COURT FILE NO.: CV-14-5681-00
DATE: 2022 10 06
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Shamir Haspooden, Plaintiff
John Doe and Anita Kisseur, Defendants
BEFORE: Bloom, J.
COUNSEL: Gerald Sternberg, counsel for the Plaintiff, the Responding Party
Terri-Ellen Haddy counsel for the Defendant, Anita Kisseur, the Moving Party
HEARD: September 21, 2022
E N D O R S E M E N T
I. INTRODUCTION
[1] The Defendant, Anita Kisseur, moves for summary judgment, seeking an order for dismissal of the action as against her.
II. BACKGROUND FACTS AND PROCEDURAL CONTEXT
[2] The action arises from a motor vehicle collision that occurred in the early morning of December 16, 2012 in the parking lot of the On the Rocks bar in Brampton, Ontario.
[3] It is undisputed that Mr. Kisseur’s cousin, Zahir Mustapha, drove Ms. Kisseur’s motor vehicle with her consent on the night of the collision. The pleadings make clear that it is undisputed that the Ms. Kisseur was the owner of the automobile.
[4] It is also undisputed that the Plaintiff was struck by the automobile in the location stated above. The Plaintiff brought the action subject of the motion at bar, seeking damages for negligence for the injuries allegedly suffered as a result of the collision.
III. ARGUMENTS OF THE PARTIES
A. Arguments of the Defendant, the Moving Party
[5] The Defendant argues that there is no genuine issue requiring a trial with respect to the Plaintiff’s claim.
[6] The Defendant argues that she could not be held liable in negligence under s. 192(2) of the Highway Traffic Act, RSO 1990 for any injuries suffered by the Plaintiff, because the automobile was at the time of the accident without her consent in the possession of another person, and because the collision did not occur on a highway. She asserts that the car was taken by a thief when it was left idling in the parking lot of On the Rocks by Mr. Mustapha with 2 passengers in it; and that the thief drove it into the Plaintiff.
[7] Additionally, she argues that she could not be held liable in negligence at common law because she owed no duty of care to the Plaintiff. Specifically, she argues that there is no evidence that she ought reasonably to have foreseen that, (1) when she lent the automobile to her cousin, it would be stolen while he briefly left it idling in the parking lot with 2 passengers inside; and (2) the thief would then drive the vehicle in a manner causing injury and loss to others.
B. Arguments of the Plaintiff, the Responding Party
[8] The Plaintiff argues that there is a genuine issue requiring a trial with respect to his claim. Specifically, responding to the arguments of the Moving Party, he argues that justice can only be achieved by a trial at which findings of credibility can be made and a determination thereby reached on the key issue
[9] He argues that the key issue is whether the driver of the automobile at the time of the collision was Mr. Mustapha who had the Defendant’s consent to operate it, or a thief who had taken the car.
[10] Moreover, the Plaintiff also argues that it would be legally inappropriate to grant summary judgment based on my own determination of whether Mr. Mustapha was the driver, because there must be a jury trial in any event to determine whether the Plaintiff’s own insurer will be liable on the basis that an unidentified driver, not Mr. Mustapha, was driving the automobile at time of the collision.
[11] The Plaintiff also attacks the credibility of Mr. Mustapha; and argues that the theory that the driver was a thief, not Mr. Mustapha, does not square with logic or common sense.
[12] The Plaintiff submits that I must take into account the presence of a jury notice in my assessment of the matter before me.
[13] Finally, he asks me to give weight to the absence of cross-examination by the Moving Party on his affidavit; and submits that adverse inferences against the Moving Party are warranted for failure to call the evidence of Robin Lake and Gary Rampersaud who were present during all of part of the events subject of the action.
IV. GOVERNING PRINCIPLES
[14] Rule 20.04 provides:
20.04 (1) Revoked: O. Reg. 438/08, s. 13 (1).
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. O. Reg. 284/01, s. 6; O. Reg. 438/08, s. 13 (2).
Powers
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence. O. Reg. 438/08, s. 13 (3).
Oral Evidence (Mini-Trial)
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 438/08, s. 13 (3).
[15] I adopt the following paragraphs from Bank of Nova Scotia v. Grillone, 2022 ONSC 4816 at paras. 13 and 14:
[13] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 66 Justice Karakatsanis for the Court explained the use of those provisions:
[66] On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[14] In a leading textbook on civil procedure, Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 4th ed (Toronto, Ontario: LexisNexis Canada Inc., 2020) at para. 6.223 the learned authors set out the following principles relative to a summary judgment motion:
The court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties respectively will present at trial. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing.
[16] S. 192(2) of the Highway Traffic Act provides:
(2) The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur.
V. ANALYSIS
[17] At the outset I note that, as I stated above, the issue of ownership is undisputed in the pleadings. In paragraph 4 of the Statement of Claim the Plaintiff alleges that the automobile was owned by Ms. Kisseur. The allegation is admitted by the Defendant in paragraph 1 of the Statement of Defense.
[18] I also reject at the outset that there is any basis in the record for denial of summary judgment based on a possible continuation of the proceeding against the Plaintiff’s insurer; the Moving Party made that point in reply in oral argument, observing that the Plaintiff’s insurer is not a party to the action. This not a case where partial summary judgment should be denied based on the risks, such as inconsistent findings of fact, if summary judgment were granted and the remainder of the case went to trial.
[19] The question that I must resolve on this motion is whether there is a genuine issue requiring a trial with respect to the identity of the driver of the automobile at the time of the collision. I am a satisfied based on the use of Rule 20.04(2.1) that there is no such Issue. I find that the Moving Party has discharged her onus to establish that there is no genuine issue requiring a trial to determine whether the driver of the automobile at the time of the collision was Mr. Mustapha or a thief. Moreover, I conclude that, in view of that finding of fact, the Defendant cannot be liable in negligence either based on s. 192(2) of the HTA or at common law. There is, therefore, no issue requiring a trial with respect to the claim of the Plaintiff; I grant the motion at bar, and dismiss the action. I will now elaborate on these reasons having regard to the arguments of the parties.
[20] I am mindful of the existence of a jury notice; nevertheless, I find it appropriate and necessary to use my powers under Rule 20.04(2.1).
[21] I have considered all of the evidence before me. The key evidence is that of the Plaintiff, Zahir Mustapha, and Cassandra Mustapha.
[22] On December 16, 2012 contemporaneously with the collision the Plaintiff told the 911 operator that Zahir Mustapha was not the driver at the time of the collision; and that the driver was someone else who got into the car.
[23] At 4:15 am the same day the Plaintiff gave a written statement to the police in which he evidenced knowing Zahir Mustapha, but did not identify him as the driver of the car at the time of the collision. He identified the driver as a male, with light skin, five feet eight inches in height, with a thin build, and bleeding from his head.
[24] On his examination for discovery on September 26, 2018, the Plaintiff testified that he was talking with Zahir Mustapha, whom he knew previously, on the night of the collision; and that someone else jumped into an Acura automobile and drove it into him. He testified that the driver was tall, with light skin, and short haircut; and that he did not know this person.
[25] In his affidavit of June 11, 2022 the Plaintiff stated that “[a]fter further consideration it is now his belief that Zahir Mustapha was the driver” of the car which collided with him. He gave as reasons for this statement, not a refreshed recollection, but inference based on a similar appearance of Zahir Mustapha with that of another person who he initially believed could have been the driver, DNA evidence excluding that person as driver, and other circumstances. He gave no evidence that he remembered that the driver was Zahir Mustapha.
[26] In his affidavit of February 10, 2021 Zahir Mustapha admitted that he had borrowed the vehicle with the consent of Ms. Kisseur, but denied being the driver when it collided with the Plaintiff. He asserted that is was an unknown male who had taken the car without his permission and while it idled with 2 passengers in it.
[27] One of those passengers, Cassandra Mustapha, the wife of Zahir, in her affidavit of February 10, 2021 stated that the driver at the time of the collision was not Zahir, but an unknown male who had blood on the right side of his face.
[28] I have taken into account the fact that DNA evidence from the steering wheel and gear shift of the car which collided with the Plaintiff does not exclude Zahir Mustapha as the driver; however, that fact is not surprising or determinative of the issue of the identity of the driver at the time of the collision, because it is uncontested that Zahir had driven the car to the parking lot where the collision occurred.
[29] I reject the Plaintiff’s submission that I should draw adverse inferences against the Moving Party arising from her failure to call as witnesses Robin Lake and Gary Rampersaud who were present during all or part of the events subject of the action. In a leading textbook on civil procedure, Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 4th ed (Toronto, Ontario: LexisNexis Canada Inc., 2020) at paras. 6.217 to 6.218 the learned authors make clear that I should draw an adverse inference, that is an inference that the evidence would adversely affect the Moving Party’s case, only if Kisseur alone could have brought the evidence before the court and failed to do so. Where the evidence was equally available to both the Moving and Responding Parties the authors state that there is no reason to draw the inference. Since the evidence of the two witnesses was equally available to the Moving and Responding Parties to be compelled under Rule 39.03, I will not draw an adverse inference from the Moving Party’s failure to call them.
[30] The Plaintiff argues that there is a genuine issue requiring a trial; and that that issue is the identity of the driver at the time of the collision. While it is the onus of the Moving Party to demonstrate that there is no such issue, Rule 20.02(2) requires that the Responding Party “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.” The Responding Party has adduced no such evidence. In the 911 call, in his statement to police, and on discovery he failed to identify Zahir as the driver at the time of the collision. Even in his affidavit made almost 10 years after the collision, the Plaintiff does not state that he recollects that the driver was Zahir. He tries to reason to that conclusion in the manner of legal argument. I, therefore, find that he has not set out in evidence specific facts showing that there is a genuine issue requiring a trial on the question of whether Zahir was the driver at the time of the collision.
[31] On the other hand, the Moving Party has discharged her onus. She has called evidence from Zahir Mustapha and Cassandra Mustapha that he was not the driver at the time of the collision. Moreover, as I just noted, that evidence was not met with evidence of sufficient weight and credibility to show that there is a genuine issue as to whether Zahir was the driver.
[32] Without a genuine issue requiring a trial on that matter, there is no genuine issue of liability in negligence of Kisseur under s. 192(2) of the HTA; the automobile was not in the possession of the driver with Kisseur’s consent.
[33] Further, there is also no issue of Ms. Kisseur’s liability in negligence at common law, since I find that there was no duty of care on her part in relation to the Plaintiff. The words of Justice Karakatsanis in Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 at para. 41 are apposite:
41 I agree with the weight of the case law that the risk of theft does not automatically include the risk of injury from the subsequent operation of the stolen vehicle. It is a step removed. To find a duty, there must be some circumstance or evidence to suggest that a person in the position of the defendant ought to have reasonably foreseen the risk of injury - that the stolen vehicle could be operated unsafely. That evidence need not be related to the characteristics of the particular thief who stole the vehicle or the way in which the injury occurred, but the court must determine whether reasonable foreseeability of the risk of injury was established on the evidence before it.
[34] The Plaintiff did not make the case that there was a genuine issue requiring a trial based on common law liability in negligence of Kisseur, if there was no genuine issue requiring a trial as to whether Zahir was the driver at time of the collision.
[35] In sum, I grant the motion at bar and dismiss the action, because I am satisfied that there is no genuine issue requiring a trial with respect to the Plaintiff’s claim.
VI. COSTS
[36] I shall receive written submissions as to costs limited to 4 pages, excluding a bill of costs. The Defendant, Kisseur, shall serve and file her submissions within 14 days of release of this endorsement; the Plaintiff shall serve and file his submissions within 14 days of service on him of Kisseur’s submissions; there shall be no reply.
Bloom, J.
DATE: October 6, 2022
COURT FILE NO.: CV-14-5681-00
DATE: 2022 10 06
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Shamir Haspooden, Plaintiff
John Doe and Anita Kisseur, Defendants
BEFORE: Bloom, J.
COUNSEL: Gerald Sternberg, counsel for the Plaintiff, the Responding Party
Teri-Ellen Haddy, counsel for the Defendant, Anita Kisseur, the Moving Party
ENDORSEMENT
Bloom, J.
DATE: October 6, 2022