Court File and Parties

COURT FILE NOS.: CV-19-00615035-00, CV-19-00622058-00, CV-19-00622058-00A1 DATE: 20240314

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: STEVE MORALES, SONIA MORALES, MARCELA LEGASPI, and ALEXANDER LEGASPI, a minor by his litigation guardian, STEVE MORALES, Plaintiffs AND: RAMSES LAGUARDIA, MARILYN BRITO, and PHILLIP FRANCHETTO, Defendants

AND BETWEEN: DOMINIK REZI AND KARIN REZI, Plaintiffs AND: PHILLIP FRANCHETTO AND THE SUPERINTENDENT OF FINANCIAL SERVICES, Defendants

Before: AKAZAKI, J.

Counsel: Wonkyu Daniel Lee, for the Plaintiffs (Morales et al.) Naphtali Silverman, for the Plaintiffs (Rezi et al.) Derek Vihvelin and Eric Levin, for the Defendant Phillip Franchetto Chad Leddy, for the Defendants Ramses Laguardia and Marilyn Brito

HEARD: January 23, 2024

Reasons for Judgment

Introduction

[1] In the 24 hours before the horrific motor vehicle accident on June 17, 2017, passengers Steve Morales and Dominik Rezi had been partying all night and all day with Ramses Laguardia. They had consumed unknown amounts of alcohol and cannabis and had not slept during the same interval. Laguardia offered them a lift home in his mother’s GMC Envoy. Before piling in, Morales and Rezi bickered over who was to get to sit up front. Morales won at rock-paper-scissors and rode next to the driver. He called his mother to tell her he was on the way home. He and Rezi soon fell asleep.

[2] Laguardia proceeded eastbound on Highway 9 at over 100 km/h. The posted limit was 80 km/h. Then he, too, fell asleep. The uncontrolled GMC entered the westbound lane’s oncoming traffic, narrowly missed one vehicle, and crashed into a Ford pickup truck driven by the Phillip Franchetto.

[3] Franchetto, an off-duty firefighter, had been driving his spouse to a rehabilitation centre. He admitted travelling at about 90 km/h. (His actual speed was 89.) He noticed another vehicle ahead swerve to avoid the Laguardia GMC. He lifted his foot off the accelerator and followed the other vehicle into the paved shoulder. When he noticed the oncoming GMC veer toward the same direction, he steered sharply in the opposite direction while reapplying the gas, and then braked as hard as he could. In the ensuing head-on crash between the GMC and the Ford, the drivers and passengers of both suffered injuries.

[4] In case the reader did not closely study the title of proceedings, the two intoxicated co-travellers of Laguardia are the plaintiffs, and Franchetto is the defendant. The plaintiffs sued him for not doing enough to move his truck out of the way.

[5] Franchetto has brought a motion for summary judgment dismissing the negligence claims against him. The subtext is that no reasonable jury could find him at fault for the accident. The plaintiffs resist the motion on the basis that Franchetto is unable to eliminate the theoretical possibility that the jury might find him “at least 1% liable” for the accident. They hired forensic engineers who concluded that Franchetto could have avoided being hit by the GMC or could have reduced the severity of the impact. The opinion presumes he had sufficient time to calculate the appropriate means of avoiding or lessening the crash. The plaintiffs contend that the competing opinions of the plaintiffs’ and defendant’s experts require a trial.

[6] I have concluded that no jury, properly instructed in the law, could reasonably find Franchetto liable in negligence to the plaintiffs. The plaintiffs did not file any factual evidence rebutting Franchetto’s account of events, and their counsel did not dent his credibility or reliability when they examined him for discovery. The difference of opinion between expert witnesses could not give rise to a triable issue if I were to ignore the opinion of the defence expert, to consider the plaintiffs’ expert opinions at face value, and to resolve in the plaintiffs’ favour the discrepancies between Franchetto’s recollection and the plaintiffs’ experts’ reconstruction.

[7] The question then becomes the relevance of the plaintiffs’ expert evidence – whether they prove or even tend to prove Franchetto’s driving (1) amounted to at least 1% negligence and (2) was a cause of the plaintiffs’ injuries.

[8] The 1% apportionment rule is a statutory legal fiction of comparative fault. Before a defendant’s comparative fault can be considered, the plaintiff must establish the defendant’s independent tort liability to the plaintiff. For the plaintiffs to succeed, Franchetto has to be found liable without regard to the blame of Laguardia. This rule has no role in the analysis on this motion.

[9] Franchetto’s speed and response to the oncoming hazard were entirely normal and reasonable. They did not breach the standard of care of an ordinary driver. Whatever the plaintiffs’ experts concluded from their ex post forensic investigation, Franchetto’s driving could not have been a legal cause of the plaintiffs’ injuries, either. Both negligence and causation require close study of the experts’ conclusion as well as principled analysis of the substantive law.

Summary Judgment Principles Applied to This Case

[10] The parties do not agree that this case can be determined by summary judgment. The moving party, Franchetto, has the burden of satisfying the court that there is no genuine issue requiring a trial, under rule 20.04(2)(a) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

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;

… O. Reg. 284/01, s. 6; O. Reg. 438/08, s. 13 (2).

[11] The leading case on Ontario’s summary judgment rule is Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87. At para. 47, Karakatsanis J. interpreted “shall grant summary judgment” as mandatory: “Summary judgment motions must be granted whenever there is no genuine issue requiring a trial.”

[12] The procedure for determining whether no genuine issue exists appears in subrule (2.1). That negative test is expressed as a positive inquiry, whether there is a genuine issue:

(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:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. O. Reg. 438/08, s. 13 (3).

[13] The court must therefore satisfy itself that no genuine issue exists by determining whether there is one. This is a heuristic logic of elimination. The motion can be defeated during the court’s consideration of the first issue the respondent raises. However, each ruled-out issue increases the ability of the court to satisfy itself that it must grant the motion. Indeed, if the issues are sufficiently narrowed subrule (2.2) allows the court to conduct a mini-trial.

[14] The analytical model of the summary judgment rule requires the court to evaluate the genuineness of an issue, as opposed to imagining what a trial court might do. Prior to the Supreme Court’s ruling in Hryniak, the motion judge needed to gain a “full appreciation” of a “trial narrative”: Hryniak, sub nom Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, at para. 55. The Supreme Court, at paras. 56-57, now requires motions courts approach summary judgment as a distinct procedure for dispute resolution with its own process:

[56] While I agree that a motion judge must have an appreciation of the evidence necessary to make dispositive findings, such an appreciation is not only available at trial. Focussing on how much and what kind of evidence could be adduced at a trial, as opposed to whether a trial is “requir[ed]” as the Rule directs, is likely to lead to the bar being set too high. The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers — and the purpose of the amendments — would be frustrated.

[57] On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and (2.2) can provide an equally valid, if less extensive, manner of fact finding.

[15] I do not propose to direct a mini-trial under subrule (2.2) because it is not required.

[16] Motor vehicle accident cases tend to be less obvious candidates for summary judgment because the evidence of what occurred must be expressed by the opposing drivers. Even in cases where a green light accorded a defendant the statutory right of way, that right does not absolve that driver of a duty to exercise care entering an intersection: Sant v. Sekhon, 2014 ONCA 623, at para. 4. However, the Supreme Court in Hryniak, para. 47, rejected the adoption of categories of cases suitable for summary judgment, in favour of a case-specific approach that “allows the application of the rule to evolve organically.” This resulted in the abandonment of the earlier presumption that summary judgment in motor vehicle negligence cases should be rare: Mayers v Khan, 2017 ONSC 200, at paras 22-31, aff’d 2017 ONCA 524.

[17] One author has noted, four years after Hryniak, that the summary judgment culture shift resulted in over 2,571 published decisions across Canada, including over 1,588 in Ontario: Alderson, “Sentinels of the Hryniak Culture Shift: Four Years On,” in Archibald, Annual Review of Civil Litigation, 2018, (Toronto: Thomson Reuters, 2019), at p. 160. Summary judgment is now one of the primary engines of access to justice in Ontario, certainly in the Toronto Region.

[18] The evidence in this case does not follow the typical paradigm of motor vehicle cases, in relation to the opposition of one driver’s evidence against the other. All the occupants of the GMC were unconscious at the important moment. Franchetto was therefore not only the best participant witness but also the only one from the vantage point from one of the two colliding cars. Indeed, all of the plaintiffs’ forensic expert evidence focuses on Franchetto and treats the trajectory of the vehicle carrying the plaintiffs as an immutable fact. The trailing car, also involved in the aftermath of the crash, was only relevant in terms of traffic conditions and relative positioning. Only Franchetto can testify about what he saw and how he reacted to the situation. An opportunity to test his subjective evidence has already occurred, at his examination for discovery. The plaintiffs’ experts’ disagreement with Franchetto’s recollected evidence involves technical refinements that can be resolved in their favour for the purposes of the motion, and their opinions about what Franchetto could have done better can be evaluated independently.

[19] The last sentence of the above paragraph requires closer explanation. The plaintiffs’ experts do not disagree with Franchetto’s general recollection of the accident. He recalled his speed as about 90 km/h instead of the posted 80. They extracted data from his vehicle showing he was travelling at 89. They performed engineering modelling and calculations suggesting that Franchetto may have had more pre-impact seconds than he recalled. If one assumed the correctness of the experts’ data and modelling, the only disagreement would not be factual but counterfactual. In particular, the plaintiffs’ experts contend that Franchetto could have avoided or lessened the severity of the impact, had he:

(a) travelled at the posted 80 km/h speed instead of 89; and

(b) tried to avoid the GMC by braking first, instead of slowing and moving to the paved shoulder.

[20] The motion court is therefore well placed to apply subrule (2.1) to eliminate the factual variances between Franchetto and the plaintiffs’ experts by assuming the latter’s. What remains is the value of the counterfactual analysis which, for the purposes of the motion, I can also assume to have been reasonable outcome projections after the experts inputted different data into their reconstruction software programs. The only tasks remaining for the court would be to determine whether this evidence establishes that Franchetto’s driving was negligent and that such negligence was the legal cause of the plaintiffs’ injuries. The determination of such “ultimate issues” remains a non-delegable function of the court.

[21] While the experts’ conclusion (a) and (b) above can be put to a jury with careful instruction, the same cannot be true about any attempt by the experts to argue that the plaintiffs’ injuries were caused by Franchetto’s negligence. A trial judge should not permit such conclusions to reach the jury, or, if sitting without a jury, should guard against reliance on such evidence where it usurps the functions of the court: R. v. Mohan, [1994] 2 SCR 9, at 24-25. On a summary judgment motion, that risk does not exist because the court can shut the gate to inadmissible hearsay and identify the logical flaws of any expert conclusions. For all the sophisticated accident reconstruction software and specialized training the experts bring to bear on the facts, the law of Ontario does not impose on drivers the judgment of experts examining a scene with the benefit of hindsight.

[22] This is still a car crash case of the type the courts of Ontario have been hearing since the origins of mechanized travel: eg., Fisher v Murphy (1911), 3 OWN 150, 20 OWR 201 (C.A.). Arguments raised by the experts cannot supplant the duty of the court to determine whether, on the facts, the plaintiffs’ injuries resulted from Franchetto’s breach of the standard of care of a reasonable and prudent driver.

Facts as Interpreted by Plaintiffs’ Experts

[23] The plaintiffs did not file evidence on the motion to contest Franchetto’s evidence. They identified no material issue of credibility between his affidavit and the transcript of his examination for discovery. The court therefore need not exercise the power to evaluate the credibility of a participant deponent under subrule 20.04(2.1). This means Franchetto’s evidence can be accepted as proof of the layperson’s version of the facts of the accident. This does not end the factual inquiry, because the record also consists of investigatory data from the police as interpreted by the accident reconstruction experts. To the extent they differ from Franchetto’s recollection evidence, the difference does not create an issue of credibility but rather the reliability of Franchetto’s perception and memory compared to the data recovered from the scene and interpreted by said experts.

[24] I should observe that I have seen the expert report produced by Franchetto’s counsel, which corroborates Franchetto’s lay evidence and opposes the plaintiffs’ experts. For the purposes of this motion, I will rely solely on the reports setting out the findings, opinions, and conclusions of the plaintiffs’ experts and will ignore from my analysis the expert evidence tendered by Franchetto’s counsel.

[25] The Rezi plaintiffs commissioned accident reconstructionist Ed McCarron, who prepared an opinion as well as a rebuttal to the defence expert. The following summarizes the conclusions he made in his report, as affirmed in his affidavit:

1. This accident occurred because the GMC’s driver fell asleep and the vehicle crossed over into the westbound lane and collided with the Ford F150 pickup. The GMC was travelling at 103 km/h at impact. The Ford F150 was initially travelling at 89 km/h. After Franchetto braked, the Ford slowed to about 40 km/h at impact.
2. In the 5 seconds before the impact, the Ford F150 driver removed his foot from the accelerator pedal for approximately 1 second at about 4 – 4.5 seconds before impact, and then he reapplied the accelerator pedal for approximately 1 second prior to the initiation of heavier braking about 1.9 seconds before impact.
3. Franchetto steered to the right about 2.3 seconds before impact, and then sharply to the right about 1.7 seconds before impact, before quickly steering sharply to the left about 1.4 seconds before impact up to impact. In so doing, he drove the Ford onto the north paved shoulder about 1.5 seconds before impact, and the right side tires just travelled about 30 cm onto the gravel shoulder for less than 1 second before impact.
4. Franchetto had stated he reacted to the approaching GMC by removing his foot off of the accelerator pedal and moved onto the north shoulder prior to emergency swerving just before the impact. McCarron believes, however, that Franchetto re-applied the accelerator pedal just prior to initiating emergency braking and swerving in the last two seconds before impact.
5. Had the Ford F150 been travelling at the 80 km/h posted speed (rather than 89 km/h), Franchetto could have avoided a head-on collision or lessened its severity.

[26] McCarron’s affidavit extracted the following main points from his opinion:

Had the Ford F150 been travelling at the 80 km/h posted speed (rather than 89 km/h), and had the Ford driver reacted similar to the subject incident, the Ford F150 swerves slightly earlier, and slows to about 14 km/h at impact. The resultant impact is a minor side swipe along the right sides of the vehicles, with a resultant GMC speed change of 15 km/h (rather than the 80 km/h of the subject incident). The impact magnitude would be significantly reduced.

Had the Ford F150 speed initially been 80 km/h, and had the Ford driver initiated emergency braking at about 4 seconds before impact (rather than just taking his foot off of the accelerator pedal), the Ford F150 can be braked to a stop in the westbound lane about 56 m east of the actual impact location. The approaching GMC Envoy passes by the Ford F150 while on the gravel shoulder, about 3 seconds after the Ford F150 stops. The impact would be avoided.

[27] McCarron’s rebuttal report addressed areas of agreement and disagreement between him and the expert retained by counsel for Franchetto. In that regard, it is not entirely germane to the search for a factual issue requiring trial. However, the following points appear relevant:

1. Subject to some minor variations within the accepted degree of accuracy, McCarron acknowledged there was no material difference between his accident reconstruction and that of Paquette and Campbell, the engineers for Franchetto, as far as the vehicles’ impacts, speeds and locations were concerned.
2. Whereas Paquette and Campbell provided Franchetto a 2-second window for Franchetto to respond to the oncoming car, McCarron’s calculations provided at least four seconds. This goes to the issue of whether the oncoming car presented an unexpected looming collision hazard. McCarron believes Franchetto did not apply the brakes until two seconds before collision, implying that Franchetto’s decision to slow and enter the pave shoulder cost him two seconds.
3. In general, it would be difficult to determine the exact path and motion of the GMC had the Ford F150 impact not occurred.

[28] Counsel for the Morales plaintiffs submitted the reports of Saad Nassar and Scott Walters. The gist of their opinion can be stated as follows:

1. The impact took place in the area of the north edge of the westbound lane.
2. The Ford likely entered the north shoulder prior to it being steered back to the left to the area of impact, consistent with the Ford’s pre-crash steering data from its ACM.
3. The GMC would have been partially on the north shoulder prior to impact and heading slightly to the left, consistent with it crossing to the left (north) from the eastbound lane, into the westbound lane, and then entering the north shoulder and continuing its path to the left.
4. At a minimum, Franchetto should have immediately applied his brakes and reduced his speed when he saw the GMC enter his lane. By applying his brakes, Mr. Franchetto would have increased his opportunity to avoid a collision or at least reduce its severity.
5. Had Franchetto been travelling at 80 km/h 5 seconds prior to impact, he would have been able to avoid this collision had he performed the same braking and steering manoeuvres he actually did in this collision.
6. Had Franchetto been travelling at 80 km/h five seconds prior to impact, he would have been able to avoid this collision.

[29] In the rebuttal report, Nassar objected to the modelling method used by Franchetto’s experts. Apart from that, there were no additional comments.

[30] The two sets of the plaintiffs’ opinions were, in all but two respects, consistent with the opinions of Franchetto’s experts. They opined that Franchetto braking two seconds earlier and travelling 9 km/h slower prior to the accident could have led to a different outcome. It is crucial to understand that the experts’ two assertions are not factual in nature but counterfactual. Their alternative histories of the occurrence depend, for the optimal outcome, on Franchetto travelling at or below the posted speed limit and on his choosing to brake first instead of heading for the paved shoulder before braking.

[31] The question for the court on this motion therefore boils down to the legal significance, if any, of these two counterfactual accident reconstructions. I should observe, however, that the hypotheses do not give rise to issues of fact or credibility in this case. They simply inform the expert opinions regarding negligence and standard of care.

Negligence Law in Highway Accident Cases

[32] In Ontario, the starting point for liability arising from highway accidents is s. 192 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA). I will discuss the wording of it in more detail in the discussion of causation. For now, this section of the HTA simplifies the negligence analysis compared to some other tort law paradigms. All motorists are deemed to owe duties of care to other users and occupants of the public highway. The legal analysis of this action therefore focuses on two elements of negligence: breach of the standard of care and legal causation.

[33] Before turning to these two elements, I must deal with the plaintiffs’ submissions that a triable issue exists if there is a possibility of Franchetto being found “at least 1% liable” or “at least 1% contributorily negligent.” Plaintiffs’ counsel conceded in oral argument that these were misstatements of the law. The fact that this was the lead legal argument does say something about the merits of the case.

[34] The idea of 1% liability stems from a theory of statutory apportionment of responsibility in tort law. It applies either between two or more tortfeasors, in measuring the several liability between them even though they are each fully liable to the plaintiff: Athey v. Leonati (1996), 140 D.L.R. (4th) 235 at pp. 240-41, [1996] 3 S.C.R. 458. It also applies to the at-fault plaintiff’s contribution to the injury, in which case the court reduces the damages awarded to the plaintiff. Apportionment is a creature of legislative reform, such as the Ontario Negligence Act, R.S.O. 1990, c. N.1, to alleviate two common-law rules. At common law, there was no contribution and indemnity as between tortfeasors, and plaintiffs guilty of contributory negligence could be barred from recovery even if there were at-fault defendants. The idea of “1% liability” arose as a teaching aid to illustrate how joint and several tortfeasors could each be found fully liable to the plaintiff even though, as between them, fault could be allocated 99:1.

[35] Neither of these legal conclusions apply to a defendant who is not independently liable in negligence to the plaintiff: Pitts v. Hunt, [1991] 1 Q.B. 24, [1990] E.W.J. No. 576 at para. 43 (Eng. C.A.). Apportionment is a finding of fact, not law: see Negligence Act, s. 6; Fridman, The Law of Torts in Canada (Toronto: Carswell, 1990), vol. I, p. 383. Beyond the rhetorical value of the 1% rule, the simple reason that it is too close to 0% means it is hard to find or even imagine it in a judgment or jury verdict: Akazaki, “1 % Liability: Fact or Fiction of Apportionment In Tort Law?” 30 Advoc. Q. 104 (2005), at p. 107. Indeed, some early cases held that 5% or 10% were the minimum levels of apportionment: Ibid, pp. 104-05.

[36] For the plaintiffs’ actions to be capable of success against Franchetto, they will have to prove that his driving breached the standard of care the law expected of him and that this breach was a legal cause of the plaintiffs’ injuries. Either he is to be found liable, or not.

Standard of Care

[37] The standard of the reasonable person, on neither extreme of mental acuity, has remained a fixture of the law of negligence in the common law since Vaughan v. Menlove (1837), 3 Bing. N.C. 468 (C.P.). See R. v. Hill, [1986] 1 SCR 313, at para. 64. It is a fictional objective standard: Kralz v. Murray, [1954] OWN 58 (C.A.), [1954] 1 DLR 781 at 784 DLR. The question of breach is one of fact and law, in that the standard of care is a general question of law applicable to like circumstances: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 SCR 129, at paras. 67-68.

[38] By focusing so much on Franchetto’s perception and driving, in search of a reason to find him “1% liable” for the plaintiffs’ injuries following the accident, the plaintiffs’ experts have failed entirely to deal with the unpredictable trajectory of the driverless GMC. This was a wholly unfair approach that raises the standard of care close to that of perfection – as will be illustrated in the discussion of Nassar’s contention that Franchetto breached the standard by failing to perceive that braking first turned out to be the best choice for avoiding the collision. There was no evidence whether Franchetto’s job entailed actually driving an emergency vehicle, but even if it did the standard of such a driver does not apply to him as an ordinary driver outside of that setting. This is a standard of care that includes the experienced and the novice, youthful and elderly, drivers of powerful cars and underpowered ones.

[39] Manipulation of speeds and vehicle data does allow for some “what if” reasoning. From the perspective of a court determining standard of care, the danger of counterfactual logic is the temptation to work backward from the adverse event to capture “contributors” to the event and finding fault on their part. The reasonable person’s responses to dynamic situations must only be measured by actual events and not by hypothetical events modelled after a different initial response. Before we inspect the plaintiffs’ experts attention on Franchetto’s driving, the court must not lose sight of the fact that the accident would not have occurred if Laguardia had not suddenly lost control of the GMC, and that it may well have occurred with victims other than Franchetto and his spouse, had he fallen asleep earlier or later in the journey.

89 km/h v. 80 km/h

[40] The legal significance of posted highway speed limits requires a threshold legal question. Penal or regulatory liability under statute does not result in civil liability unless the legislation provides for it. The statute can provide evidence informing the standard of care. Inconsequential violations may result in a criminal fine but not civil liability: The Queen (Can.) v. Saskatchewan Wheat Pool, [1983] 1 SCR 205, at 224-25. Note that the nexus between the statutory standard and the civil one focused not only on the purpose of the statute but also on the causal relevance to the plaintiff’s injury.

[41] From the other perspective, compliance with legislation or regulation does not excuse a defendant from negligence, either: Ryan v. Victoria (City), [1999] 1 SCR 201, at para. 29.

[42] The Court of Appeal’s treatment of the issue in Canada Bread Co. Ltd. v. Grigg, [1946] OWN 337, [1946] 2 DLR 374, at 377-78 DLR, illustrated how the issue of a defendant’s speed can create a range of outcomes (underline added):

Again, I think the evidence and circumstances are such that it cannot be reasonably found that the speed at which the appellant's truck was driven was a contributory cause of the damage suffered by the parties. If the truck had been going faster there would have been no collision. If it had been going more slowly the point of impact might have been different, or if sufficiently slowly the respondent's car might have passed safely by. The real, proximate and sole cause of the damages was the negligence of the respondent in failing to comply with the requirements of s. 39(1) of The Highway Traffic Act, and give to the driver of the appellant's truck the right of way to which he was entitled in the circumstances.

[43] Technology and investigative methods have changed the legal landscape because modern automobiles are equipped with data recorders that assist drivers. Previously, investigators and parties relied principally on estimates of participant or eye witnesses. Nevertheless, findings could be made that a driver’s speed exceeded the posted rate. The plaintiffs’ experts have been able to extract from the accident investigation data the fact that Franchetto could have afforded himself more time to avoid the accident, had he been travelling at the posted limit. This type of argument of negligence has drawn resistance because of the causal relevance issue. See Briel et al. v. Darch [1968] 1 OR 391, 66 DLR (2d) 489, in which Ferguson J. stated:

So I think it is purposeless to say that if his speed had been different he would not have been in the accident, he would have been some other place.

The cause of this accident was the wrongful act of the plaintiff by counterclaim in driving on the left side of the road where that portion of it was being used by traffic on its right side.

[44] I will deal with the issue of the Ford’s speed as it relates to causation later in these reasons. With regard to the relevance of the posted limit on the standard of care for negligence, the court must focus on the purpose of the statutory limit. Speeds are posted for various reasons. A municipality might reduce speeds for the purpose of traffic calming and safety to pedestrians, even though the road itself might be safe to drive at a much higher speed. Violation of a speed limit set to encourage fuel conservation cannot be negligence, because it is not tied to road safety: Cooper v. Hoeglund, 221 Minn. 446, 22 NW 2d 450 (1946). The evidence of the plaintiffs’ experts did not include any commentary on whether it was safe to drive on the particular stretch of highway at 89 km/h instead of 80. They did not address the flow of traffic or the Mazda gaining on the Ford at a higher speed.

[45] Although not an absolute rule, speed alone does not attract civil liability in negligence unless the defendant is “speeding significantly over the applicable limit”: D’Amici v. Fahy, 2020 BCCA 89, at paras. 45-50. The difficulty for the plaintiffs in applying this reasoning to Franchetto, by focusing solely on his 9 km/h speed over the limit, is that the ability to take reasonable evasive action is really determined by the speed of the runaway GMC, clocked at 102 km/h according to the plaintiffs’ experts. This does not turn the inquiry into an exercise in comparative fault. The GMC’s speed made the effective speed of mutual approach confronting Franchetto 192 km/h. It is also more difficult to perceive the speed of oncoming traffic compared than from a perpendicular vantage. Franchetto, the slowest driver among the highway participants, posed no hazard to the others.

[46] Inconsequential violations should not subject the violator to any civil liability at all but should be left to the criminal courts for enforcement of a fine: Saskatchewan Wheat Pool, at 225 SCR.

[47] Franchetto’s speed of 89 km/h cannot, therefore, lead to a finding of liability in and of itself without examining the role the extra 9 km/h played in the accident, at least according to the plaintiffs’ experts. The plaintiffs’ experts’ opinion was that the extra speed brought the vehicles closer into collision course and thus left Franchetto less time to react or deprived him of the opportunity to lower his speed to less than 40 km/h at the moment of impact. The law of negligence does not determine standard of care in this way. If the highway were unsafe to drive at 89 km/h, the road authority would have been negligent in setting the speed limit at 80. If we are to consider Franchetto’s driving in isolation, one would have to survey the stretch of highway and determine whether 89 km/h represents a normal or an excessive speed based on a sampling of ordinary experience. There was no such evidence.

[48] Indeed, the plaintiffs’ experts rebut the “agony of the moment” argument raised by Franchetto and his expert by saying there was ample time for Franchetto to avoid the accident or to lessen its severity. If that were the case, speed could not have played a road safety role in the accident. From the perspective of common experience and a fictional reasonably prudent driver, it is hard to consider Franchetto’s 89 km/h speed as falling outside the tort standard of care.

Choosing the paved shoulder instead of braking

[49] The issue of reaction order is not whether Franchetto identified the only prudent option, but whether his actual choices were reasonable in the specific circumstances. In this regard, there is no need for a trial to determine what he did, because his evidence was uncontradicted. For the moving party to show that there is no genuine issue requiring trial, he must only overcome the apparent impediment posed by Nassar’s opinion that he should have applied his brakes at the outset, instead of attempting to get out of the way of the oncoming vehicle.

[50] Although admissible, the expert’s opinion of what the driver should have done cannot supplant the court’s role to determine whether the choice of evasive manoeuvres amounted to negligence. Advocacy dressed as science should not be allowed to take away the court’s ability to see the facts as they are: R. v. Mohan, [1994] 2 S.C.R. 9, at 24.

[51] While it is true that Franchetto did not know the impending direction of an oncoming driverless car, there was also no means for him to know how unpredictable its trajectory was. Nassar can state with certainty that braking was the safest and only option, but this opinion does not mean Franchetto’s reaction was unreasonable. Hindsight provides certainty of outcome, but Canadian negligence law resists strict liability, which is what we get if we were to define standard of care by the absolute failure to avoid the adverse event. On cross-examination, Nassar explained his conclusion that Franchetto was negligent because he did not react in the way his computer model found was the way to avoid the accident. His evidence showed how the plaintiffs’ theory of Franchetto’s order of reaction is foreign to Canadian tort law:

237. Q. Dr. Nassar, are you telling me today that all reasonable, typical, prudent drivers in that scenario would all react that way, and would all avoid the avoid the accident?

A. For reasonable driver saw the GMC entering their lane, perceived and reacted in one and a half seconds or between one and one and a half seconds and applied the brakes, they would have been able to avoid this collision.

238. Q. Right, but that's not what I'm asking you. You're putting a condition and saying if they did that. I'm saying if we put them in that situation, we run that simulation, how many of those reasonable or prudent or typical drivers are going to react that way? How many of them are going to pass the test? How many of them are going to fail? Are you telling me all of them are going to pass the test?

A. Based on what I said, if we assume the perception reaction time, it's one to one and a half seconds. If you use the upper limit in this case, perception, reaction time, and follow it by braking, if all these drivers did this, they would have been able to avoid.

243. Q. Are you suggesting Mr. Franchetto was inattentive?

A. I’m not suggesting he’s – he did not react, whatever the case was. He did not react as prudent driver or as a reasonable driver by not applying his brakes right away, by not perceiving, like after he perceived and reacted, when this vehicle entered his lane, if he applied his brakes right away he would have been able to avoid.

[52] The above passage from Nasser’s cross-examination illustrated how a defendant in every case could be found liable for not having perceived what a computer model might determine after the fact to have been the optimal course of action. The logic is entirely circular because of the false equation of prudence and reasonableness, both ex ante obligations, with an ex post determination by an engineer of the right response. Even after the questioner pointed out that the reasoning presupposed the right course as the only prudent course, Nasser refused to budge.

[53] Objectively, there was no reason to expect Franchetto to have known that braking first would have avoided collision with an oncoming car more effectively than trying to get out the oncoming car’s way. Indeed, from the perspective of self-preservation and the safety of his spouse, braking first would likely have been the least effective choice because it would have left the Ford immobile and its occupants sitting ducks to absorb all of the GMC’s kinetic energy. The plaintiffs’ theory sees a standard of care only from the perspective of preventing harm to the occupants of the GMC. Given that self-preservation is both an instinctive and reasonable course of action, the fact that the theory may have been the correct one, as found by computer modelling, did not make it the prudent or reasonable one.

Conclusion regarding standard of care

[54] Assuming the plaintiffs’ expert opinions at face value, their conclusions do not, on considered review, inform the standard of care in accordance with the law of negligence applicable to motor vehicle cases in Ontario. The engineers may have determined forensically that a 9 km/h lower speed in the run-up to the incident or a different choice of initial reaction to it would have been more advisable, but neither of these assertions give rise to a finding of negligence against Franchetto.

[55] Without even considering the “agony of the moment” analysis below, Franchetto cannot be found at fault for having marginally exceeded the speed limit or for having chosen the most intuitively rational choice of manoeuvre because a less intuitive one could have provided a better outcome for the plaintiffs.

Agony of the Moment – A Different Standard of Care?

[56] Franchetto’s counsel placed considerable weight on the doctrine of emergency, otherwise described as the “agony of the moment.” For the reasons that follow, there is no need for such a doctrine. Rather, in cases where the driver’s options are severely curtailed by lack of time to make real-time decisions, the standard of care must be lower simply because of the circumstances. Questions about a driver having one or more seconds to react are purely contextual. The situation of an oncoming car with a combined velocity of 192 km/h is entirely different from leaving three seconds behind the car ahead travelling in the same direction.

[57] The word “agony” in this context is not employed in the current vernacular meaning of suffering, such as a toothache or a broken leg. Rather, it refers to the emotional reaction to hard choices. It originates from the ancient Greek word for a tough contest or challenge. People agonize over hard choices. The “agony of the moment” refers to instances where avoidance of the potentially life-ending event depends, not on logic or precise measurement, but rather on a lack of time and the adrenaline rush of imminent death.

[58] In Gill v. Canadian Pacific Railway, [1973] S.C.R. 654 at 665, the Supreme Court stated:

It is trite law that faced with a sudden emergency for the creation of which the driver is not responsible he cannot be held to a standard of conduct which one sitting in the calmness of a courtroom later might determine was the best course.

[59] The Ontario Court of Appeal in Isaac Estate v. Matuszynska, 2018 ONCA 177, at paras 77-79 similarly held that emergencies do not warrant a “standard of perfection” but only what an ordinary, reasonable, and prudent person might be expected to do facing an emergency.

[60] The comments in Gerbrandt v. Deleeuw, [1995] B.C.J. No. 1022 (B.C.S.C.) at para. 10 is rather helpful, in relation to the instant case:

An often quoted summary of the law concerning the agony of collision is found in an old text, Huddy on Automobiles, 7th Ed., page 471 and page 335 (this passage is relied upon by the Saskatchewan Court of Appeal in English v. North Star Oil Limited, [1941] 3 W.W.R. 622 (Sask. C.A.) and Reineke v. Weisgerber, [1974] 3 W.W.R. 97(Sask. Q.B.)):

Under circumstances of imminent danger an attempt to avoid a collision by turning one’s course instead of stopping the vehicle is not necessarily negligence. Or an attempt to stop when a turn would have been a more effective method of avoiding the collision is not necessarily negligence ...one who suddenly finds himself in a place of danger and is required to consider the best means that may be adopted to evade the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.

[61] The plaintiffs’ experts opined that Franchetto had more time to make a more calculated choice than he believed. (As stated earlier, their theory that he had four or five seconds instead of two undermined their other theory regarding speed.) This, the plaintiffs and their experts contend, meant the emergency doctrine did not apply. I agree that no such doctrine should exist. However, the recognition of the “agony of the moment” as a phenomenon of human experience and neurology means that there must be a range of expectations, especially due to the difficulty in perceiving the speed and trajectory of an oncoming vehicle.

[62] The plaintiffs’ response to this argument was that the five seconds Franchetto had to respond to the situation did not amount to an emergency per se, at least for the purposes of the common-law principle. They cited Holizki Estate v. Alberta (Public Trustee), 2008 ABQB 716 at para. 173, for the proposition that no such emergency exists if the reacting driver has anticipated the danger and has the opportunity to apply the brake or take other evasive manoeuvres. The Holizki decision cited Gellie v. Naylor et al., in which the court stated:

A motorist need not anticipate that pedestrians will unexpectedly dash from a safe position on the curb into the path of his moving vehicle. He may assume that pedestrians as well as other motorists will not act unreasonably and foolishly. However, if the motorist is alerted, by the previously observed conduct of another person that there is a distinct possibility the other person may act negligently and expose himself to danger, then the assumption loses its justification. The anticipation of negligent conduct renders such conduct foreseeable and makes it incumbent on the motorist to take additional precautions.

[63] The flaw in applying this reasoning to this case is that Laguardia’s vehicle entry into the wrong lane prompted the driver ahead of Franchetto to avoid collision by going into the shoulder. Franchetto therefore took the most obvious course of action by following that driver into the shoulder. That decision, as the plaintiffs’ experts concluded, cost him two seconds. In Holizki, the oncoming vehicle was driven erratically, meaning the obvious choice would have been to brake. In Gellie, the driver was held negligent for not slowing to avoid hitting a pedestrian trying to cross the Queen Elizabeth Way near the Burlington Skyway.

[64] The five seconds represented the time that the experts calculated from Franchetto’s recognition of a potential hazard ahead to the location of the collision. This is not the same as saying he had five seconds to react. Their opinion was that braking hard immediately would have allowed him a chance to avoid the collision or to lessen its impact, and that his decision to slow and head for the shoulder lost him about two seconds. It therefore follows that what he did in the second after hazard recognition sealed what happened to the vehicles and their occupants.

[65] Franchetto’s need to perform a “double twist” to adapt to the trajectory of the oncoming GMC was similar to the plaintiff’s reaction in Wright v. Ruckstuhl, 1955 CarswellOnt 293, [1955] O.W.N. 728, at para. 3. There, in rejecting the argument that the plaintiff was contributorily negligent, the court found no negligence when considering the plaintiff’s swerve sharply to his left, avoiding a truck, followed by a sharp swerve to the right, in reaction to the observed a car approaching from the west.

[66] It does not matter whether the “agony of the moment” or emergency doctrine should exist or whether it applies to this case. Whether Franchetto had two seconds or five, he reacted immediately. If he took the most obviously safe course but not the most correct one, according to the plaintiffs’ forensic experts, he did not have the time to weigh up his options.

Exercise of Judgment

[67] An error of judgment does not amount to actionable negligence: Sigerseth v. Pederson, [1927] SCR 342, at 346-47; Otto v. Morgan, at para. 32; Gunn v. Matheson, at paras. 22-23; Taggart v. Heuchert, [2013] I.L.R. para. M-2706, 2013 BCSC 1248, at para. 189; Isildar v. Rideau Diving Supply, at para. 508.

[68] Due to the nature of the issue, this principle appears most frequently in professional and technical negligence cases. Rand J., in the majority decision in Wilson v. Swanson, [1956] SCR 804, at 812, stated that errors of judgment have long been distinguished from carelessness or lack of knowledge. Citing Rann v. Twitchell, 1909 82 Vt. 79 at 84, the rationale for this distinction has been the exercise of due care in the face of a range of choices, given the physical conditions and the limited opportunity.

[69] The modern iteration of the duty of care in Canadian tort law, the Supreme Court of Canada’s decision in Kamloops v. Nielsen, [1984] 2 SCR 2, at 8, was based on Anns v. Merton London Borough Council, [1978] A.C. 728, a case involving the responsibility of a municipal building department – ultimately staff architects and building code inspectors. There is no rational basis for carving out an “error of judgment” defence” for professionals, as if ordinary accident cases do not involve exercise of judgment.

[70] The cases distinguishing negligence from errors of judgment all reflect the idea that reasonable prudence is determined as an ex ante exercise. Provided the choices of conduct are objectively reasonable prior to the event, the fact that the defendant made the “wrong” choice from an ex post or forensic perspective does not amount to negligence. In this regard, the exercise of judgment has always been part of the reasonableness standard in tort law. Exercise of judgment can fall below the standard of care if the errors are cumulative and reflect lack of skill or awareness of the risks: Isildar, at para. 509.

[71] Here, Franchetto’s initial decision to slow down and head into the paved shoulder to allow the driver of the oncoming vehicle more space to correct trajectory was entirely reasonable. He was not to know that the GMC had no conscious driver. Next, when he noticed the vehicle was heading into the shoulder, Franchetto steered the other way and braked hard. Each decision was a reasonable exercise of split-second driving judgment. The fact that a forensic engineer opined in hindsight there was only one true response for mitigation or avoidance does not, despite the engineer’s insistence, convert an exercise of judgment into a failure to figure out the one and only right decision:

176. … You told me maybe ten times already this morning what Mr. Franchetto should have done, and we will get to that, I promise you.

A. I didn't say what he should have done, I said what a prudent driver, or a normal driver would do in a situation such as this one.

177. Q. That's fair, but my question to you was: in Mr. Franchetto’s situation at about five seconds before impact when the GMC had completely crossed into the oncoming lane, Mr. Franchetto’s options for avoiding the accident were limited, correct? He didn't have a whole lot of choices to make, right? There was, you know, only a couple of different things he maybe could have tried, right?

A. He was not sure if this vehicle was going to the left or to the right, the only option he would have had is to apply his brakes …

[72] The experts’ refrain that Franchetto failed to take the only correct measure to avoid the accident was nothing more than an attempt to deny the existence of a decision to make. For the devout or absolutist, logic leading to one clear choice means there were none others. The fact that Franchetto reacted in another way required the experts to consider the merits of the “wrong” decision. In fairness to the plaintiffs’ experts, the record did not demonstrate much deliberation of this question because the entire effort seemed concentrated to a search for grounds for finding “1%” fault on Franchetto’s part to avoid summary dismissal.

[73] No matter how valid the plaintiffs’ experts’ opinion that braking first would have been the only viable option, Franchetto’s reaction was not unreasonable from the perspective of an ordinary driver facing oncoming danger and the need to make a sudden exercise of judgment.

Causation

[74] The plaintiffs’ engineers opined that changing two inputs, lowering Franchetto’s speed by 9 km/h and changing the sequence of his accident-avoidance maneuvers, the collision with the Laguardia GMC could have been averted or lessened. Assuming the opinion is accepted, the court requires no trial because neither hypothesis establishes that Franchetto’s pre-collision speed or his reaction to the oncoming GMC were legal causes of the plaintiffs’ injuries. If the theory that Franchetto was “1% contributorily negligent” was the plaintiffs’ leading theory of negligence, the case on causation also seemed to be based on the incorrect “material contribution” test.

[75] Nevertheless, the encroachment of the contribution theory into common law causation recurs due to a law-and-economics approach to tort law in which a potentially undercompensated plaintiff relies on what Justice Krever reportedly called the “intellectual dishonesty” of judges to spread liability to the non-negligent: Michael J. Trebilcock, “Social Insurance-Deterrence Dilemma of Modern North American Tort Law: A Canadian Perspective on the Liability Insurance Crisis,” (1987) 24:4 San Diego L Rev 929, at 974. The search for tortfeasors among the passive or reactive participants in an accident scene leads to blurred lines between cause and involvement in the effect.

[76] Much of the confusion over legal causation results from the high degree of self-evidence in the phrases “but for” and “cause-in-fact” in the common law. The repetition and flexible interpretation of these phrases has relegated to oblivion the rationale for the test in the historical arc of unwritten private law of loss compensation based on fault. Tracing the principle to the origin of that arc would allow jurists to understand its role not only as the connector between tortfeasor and injured party justifying compensation but also as a discriminator excluding from liability parties affected by a tort even thought their conduct may be subject to private law scrutiny in hindsight.

[77] No instance is more illustrative of this last proposition than the negligence of the putative victim of the tort. If an assailant punches the top of a victim’s skull instead of his face, the latter’s failure to duck completely cannot be cited as a legal cause in the assailant’s suit for recovery of medical expenses for his broken hand. There is an element of that same injustice in this case, where the occupants of the runaway vehicle blame the an ordinary user of the highway for not doing enough to get out the way. All the arguments raised by the plaintiffs’ experts concentrate their attention on the reasons why Franchetto failed to stop and hope the speeding wrong-way driver would not kill him and his spouse. Despite the factual absurdity of the suit, the words “but for” or “cause-in-fact” possess a Delphic ambiguity that has led legal metaphysicians to insinuate a less rigorous test for trial courts to use.

“But for” or “Cause-in-Fact” applicable to this case

[78] The plaintiffs’ submission that Franchetto was a legal cause of the plaintiffs’ injuries is wrong in law because it confounds his role in the effect of Laguardia’s negligence with cause-in-fact, the essential logic of the “but for” requirement in Canadian tort law. It may at times be hard to identify the difference between cause and effect in a metaphysical world where everything might appear to be both cause and effect of something else. A principled examination of Laguardia’s role, taking the plaintiffs’ expert evidence at face value, can only lead to the conclusion that his driving was not a legal cause of the plaintiffs’ injuries.

[79] In Ontario and in most Canadian provinces, courts grappling with causation in cases arising from accidents on public highways must start with the statutory formulation of causation in s. 192 of the HTA or its equivalent in other provinces (underline added):

192 (1) The driver 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. 2005, c. 31, Sched. 10, s. 2.

[80] Subsections (2) and (3) provide for similar liability of owners and lessees. The legislative wording, “by reason of” is a traditional form of attributing liability in Canadian motor vehicle law. Most judicial consideration of it has stemmed from the impetus to link the loss to an automobile, for the purpose of access to compulsory insurance or provincially-funded uninsured coverage regimes. The statute also uses “by reason of” in s. 193 to describe a reverse onus applicable to automobile accidents injuring pedestrians. Thus, despite the purpose of these provisions to allocate liability or an onus of proof to certain classes of parties, there is no relaxation of the rule of causation in tort law: Boxenbaum v. Wise, [1944] SCR 292, at 295.

[81] The “but for” test is a judicial device limiting civil liability to “cause-in-fact,” i.e. to the acts or omissions of parties actually responsible for a plaintiff’s injury and to exclude those caught in a chain or confluence of events. The usual elaboration of the two-word formula is the burden on the plaintiff “to prove on a balance of probabilities that, but for the defendant’s negligent conduct, the plaintiff would not have been injured”: Benhaim v. St‑Germain, 2016 SCC 48, at para. 46.

[82] The focus on the plaintiff’s injury means the principle does not mean a plaintiff can discharge the burden by showing the accident would not have occurred absent the defendant’s negligence. This distinction does not necessarily exclude Franchetto from liability, because of the experts’ opinion that some other form of accident could have resulted if his speed had been 9 km/h lower or if his first reaction was to brake. The question of the nature of plaintiffs’ injuries in their experts’ counterfactuals may turn out to be imponderable, but the record is not sufficiently clear on this motion to rule out the possibility that the plaintiffs could have been spared or could have suffered appreciably less severe injuries. The plaintiffs’ experts acknowledged their inability to determine the kind of car accident to which the occupants of Laguardia’s car would have been exposed, if the collision with the Ford not occurred in the manner that it did: “In general it would be difficult to determine the exact path and motion of the GMC had the Ford F150 impact not occurred” (McCarron report dated May 30, 2023).

[83] The limiting purpose of the “but for” test and the common-law resistance to adoption of a more metaphysical “material contribution” standard was in evidence in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 SCR 333. In Resurfice, the operator of an ice rink resurfacing vehicle (a.k.a. by a competitor’s trade name, Zamboni), caused an explosion by mixing up the water and gasoline hose inlets. The trial judge rejected the argument that the manufacturer, Resurfice, contributed to operator error by fitting similar caps and tanks in close proximity, as well as the inadequacy of a warning label. (This theory of products liability, especially dealing with the label, originated in the human-factors analysis in Lambert v. Lastoplex Chemicals, [1972] SCR 569.) The Supreme Court restored the trial judge’s rejection of causation and reversed the Alberta Court of Appeal’s opinion that the Zamboni manufacturer’s design defects contributed to operator error.

[84] The “material contribution” test is reserved for special cases where proof of causation is impossible due to factors beyond the plaintiff’s control, but the defendant’s clear breach of duty of care exposed the plaintiff to an unreasonable risk of injury to which the plaintiff actually suffered the injury: Resurfice, paras. 24-25:

24. However, in special circumstances, the law has recognized exceptions to the basic “but for” test, and applied a “material contribution” test. Broadly speaking, the cases in which the “material contribution” test is properly applied involve two requirements.

25. First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a “but for” approach.

[85] Most courts and commentators have focused on the impossibility of proof as the threshold. Less has been said about the actual relaxation of the need to prove cause-in-fact. This second part is no more than the court permitting itself to draw an inference of probability to alleviate the unfairness arising from lack of means to prove that the unreasonable risk materialized in the harm. This does not afford a licence to search for tortfeasors from pre-existing ordinary conditions whose act or omission did not independently expose a plaintiff to an unusual risk of harm from which the plaintiff’s injuries occurred.

[86] The material contribution test has no application to the collision between the GMC and the Ford because there is no deficit of data collected from the scene. The fact that Franchetto did nothing, by act or omission, to expose the plaintiffs to unreasonable risk of harm is relevant only to application of the more exclusive “but for” test. What needs to be explained to the plaintiffs in this case is how the “but for” test excluded Franchetto from causal liability for their injuries even though the truck he was driving collided head-on with the GMC in which they were passengers.

[87] Despite what McLachlin C.J. described as the spillage of “judicial and academic ink” on the subject (Resurfice, para. 20), the courts and legal academy have struggled to explain causation as the distinguishing feature of fault-based private law corrective justice from legal manifestations of distributive justice such as insurance and state-funded accident compensation funds. Indeed, the Supreme Court itself was responsible for the some influential spilled ink in the oft-misconstrued para. 17 of its decision in Athey:

It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. To borrow an example from Professor Fleming (The Law of Torts (8th ed. 1992) at p. 193), a “fire ignited in a wastepaper basket is . . . caused not only by the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the cleaner to empty the basket and so forth”. As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.

[88] The notion that a defendant’s role in part of a cause of an injury spawned the idea that comparative fault – a statutory invention to allocate liability for loss among tortfeasors (i.e. the one percent rule) – can be the basis of a finding of legal cause. Did the Supreme Court in Athey really consider the office cleaner who failed to empty the basket a joint and several tortfeasor with the person who dropped the match? Evidently, the Alberta Court of Appeal in Resurfice refused to find the defendant Zamboni operator’s mix-up of the hoses as the sole cause of the accident and directed a new trial to determine whether pre-existing faults in the design or labelling of the hose inlets were contributing causes: Hanke v. Resurfice Corp., 2005 ABCA 383, at paras. 12-21. The Supreme Court held that this reasoning erred because contributing causes did not satisfy the “but for” test: Resurfice (SCC), at para. 19.

[89] What the above passage from Athey really stood for was an affirmation that a “myriad of other background events” can be “necessary preconditions” to the injury without being legal causes, even if there was some incidental fault on the authors of those events. Thus, the negligence of the office cleaner in forgetting to empty the wastepaper bin contributed to the ensuing fire, but the person who dropped the lit match would still be liable. His argument that his negligence was not the sole cause of the fire – viz. that the match would have gone out if the bin were empty – was not grounds for dismissal of the tort action against him. More importantly to this motion, the cleaner’s breach of duty was necessary to the event, but he was not a legal cause even though logically the fire would not have occurred “but for” the failure to empty it. Thus, there must be something to the “but for” test beyond the mere dictionary and grammatical meaning of those two words.

[90] The jurist’s answer could be to insert a non-causal legal reason for excluding the cleaner from liability, such as remoteness or foreseeability. Current readers might also consider the deposit of the match to have been gross negligence. That conclusion should be checked by the fact that Fleming wrote his example at a time when many offices were smoking environments and the described incident not so far-fetched. Despite that historical context, the cleaner’s omission cannot be a legal cause of the fire because emptying the bin is unrelated to fire safety. Thus, the cause must not only be connected to negligence but also in a manner that exposed the sufferer of harm to a risk of that specific harm.

[91] One of the reasons why the law continues to grapple with the “but for” test of legal causation is the forensic role of courts as fact-finders and recipients of evidence from experts in the art of scene reconstruction from aggregated data. The conclusion that each datum, if relevant, was a cause, is irresistible. In any given snapshot of quotidian activity, individuals and groups can be found operating at the margins of regulated activity. Travelling 9 km/h over the limit, Franchetto was the slowest driver among those involved in this accident. The Mazda behind him was gaining on him at a slightly higher speed.

[92] The forensic accident reconstruction experts hired by the plaintiffs found a way to interpret Franchetto’s pre-incident speed and in-incident reactions to the oncoming vehicle as causes of the accident instead of seeing the speed as an ordinary background condition and the reactions as the effects of the appearance of the GMC on the wrong side of the road. The conceptual flaw of the plaintiffs’ expert opinions was their downgrading of Laguardia’s out-of-control GMC to a predestined or assumed factor and upgrading of Franchetto’s marginal speeding and reaction to the GMC to creators of the unreasonable risk of harm.

[93] Nevertheless, the fact that “but for” Franchetto driving his truck in the way he did, before and during the accident, the specific collision with the GMC would likely not have occurred, the logic of the words implies that Franchetto’s driving was a legal cause, assuming it amounted to negligence. The injustice of this application of the “but for” algorithm arises from its use to distribute the burden of the plaintiffs’ loss to other users of the highway irrespective of the absence of a role in creating the unreasonable risk of harm resulting in the loss. The legally specific meaning of the “but for” test for causation as a discriminator and not as a distributor of liability becomes obvious once one traces its path to general acceptance as a key element of tort law as corrective justice.

Distinction between Legal Causation and Metaphysics

[94] The Supreme Court of Canada’s decisions in Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181, at paras. 6-16, and Benhaim v. St‑Germain, 2016 SCC 48, at paras. 54-55, continued the practical approach to causation entrenched in Canadian tort law by Snell v. Farrell, [1990] 2 SCR 311, at 328 in which Sopinka J. stated:

Causation need not be determined by scientific precision. It is, as stated by Lord Salmon in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490:

... essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory.

[95] Ordinary common sense is indeed an unscientific and imprecise tool. Its opposition to metaphysical theory, however, is particularly significant because common sense translates to the logic of experience and skepticism. For a test for legal causation to function as a feature of private law, common law courts need these practical checks on the what can otherwise be an almost viral logic of counterfactual dependence: whether the plaintiff’s injury would have occurred, had the alleged tortfeasor’s role been absent from the circumstances (underline added):

In common law countries, the causal relationship that must be established in order to make someone liable in negligence is typically described as the “but for test”. Although some commentators argue that the but for test does not need to be applied as a hypothetical possible worlds analysis, this test is often presented as expressing a relationship of counterfactual dependence. Whether described factually or counterfactually, under the “but for” test, a defendant is a cause of the plaintiffs harm if and only if, had the defendant not acted tortiously (or negligently), the plaintiff would not have been injured. The but for test is deployed in most common law jurisdictions and is used by courts and juries to determine what is called “actual” or “factual” causation. Generally, other requirements are imposed by the law, like the fact that the link between the defendant's negligence and the plaintiff 's harm is direct or proximate.

Florence G'Sell, “Causation, Counterfactuals and Probabilities in Philosophy and Legal Thinking” (2016) 91:2 Chi-Kent L Rev 503.at 512

[96] Anglo-American courts settled on the “but for” test in the 1950s, coincidental to the publication of Hart and Honoré’s Causation and the Law, 2nd Ed. (New York: Oxford University Press, 1959, 1985) (“Causation”). This work is on the map of any treasure hunt for the meaning of the test: Halsbury’s Laws of Canada, First Ed.: Torts (Toronto: Nexis-Lexis, 2020), at pp. 301-03. Hart and Honoré described the development of a law of causation rather than proposing one. They distinguished legal causation as a subset of the more expansive metaphysical meditations on the subject by starting with an ethical or normative exploration of ordinary versus abnormal conditions. The abnormal makes the difference “between the accident and things going on as usual”: Causation, at p. 35. Moreover, forensic investigation helps to obtain more details of what happened, but the law should be careful not to pick out new causes from ordinary events after the abnormal event:

There is, however, a second distinct motive for refusing the title of cause to events which are later phases in processes initiated by abnormal events or interventions. These later phases only come to light after we have identified through common experience abnormal occurrences or human interventions of certain broadly described kinds (‘shooting’, ‘blows’, etc.),which bring about disturbances of or deviations from the normal course of things. Our knowledge of these later phases of the process is therefore a more precise, but secondary knowledge (often supplied by science) of what is regarded as mere ancillary detail which accompanies the cause. … The initial disturbance of the normal condition of the thing affected is the cause: these are merely the details of the way it develops. To cite these later phases of the process as the cause would be pointless in any explanatory inquiry; for we only know them as the usual or necessary accompaniments of the abnormal occurrence …

Causation, pp. 40-41

[97] This idea, akin to the relationship between the act of God and the pre-established harmony in Leibniz’ causality, allows the law to distinguish between legal causation as the relationship between wrongful behaviour and the injury and physical or metaphysical causation as the general order of things as conceived by Spinoza. I will turn to the influence of these thinkers in a moment to show the emergence of a practical need for a theory of causation in private law arrived with the origin of private law itself. For now, it is important to understand that Causation was a milestone in the common law’s journey to adoption of the “but for” test and rejection of “material contribution” to the injury because it captured mid-20th century judicial attitudes saving tort law from a more distributive approach to allocating the consequences of civil wrongs.

[98] The choice between the creator of substantial risk and the contributor to the injury requires the court to distinguish between cause and effect. Because both are necessary to the injury, participants in the effect can be mistakenly included in the “but for” counterfactual analysis. Here, the plaintiff passengers of the GMC were necessary as their bodies ultimately absorbed the consequential energy of the collision. They were injured at the same time Franchetto and his spouse were injured, and the Ford was necessary as a proximate cause as an instrument of arresting the GMC’s velocity in the way the GMC stopped the Ford. The plaintiffs’ experts argue that the collision might not have happened or that it might have happened with less severity, had Franchetto not been driving at 89 km/h or had he braked first instead of heading for the shoulder. A stronger argument might be that the plaintiffs could have persuaded their driver to get some rest before driving them home.

[99] Cause is the disturbance of the local order of things “going on as usual.” Effect is what happens after the disturbance. Seen in this way, the basic premise of common-law causation excludes of the role of victims of an accident in the causal sequence, even though the victim’s involvement is a logical sine qua non of the injury and the exertion of counteracting force may have entailed harm to the perpetrator of the abnormal condition (underline added):

How can an omission to act or a persistent state of being be considered the cause of anything? What do we mean when we say that one person caused another to act by providing him with a reason for acting (a relationship the authors characterize as an “interpersonal transaction”)? How has one caused harm when he has provided another with an opportunity for inflicting it? What is meant by causing loss by depriving another of a chance of economic gain? The significant point is that although these questions are all properly thought of as involving causal concepts, the concepts that are involved have distinct characteristics and cannot necessarily be subsumed under a single, all embracing notion of causation.

Mansfield, J.H., “Hart and Honoré, Causation and the Law – A Comment,” 17 Vand. L. Rev. 487 (1963-1964) at 488 (distilling pp. 109-28 of Hart and Honoré’s Causation)

[100] The role of Franchetto, driving his spouse to an appointment and held to a particular speed by traffic from the rear, as a cause of the injuries of Laguardia’s passengers therefore strains the logic of the “but for” test as a tool for justifying an order requiring Franchetto to pay for the plaintiffs’ losses because:

1. Laguardia’s GMC inflicted the harm on the occupants of the Ford, Franchetto and his spouse. The criticism of Franchetto is that he did not do enough to remove his truck from the risk of harm created by Laguardia falling asleep at the wheel.
2. The GMC’s passengers suffered harm from the counteracting force of the Ford when the two vehicles collided, i.e. the Ford qua immovable obstacle at the time of impact had not got out of the way before the impact.
3. It remains uncertain whether the plaintiffs would have suffered the same, less serious or more serious injuries if this particular collision had not occurred. The driverless GMC was otherwise headed for the embankment on the other side of the ditch at high speed.
4. Franchetto’s lack of knowledge that Laguardia had fallen asleep at the wheel and the GMC was ultimately headed for the ditch meant there was no obvious correct response.

[101] The above facts will remain as fixed or the unsolved questions will remain as imponderable, at any trial of the action, as they are today. The overabundance of data that may be manipulated or reinterpreted only shows how hindsight is an unfair vantage point for assessing legal causation. The word “justify” in the following sentence in Snell, at 326, requires that legal causation be fair and not pin liability on a party simply caught up in an adverse event created by another:

Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.

This statement by Justice Sopinka imported two critical ideas that distinguish legal causation from the amoral science of indeterminate interaction. First, the relationship between parties is defined by the wrong and the injury. Second, the justification for awarding compensation depends on the status of the payor as a wrongdoer. This analysis is impossible in an ethical vacuum. Causation as justification for compensation requires the court to discriminate between two categories of participants logically necessary to the causal chain or confluence of events:

1. creators of substantial risk of harm
2. contributors to the realization or materialization of the risk created by category 1 participants

[102] This legal imperative led to the very ratio in Resurfice, at para. 19:

19. The Court of Appeal erred in suggesting that, where there is more than one potential cause of an injury, the “material contribution” test must be used. To accept this conclusion is to do away with the “but for” test altogether, given that there is more than one potential cause in virtually all litigated cases of negligence. If the Court of Appeal’s reasons in this regard are endorsed, the only conclusion that could be drawn is that the default test for cause-in-fact is now the material contribution test. This is inconsistent with this Court’s judgments in Snell v. Farrell, [1990] 2 S.C.R. 311; Athey v. Leonati, at para. 14; Walker Estate v. York Finch General Hospital, [2001] 1 S.C.R. 647, 2001 SCC 23, at paras. 87-88, and Blackwater v. Plint, [2005] 3 S.C.R. 3, 2005 SCC 58, at para. 78.

[103] The courts have chosen, but it remains hard to tell the difference between “but for” or “cause-in-fact” and “material contribution,” and to see how one relationship justifies compensation and the other does not. The equation in Snell finds this helpful elaboration in Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181, at para. 7 (underline added):

Recovery in negligence presupposes a relationship between the plaintiff and defendant based on the existence of a duty of care — a defendant who is at fault and a plaintiff who has been injured by that fault. If the defendant breaches this duty and thereby causes injury to the plaintiff, the law “corrects” the deficiency in the relationship by requiring the defendant to compensate the plaintiff for the injury suffered. This basis for recovery, sometimes referred to as “corrective justice”, assigns liability when the plaintiff and defendant are linked in a correlative relationship of doer and sufferer of the same harm: E. J. Weinrib, The Idea of Private Law (1995), at p. 156.

[104] Corrective justice is the root principle of tort law and posits a reasonable distinction between responsible and non-liable parties. It was the brainchild of Immanuel Kant, whose leading Canadian expositor, Prof. Weinrib, introduced to contemporary jurists by illustrating how causation should be formulated as part of the law that governs private individuals:

Just as causation particularizes the plaintiff as the recipient of the effects of another's action, so negligence particularizes the defendant as one who has failed to conform his behavior to the equal status of others. Through causation, the wrongdoing of a defendant must light on a particular plaintiff, joining them in the relationship of doer and sufferer. Through the principle of fault, the claim cannot be lodged against any doer, but only against the wrongful one. The juridically significant initiation of the causal sequence lies in the failure to treat as one's equals those who might be affected by one's action.

Ernest J. Weinrib, “Causation and Wrongdoing,” 63 Chi.-Kent L. Rev. 407 (1987), 428-29

[105] Kant used causation as the articulation point for legal liability is therefore the key to unlocking the common law formula the courts have now firmly adopted as the “but for” test. His idea of an ethical law regulating private individuals was revolutionary because European courts at the time settled private disputes as extensions of monarchical divine right, i.e. public law or the law of government. His work was widely read and had a profound influence on common law jurisprudence. To Kant, famously a self-disciplinarian and creature of extreme routine, the indiscriminate or metaphysical idea of causation as a theory of everything was useless for any system of law regulating everyday conduct because distribution of fault was the opposite of correction of fault. The inability of some to self-regulate convinced him of the need for a corrective law. That law, in turn, needed its own checks and balances.

[106] In Kant’s day, as today, the need to explain the causal role of everything arose in reaction to the inability of religion to explain loss and injustice beyond the creation myth and the role of sin. Enter the great metaphysician Baruch Spinoza, who introduced the idea that everything is the cause and the effect of something else. Everything is autonomous until they collide with another – a condition known as circumstance. Gottfried Wilhelm Leibniz, to whom Spinoza was a proponent of ungodly chaos, re-cast the cosmos as a divine pre-established harmony that can be disturbed by divine intervention alone. This theory, labelled theodicy, stated that human efforts to bring about change were predestined and all for the best – a causal explanation known as Providence. Such views of causation from the time of the European Enlightenment seem primitive and not too relevant to modern tort law, except when we consider how many jurists misunderstood Fleming’s example of the wastepaper basket cited in Athey.

[107] Kant rejected existing metaphysical writing about causation based on Spinoza’s autonomy or Leibniz’ denial in the other direction. Kant considered that autonomy in its strictest sense made everyone a slave to circumstance. His concept of heteronomy, the idea of an individual being subject to change by external actors, led to a notion of cause and effect requiring normative correction. If the wrongful act or omission had not occurred, the pre-existing peace or normality, such as the fate of the individual travelling on the highway, would not have been disturbed. The one who disturbs the peace should be required to pay for the consequences.

[108] The idea that someone in the position of Franchetto requiring an after-the-fact correction of the consequences of his rather typical driving behaviour by compensating the occupants of the vehicle that hurtled toward him in an uncontrolled manner makes no sense from a corrective justice perspective. Had Laguardia stayed awake, his travelling at 103 km/h and Franchetto’s 89 km/h, one being on the outer limits of normality and the other being quite normal, the plaintiffs would not have been injured. Laguardia’s driving while impaired by drugs, alcohol, and fatigue, was the clearly abnormal actor affecting the other users of the road. Central to the original concept of private law as a regulator of harm-creating conduct is a causal relation that refuses to equate behaviour that Hart and Honoré described as the “initial disturbance” with the ensuing reaction of the pre-existing “normal condition.”

[109] Kant’s formulation of corrective justice, adopted by the Supreme Court as the underlying philosophy of tort law, explains in large part why the “but for” test is really a tool for excluding otherwise necessary causal participants from liability. To gain a more complete appreciation of the common law’s practical and “common-sense” adoption of this test up to the point that Hart and Honoré extracted principles of causation from common law court decisions and textbooks, the court should refer to the work of two influential thinkers mentioned in the Science Manual for Canadian Judges (Ottawa: NJI, 2013) (Manual). That book, based on the American counterpart, Reference Manual on Scientific Evidence, 3rd Ed. (Washington, D.C.: FJC, 2011), was published principally to help the judiciary in its gatekeeper role regarding the admissibility of expert evidence. Beyond helping courts with current scientific principles, these manuals explain how the study of cause and effect is basic to scientific proof. Compared with descriptive methods used to identify patterns, causal methods employ “hypotheses about how or why observed patterns are the way they are”: Manual, pp. 120-21.

[110] The methods employed by the plaintiffs’ experts in started with established or forensically calculated points of reference such as the posted speed limit or the deduction that braking was the only viable option to prevent harm to the plaintiffs. They concluded that these would have changed the outcome and invited the court to draw the inference ex post that Franchetto’s departure from these patterns caused the plaintiffs’ injury. This was simply a dressed-up version of saying he ought to have got out the way of the GMC. While this analysis can never raise Franchetto’s ordinary speed and self-preservation response to the level of abnormality required under the corrective justice formulation of the “but for” test, the failure even at a basic level to hypothesize the “how or why” of Franchetto’s driving behaviour means the plaintiffs’ experts have sidestepped a proper causal analysis of that behaviour. In short, they came up with an alternate scene reconstruction in which the GMC did not collide with the Ford, and attributed cause to Franchetto because he did not conform to that model.

[111] Although there is only one reference in the Manual to the Scottish sceptic and empiricist, David Hume, the Manual at p. 105 refers to a significant observation by Hume, known as the “is-ought problem,” to illustrate the acquisition of knowledge about observed events. Hume posited that if two events always occur one after the other, there is a causal relationship between them. The difference between “is” and “ought” represents the mental bias of observers to believe in a causal relationship before it can be proven from experience that one phenomenon will always to follow the other. Franchetto’s involvement in the sequence of events must be considered, not starting with the premise that he caused the injuries by speeding or reacting the way he did, but rather by examining how and why those driving behaviours came about in relation to the experienced pre-accident circumstances and the appearance of the GMC.

[112] Hume’s ideas about causation are hidden but omnipresent in the Anglo-American concept of legal causation. For Hume, building on Spinoza, the probability of any fact had to be measured by the ability to reason its origin in another fact. Hume had a great influence on common law ideas of causation because he found the logical tools to sort out wrongdoers from victims without Kant’s heavy reliance on the inherent morality of an event in which a party is injured. Hume argued that normative rules were to be found in experience. This empirical approach percolated into English common law and its case-by-case development. Common sense in this sense is not an accumulation of prejudgment rather a belief in a causal relationship based on experience.

[113] The Manual also draws on the work of Thomas Bayes, an 18th-century English statistician, philosopher and Presbyterian minister. Bayesian causation can help to distinguish between correlation and causation in tort law by requiring the subject’s probability to effect an outcome by updating the subject’s beliefs from the initial one with each successive alteration of course and update in belief. Although sophisticated versions of this exist in machine learning technologies, the premise of experiential alterations to behaviour should be considered when causal relationships involve several steps.

[114] The relationship between Franchetto’s driving and the plaintiffs’ injuries cannot be defined primarily by what he should have done to avoid the accident. Rather, the court needs to follow his trajectory and the changes to it. The how and the why of Franchetto’s driving are the determinants of the causal analysis for the purposes of tort law. Within this analysis, what he did (is) is important as factual background but his expectations as the scene unfolded within seconds (ought) will determine whether he was part of the problem or trying to cope with a problem foisted on him.

[115] Clearly the 89 km/h speed was not a cause of the accident because it was simply part of the ordinary flow of vehicular traffic on Highway 9. The GMC crossing over to the wrong lane and the first vehicle avoiding it in the shoulder presented the first change stimulus, resulting in Franchetto taking his foot off the gas and heading for the shoulder. Contrary to the plaintiffs’ experts, doing this was not a legal cause of the accident even if it turned out to deprive him the chance to brake hard and wait to see whether the GMC would collide with his truck. Rather, the belief in response to the initial stimulus resulting in the move to the shoulder were the result of the oncoming GMC. When his belief had to be altered because the GMC was not staying on the highway but headed toward the shoulder, this additional stimulus caused him to react again, in the other direction.

[116] The plaintiffs’ expert opinions only refined Franchetto’s own recollection evidence that his evasive reactions were made in response to the immediate hazard and his “belief” of what was going to happen next. The fact that these manoeuvres turned out to be “wrong” according to these experts did not address whether any of them created the risk of harm from which the plaintiffs suffered their injuries. Being a factor in increasing the probability of harm or failing to reduce it could not promote his driving beyond a material contributor to the outcome.

[117] The emphasis on common sense, experience and practicality in Anglo-American legal causation was aptly captured by Holmes’ famous maxim that “The life of the law has not been logic: it has been experience.” A common law court in 2024 need not be perplexed by a two-word formula when, in fact, the “but for” principle developed as an integral component of private law over the course of three centuries. With the benefit of the intellectual history of causation and its effect on the “common sense” of common law judges to this day, there is no chance of a court mistaking Franchetto’s role in the cause of the plaintiffs’ injuries as anything other than as the second effect of Laguardia passing out at the wheel of the GMC after the unidentified vehicle ahead avoided the GMC by swerving into the shoulder. The test for legal causation therefore excluded Franchetto as a cause of the injuries of the GMC’s occupants.

Conclusion

[118] The moving party in this summary judgment motion, Franchetto, has satisfied me that there is no issue requiring a trial to conclude that his driving or response to the hazard constituted negligence. Moreover, the plaintiffs’ expert evidence, taken for what it is, does not raise Franchetto’s driving, either before or during the event, to a legal cause of the plaintiffs’ injuries. These technical conclusions to the Rule 20 analysis solidify the obvious and practical characterization of Franchetto – or any other driver in his place – as anything other than having been in the wrong place at the wrong time.

[119] The actions against Phillip Franchetto, and any crossclaims against him, are therefore dismissed with costs.

[120] I encourage counsel for the parties to settle the costs of the action. If necessary, counsel for Franchetto may deliver a bill of costs within 14 days hereof. The plaintiffs may then deliver submissions regarding the scale and amount of costs, within 14 days thereafter. Such submissions shall not be longer than three pages in length, double-spaced. These materials shall be served and filed, and forwarded to my attention via email to my judicial assistant.

Akazaki, J. Released: March 14, 2024