Sim v. Hilton, 2025 ONSC 1134

Sim v. Hilton, 2025 ONSC 1134

COURT FILE NO.: CV-20-00633727-0000
DATE: 2025-02-20
ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:
Alberto Sim, Plaintiff
– and –
Rosemary Hilton, Mark Arbour, The Dominion of Canada General Insurance Company, Travelers Insurance Company of Canada a.k.a. Travelers, Defendants

Appearances:
Rahul Soni, for the Plaintiff
Jeffrey Pasternak, for the defendant Mark Arbour
Suhasha Hewagama, for the defendant Rosemary Hilton

Heard: January 14, 2025
Released: February 20, 2025
Judge: Julie A. Papageorgiou

Overview

1The plaintiff claims damages suffered in a motor vehicle collision as a result of the defendants’ alleged negligence.

2The defendants bring a motion for summary judgment dismissing this action.

Decision

3For the reasons that follow, I dismiss the motion and direct that this matter proceed to trial before me if I am available.

Issues

4There is only one issue which is whether there is a genuine issue for trial.

The Summary Judgment Test

5In accordance with r. 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial.

6In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and a judge may exercise any of the following powers under r. 20.04(2.1): (1) weighing the evidence; (2) evaluating the credibility of a deponent; and (3) drawing any reasonable inference from the evidence.

7The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, at para. 49, succinctly explained when there will be no genuine issue for trial:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

8In order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. Indeed, each side must “put their best foot forward” with respect to the existence or non-existence of material issues to be tried: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9. Furthermore, “a summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial”: Diao v. Zhao, 2017 ONSC 5511, at para. 18.

9In Mayers v. Khan, 2017 ONSC 200, Glustein J. held that summary judgment on issues of liability in the context of motor vehicle accidents may be consistent with the principles of summary judgment if it can fully resolve the action: aff’d 2017 ONCA 524. The Court recognized that each case will depend on its own facts, with the court determining whether the evidence led on the motion enables the court to find with confidence that there is no genuine issue requiring a trial. If conflicting evidence with respect to liability can be addressed with fairness and confidence under the Hryniak principles, summary judgment is appropriate: see also Ozimkowski v. Raymond, 2019 ONCA 435.

Analysis

Basic Uncontested Facts

10On January 2, 2018, a three-vehicle collision occurred during a day when there were weather and road conditions, including blowing snow and snow drift.

11The Defendant, Rosemary Hilton ("Ms. Hilton"), was travelling on Haldimand Road 55 when she hit a snow drift. As a result, her vehicle slid to the right.

12Several minutes later, the Defendant, Mark Arbour ("Mr. Arbour"), was traveling on the same road when he also veered to the right after hitting a snow drift. Mr. Arbour was able to avoid impacting Ms. Hilton's vehicle and his vehicle stopped a couple of feet behind Ms. Hilton’s. Following this, these two Defendants left the scene with a passerby and went to a nearby work yard.

13Shortly thereafter, the Plaintiff, Alberto Sim ("Mr. Sim"), was traveling on the same road. He encountered the same snow drift which caused his vehicle to veer to the right. He hit Mr. Arbour’s vehicle and then Mr. Arbour’s vehicle hit Ms. Hilton’s.

14The Defendants were not at the scene of the accident at the time of the aforementioned collision and returned after a period of time with the tow truck.

15No officer attended at the scene, but the parties did relate the circumstances of the collision to Constable Musk who prepared a Motor Vehicle Collision Report some time afterwards.

16The Motor Vehicle Collision Report contained each of the parties’ signed statements.

Mr. Sim’s Alleged Injuries

17As a result of the collision, Mr. Sim struck the side of his face against the airbags and lost consciousness. Emergency personnel revived Mr. Sim and took him to the hospital where medical personnel treated his injuries.

18His alleged injuries include whiplash/concussion, chronic pain, post-traumatic stress disorder, anxiety disorder, major depressive disorder, and specific phobia of driving. His medical records indicate that he suffered significant psychological impairment as a result of the accident. He says he sees his physicians regularly to receive ongoing treatment to manage his pain, emotional distress, and cognitive limitations. He receives medication and steroid injections.

19He says he has ongoing difficulty carrying on the normal activities of life. He could not return to work and has difficulty with day to day living. The Social Security Tribunal concluded that he has a severe and prolonged disability due to his impairments such that he has qualified for Canada Pension disability payments.

20The Insurer’s examination diagnosed him with major depressive disorder and severe and specific phobia related to driving.

Facts in Dispute / Credibility Issues

21There is a significant and material fact in dispute which cannot be resolved on this record, in particular the location of the vehicles at the time of the collision. [1]

22The Defendants’ overall contention is that their vehicles were pushed off the road and were not on the road or even the gravel shoulder beside the road at the time of the collision. Ms. Hilton’s evidence is that she veered off the road approximately three feet and into a snowbank where she got stuck. Mr. Arbour’s evidence is that he veered off the road into a farmer’s field approximately 50 yards off the road, although they both agree that Mr. Arbour’s car was a few feet behind Ms. Hilton’s when it came to a rest.

23Mr. Sim’s contention is that Mr. Arbour’s vehicle was partially on the road in circumstances where he could not see it until shortly before impact because of blowing snow and the absence of any hazard signal. He says that he did not see the obstruction in time to avoid the collision. He says that he saw Mr. Arbour’s car approximately two to three seconds before he hit it when it was approximately ten feet away. He says he did not have time to react.

24At his discovery, the Defendants asked Mr. Sim if weather conditions that day generally affected his visibility throughout his drive. He said that they did not. However, suddenly visibility became severely reduced immediately prior to the collision.

25He said that there were no other issues with visibility and that the car traveling behind him was approximately three cars away.

26I have reviewed the entire transcript of Mr. Sim’s discovery. He maintained throughout that the car he hit was partially on the road. He was asked many times and he did not waiver at all as to this fact or the driving conditions. He also maintained that two feet of the car he struck was on the road and said that it then moved onto the shoulder completely after he hit it as did his. He had difficulty recalling where the first vehicle (Ms. Hilton’s) was and whether it was on the road or on the shoulder, but eventually he gave evidence that the first car was completely on the shoulder.

27Mr. Sim says that in 2023 he returned to the site of the accident and placed his car in the same position that he recalled Mr. Arbour’s being in and he took photographs. Although this is clearly after the fact and does not represent what actually occurred during the accident, these pictures show the position that he recalled Mr. Arbour’s car being in, which is partly on the road. As well, the photographs do not show a ditch. Rather, there is a gravel shoulder and then a very gentle slope into grass.

28The Defendants relied heavily on the Vehicle Collision Report and the Occurrence Report prepared by the officer to support their evidence that their vehicles were not on the road. The officers’ notes as well as his drawing state that all vehicles were in a “ditch” to the side of the road. The officer did not provide an affidavit; rather, these documents were attached as Exhibits to Mr. Arbour’s affidavit.

29It is not clear that the officer who prepared these documents attended at the site or that he based his notes and drawing on any observation of the site. The Defendants took the position that the Occurrence Report and Vehicle Collision Report show that the officer did not attend at the site based upon the following wording therein:

Prior to police arrival, ambulance advised that the three parties had been transported to Len’s towing in Jarvis. Vehicles being towed by Len’s. Officers attended Len’s Towing.

30Additionally, the evidence from Ms. Hilton’s and Mr. Arbour’s discovery also supported this as they said they spoke to the officer at the tow shop.

31Mr. Sim’s counsel submitted that he read the report to show that the officer arrived at the scene based upon the arrival time on the report but I note that the box that he referenced did not say where the officer arrived. If the vehicles were already on route to Len’s towing prior to police arrival, the officer could not have observed where the vehicles were.

32In my view, neither the Occurrence Report nor the Vehicle Collision Report indicate with any clarity the basis upon which the officer prepared his notes and the drawing.

33Additionally, although no one raised any admissibility issues as to the use that can be made of the Vehicle Collision Report and the Occurrence Report, and whether they are admissible for the truth of their contents, there is no evidence that anyone served any Ontario Evidence Act notice to seek to admit the Vehicle Collision Report and the Occurrence Report as business records.

34Even if these reports were admissible for the truth of their contents as business records, or as some form of information and belief based upon r. 20.02(1), if the officer did not attend at the site, they could only be admissible as to what the parties told the officer. If Mr. Sim told the officer that the vehicles were in the ditch, then that statement to the officer could be admissible as an admission against interest. However, these documents do not reveal who told the officer what. Although there are signed statements from the parties as part of these reports, none of their signed statements make any mention of the vehicles being in a ditch, or even off the road, which is what the officer wrote.

35I also note that the Vehicle Collision Report where the officer sets out the description that includes the vehicles in the ditch has a time of preparation of 12:17 pm, whereas Mr. Sim’s handwritten statement taken by the officer has a time stamp of 3:43 pm, which is after the time of the Vehicle Collision Report. I also note that during Ms. Hilton’s discovery, she initially said that if there was a ditch there, she didn’t see it. Then she was asked questions that used the word “ditch” and simply answered them, but her initial evidence is that there was no ditch. When examined, Mr. Arbour denied there was any ditch but rather insisted there was a farmer’s field: “It wasn’t a ditch. It was not a ditch.”

36Additionally, when the officer spoke to Mr. Sim, it was post-accident in the hospital. When Mr. Sim was asked why he didn’t correct this report when he saw it, he said he didn’t check the statement because he was very sick and didn’t have time and didn’t pay attention to it. He said he had not read the police report until the day of his discovery.

37Without the officer’s testimony, these reports are not helpful on this motion. They are certainly not determinative.

38There are also some inconsistencies between Mr. Arbour’s and Ms. Hilton’s evidence. Mr. Arbour says his vehicle came to a stop about 50 yards away from the road and that it was not obstructing the roadway in any way. He also stated that Ms. Hilton’s vehicle was not located on or near the road and that it was deep into the farmer’s field. As noted above, Ms. Hilton’s evidence is that her vehicle was approximately three feet off the road when she went into a snowbank. If Mr. Arbour’s vehicle was a few feet behind Ms. Hilton’s and Ms. Hilton’s evidence is believed, then Mr. Arbour’s vehicle could not be 50 feet off the road.

39There is a clear credibility and/or reliability issue here as to where Mr. Arbour’s car was that cannot be resolved on this record.

The Reverse Onus?

40The Defendants argue irrespective of the factual disputes, and credibility issues, that this is a case of a driver who has rear ended another, such that there is a reverse onus. They argue that the plaintiff has not met his burden. They say that it is irrelevant whether Mr. Arbour’s car was partially on the road or not.

41The Defendants rely on the following authorities.

42In Beaumont v. Ruddy, para 8, the court held that"[g]enerally speaking, when one car runs into another from behind, the fault is in the driving of the rear car, and the driver of the rear car must satisfy the Court that the collision did not occur as a result of his negligence".

43In Iannarella v. Corbett, 2015 ONCA 110, para 19, the Court of Appeal reaffirmed the decision of Beaumont and held that once it is established that a rear-end collision occurred, the onus shifts to the driver of the following motor vehicle to establish that he or she was not negligent. This analysis would apply even where an emergency situation is alleged.

44In Ozimkowski v. Raymond, 2018 ONSC 5779 aff’d 2019 ONCA 435, the trial judge affirmed that the driver of the rear vehicle is required to anticipate that, for whatever reason, the vehicle ahead may stop. At para. 29, the trial judge quoted the following:

Canadian jurisprudence recognizes a standard of care imposed upon a driver of the vehicle which follows another vehicle. The driver of that vehicle must keep a reasonable distance behind the vehicle ahead, must keep his or her vehicle under control at all times; must keep an alert and proper outlook; and must proceed at a speed which is reasonable relative to the speed of the vehicle in front. The following vehicle must anticipate that, for whatever reason, the vehicle ahead may stop. The reason need not be anticipated. The vehicle following must proceed with that care which will enable the vehicle to avoid colliding with the vehicle in front [citations omitted].

45The trial judge acknowledged that there are cases where the conduct of the vehicle in front may contribute in whole or in part to the accident and that such cases involve “unusual circumstances in which negligent acts of third parties or the [driver of the vehicle in front] have been sufficiently inappropriate, sudden, or unexpected to a reasonable driver so as to absolve the [following driver] and overcome the [front driver’s] burden of disproving negligence”. The court also indicated that it is not enough to overcome the burden by a mere suggestion of liability, there must be a real air of reality.

46In my view, the above authorities are not applicable and there is no reverse onus here. These authorities are all situations where both cars were on the road actually driving. In such cases, it makes sense that there is a reverse onus because the driver from behind is responsible to not follow too closely and to ensure that he can stop. It is unclear why this would apply to the situation where the car in front is not moving, the plaintiff was never following too closely, and the allegation is that the vehicle was parked partially on the road without hazard lights on during white out conditions: see Maritime Processing Co. Ltd. v. Hogg, which involved a collision involving cars parked on a road because of weather conditions. The court did not apply the reverse onus to the driver who collided with them. In fact, none of the cases cited below that involve vehicles parked on the road or on the side of the road applied the reverse onus.

Triable Issues as to Liability

47The definition of negligence was set out in the case of Ryan v. Victoria (City), para 28:

Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.

48The Defendants say that the collision occurred because Mr. Sim failed to apply his brakes and take any action to avoid the collision once he saw Mr. Arbour’s vehicle.

49However, Mr. Sim has raised a triable issue as to whether the accident occurred because of the Defendants’ negligence, at least in part, for the following reasons:

• The evidence is that there were sudden weather conditions that arose that made visibility difficult.
• Mr. Sim’s evidence that Mr. Arbour’s car was partially on the road could be believed at trial, in which case Mr. Arbour abandoned his car while partially on the road without any lights on. In Maritime Processing Co. Ltd. v. Hogg, the court cited the case Brown v. Walton and Berkenshaw and Brown, [1942] 2 D.L.R. 437, for the proposition that a person who parks a car on a highway at night, without a tail light, in an area where he knows it is foggy and roads are slippery, is negligent if a motorist approaching him from the rear collides with the parked car: at para. 188. While it was daytime in the case before me, this case could still be relevant given the weather conditions that affected visibility.
• I note here that the court in Maritime Processing concluded that all of the drivers who entered the whiteout area did not exercise the appropriate care and skill because they entered the whiteout area without the appropriate caution given their knowledge that visibility was so limited. However, only the truck who ultimately collided with the last car was held liable because it was the truck who exercised even less care and was the cause of the accident. The truck weighed 80,000 pounds, which would affect its ability to stop quickly. The truck driver admitted he saw the area of blowing snow and entered taking a chance. These are not the same facts as here. Mr. Sim says it was a sudden condition, there is no evidence his car was that heavy, and no admission by him that he took a chance.
• Mr. Arbour admitted that he was speeding on the day in question as noted above. He also admitted that he did not have winter tires. Mr. Sim argues that as such, the accident was partly caused by Mr. Arbour because had he not been speeding, and had he had snow tires, he may not have been in the exact position he was in when Mr. Sim struck his vehicle such that Mr. Sim may never have hit anything if Mr. Arbour’s vehicle was not there.
• The Defendants argue that Ozimkowski v. Raymond is relevant here because the driver who was sued in that case also did not have its flashing lights on and the court granted summary judgment against the driver who hit the car from behind. However, there were icy conditions and the police had already attended and had their own flashing lights on. The driver found liable admitted that he knew the road in question was the kind of road where a driver had to be ready to stop because it was hilly and curvy and it was not easy to see what was up ahead. The driver admitted that he noticed lots of ice on the road, that he saw the vehicle in front stop, and could see the brake lights. Here, Mr. Sim saw no lights.
• Even if the court finds that Mr. Arbour’s and Ms. Hilton’s cars were completely off the road, Mr. Sim argues that both Ms. Hilton and Mr. Arbour knew that they were forced off the road due to weather conditions. Therefore, he argues that it was reasonably foreseeable that another car could collide with them as well and as such, they should have put their hazard lights on: see also Maritime Processing.
• Thus, there is a triable issue as to whether Mr. Sim would have seen the vehicles and had a chance to avoid them had they both placed their hazard lights on so that he would have seen them sooner than two to three seconds before the collision.
• Finally, to the extent there are any different arguments available with respect to Mr. Arbour and Ms. Hilton, it would not be appropriate to grant summary judgment in respect of one of them because that would only be partial summary judgment since they have cross claims against each other and have not sought summary judgment as against each other. Therefore, partial summary judgment, which is reserved for issues that can be bifurcated, is not appropriate as there could be inconsistent findings.

50Even if the reverse onus applies, based on the above, there is a triable issue as to whether there were unusual circumstances in which alleged negligent acts of Mr. Arbour and Ms. Hilton, in failing to put on their hazard lights, were sufficiently inappropriate, so as to absolve Mr. Sim and overcome his burden of disproving negligence: Ozimkowski v. Raymond at para 31.

51I note here that where a car is following too close, and a car in front of it stops suddenly, there are brake lights that notify the driver behind. If Mr. Arbour’s vehicle was slightly on the road and the reverse onus applies, it is unclear why his failure to put on hazard lights would not be relevant.

52Below I review the cases relied upon by the Defendants which all involve a constellation of facts where the court made a finding in all the circumstances. While these cases are relevant, they are not determinative because the facts are not entirely the same.

Cases Involving Parked Cars

53The case David v. Chivers-Wilson, 1999 CarswellOnt 4453 (Sup. Ct.), aff’d , involved a stopped vehicle on the shoulder of the road. A snowmobile, driving along the shoulder struck the parked vehicle. This was a trial decision where the judge concluded that the plaintiff had ample time to see the vehicles and more than enough time to avoid a collision. Indeed, the trial judge found that the plaintiff noticed the parked car when he was 60 feet away which is also different than the case before me. The trial judge found that the accident was caused by the plaintiff who had alcohol in his system and was carrying a passenger on a snowmobile that could not comfortably carry a passenger, and that he was swerving up and down snowbanks at a high speed. There is no suggestion that Mr. Sim was impaired by alcohol or engaged in this kind of swerving driving on the shoulder of the road.

54The case of Cargill v. Thorm (1990), 39 O.A.C. 45, involved an individual, D1 who parked on the side of the road because of white out conditions. A police cruiser D2 pulled in behind and activated a large flashing arrow sign on the roof indicating that traffic should move to the left. The officer also activated his four-way flashers and his emergency roof lights to protect the driver in front of him. He was then struck in the rear by another driver, D3. The sole issue at trial was the liability of D1. The trial judge found D1 liable as to 30% on the basis that she abandoned her car at that location, failed to notify the police, failed to engage her signal lights or post any advance warning of the location of her vehicle. The Court of Appeal reversed the trial judge because the police officer, D2 had arrived at the location shortly after D1 had departed and so there was no reason to notify the police. The failure to leave on her signal lights would not have been of any assistance in this case because D3 struck D2 whose car was already well illuminated. These are not the facts here. The Defendants did not have their lights on and no one else’s vehicle illuminated the area.

55Kuipers v. Gordon Riley Transport (1967) Ltd., 1976 CarswellAlta 69 (Sup. Ct.), is a trial decision where a number of vehicles were involved in accidents where there were stationary vehicles on the shoulder or slightly encroaching on the road. The court held that the sole effective cause of the accident was the defendant who rear-ended the car in front. However, this case is also distinguishable. The court found as a fact that the rear end driver was driving at an excessive speed and that he knew, even before he reached the area where he hit the plaintiff, that visibility was restricted because he had encountered whiteout conditions elsewhere. He continued at an excessive speed knowing he was approaching an area of even more restricted visibility. After he entered the whiteout area, he continued without reducing his speed knowing that visibility was extremely restricted and knowing that traffic within the whiteout area would be travelling slower. He said he “hoped” the whiteout conditions would be only of a short duration. As well, he was driving a vehicle with a heavy load which would make it more difficult to stop. The trial judge also found as a fact that the defendant would have driven into the plaintiff’s vehicle whether or not it was stationary or travelling at a slow speed. Here, Mr. Sim says the whiteout was sudden, he has given no evidence that he continued hoping that the conditions would be short, and he was not driving a vehicle with a heavy load.

Cases Involving Vehicles Driving Too Close

56The case Nadeau et al. v. Peters et al., 2015 ONSC 4419, involved a situation where the car that struck the other vehicle was following too closely, and as a result, could not stop on time. The driver was charged with following too closely, and convicted, under the Highway Traffic Act, R.S.O. 1990, c. H.8. There is no issue here that Mr. Sim was following anyone too closely.

57Ingratta v. McDonald, 2024 ONSC 371, involved a rear end collision where road conditions were poor due to slush and freezing rain. In consideration of the facts leading up to the rear-end collision, the court considered that the defendant was aware of the slush and freezing rain that affected road conditions. In light of this knowledge, the defendant owed other users of the road a duty of care not to cause a collision. The resulting standard of care required that the defendant travel at a speed that would allow him to safely come to a stop when necessary, taking the weather and road conditions into account. The court considered evidence of damage to the vehicles and concluded that the defendant had breached the required standard of care. The defendant in that case was aware of the road conditions in advance. When examined, he admitted that the driver in front had done nothing improper to contribute to the accident. Here, although Mr. Sim’s evidence is that the road conditions were windy with blowing snow once in a while, creating patches of snow, he said this did not affect visibility until there was a sudden snow drift.

Contributory Negligence?

58The Defendants also argue that the plaintiff is at fault because he should have taken better care given the weather conditions. They say that he took no steps to attempt to avoid the vehicles, to steer his vehicle in another direction, or use the brakes. He was driving 70 km per hour which they say was too fast for the conditions. I note here that Mr. Arbour testified that he was driving 90 km per hour in the same conditions and that Ms. Hilton also did not brake in the same conditions.

59With respect to Mr. Sim’s failure to put on his brakes, he says that he did not do so because he thought that it would cause the car to spin and would create more danger in the icy conditions and that a car was following him.

60Even if Mr. Sim failed to take care by travelling at too fast a speed in the circumstances that arose or by failing to apply the brakes, that is an issue of contributory negligence.

61There is a triable issue as to whether Mr. Sim would bear 100% of the liability.

Conclusion

62The motion is dismissed.

63This is a case which requires a trial. I am seized of that trial if I am available when it is scheduled.

64The parties are encouraged to settle costs but may make submissions as follows: the plaintiff within 5 days and the defendant within 5 days thereafter.

Addendum: Discovery Clarification

1At discovery Mr. Sim gave evidence that his vehicle struck Ms. Hilton’s, and not Mr. Arbour’s, which all parties now concede is not what happened.

Mr. Sim’s counsel says that even though Mr. Sim asserted that he hit Ms. Hilton’s car, he in fact has conceded all along that it was Mr. Arbour’s car he hit, and they have stipulated to this. During his discovery, he seemed to think that Ms. Hilton’s car was the car behind Mr. Arbour’s when it was the other way around.

Mr. Sim’s counsel explained that Mr. Sim has cognitive difficulties as a result of the collision and that his evidence at discovery was confused as a result on this issue. I note again that the car that he now says he hit (Mr. Arbour’s) is consistent with both Defendants’ evidence and what was on the Motor Vehicle Accident Report. Therefore, I find that it was Mr. Arbour’s car that Mr. Sim struck.

On this record I am not concerned that Mr. Sim was being dishonest. His medical records clearly document his cognitive issues. He also had a note specifically related to the fact that his cognitive impairment, and the discovery being over zoom, made it difficult for him to focus and accurately recall due to his very limited attention span and impaired memory. While the discovery was over zoom, Mr. Sim indicated that he would likely be able to focus and concentrate better in person at a trial.