Nelson v Saban, 2025 ONSC 1398

Court File No. CV-22-00090911-0000
Superior Court of Justice

Micheal Nelson
Plaintiff

v.

Jama Saban
Defendant

Before: P. Roger
Heard: February 13, 2025, at Ottawa, Ontario

Appearances

(No counsel listed in the record.)

Table of Contents

Transcript Ordered: February 13, 2025
Transcript Completed: February 18, 2025

Reasons for Judgment

Roger, P. (Orally):

The defendant brings a motion for summary judgment, arguing that there is no genuine issue requiring a trial on the issue of liability. The defendant says that liability is 100 percent with the plaintiff. The plaintiff argues that this is a case for apportionment of liability.

Background Facts

The facts of this case are important. Both the plaintiff and the defendant delivered an affidavit explaining how, from their perspective, the accident occurred. Both were cross-examined on their affidavit. As well, the defendant had a dashcam on his car, and the dashcam video recording is in evidence; no one disputed its admissibility.

At about four in the afternoon on April 18, 2021, which was a sunny clear day, the plaintiff was driving his motorcycle, following the defendant on Craig Henry Drive, a residential street in the westerly part of the City of Ottawa. Both parties resided in that area, and both were familiar with this roadway. Craig Henry Drive is a two-lane residential roadway with a fairly wide grassy median separating each lane of travel. The grassy median appears to be about 10 feet wide and is occasionally broken up to allow for traffic to turn across the other lane of travel.

The dashcam shows the defendant travelling at about 40 to 47 kilometres per hour when three cyclists become visible at some short distance ahead, crossing the other lane of travel on his left, and cycling towards one of those breaks in the median. It shows one adult or a much older child, with two children. As the defendant is approaching, the dashcam shows the adult or the older child stopping his or her, it appears more likely to be a her, bicycle in this asphalted break in the median. We see this person putting her foot down and stopping completely, well within the median. Then we see this person putting her right arm out in a signal to the two children to stop, and we see the two children also stopping well within the median. All of this happens fairly quickly. As this is happening, we see that the defendant is slowing down and comes to a complete stop fairly shortly after all three cyclists have stopped well within the median.

As soon as the defendant’s vehicle comes to a full stop, we see the three cyclists kicking off and pedalling, starting to proceed and cross in front of the defendant’s stopped vehicle. We see the older cyclist gesturing a sign of appreciation to the defendant, likely thanking him for having stopped and allowed them to cross safely.

Almost immediately, or within one or two seconds of the defendant’s vehicle completely stopping, we hear a bang. This is when the plaintiff's motorcycle collided with the right rear of the defendant’s Honda Civic. The plaintiff suffered serious injuries as a result of this accident and brings this action seeking damages from the defendant.

The plaintiff was given a ticket for careless driving. The defendant argues that the plaintiff rear-ended his vehicle, is presumed liable, and failed to meet his burden of proving the contrary. The defendant says that he saw children on bicycles going to cross, that he checked his rear-view mirror, saw no one behind, and came to a complete stop to allow the children to safely cross.

During his cross-examination, the defendant said that the children were in his lane of travel, in front of his car, when he stopped. He said that he would not have stopped his car if the children were not in his lane of travel.

The plaintiff said in his affidavit that he was following behind the defendant’s Honda Civic for about a minute and a half. He said that he was at a reasonable distance and at approximately the same speed, riding his motorcycle. He said that he is experienced riding motorcycles.

He did not see the approaching cyclists, but said he saw “people” making their way towards the median and stopping at the median. The plaintiff did not see the three cyclists because he described “people”, and these were clearly cyclists.

Issue

The issue on this motion is whether there is no genuine issue requiring a trial on the issue of liability.

Analysis

Rule 20 of the Rules of Civil Procedure is applicable on such a motion. The decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, refined the test applicable on summary judgment motions. It provides for a culture shift to afford more timely and affordable access to justice when a trial is not necessary for a fair and just adjudication.

Generally speaking, when one vehicle runs into another vehicle from behind, the rear vehicle will be liable. The driver of the rear vehicle has the onus of proving that the collision did not occur as a result of his or her negligence. Indeed, a vehicle which follows another must keep a reasonable distance, keep a proper lookout, a proper speed, and must keep his or her vehicle under control at all times. The driver of the following vehicle must show that he or she could not have avoided the accident by the exercise of reasonable skill or care.

Given the above, summary judgment motions have been granted in cases involving rear-end collisions.

However, this does not establish that a following driver is always entirely at fault if he or she runs into another vehicle from behind. As indicated by the Court of Appeal in Martin-Vandenhende v. Myslik, 2015 ONCA 806, it simply provides that this will generally be the case and shifts the onus to the following driver to show otherwise.

Here, the plaintiff has shown otherwise. Not that he is not at fault, but that the defendant could also be at fault, to some extent, for stopping when he was not required to stop, without ensuring that he could safely stop.

This case can be distinguished from those relied upon by the defendant where the driver of the first car was required to stop. From the dashcam recording, only for purposes of this motion, I find that the cyclists stopped safely within the median, and that they were waiting for the defendant and the plaintiff to pass before proceeding across their lane of travel. It is only when the defendant stopped his vehicle that the cyclists proceeded to enter the defendant's lane of travel and to cross that lane of travel.

I also find, only for purposes of this motion, that contrary to what he said in his affidavit and during his cross-examination, the defendant did not look in his rearview mirror before stopping.

I make this finding, limited for purposes of this motion, because if the defendant had looked as he described, he would have seen the plaintiff on his motorcycle, both of which were clearly there to be seen right behind his vehicle.

Stopping when he was not required to stop without ensuring that he could do so safely could constitute negligence. Consequently, the plaintiff has shown that there is a genuine issue requiring a trial on the issue of liability.

Disposition

I have not been asked, in the alternative, to apportion liability, only to decide whether there is no genuine issue requiring a trial on the issue of liability. Consequently, although I have all the evidence to apportion liability, I cannot and will not do so. However, as indicated, with the evidence presented on this motion, I cannot conclude that there is no genuine issue requiring a trial on the issue of liability because I find, only for purposes of this motion, that the evidence could indicate that the defendant was to some extent negligent when he decided to stop without ensuring that he could do so safely.

Stopping as he did, without looking to see if he could do so safely, could have contributed to the situation in which the plaintiff did not have a safe stopping distance behind the defendant's vehicle.

Consequently, the defendant's motion is dismissed.

Costs

On the topic of the costs of this motion, total fees in the amount $8,000.00 to $15,000.00 on such a motion would have been reasonable. The two parties have comparable hours, but different hourly rates. Allowing 60 percent of about $12,000.00 would arrive at fees comparable to those that are sought by the plaintiff of $7,250.00.

I see no reason not to allow the costs of this motion to the successful party on a partial indemnity basis. Considering the above, finding that the plaintiff’s fees are reasonable, and within the reasonable expectation of the defendant, I fix the costs of this motion at $8,347.25, payable by the defendant to the plaintiff within the next 30 days.

Certification

THIS TO CERTIFY THAT the foregoing is a true and accurate transcription from recordings made herein by M. King, to the best of my skill and ability.

OFFICIAL COURT REPORTER

Notice

Photostat copies of this transcript are not certified and have not been paid for unless they bear the original signature of D. Wells, and accordingly are in direct violation of Ontario Regulations 587/01, of the Court of Justice Act, January 1, 1990.

Certificate of Electronic Transcript

Evidence Act, subsection 5(2)

I, D. Wells, certify that this document is a true and accurate transcript of the recording of Nelson v. Saban in the Superior Court of Justice held at 161 Elgin Street, taken from Recording No. 0411_CR34_20250213_100451 10_ROGERP.dcr

February 18, 2025

Signature of Authorized Person

AG 0087 (rev. 07-01) Publication Ban