enter the intersection. When Mr. Walper says he could see the plaintiff’s vehicle “at or near the STOP sign”, it is not clear to me whether he appreciated the fact that the STOP sign was 14 meters back from the intersection itself.

[38] I wish to be clear and specific about this. My conclusion that Mr. Walper had no reasonable opportunity to avoid the collision does not rest upon whether he had an obstructed or unobstructed view of the plaintiff’s vehicle.

[39] I have found as a fact that from the location of the STOP sign, 14 meters back from the intersection, the plaintiff had a somewhat obstructed view of traffic on Oxbow Drive. That finding is surely not open to serious debate. Whether it is material to the determination of the municipality’s liability is an open question.

[40] I therefore conclude that my findings of fact on this motion do not risk any inconsistency with any material findings of fact that need to be made in the claim against the municipality and are not prejudicial to the municipality.

[41] Granting the defendant’s summary judgment motion will not obviate the necessity of a trial between the plaintiff and the municipality but it will a shorter, less complicated and less expensive trial. The “interest of justice” inquiry referred to in paragraphs 59 and 60 of Hryniak is not a reason to refuse summary judgment in this case.

Conclusion

[42] I am confident that I have been able to make the required findings of fact to conclude that the plaintiff is unable to prove Mr. Walper had a reasonable opportunity to avoid the collision.

[43] The motion for summary judgment is granted. The claims against Kevin Walper by the plaintiff and by the Municipality of Middlesex Center are dismissed. If counsel are unable

to agree on costs, brief written submissions may be submitted through the trial coordinators office within the next 20 days.

“Justice D.R. Aston”

Justice D.R. Aston

Date: July 16, 2021

[^1]: The MEA Forensic report of Ms. D’Addario states that it is a “preliminary” report, but at her cross examination she confirmed she had not been asked to provide any other or final report. On the hearing of the motion, counsel for the plaintiff did not indicate there would be any further expert evidence to support the plaintiff’s allegations against Mr. Walper.