Court File and Parties

Court File No.: CV-21-76039
Date: 2025-05-23
Court: Ontario Superior Court of Justice

Between:
Charmaine Farrugia, Plaintiff
– and –
John Doe, William Bezemer, and Allstate Insurance Company of Canada, Defendants

Appearances:

• D. Sinclair, for the Plaintiff
• J. R. Goit, for the Defendant Allstate Insurance Company of Canada (Moving Party)
• E. Kerson, for the Defendant William Bezemer (Respondent)

Heard: December 31, 2024
Justice: S. Antoniani

Overview

1The defendant, Allstate Insurance Company of Canada (“Allstate”), brings a motion for summary judgment for a determination before trial as to whether the defendant, William Bezemer (“Mr. Bezemer”), is at least 1% liable for the subject motor vehicle accident that took place on July 2, 2019 (the “Accident”).

2The Accident involved the plaintiff, Charmaine Farrugia (the “Plaintiff”), the defendant, Mr. Bezemer, and allegedly, an unknown driver, John Doe. In the Statement of Claim, the plaintiff alleges that the unknown driver rear-ended Mr. Bezemer, following which Mr. Bezemer’s vehicle rear-ended the Plaintiff’s vehicle.

3Allstate provides unidentified insurance coverage to the Plaintiff, pursuant to s. 265 of the Insurance Act, R.S.O. 1990, c. I.8 and an OPCF 44R endorsement. Allstate brings this motion seeking a determination before trial that Mr. Bezemer is at least 1% liable for the Accident, such that its coverage is not engaged.

4Essentially, the court is being asked to determine whether it is Allstate or Mr. Bezemer who are liable to respond to the Plaintiff’s claim for damages arising from the Accident.

5Mr. Bezemer seeks an order for reverse summary judgment and dismissal of the action against him.

6The Plaintiff did not take any position or participate in this motion.

Issues

7The issues to be determined on this motion are as follows:

1. Is there a genuine issue for trial or is this an appropriate case for determination by way of summary judgment?
2. Was a third vehicle involved in the accident?
3. Is Mr. Bezemer at least 1% liable for the accident?

Decision

8The decisions on the issues are as follows:

1. This is an appropriate case for summary judgment.
2. I find, on a balance of probabilities, that there was a third vehicle.
3. I find that there is no evidence upon which a court could conclude, on a balance of probabilities, that Mr. Bezemer failed to exercise the standard of care of an ordinary, reasonable, and prudent person in his same circumstances.

Analysis

Legal Framework: Summary Judgment

9Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out the procedure on summary judgment and the circumstances in which it is to be granted.

10Rule 20.04 reads as follows:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

11The effect of r. 20.04(2) was considered in the landmark case of Hryniak v. Mauldin, 2014 SCC 7, para 49, where, at para. 49, the Supreme Court of Canada outlined a three-part test for determining when summary judgment is appropriate. The court held that there will be “no genuine issue requiring a trial” where the summary judgment process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to those facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

12Rule 20.04(2.1) sets out the powers of the court in making a determination as to whether there is a genuine issue requiring a trial. It reads as follows:

Powers

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

13The parties agree that this matter can be determined by way of summary judgment. They agree that the evidence in the record is the entirety of the evidence, and that there is no reasonable expectation that more evidence will be forthcoming. They are satisfied that I may make findings based on what is before me. Proceeding by summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result.

14Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will respectively present at trial: Martin v. Attard Plumbing Ltd., 2015 ONSC 5037, para 48.

15I am satisfied that there is no genuine issue requiring a trial and agree with the parties that this matter can be dealt with by summary judgment.

The 1% Rule

16The parties agree as to the legal principles applicable to the determination of whether Mr. Bezemer is liable. The issue before me is whether the evidence is sufficient to establish that Mr. Bezemer is at least 1% liable for the accident.

17The Plaintiff’s policy provides coverage for accidents caused by uninsured or unidentified automobiles under s. 5 of the Ontario Automobile Policy (“OAP 1”) and an OPCF 44R endorsement. The OAP 1 coverage is mandatory pursuant to s. 265 of the Insurance Act and is subject to the terms, conditions, provisions, exclusions, and limits set out in Uninsured Automobile Coverage, R.R.O. 1990, Reg. 676.

18Section 2(1)(c) of O. Reg. 676 is commonly referred to as the 1% Rule and sets out that an insurer is not liable under s. 265 of the Act “where the person insured under the contract is entitled to recover money under the third party liability section of a motor vehicle liability policy”.

19As such, the Plaintiff’s policy will provide coverage, unless Mr. Bezemer is found to be at least 1% liable for the Accident. Both the Plaintiff and Mr. Bezemer have third party liability limits of $2 million.

Liability and the Standard of Care

20In Isaac Estate v. Matuszynska, 2018 ONCA 177, para 77, leave to appeal refused, [2018] S.C.C.A. No. 38078, the Court of Appeal stated as follows:

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. What is reasonable depends in part on the likelihood of a foreseeable harm. In an emergency, a person is not to be held to a standard of perfection. As the Supreme Court stated, “[i]t 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.” [Emphasis added; citations omitted.]

21The doctrine of “agony of the moment” can provide a defence going to the standard of care element of negligence. A defendant can use it as a “shield against responsibility for conduct in a situation of emergency or panic” and it can excuse conduct that might otherwise be considered negligent: Moran v. Fabrizi, 2023 ONCA 21.

Analysis

22The accident took place on July 2, 2019 in the northbound lanes of the Queen Elizabeth Way. It is uncontested that, prior to the accident, Mr. Bezemer had been travelling behind the Plaintiff’s vehicle for several kilometers. At some point, traffic ahead slowed quickly. The Plaintiff applied her brakes, and her vehicle was struck from behind by Mr. Bezemer’s vehicle.

23Mr. Bezemer’s evidence is that, upon seeing the Plaintiff’s vehicle brake, he applied his brakes and slowed at the same rate as the Plaintiff. As he did this, he noticed that the vehicle behind him was approaching at a high rate of speed, which he estimated might be 150 km/hour. Mr. Bezemer anticipated that he was about to be struck from behind. He released some pressure from his brakes in an effort to reduce the impact to the rear of his vehicle. Upon being struck from behind he again applied pressure to his brakes with both feet, and maintained pressure on them, but his vehicle gained momentum and struck the Plaintiff’s vehicle from behind. As his car was pushed forward he attempted to avoid a collision with the Plaintiff by turning his steering wheel to the left, in hopes of bypassing her.

24Mr. Bezemer’s evidence is that, but for being struck from behind by the third vehicle, he could have stopped safely behind the Plaintiff’s vehicle without striking it.

25It is Mr. Bezemer’s evidence that after his vehicle and the third vehicle both came to a stop, he exited his vehicle to walk toward the vehicle behind him, when that vehicle suddenly pulled back into traffic and sped away.

26Allstate submits that Mr. Bezemer breached the standard of care required of a driver in the same circumstances either by following too closely behind the Plaintiff and/or by releasing the brakes before colliding with the Plaintiff’s car, and thereby failing to take reasonable evasive action to prevent the Accident.

27Allstate argues that the evidence shows that Mr. Bezemer was following the Plaintiff’s car too closely, and that he could not have stopped in time to avoid the accident, even if there was no vehicle which collided with his from behind. Mr. Bezemer’s position is that there is ample evidence, including his own testimony, that there was a third vehicle, that he was not driving too closely, and that he could have avoided the collision with the Plaintiff but for the fact that he was struck from behind by the third vehicle.

28Allstate argues that Mr. Bezemer’s action of releasing the brakes after first braking in response to the slowing traffic ahead of him, to absorb the impact from the vehicle behind him, was a deliberate, sober and conscious decision, and broke “the emergency situation chain” that arose when traffic suddenly slowed ahead of him. Mr. Bezemer’s position is that his action of momentarily letting pressure off the brake “in response to the impending threat of a rear end collision” is captured by the “agony of the moment” doctrine.

29Allstate submits that I should question whether, on the evidence, I am satisfied that there was in fact a third vehicle involved in the accident. If I found there was not, then Mr. Bezemer, who drove behind the Plaintiff, would be clearly liable in the circumstances.

Was a Third Vehicle Involved in the Accident?

30The third vehicle and its driver have never been identified.

31Allstate suggests that there is good reason to question whether there was in fact any third vehicle involved in the accident at all. It relies on the fact that Mr. Bezemer did not note the vehicle’s licence plate or use his mobile phone to photograph the vehicle. It also questions whether there was damage to the rear of Mr. Bezemer’s vehicle consistent with his evidence about being struck so hard from behind that his vehicle was propelled forward into the Plaintiff’s vehicle.

32In my view, the evidence heavily favours a finding that, on a balance of probabilities, there was in fact a third vehicle. In coming to this conclusion, I have considered the following facts:

i. It appears from the portions of cross examinations that were relied on for this motion, that neither the Plaintiff nor Mr. Bezemer called 911, leaving the conclusion that a third party called them.

ii. The parties produced and relied on the police officer’s notes, which are scant in the extreme. Although those notes do not reference any explanation that Mr. Bezemer may have given about the third vehicle, the general report begins with “Writer dispatched to three vehicle motor vehicle collision”. The inference is that whoever called 911 reported a collision involving three vehicles.

iii. Neither party produced the 911 or police dispatch recordings, which might have shed some light on who made the call and what was reported to the police.

iv. There is no evidence from the police officer on scene as to why he made that notation.

v. It is uncontested that Mr. Bezemer immediately reported the involvement of a third vehicle to the police officer and to the Plaintiff at the scene.

vi. The police officer’s notes reference a third vehicle and the line drawing on the accident report includes a third vehicle.

vii. The officer’s notes do not include any details, and they were made by a person who was not at the scene at the time of the Accident. Allstate points to the officer’s use of the phrase “allegedly hit by a third vehicle” as suggesting that the officer was skeptical. In my view, the officer’s use of the word “alleged” in reference to the third vehicle allegedly hitting Mr. Bezemer’s vehicle does not carry any nefarious meaning. We do not have the officer’s evidence on this issue, and, more importantly, the officer was not a witness to the collision. Given the passage of time and the scant notes taken, it is unlikely that the officer would have reliable current evidence on this issue.

viii. Mr. Bezemer and the police officer both noted that the Plaintiff was in shock and distraught immediately after the accident. As such, I place little weight on the fact that the Plaintiff was unable to recall a third vehicle, especially as Mr. Bezemer’s evidence is that the third vehicle departed the scene seconds after the accident and the Plaintiff’s vehicle was directly in front of Mr. Bezemer’s vehicle, so that her view of the third vehicle was likely significantly obstructed.

ix. According to the quotation for repairs produced by Mr. Bezemer, the damage to his vehicle was consistent with being hit from behind and with hitting the Plaintiff’s vehicle from the front. The quote for repairs of Mr. Bezemer’s vehicle includes replacement of the back bumper. The vehicle was deemed a total write off.

x. The poor quality of the photos of Mr. Bezemer’s vehicle and the fact that little damage was visible at the scene is not determinative of the matter. Mr. Bezemer testified that all the vehicles were able to be driven after the accident, and that he drove his for several weeks while awaiting a determination of the estimate/insurance issues.

33I reject the Plaintiff’s argument that Mr. Bezemer should have photographed the fleeing vehicle or taken down its licence plate. In the context of an accident which occurred over a very few seconds, I find that his actions were reasonable. Mr. Bezemer indicated that he stopped, as did the third vehicle. He had no reason to be on the ready to remove his phone from his waist pouch and photograph the vehicle in the event of its sudden departure from the scene.

34On a balance of probabilities, I find that there was a third vehicle involved in the accident and that it hit Mr. Bezemer’s vehicle from behind.

Did Mr. Bezemer Fail to Exercise the Required Standard of Care to Avoid or Minimize the Accident?

35Allstate argues that Mr. Bezemer would be at least 1% liable if any of the following facts are established:

(a) That Mr. Bezemer was following the Plaintiff’s vehicle too closely;
(b) That Mr. Bezemer’s conscious decision to release the brake after he had already started braking, caused, or contributed to the Accident and the Plaintiff’s injuries; or
(c) That the third, unknown vehicle, did not 100% wholly and completely cause the Accident.

36The onus to prove that he was not negligent rests with Mr. Bezemer. As stated by the Court of Appeal for Ontario in Iannarella v. Corbett, 2015 ONCA 110, para 19, “[O]nce the plaintiff has proven that a rear-end collision occurred, the evidentiary burden shifts from the plaintiff to the defendant, who must then show that he or she was not negligent.”

37The question of whether Mr. Bezemer was negligent may be determined by considering (a) whether he would have been able to stop “but for” the impact of the rear vehicle, and (b) whether any steps he took to avoid or minimize the Accident were reasonable in the circumstances.

38Mr. Bezemer’s evidence is that he had been travelling behind the Plaintiff’s vehicle for several kilometers, at the same rate of speed, consistent with the flow of traffic, and that he maintained a distance of about 3 seconds behind the Plaintiff.

39The only evidence of steps taken to avoid or minimize the Accident came from Mr. Bezemer. Mr. Bezemer described himself being “very conscious of getting into an accident”. Before the minivan hit him from behind, he let up on the brake to allow his vehicle to “absorb” the impact and “move a little bit” so that he would not feel the full effect of the collision. As soon as the minivan hit Mr. Bezemer, his vehicle gained momentum, which caused him to apply his brake fully with both feet. When he realized that he was going to strike the Plaintiff’s vehicle in front of him, he attempted to turn to the left to get around the Plaintiff but could not because the minivan behind him had the same plan and was now to the left of Mr. Bezemer’s vehicle. With nowhere to maneuver, Mr. Bezemer struck the Plaintiff’s vehicle.

40The damage to the Plaintiff’s vehicle is consistent with Mr. Bezemer’s evidence that he tried to avoid her by turning toward the left.

41During discovery, Mr. Bezemer described how there was no significant damage to the rear of his vehicle. He noted that there were “some marks” on his back bumper and that the average person would not see any sort of major damage to the rear of the vehicle. This was despite his evidence of his vehicle being struck from behind with such force that it caused him to gain momentum and strike the Plaintiff’s vehicle.

42He testified that, but for the impact to the rear of his vehicle, he would have been able to stop without striking the Plaintiff’s vehicle.

43The Plaintiff’s only evidence as to what occurred is that, at some point before the accident, Mr. Bezemer’s car was so close behind her that she could not see the licence plate of his vehicle. This was at a point in time after she had pressed her own brakes on account of the quickly slowing traffic. The Plaintiff testified as to making that observation at a point in time, but not that Mr. Bezemer’s vehicle had been following her too closely the whole time he was travelling behind her. I agree with the submission on behalf of Mr. Bezemer that the Plaintiff appears to be describing the moment of the collision.

44The Plaintiff’s account of not seeing Mr. Bezemer’s licence plate is consistent with it having been her recollection/observation immediately before and at the time of the collision.

45I have already indicated that, given the evidence of Mr. Bezemer and the notation in the police note that the Plaintiff was in shock after the accident, as well as the lack of any greater specificity from the Plaintiff as to when she made the observation regarding Mr. Bezemer’s licence plate not being visible due to his proximity to her vehicle, I am unable to put much weight on this evidence.

46During discovery, Mr. Bezemer described the vehicle that allegedly struck his vehicle from behind as being a grey Toyota Sienna minivan with Alberta licence plates. He stated there were four occupants in the vehicle, including two adults and two children. Despite having his cellphone on his right hip in a pouch, Mr. Bezemer made no effort to take a photograph of the licence plate of the fleeing minivan vehicle.

47The Plaintiff argues that Mr. Bezemer also did not apparently share any of this information with the police officer who attended the scene of the accident as there are no details whatsoever regarding this minivan in the police report, nor any details of its occupants.

48Mr. Bezemer’s evidence is that he provided details to the attending officer. Without having evidence from the officer on this issue, I do not draw any inference from the fact that the officer’s scant notes make no reference to a description of the third vehicle. The second officer at the scene indicates in their notes that the first officer “took a statement” from Mr. Bezemer. The first officer’s notes certainly do not disclose anything that could reasonably be referred to as a statement. The entirety of that officer’s notes about the Accident, other than a description of the parties, read “3rd veh. Struck him in rear. Min to no damage.”

49I find on a balance of probabilities that Mr. Bezemer did make a statement to police, but that it was not recorded in the police officer’s notes.

50I note that the police did not elect to lay any charges. The police officer noted minimal to no damage in relation to Mr. Bezemer’s vehicle. They also noted that the Plaintiff did not appear to have injuries but was sent to the hospital as a precaution.

51In Briel et al. v. Darch, Ferguson J. referenced the following comments from the Court of Appeal, on the issue of attempting to reconstruct the liability of a driver who was thrust into an emergency situation by the actions of a third driver:

In Bothwell and Bothwell v. Gallaway, Laidlaw, J.A., said at p. 56:

... it is usually confusing and misleading to use estimates of distances, speeds or times in calculations to determine the position of a vehicle or vehicles on a highway at any particular time.

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.

52Similarly, I find that, in the absence of clear evidence or other objective indicators as to the positions of the vehicles in the time preceding the accident, such speculation is of no value. On a careful review of the record on this motion, including the available evidence respecting the extent of the damage, the placement of the damage, and the evidence of the Plaintiff and Mr. Bezemer as to what took place, I cannot conclude on a balance of probabilities that Mr. Bezemer was following the Plaintiff’s vehicle too closely.

53The Plaintiff further argues that Mr. Bezemer was negligent and contributed to the collision when he made the decision to release his brakes to absorb the impact from the vehicle behind him. Mr. Bezemer disagrees and feels that the collision from the rear would have caused him to collide with the Plaintiff in any event. Given the absence of other objective evidence, I am unable to conclude that either of these positions is obviously incorrect. The issue I am required to address is not whether any action on the part of Mr. Bezemer could have avoided the accident, but whether the actions he chose met the standard of care of an ordinary and prudent person in the same circumstances.

54The court in Morales et al. v. Laguardia et al., 2024 ONSC 1533, aff’d 2024 ONCA 869, paras 52-53 dealt with a similar factual scenario and held as follows regarding the defendant’s response to an impending collision, at paras. 52-53:

[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. […]

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.

55Even in the face of emergency situation, the driver is still expected to act in a reasonably competent manner. Even in reacting instantaneously to an “agony of the moment/collision” situation, the responding driver is required to exercise the standard of care of a reasonably competent person. If the driver’s response is inherently unreasonable given the circumstances, he will be found negligent for the resulting damages: Holizki Estate v. Alberta (Public Trustee), 2008 ABQB 716, para 173.

56Without a witness, there is no evidence or basis upon which I am able to conclude that Mr. Bezemer’s decision to brake, and then release the brakes, was not what a reasonable, ordinary, and prudent person would do in the circumstances. Taking into account all of the evidence, I find that in the agony of the moment, when he realized he was going to be struck from the rear, Mr. Bezemer’s actions were reasonable. He was not required to meet the standard of perfection.

57On the record before me, on a balance of probabilities, I cannot find that Mr. Bezemer had any fault in the collision. The action is dismissed as against Mr. Bezemer.

Costs

58The parties have agreed that in the event of his success on this motion, Mr. Bezemer should be awarded $7,500 in costs. I so order.

59The parties would like to address me about the costs of the action. The parties are invited to schedule a brief 10-minute appearance before me by videoconference, via the Trial Coordinator, at 9:30 am on any morning that I am available, to discuss how this issue will be further scheduled/addressed.

Antoniani, J.