Court File and Parties

COURT FILE NO.: CV-15-66436 DATE: March 16, 2022

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN: Alyson Robillard and Benjamin Robillard, by his Litigation Guardian Alyson Robillard, Plaintiffs

AND: Brandi Edwards-Turner and Stephen Edwards- Turner and Allstate Insurance Company of Canada, Defendants

BEFORE: Honourable Mr. Justice Martin James

COUNSEL: Peter Cronyn and Frances Shapiro Munn, Counsel for the Plaintiffs Charles Gluek, Counsel for the Defendants, Brandi Edwards-Turner and Stephen Edwards- Turner Mitchell Kitagawa, No one appearing for the Defendant, Allstate Insurance Company of Canada

DATE HEARD: June 24, 2021

Reasons for Decision

James J

Introduction

[1] There are three summary judgment motions before the court brought by the plaintiffs in each of the three lawsuits commenced as a result of a tragic head-on automobile accident on the 8th Line Road south of Ottawa on Sunday, November 17, 2013.

[2] Michael Robillard was the sole occupant of a 2010 Honda Civic involved in the collision. He died at the scene. Members of his family are the plaintiffs in Action # CV-15-66436 brought against the driver of the other vehicle, Brandi Edwards-Turner, Stephen Edwards-Turner and Allstate Insurance Company of Canada.

[3] Brandi Edwards-Turner was driving a 2003 Dodge Caravan, the other vehicle in the accident. Ms. Edwards-Turner is the plaintiff in Action # CV-15-66450 brought against the Estate of Michael Robillard and the Ottawa Police Service (“OPS”). The claim against the OPS was subsequently dismissed on consent. Hailey Edwards-Turner, then 7 years old, was asleep in the second row of seats in the van. They both sustained serious injuries in the crash. Brandi Edwards-Turner has no recollection of the accident.

[4] Hailey Turner, together with her siblings, Carson Turner and Braydin Turner and their father, Patrick Turner, are the plaintiffs in Action # CV-15-66502 brought against Brandi Edwards-Turner, the Estate of Michael Robillard, and the OPS.

[5] While the parties do not agree on liability, they all suggest that if liability is determined, damages could likely be resolved without a trial. The parties also all agree that liability can and ought to be determined by means of the summary judgement procedure.

[6] There were no witnesses to the accident.

[7] The Robillard plaintiffs and the Edwards-Turner plaintiffs commissioned accident reconstruction reports that come to different conclusions on some material points and core issues. There is also an accident reconstruction report prepared by the OPS. Only a brief review of the salient points contained in these reports is necessary to illustrate the difficulties often associated with requests for liability determinations on the basis of a documentary record only when competing expert opinions are involved.

[8] For the reasons that follow, I have determined that the motions ought to be dismissed.

The Facts

[9] During the afternoon of November 17, 2013 Michael Robillard was driving in a northerly direction on his way to work as a police officer with the OPS. His shift started at 4:00 p.m.

[10] Brandi Edwards-Turner was driving in the southbound lane on her way home after watching her son’s hockey game and doing some shopping. Both drivers were familiar with the road. It was approximately 3:30 P.M. The sky was overcast, and the road was wet. The speed limit was 80 km per hour.

[11] In this location 8th Line Road is a two way roadway, one lane north and one lane south. The road is marked with a double solid line indicating a no passing zone.

[12] The collision occurred in the northbound (Robillard) lane about 50 metres north of the crest of a hill. Neither driver would have been able to see the other until only a second or two before impact because of the presence of the hill.

[13] The estimated speed of the vehicles at the moment of impact was 80 km/h for the Caravan and 107 km/h for the Civic.

[14] There is no evidence that fatigue or alcohol were factors.

[15] Neither vehicle had any apparent mechanical problems that may have contributed to the accident.

[16] The exact time of impact is unknown.

[17] Phone records indicate that Mr. Robillard sent outgoing text messages at 3:28, 3:30 and 3:31 P.M. and received incoming text messages at 3:28, 3:31 and 3:32. The outgoing and incoming messages were essentially a conversation between Mr. Robillard and his friend, Mr. P. Higo.

[18] Mr. Robillard’s iPhone was set to notify the user of incoming text messages with both audible and vibration notifications and an on-screen preview of the incoming message. The last three incoming messages from Mr. Higo were not opened.

[19] A witness, Gary Chouinard, had been following the Caravan for some distance but did not see the collision. Mr. Chouinard did not observe any unusual driving by Ms. Edwards-Turner prior to the crash. He was the first person on the scene after the accident. His 911 call was placed at 3:33 according to his cell phone records.

[20] Another witness, Luc Cyr, saw smoke in the air from a distance as he drove towards the accident. He looked at the clock in his vehicle which read 3:30. He arrived at the scene a few moments later. He spoke with Mr. Chouinard and attended at the Robillard vehicle, then called 911. The 911 log showed that his call came in at 3:37.

[21] Subsequently, Ms. Edwards-Turner was charged and convicted of an offence under s. 154(1)(a) of the Highway Traffic Act, Fail to Drive in Marked Lane.

The Collision Reconstruction Report by the Ottawa Police Service

[22] A Collision Reconstruction Report dated May 1, 2014, was prepared by Det. Cst. Alain Boucher of the OPS and reviewed by a representative of an outside police agency due to Mr. Robillard’s employment with the OPS. His conclusions included the following points:

a. The respective vehicle speeds were (inaccurately) estimated to be 80 km/hr for the Civic and 93 km/hr for the Caravan. b. The cell phone investigation respecting Mr. Robillard’s iPhone4 indicated that he “may have been texting at the time of the collision” but ‘there are too many variables” to establish an exact time of the accident in relation to the text messages. c. It can be “concluded” that Michael Robillard was distracted by his phone, but this is not “conclusive” since the collision occurred in his lane.

[23] There was no conclusive evidence to explain the presence of the Caravan in the northbound lane.

[24] A revised report by OPS dated December 6, 2014 amended the estimated speeds of the vehicles and commented that “in terms of collision reconstruction there was not enough evidence at the scene to assist in a full crash analysis of this collision. There were no pre-crash skid marks or any evidence of braking by either vehicle”.

Jenish Forensic Engineering Report

[25] This accident reconstruction report was commissioned by the Robillard plaintiffs. It is dated December 4, 2018. It was prepared by Gordon Jenish P. Eng. and William Jennings P. Eng. Both authors are experienced accident investigators. Their conclusions included the following:

a. The physical evidence indicates that the only probable scenario was that the Caravan began to cross into the northbound lane before the Civic crested the hill; b. The location of the Caravan is consistent with continued movement into the northbound lane at the moment of impact, and no apparent avoidance manoeuver by the driver; c. Judging by gouges in the pavement, the Caravan was fully in the northbound (Robillard) lane at the moment of impact; d. The drivers did not have an unobstructed view of each other’s vehicle until they were about 100 metres apart; e. Based on the estimated speeds of the vehicle, the drivers would have had between 2.1 and 2.3 seconds to perceive and respond to the other vehicle, leaving insufficient time to avoid a collision. This would be the case even if the Civic had been travelling at the speed limit of 80 km/hr rather than the estimated 107 km/hr; f. The Civic came to rest with its right front corner near the east fogline (the painted line near the edge of the pavement), consistent with the driver having initiated an avoidance maneuver by steering to the right.

The MEA Forensic Engineers Report

[26] The Edwards-Turner plaintiffs requested the preparation of a review of the Jenish report, with particular reference to the likelihood that Mr. Robillard was distracted in the seconds immediately prior to the collision and whether the position of Ms. Edwards-Turner’s vehicle at the moment of impact was the result of a reaction to unusual motion by the Robillard vehicle.

[27] The report was prepared by Pamela D’Addario, P. Eng. who also has a Master’s degree in Applied Science, Mechanical and Industrial Engineering (Human Factors). The MEA report is dated March 5, 2020. Ms. D’Addario has conducted hundreds of accident investigations and her C.V. indicates significant experience in the area of distracted driving and response times. Without discounting the expertise of the authors of the Jenish report, suffice to say that Ms. D’Addario has impressive credentials as an accident investigator. Her comments included the following:

a. Her analysis of the orientation of the vehicles at impact allows for a wider range of pre-impact motions; b. Ms. D’Addario disagrees with the Jenish conclusion that “the likelihood that Michael Robillard was distracted in the seconds leading up to the collision is extremely remote”; c. The angle of the Civic at impact is not necessarily due to a response to the position of the Caravan prior to impact. It is also consistent with Mr. Robillard drifting laterally due to being distracted; d. Using assumed response times more in line with typical values, there was time for Ms. Edwards-Turner to reach her position at impact as a result of steering to the left in an avoidance attempt.

[28] These comments prompted a response by Mr. Jenish dated March 29, 2021.

[29] The Jenish response in turn prompted a rebuttal report from Ms. D’Addario dated May 7, 2021.

Position of the Robillard Plaintiffs

[30] Only the Jenish report provides an opinion on the “probable” cause of the accident.

[31] The MEA Forensic opinions merely suggest possibilities of what may have happened. In this context, the evidence of the liability experts is not truly in conflict.

[32] MEA Forensic has presented only possible scenarios based entirely on speculative hypotheses.

[33] There is no evidence that Mr. Robillard’s vehicle ever left his lane.

[34] The circumstances of the accident result in a situation of prima facie negligence on the part of Ms. Edwards-Turner because the finding of guilt in relation to Ms. Edwards-Turner’s Highway Traffic Act charge creates a rebuttable presumption that she is liable for the collision.

[35] The Civic was offset to the right within its lane with its right front corner near the fogline just prior to impact. This indicates that Mr. Robillard initiated a steering manoeuver to the right which suggests that he was not distracted in the seconds leading up to the collision. The likelihood of Mr. Robillard being distracted was “extremely remote.”

Position of Brandi Edwards-Turner

[36] The conviction of Ms. Edwards-Turner for the driving offence of failing to drive in her lane results in a rebuttable presumption of negligence. A driver may rebut prima facie evidence of negligence by producing an explanation that is equally consistent with the absence of negligence. When this occurs, the onus of establishing negligence returns to the opposing party. On the evidence, fairness dictates that Brandi Edwards-Turner’s conviction not be conclusive of negligence on her part.

[37] The totality of the evidence favours the view Mr. Robillard was speeding, he was distracted and he was at least partially outside his lane with the result that Ms. Edwards-Turner reacted by turning to the left.

[38] The Jenish theory of the cause of the collision is no more plausible than that postulated by MEA.

[39] Where a court is convinced that the loss was caused by both parties, liability ought to be apportioned equally where it is not possible to establish different degrees of fault.

Position of the Hailey Edwards-Turner Plaintiffs

[40] Hailey Edwards-Turner, her siblings and her father join with the other moving parties to argue that this is an appropriate case for determining liability by summary judgment for the same reasons. She goes on to say that determination by summary judgment is immensely significant. She continues to suffer from the injuries she sustained in the accident.

[41] She says that both the Jenish report and the MEA report present “possible” versions of events.

[42] Where the court is “convinced” that the loss was caused by both parties but it is not possible to establish different degrees of fault, liability should be apportioned equally.

Issue

[43] Is this a suitable case for partial summary judgment when there are competing experts’ reports?

Discussion and Analysis

[44] One of the features of this case is that there are three motions for summary judgment. Unlike most situations, all parties here favour disposition of the liability issue by summary judgment but they have diametrically opposed positions as to who ought to be liable. They want summary judgement but in their favour. They have not committed to abide by the result, whatever it is. They say that damages can be resolved without a trial but there is no agreement on damages. Some of the benefits associated with summary judgment (saving costs, efficiency, timeliness) would be lost if this motion was appealed. Accordingly, I do not place great importance on the submission that all parties would like to resolve liability by way of the summary judgment procedure.

[45] Not all cases are suited to disposition by summary judgment. Sometimes the interests of justice require that fact-finding take place through the trial process with oral testimony and contemporaneous cross-examination in the presence of the trier of fact. Cross-examination may reveal shortcomings or weaknesses in an expert witness’s evidence that cannot be discerned by reading the expert’s report.

[46] Counsel for Mr. Robillard says that the existence of conflicting expert reports does not preclude summary judgment and cites Ozimkowski v. Raymond, 2019 ONCA 435 at paras. 36-43 and Sheldon v. Beaulieu, 2020 ONSC 4908 at paras. 15-17 in support of this proposition. I do not find these authorities persuasive. The Court of Appeal’s decision in Ozimkowski is only four paragraphs in length. The motion judge who granted summary judgment in the first instance was satisfied that there was no air of reality to the claims of the defendant who struck a stopped vehicle from behind. In Sheldon, one of the expert’s reports was found to be inadmissible.

[47] Disposition by summary judgment in the face of competing expert evidence presents difficulties that may not be present when evidence is presented by lay witnesses (see Paul v Oliver Fuels Ltd, 2012 ONSC 540 at para. 44; Frame et al. v. Watt et al., 2016 ONSC 718 at para. 31).

[48] The decision of E.M. Morgan J. in Hunt v. Toronto (City), 2016 ONSC 2433 at paras. 25 and 26 is an example of the application of this principle post-Hyrniak. In Maracle v Mascarin, 2016 ONSC 537 Tausendfreund J. said at para. 32 that:

In the face of these competing medical opinions on the issue of the medical/dental malpractice allegation, the summary trial provisions in Rule 20.04 do not provide the appropriate forum to resolve such contradictory opinions. In my view, to prefer one such opinion over another requires nothing less than a trial process. Indeed, counsel for the defendant was unable to refer me to a decision which would support his position that the question of competing medical opinions could be resolved at the Summary Judgment stage of an action.

[49] Also, in this case the competing expert opinions are based in part on computer simulations using PC-Crash software. The available evidence suggests that the results of the simulations can vary with minor adjustments to the inputs. I have no evidence about how the software operates, its strength and weaknesses, its reliability or its margins of error. At a trial it is common for expert witnesses, when they use computer programs for assistance to form their opinions, to describe in some detail how the software operates.

[50] I accept the proposition that the finding of guilt for failing to drive within a single lane creates a rebuttable presumption of negligence on the part of Brandi Edwards-Turner in subsequent civil proceedings. However, there may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system (see Becamon v. Wawanesa Mutual Insurance Co. 2009 ONCA 113 paras. 18, 19 and Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 53).

[51] At this stage, when summary judgment is not going to be granted and the case may proceed to trial, caution in making findings is warranted.

[52] Subject to the caveat in the preceding paragraph, I note that the investigating officer with the OPS, Cst. Nigel Emaman, a trained accident reconstructionist, was examined for discovery as the representative of the OPS. He testified that based on the phone data regarding the text exchanges between Mr. Robillard and Mr. Higo leading up to the collision, his conclusion was that Mr. Robillard was texting at the time of the accident. This view is clearly at odds with the Jenish report that said the possibility of texting as a contributing factor was extremely remote.

[53] At a minimum, I find that there is an air of reality to the contention that the actions of Michael Robillard may have been a contributing factor to the collision due to distracted driving. Fairness requires that the door to a consideration of this question not be closed. The “air of reality” test was referred with approval in Rahimi v. Hatami et al., 2015 ONSC 4266 at para. 14 and Ozimkowski. Permitting Brandi Edwards-Turner to relitigate the negligence issue following her Highway Traffic Act conviction does not amount to an abuse of process in these circumstances.

[54] I find that causation is a genuine issue requiring trial. The factual findings necessary to resolve the case cannot be made by reading the experts’ reports only. I have considered whether the need for a trial can be avoided by using the additional powers in Rule 20 and conclude that a trial will be necessary to resolve the question of liability in the absence of an agreement between the parties to apportion liability.

[55] I have considered whether a hybrid or summary trial focusing on liability only would be in the interests of justice. I am not convinced that adopting such a procedure is warranted. Damages have not been agreed to and may well require a trial. The fact that damages have not been agreed to after this length of time reduces my confidence in the contention that damages can be settled without a trial. Bifurcation would not be desirable. In my view this is a case where the resolution of all issues ought to take place in a single proceeding.

[56] The difficulties in determining liability in the face of experts who disagree as they do in this case would suggest to some observers that a practical solution would be for the parties to apportion liability in some fashion or equally, if some other apportionment cannot be agreed to. This approach requires an agreement between the parties. It offers significant costs savings, it is efficient and brings the prospect of finality to an old case. I am not satisfied, however, that this ought to be done judicially using the summary judgment procedure in the face of competing expert opinions that, at a minimum, have an air of reality to them.

Disposition

[57] The motion for summary judgment is dismissed.

[58] On a preliminary basis, my view is that there should be no order respecting costs. If any party disagrees, they may deliver a brief costs outline and a bill of costs and the other parties may respond, all within 45 days, on a schedule agreed to by counsel. No right of reply.

Justice M. James

March 16, 2022

COURT FILE NO.: CV-15-66436 DATE: March 16, 2022 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Alyson Robillard and Benjamin Robillard, by his Litigation Guardian Alyson Robillard, Plaintiffs

• -and-- Brandi Edwards-Turner and Stephen Edwards- Turner and Allstate Insurance Company of Canada, Defendants BEFORE: Justice M. James REASONS FOR DECISION James, J.

DATE RELEASED: March 16, 2022