COURT FILE NO.: 21/16

DATE: 20221216

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RYAN HENGEVELD, SUSAN HENGEVELD, MATTHEW HENGEVELD by his Litigation Guardian Susan Hengeveld, BENJAMIN HENGEVELD by his Litigation Guardian Susan Hengeveld, ERIN HENGEVELD by her Litigation Guardian Susan Hengeveld, ANDREW HENGEVELD by his Litigation Guardian Susan Hengeveld, BERNARD HENGEVELD and LUTSCHE BAKKER

Plaintiffs

– and –

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO, OWEN SOUND HIGHWAY MAINTENANCE LIMITED, PAUL DOIG, HURON PERTH HEALTHCARE ALLIANCE, HYUNDAI AUTO CANADA CORP., HYUNDAI MOTOR COMPANY and 982875 ONTARIO INC.

Defendants

J. Virtue and R. El-Tawil, for the Plaintiffs.

L. Rodenburg, for the moving party, the defendant Paul Doig

L. Thompson, for the defendants Hyundai Auto Canada Corp. and Hyundai Motor Company

M. Teal, for the defendant 982875 Ontario Inc.

The other defendants not appearing

HEARD: June 27, 2022

grace j.

A. Introduction

[1] By all accounts, the weather conditions affecting Highway 23, north of Listowel, Ontario the morning of January 27, 2014, were challenging.[^1]

[2] Paul Doig was driving northbound on the snow-covered highway in a GMC Terrain SUV. It was equipped with new Michelin all-season radial tires. As he reached the crest of a hill, he observed two southbound vehicles. Ryan Hengeveld was operating one of them; a Hyundai Elantra. A car driven by Patricia Hohmann followed a short distance behind.

[3] Notwithstanding the fact his vehicle was equipped with snow tires, Mr. Hengeveld lost control. The Hyundai crossed into the path of Mr. Doig’s GMC. There was a violent collision. It is undisputed that Mr. Hengeveld suffered serious injuries.

[4] This action followed. Claims were asserted against those involved in the maintenance of the highway,[^2] the manufacturer of the Hyundai,[^3] its distributor,[^4] Mr. Hengeveld’s employer[^5] and Mr. Doig.

[5] The last-mentioned defendant brings this motion for summary judgment. Mr. Doig maintains there is no basis for the claim against him and seeks an order dismissing the action. The draft order his counsel provided goes further and includes the crossclaims asserted by or against Mr. Doig.

[6] The plaintiffs disagree. They submit there is an evidentiary basis that well supports their argument that Mr. Doig’s response to the situation that unfolded on the day in question (i) fell below the required standard of care; and (ii) caused or contributed to the damages sustained by Mr. Hengeveld and his co-plaintiffs.[^6]

B. The Allegations against Paul Doig

[7] The plaintiffs’ pleading[^7] alleges that the accident and Mr. Hengeveld’s injuries were caused by the negligence of Mr. Doig. A non-exhaustive, fifteen item list of particulars includes allegations relating to excessive speed, the failure to equip the GMC with winter tires and the failure to apply his brakes or to take other evasive action in a timely way.[^8]

[8] Each of Mr. Doig’s co-defendants rely on those allegations for the purposes of the crossclaims they have asserted against him. None of them participated in this motion, although some sent representatives to observe the hearing.

C. The Test for Summary Judgment

[9] A defendant’s motion for summary judgment dismissing a claim is to be granted if the court is satisfied there is no genuine issue requiring a trial with respect to it: Rules of Civil Procedure, rules 20.01(3) and 20.04(2) (a).

[10] A motions judge will be able to reach a determination on the merits if the process allows the motions judge to (i) make necessary findings of fact; (ii) apply the law to the facts as found; and (iii) is a proportionate, more expeditious and less expensive means to achieve a fair and just result: Hryniak v. Mauldin, 2013 SCC 7, at para. 49 (“Hryniak”).

[11] It is self-evident that this action will continue against those defendants who remain, even if this motion is successful. The plaintiffs rely on Malik v. Attia, 2020 ONCA 787 in support of their submission that this case does not fit within the narrow category of matters where partial summary judgment is warranted. Writing on behalf of the court, Brown J.A. said at para. 20:

When faced with a request to hear a motion for partial summary judgment, a motion judge should make three simple requests of counsel for the parties:

(i) Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;

(ii) Show how partial summary judgment will get the parties’ case in and out of the court system more quickly;

(iii) Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

D. The Evidentiary Record

[12] The moving party and plaintiffs compiled a significant evidentiary record. In addition to an affidavit from Mr. Doig, his counsel filed affidavits of solicitor Gregory Brimblecombe,[^9] Ontario Provincial Police officer Sue Blacklock and professional engineer Sam Kodsi. Reports relating to the collision authored by Constable Blacklock and co-authored by Mr. Kodsi were appended to the affidavits they signed.

[13] Affidavits of solicitor Joe Gaynor[^10] and professional engineer James Hrycay were filed by the plaintiffs. Mr. Hrycay’s affidavit included copies of the reports he co-authored concerning this matter. One of them relates to the actions of Mr. Doig.

[14] Cross-examinations of Messrs. Doig, Kodsi and Hrycay were conducted and transcripts filed.

[15] Statements were taken from Ms. Hohmann. Her observations formed part of the evidentiary record too.

E. The Evidence on the Motion – Eyewitness testimony

[16] Ms. Hohmann was the only other eyewitness to the collision in which Ryan Hengeveld and Paul Doig were involved. A romantic partner of Mr. Doig was driving a short distance behind him but she was unable to see what transpired in front of her due to the local topography.

[17] Given the nature and extent of his injuries, Mr. Hengeveld has no memory of what occurred in the period leading up to or at the time of impact.

[18] Mr. Doig was asked about the circumstances of the collision when examined for discovery on December 15, 2016. He testified that Mr. Hengeveld “lost control and swung around in front of me…It happened that fast, then he ended up right in front of me, sideways.”[^11] At another point in the examination, Mr. Doig said he “just had no chance on anything”[^12]. When asked if he had time to react and to apply his brakes, Mr. Doig responded, “I did at the last, yes.” [^13]

[19] Similar assertions were made in his June 30, 2021, affidavit. At paras. 7 through 9, Mr. Doig deposed:

Both of the southbound vehicles that exited the whiteout appeared to be in control when I first saw them. Suddenly, the first vehicle lost control and swung around at least once, and perhaps twice. The vehicle ended up in front of my Vehicle, with the driver’s door facing me.

I did not have time to react before the impact. I put my foot on the brakes just before the oncoming vehicle hit me. I did not have an opportunity to swerve to try and avoid the collision.

The impact…occurred completely within my lane of travel. I did not travel into the southbound lane at any point before the impact.

[20] When cross-examined, the affiant confirmed that the Hyundai had spun around once and perhaps a second time before the collision. When asked how far apart the two vehicles were when he first observed Mr. Hengeveld’s vehicle in his lane, Mr. Doig responded:

I can’t give you feet or seconds. I just can’t.[^14]

[21] Questioning continued:

Q. Okay. And at the moment that it crossed the line in a spin, I take it that you did not brake?

A. Not at that time.

Q. No? You decided to wait to see what was going to happen?

A. Well, I didn’t have a lot of time to wait and see what was gonna happen, ‘cause it happened so fast.

Q. Okay, well…

A. I didn’t…

Q. …at the…

A. …I didn’t have time to even react.

Q. Okay, well as it is spinning into your lane what time elapsed from when it first crossed the center lane to when you hit it?

A. I can’t even answer that.

Q. All right but at some point you did put on your brakes?

A. Yes, I put my brakes on. Yeah.

Q. Okay and I take it that was just almost at the moment of impact with the Hengeveld vehicle?

A. Whether it was a second or a half a second, I’m not sure.

Q. Okay. So you hit your brake and then the accident happened immediately thereafter.

A. Very close. Yes.

Q. Okay. And…

A. And like I said, I didn’t have time to even react. That’s how fast it happened.[^15]

[22] As appears from that exchange, Mr. Doig thought his brakes had been applied for no more than one-second before the vehicles collided.[^16]

[23] Ms. Hohmann was interviewed on three occasions: at the scene by the investigating officer and twice by an investigator retained by the plaintiffs’ lawyer.

[24] During the initial interview, she said the movement of the Hengeveld vehicle across the center line was sudden. She expressed the view that Mr. Doig “had no time to react and nowhere to go”.

[25] On April 14, 2014, the private investigator retained by the plaintiffs’ counsel interviewed Ms. Hohmann for the first time. A number of subjects were discussed. With respect to the accident, Ms. Hohmann said the Hyundai swerved into the northbound lane. She continued:

I don’t know how or why he lost control but that is exactly what it looked like to me, is he lost control. He went swerving into the other lane and just as he kind of spun around I saw a black GMC come and hit him head on with the driver’s door.

[26] Ms. Hohmann was questioned again by the private investigator on September 30, 2014. According to a summary contained in the Hrycay/Bortolin report, Ms. Hohmann told the interviewer that Mr. Doig had no time to react.[^17]

F. The Evidence on the Motion – the Police Reconstruction and Engineering Reports

[27] Three reports relevant to this motion were filed.

[28] The first in time is a Collision Reconstruction Report Constable Blacklock prepared. She summarized the information contained within the GMC’s airbag control module. Two seconds before the collision the GMC was travelling at 62 km/hour. The brake switch was off. One and a half seconds before the accident, its speed was 60 km/hour and the brake switch was on. The GMC was travelling at 54 km/hour one-half second before impact. The brakes continued to be applied.[^18]

[29] As mentioned, Sam Kodsi was the engineer the lawyers for the moving party retained. In an October 8, 2019, report, Kodsi and his co-author Cheryl Fookes concluded:

…there was no evidence to suggest that the driver of the [GMC] was slow to react, or reacted atypically to the hazard presented by the out-of-control [Hyundai].[^19]

[30] In alleging Mr. Doig was negligent, the plaintiffs rely heavily on the March 3, 2022, report co-written by engineers James Hrycay and Roger Bortolin.

[31] While the engineers disagree about many things, the following statement in the Hrycay/Bortolin report is undisputed:

… there was no physical evidence such as tire marks or video in which to independently determine the exact path, rotation direction, or number of rotations of the Hyundai or the GMC.[^20]

[32] At page 8 of their report, Hrycay/Bortolin wrote:

…in our opinion, given the severity of the winter weather and road conditions that existed at the time of the accident, we would expect a reasonable driver to be on high alert as to the handling of their vehicle and as to obvious hazards like sharing the road with oncoming vehicles when the lane lines were not obvious such that they were at a heightened level of awareness resulting in a [Perception & Response time] that was no more than 1.5 s.

[33] The authors were of the view “the start of brake application by Mr. Doig was likely approximately 1.5 to 1.8 s before impact.”[^21]

[34] In cross-examination, Mr. Hrycay said a driver’s perception and reaction time is comprised of three phases: detection, identification and decision.[^22] Detection commences once a driver perceives something out of the ordinary. Identification is the process of determining whether the perceived event requires a response. The final phase involves the development and implementation of a course of action.[^23]

[35] The Hrycay/Bortolin report described two simulations. In the first, seven seconds elapsed from the start of the simulation until impact. Its commencement marked the moment Mr. Hengeveld began to lose control of the Hyundai. Under that scenario, the engineers retained by the plaintiffs were of the view the Hyundai was “already recognizable as a hazard before” the four second mark.[^24] The authors theorized that the accident would have been avoided entirely had Mr. Doig (i) applied his brakes earlier; and (ii) taken evasive action by moving “left a small amount.”[^25]

[36] In the second scenario, braking would have started three fractions of a second later. If the same evasive action had been taken, Hrycay/Bortolin concluded “the resulting collision is of a lower severity and avoids contact to the occupant compartments.”[^26]

[37] While acknowledging that “any number of scenarios” could have been presented and evaluated, the engineers retained by the plaintiffs explained:

The two scenarios we presented both reflect the relatively long period of time required for the southbound Hyundai to lose control and get into the impact location. The time required was found to be approximately 6.7 to 7.0 s in our two scenarios, and we expect similar times would apply if further surface friction alterations were performed.[^27]

[38] After further discussion, Hrycay/Bortolin wrote, at page 34:

In our opinion, a reasonably alert driver in Mr. Doig’s position given the visual cues and the duration of the loss of control would have perceived and responded sooner than Mr. Doig did and help mitigate the collision, resulting in either no impact or alternatively a far lower severity contact acting at the front of the Hyundai. Mr. Doig only slowed by approximately 10 to 14 km/h from his initial travel speed. Our primary finding with regard to Kodsi’s report is that it [sic] they have not considered all of the evidence in order to make the conclusions they did regarding Mr. Doig’s response as being neither slow nor atypical.

[39] Kodsi/Fookes delivered a supplementary report dated April 4, 2022. They concluded, in part, that:

a) The poor weather and road conditions would likely have increased the perception response time of a typical driver in the position of Mr. Doig;

b) There was no evidence to suggest that such a driver would or could have begun braking earlier than Mr. Doig; and

c) The suggestion a typical driver would have swerved to their left in an attempt to avoid the collision was a product of “hindsight bias”.[^28]

G. Analysis and Conclusion

[40] The arguments advanced on this motion are based largely on the competing reports of the engineers retained by the parties.

[41] The moving party concedes that cases involving conflicting expert opinions are usually not amenable to summary judgment: Paul v. Oliver Fuels Limited, 2012 ONSC 978 (S.C.J.), at para. 44; Frame v. Watt, 2016 ONSC 718 (S.C.J.), at para. 33; Tishenko v. Walper, 2021 ONSC 5026 (S.C.J.), at para. 18.

[42] However, even in those circumstances, such motions are occasionally successful. As here, in Tishenko v. Walper, supra, the plaintiff alleged the driver of the other vehicle involved in a collision could have avoided the accident or taken steps which would have reduced its severity. Aston J. was of the view that (i) the only evidence in support of the plaintiff’s theory was drawn from a report prepared by an expert they had retained; and (ii) the expert’s conclusions concerning the moving party’s conduct rested “on an untenable fundamental assumption”.[^29] The motions judge concluded no weight should be given to the report and dismissed the action as against the defendant driver.

[43] Similarly, in Mostarac v. Doe, 2014 ONSC 6622 (S.C.J.), Baltman J. granted a defendant driver’s summary judgment motion because there was “uncontradicted evidence…that she was driving in an entirely proper manner when she was suddenly confronted with [the plaintiff] spiralling toward her”.[^30] At para. 13, the motions judge explained:

According to the experts [the defendant] had less than five seconds to react, and this on a busy highway at three-digit speeds. Significantly, when I asked [the plaintiff’s] counsel precisely what [the defendant] should have done differently, he was hard pressed to identify any specific action. Slow down? Speed up? Move to the side? The morning traffic heading into the city was steady at that point; depending on the relative position of other vehicles in the surrounding area, such moves may have made the situation worse. This type of Monday morning quarterbacking is simply unrealistic.

[44] In situations involving an emergency, the court must ensure it exercises caution when viewing the matter with the benefit of hindsight. Drivers facing conditions that are unexpected and challenging are not required to demonstrate extraordinary skill, presence of mind, poise or self-control. Nor is the driver facing such challenges required to adopt the most prudent course of action. Gill v. Canadian Pacific Railway, 1973 CanLII 2 (SCC), [1973] S.C.R. 654, at p. 665. As K. Campbell J. said in Behmanesh v. Yokhana, 2011 ONSC 4950 (S.C.J.) at para. 16:

Rather, the driver should only be held to the standard of care expected of an ordinary, reasonable and prudent driver faced with those same sudden and emergent conditions. [Citations omitted]

[45] By necessity the analysis is highly fact specific. As Whalen J. said in Hunter v. Wismer, 2003 CanLII 41157 (Ont. S.C.J.), at para. 49:

Every case must be decided on its particular facts and circumstances. Negligence cases are so fact-driven that they can be difficult to compare with each other on the basis of facts alone. An “authority” is often useful in demonstrating the application of a principal [sic] to particular facts. In general, … the facts of cases are infinitely varied and nuanced. That is so in the present case.

[46] Based on the eyewitness accounts, the absence of physical evidence and the Kodsi/Fookes report, the moving party argues liability of Mr. Doig is not a genuine issue requiring a trial. Mr. Hengeveld lost control of his vehicle. It crossed directly into the path of an GMC that was being driven carefully and below the speed limit by Mr. Doig. Although he applied his brakes as soon as he could, a violent and unavoidable collision occurred.

[47] Counsel for Mr. Doig submits that the theory of the engineers retained by the plaintiffs is, in essence, one that works backward from their stated conclusions. Almost every aspect of the Hrycay/Bortolin report is challenged.

[48] First, the moving party maintains their opinion concerning Mr. Doig’s reaction and response to the out-of-control Hyundai has no evidentiary foundation. He argued that the two simulations discussed by Hrycay/Bortolin are speculative because the path of the Hyundai is unknown. In fact, that will always be an unsolvable mystery because of the absence of physical evidence. Without that information, it is impossible to say what Mr. Doig’s response and reaction time should have been in the circumstances.[^31]

[49] As Mr. Kodsi explained during his cross-examination:

Simulation? There really is no point because we don’t have any tire mark. We don’t have any markers and we don’t have any evidence of where that vehicle and how that vehicle got from A to B. So, doing that exercise is…futile because it…would just be hypothetical. It’s not based on…any physical evidence or black box data or otherwise.[^32]

[50] Second, the moving party notes that the simulations involve Mr. Hengeveld attempting to brake and steer to his right before the Hyundai crossed into the northbound lane. However, the observations made by Mr. Doig and Ms. Hohmann do not support that scenario.

[51] Third, the moving party submits the Hrycay/Bortolin analysis founders when addressing what Mr. Doig should have done to address the situation he faced. His counsel noted the simulations do not account for the fact the vehicle driven by Ms. Hohmann was travelling close behind the Hyundai. The evasive maneuvers outlined in the Hrycay/Bortolin report would have involved steering toward that approaching vehicle. In such circumstances, the steps the plaintiffs’ engineers suggest Mr. Doig should have taken hold him to a standard far beyond that required by the legal authorities to which I have referred.

[52] Fourth, Doig argued there was no proper evidentiary foundation underlying Hrycay/Bortolin’s assertion the application of brakes by him would have been more effective had the GMC been equipped with winter tires.

[53] For those reasons, the court was urged to give no weight to the opinions expressed by the engineers retained by the plaintiffs expressed. If discounted entirely, the moving party fairly argues the court should be satisfied the allegations of negligence against Mr. Doig do not raise a genuine issue requiring a trial. Rule 20.04(2) of the Rules of Civil Procedure would then direct the court to grant summary judgment dismissing the claim and crossclaims insofar as that defendant is concerned.

[54] Despite the formidable arguments advanced, I do not agree that summary judgment is appropriate.

[55] When cross-examined concerning the simulations, Mr. Hrycay acknowledged there was no physical evidence at the scene. He agreed the exact path taken by the Hyundai as and after it lost control was not known. However, he added:

So, all you can reconstruct on is physics, position and time and how long it takes that movement to process based on witness accounts.[^33]

[56] Later, Mr. Hrycay testified the simulations were:

…based on the eyewitness accounts of speeds, positions, movements, rotations and number of rotations.[^34]

[57] At para. 24 of their factum, the plaintiffs maintain:

…It is not the path of the [Hengeveld] spinning vehicle that requires replication but rather a calculation of the time it took for the spinning Hengeveld vehicle to play out and the time it took for Doig to observe and react…

[58] In that regard, one point was repeatedly made by Mr. Hrycay: it would have taken several seconds from the time Mr. Hengeveld lost control until impact because of the road conditions, the speed at which the Hyundai and GMC were travelling and the fact that, according to Mr. Doig, the Hyundai rotated at least once and perhaps twice. As Mr. Hrycay explained when questioned by the moving party’s counsel:

…it just doesn’t happen real quick…it’s [a] slow motion process that’s going on because you just don’t have the grip and the friction for the vehicles to suddenly move from one side to the other…They’re basically slipping and sliding and it, it takes several seconds for that to happen. And I’ve estimated six to seven [seconds] based on the scenarios and it’s consistent with actual videos that we’ve seen from dashcams where vehicles are losing control and how long this fishtailing, slipping and sliding takes place…It never happens in a second or two. It’s always much longer than that.[^35]

[59] When his opinion that Mr. Doig’s perception and response time should have been approximately 1.5 seconds was challenged, Mr. Hrycay said his conclusion was a product of his education, training and experience.[^36] He explained his thought process. Weather conditions were unfavourable. The senses of those driving in the area would have been heightened. Several seconds passed from the time the Mr. Hengeveld lost control of the Hyundai until impact. Mr. Doig’s line of sight was clear and unobstructed.

[60] As mentioned earlier, while Mr. Doig was of the view that he had virtually no time to react, he acknowledged an inability to estimate time or distance. Clarity is not obtained from any of Ms. Hohmann’s various statements.

[61] During cross-examination, counsel for the plaintiffs thought it necessary to remind Mr. Kodsi of the existence of eyewitness statements. In response, the engineer said:

Yeah but even the witness statements have come with…inherent uncertainties…[^37]

[62] The observations of Mr. Doig and Ms. Hohmann were put to Mr. Hrycay too. He agreed there was no mention of the Hyundai braking or being steered to the right before losing control. However, Mr. Hrycay testified:

…something caused [the Hyundai] to start spinning…[^38]

[63] Braking and steering were not the only potential causes he identified. With respect to the reason the Hyundai began to spin, Mr. Hrycay continued:

…it’s triggered by us assuming external forces to cause a loss of control. And as I’ve just said earlier, we assume some braking and some steering. It could have been a wind gust. It could have been releasing the accelerator panel.[^39] It could have been a change in the friction surface from individual tires. There’s any number of reasons that [could have] caused that Hengeveld vehicle to no longer keep going straight down the road…[^40]

[64] With respect to evasive action by Mr. Doig, Mr. Hrycay agreed the simulations contemplated the GMC steering toward the approaching Hohmann vehicle but said:

Yes. In the avoidance simulation, there’s a very small leftward movement of the GMC within its lane.[^41]

[65] Soon afterward there was this exchange:

Q. Okay. So, under the…avoidance scenario, there’s no travel of the GMC vehicle into the southbound lane.

A. Correct.

Q. Okay. And I just want to confirm that when you ran the simulation for the avoidance under simulation A, that simulation didn’t take into account the Hohmann vehicle, correct?

A. Well…we’re not showing the…Hohmann vehicle in the southbound lane and that’s why…we’ve limited the movement of the Doig vehicle to stay within its lane.[^42]

[66] The same topic was addressed in the context of the second simulation. The cross-examination continued:

Q. Okay and in the avoidance simulation B, my understanding is that requires the GMC to steer to the left as well. Is that correct?

A. Correct. It’s the same slight leftward steering as we did in the scenario A collision avoidance.

Q. Okay and like in scenario A, the GMC doesn’t have to enter the southbound lane at all?

A. Correct, it was specifically done that way to counter any claim by people that [the] Hohmann vehicle was a threat to it. So, Mr. Doig is doing everything within the confines of his lane.

[67] Finally, on the topic of winter tires, Mr. Kodsi acknowledged they could be of assistance in some circumstances, although of the view they would not have made a difference in this case.[^43]

[68] After reviewing and carefully considering the entirety of the evidentiary record and the helpful written and oral submissions of the parties’ counsel, I am left in this position.

[69] I am not able to conclude that Mr. Doig will be absolved of any liability based on the eyewitness accounts. A complete picture does not emerge.

[70] The testimony of the parties’ engineers is important. There are many areas of disagreement. The evasive actions described by those retained by the plaintiffs seem particularly contentious and rightly so. At trial, the plaintiffs’ engineering evidence may not carry the day. However, it may. The same may be said of the testimony to be given by Kodsi/Fookes. A tragic accident occurred. The entire event took about seven seconds or quite possibly, less. Different theories will be advanced to the trier of fact. Inevitably, the parties will rely on different pieces of evidence or analyze or emphasize the same piece very differently. The trier of fact will face a challenging task.

[71] Judges hearing motions for summary judgment in cases like this one must be mindful of their limited role. In Behmanesh v. Yokhana, supra, the motions judge refused to grant summary judgment. As K. Campbell J. explained, at para. 21:

In my view, in light of the evidence, the alleged negligence of [the moving party] is a genuine issue requiring a trial on the merits. In all of the circumstances and based upon all of the evidence in the record, a reasonable trier of fact could conclude that [the moving party] was, as least in part, legally responsible for the accident and has some measure of liability for the ensuing damages to the plaintiff. A reasonable trier of fact could, equally, reach a different conclusion, but there is, in my view, a genuine issue requiring a trial.

[72] I am of the view that is precisely the situation here. I do not pretend to be able to foretell the final result. At this stage and despite the volume of material, I am simply not able to conclude that the Hrycay/Bortolin report is so precariously supported that it should be discounted, let alone dismissed out of hand.

[73] I am confident, however, in concluding that the theory advanced by the experts the plaintiffs retained is not speculative. The issue of the liability, if any, of Mr. Doig is a genuine issue requiring a trial. Consequently, the motion for summary judgment is dismissed.

[74] For the sake of completeness, I will add this. Had I reached the opposite conclusion, I would not have hesitated to grant summary judgment, even if “partial”. The plaintiffs’ claims against the remaining defendants rest on entirely different theories of liability. Granting this motion would not have eliminated the necessity of the case continuing. However, the balance of the proceeding including, if held, a trial would have been significantly shorter, less complicated and expensive.[^44]

H. Conclusion and Costs

[75] For the reasons given, the defendant Doig’s motion for summary judgment is dismissed.

[76] Short cost submissions not exceeding five (5) pages, exclusive of any offer to settle and any authorities relied upon, may be submitted by the plaintiffs and Doig by the close of business on January 16 and 30, 2023 respectively.

Grace J

Released: December 16, 2022

[^1]: The moving party filed a Collision Reconstruction Report prepared by Constable Sue Blacklock of the Ontario Provincial Police. It recorded drifting snow and said the road conditions included slush and loose snow. The accident location was described as immediately north of the Hamlet of Gowanstown, Ontario.

[^2]: Her Majesty the Queen in Right of the Province of Ontario, represented by the Minister of Transportation and Owen Sound Highway Maintenance Limited.

[^3]: Hyundai Motor Company and Hyundai Auto Canada Corp.

[^4]: 982875 Ontario Inc.

[^5]: Huron Perth Healthcare Alliance. Insofar as that defendant is concerned, the action has settled.

[^6]: Negligence Act, R.S.O. 1990, c. N.1.

[^7]: A Fresh as Amended Statement of Claim.

[^8]: See paras. 23(a), (f), (g), (k) and (l).

[^9]: It deals with the procedural history of the action and attached a copy of the transcript of the examination for discovery of Mr. Hengeveld.

[^10]: Once again, the affidavit addressed procedural matters. The exhibits included the transcript of the examination for discovery of Mr. Doig and two witness statements provided by eyewitness Patricia Hohmann.

[^11]: At Q. and A. 89.

[^12]: At Q. and A. 97.

[^13]: At Q. and A. 105.

[^14]: At Q. and A. 37.

[^15]: At Q. and A. 41.

[^16]: At Q. and A. 40 - 48.

[^17]: See p. 48 of the report. I could not find a copy of any notes or a transcript of the interview in the motion materials.

[^18]: See p. 20 of the report. Constable Blacklock calculated the speed of the Hyundai at impact to be about 33 km/hour: see p. 23.

[^19]: At pp. 31 and 33.

[^20]: This excerpt is drawn from page 5. According to the Collision Reconstruction Report authored by Constable Blacklock, there was “minimal scene evidence”: see p. 27.

[^21]: At p. 8.

[^22]: Transcript of the cross-examination of James Hrycay conducted April 25, 2022, Q. and A. 14.

[^23]: Ibid. at Q. and A. 20 – 21.

[^24]: See p. 17 of the report.

[^25]: See p. 18 of the report.

[^26]: See p. 27 of the report.

[^27]: See p. 29 of the report.

[^28]: See pp. 4 - 6 of the Kodsi/Fookes response.

[^29]: At para. 19.

[^30]: At para. 15.

[^31]: See p. 28 of their October 8, 2019 report.

[^32]: At Q. and A. 73.

[^33]: At Q. and A. 55.

[^34]: At Q. and A. 139.

[^35]: At Q. and A. 150.

[^36]: At Q. and A. 56 – 62.

[^37]: Transcript of the cross-examination of Sam Kodsi conducted April 18, 2022, at p. 34 (“Kodsi transcript”).

[^38]: At Q. and A. 83.

[^39]: The word “panel” is taken from the transcript. Having not heard the audio, I wondered if the actual word spoken was “pedal”.

[^40]: At Q. and A. 78.

[^41]: At Q. and A. 102.

[^42]: At Q. and A. 111 and 112.

[^43]: Kodsi transcript, Q. and A. 58 – 61.

[^44]: Tishenko v. Walper, 2021 ONSC 5026 (S.C.J.)