Court File and Parties

Court File No.: CV-14-19035
Date: 2025-07-02
Ontario Superior Court of Justice

Between:
Robert Bélanger, a person under a disability, by his Litigation Guardian, Andrée Boivin,
Andrée Boivin,
Jean-François Bélanger,
Mélodie Angers,
Jeffrey Veilleux, and
Théo Veilleux, infants under the age of eighteen years by their Litigation Guardian, Andrée Boivin
Plaintiffs

– and –

His Majesty the King in Right of the Province of Ontario as Represented by the Ministry of Transportation for the Province of Ontario,
Marcel Dubois,
The Estate of Peter Chabot by his Litigation Administrator, Guy Sanders, and
Team Advantage Inc.
Defendants

Appearances:
Celeste Courville, for the Plaintiffs
Chris Blom, for the Defendant, His Majesty the King in Right of the Province of Ontario as Represented by the Ministry of Transportation for the Province of Ontario

Heard: November 12, 2024

Decision on Motion for Summary Judgment
Cullin J.

Overview

[1] This is an action, brought by the plaintiffs, seeking compensatory damages following an accident. The plaintiff, Robert Belanger (“Belanger”), was the passenger in a motor vehicle that collided with a rock cut.

[2] The action is proceeding only against the defendant, His Majesty the King, in Right of the Province of Ontario as Represented by the Ministry of Transportation for the Province of Ontario (“the defendant”). The plaintiffs allege the accident was caused by deficient road maintenance by the defendant. The defendant alleges that the driver of the motor vehicle caused and is solely liable for the accident; the driver is no longer a party to the action following a finding by the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

[3] The plaintiffs have brought this motion seeking partial summary judgment. They ask the Court to make factual findings regarding the conduct of the driver in causing the accident. They argue that permitting the defendant to dispute these facts at trial would be an abuse of process due to findings made in a prior proceeding involving the same driver and arising from the same circumstances. The motion is opposed by the defendant.

[4] For the reasons given below, the plaintiffs’ motion is denied.

Summary of the Facts and the Issues

[5] The accident at issue took place on March 28, 2012 at 3:32 a.m. Belanger was a passenger in a Brinks truck (“the truck”) operated by Robert Plante (“Plante”). They were travelling southbound on Highway 11, between Matheson and Kenogami, when the truck crossed the center line and struck a rock cut adjacent to the northbound lane.

[6] The defendant was responsible for the maintenance of Highway 11. The plaintiffs allege that it failed to keep the road clear of snow and ice, and that this deficient maintenance caused Plante to lose control of the truck. The resulting accident caused Belanger to sustain injuries.

[7] In addition to their claim against the defendant, the plaintiffs commenced proceedings against the drivers of other vehicles that encountered the accident. The defendant commenced third party proceedings against Plante and Brinks. The claims against Plante, Brinks and other parties were dismissed following a hearing before the WSIAT. The defendant is the only remaining party responding to the plaintiffs’ claim.

[8] The defendant alleges that the accident was caused or contributed to by the negligence of Plante who: was distracted by fatigue; was distracted by Belanger; and/or otherwise ought not to have been driving.

[9] Plante was tried before Justice of the Peace S.E. Bourbonnais (“J.P. Bourbonnais”) for one count of Careless Driving, in contravention of s. 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA” and “the HTA trial”). In a decision rendered on November 1, 2013, J.P. Bourbonnais made the following findings:

The prosecution has neither demonstrated beyond any doubt that the defendant fell asleep behind the wheel, nor demonstrated that Mr. Plante's maneouvre was careless, and therefore worthy of sanction. Mr. Plante's explanation regarding the delay in responding to Mr. Belanger a few moments before the impact is entirely plausible. The Court also accepts his explanation in relation to his cruising speed, which he had adjusted according to road conditions. Furthermore, aside from a simple assertion by Constable Smith, almost 18 months after the accident, there is no concrete evidence to counter that the truck trailer actually started to swing from right to left, as testified by the defendant, a few kilometres before the collision and that there was subsequently a lateral slide towards the shoulder of the opposite lane. Finally, as the expert witness for the prosecution admitted that the road and weather conditions were a factor in the accident, and that the defendant possibly just had a brief moment of inattention, the prosecution was unable to demonstrate, beyond a reasonable doubt, that the accident as such occurred due to careless driving worthy of sanction or that Mr. Plane [sic] drove without reasonable consideration for other persons.

The defendant was able to demonstrate, on a balance of probabilities, that he exercised reasonable care to try to avoid the accident.

[10] From these findings, the plaintiffs submit that they seek partial summary judgment that the defendant is bound by the following facts, which they say arise from the reasons of J.P. Bourbonnais:

a. That Plante did not fall asleep at the wheel despite the fact that he drove about 100 meters on the shoulder of the opposite lane before hitting the rock cut;
b. That Plante is the only one who can know what happened before the initial collision with the rock cut;
c. That Plante had adjusted his speed to the precarious conditions that he was in, that he was travelling between 60kms and 65kms per hour just before the accident occurred, and that he accelerated quickly to avoid jackknifing and to dislodge the tires of the truck from the shoulder;
d. That there is no concrete evidence to counter that Plante's truck trailer actually started to swing from right to left, a few kilometres before the collision and that there was subsequently a lateral slide towards the shoulder of the opposite lane;
e. That the tire tracks prior to the Brinks truck leaving the roadway were contaminated by the police; and,
f. That Plante demonstrated, on a balance of probabilities, that he used reasonable diligence to avoid the accident.

[11] There are no recordings or transcripts of the evidence admitted in the trial before J.P. Bourbonnais.

[12] The defendant argues that the plaintiffs’ position fails to consider the following evidence:

a. In a statement given to police on the evening of the accident, Plante advised that he was driving and heard his partner (Belanger) fall off a bunk in the truck’s sleeper. He removed his seatbelt so he could turn to assist him. He then saw an oncoming transport and he hit the rock as he swerved left to avoid it.
b. Following the accident another Brinks driver, Ben Faccone (“Faccone”) spoke to Belanger and advised him that Plante had disclosed prior to the accident that he did not know how he was going to finish his route since he had not slept. On another occasion, Belanger heard Faccone recount that Plante said he had not slept for over 20 hours prior to the accident.
c. Plante was discovered on July 23, 2019. He testified on discovery that he was unable to stop at the Butler Lake Truck Stop a few kilometres before the accident because there was not enough space.
d. Plante testified on discovery that he had no independent memory of the impact of the accident, but rather stated that, “it’s only in my dreams”.
e. The defendant’s expert engineer has opined that the physical findings at the accident scene were consistent with either driver fatigue or inattention being a causal factor in the accident.

Overview of the Law

Summary Judgment

[13] The framework for the disposition of a motion for summary judgment is set out in Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Rule provides that the court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[14] In determining whether there is a genuine issue requiring a trial, the hearing judge considers the evidence submitted by the parties and may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, unless the interest of justice require that such powers only be exercised at a trial.

[15] In Hryniak v. Mauldin, 2014 SCC 7, para 49, the Supreme Court of Canada provided guiding principles to the Court for conducting summary judgment motions. At para. 49, Karakatsanis J. noted:

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.

[16] The moving party on a motion for summary judgment bears the legal burden to demonstrate that there is no genuine issue for trial. The responding party bears an evidentiary burden to marshal facts supporting the existence of a genuine issue requiring a trial: Chao v. Chao, 2017 ONCA 701, para 16; Sanzone v. Schechter, 2016 ONCA 566, para 30.

[17] Partial summary judgment, although rare, is an appropriate remedy to address issues which are capable of being bifurcated, and that may be addressed in an expeditious and cost-effective manner: Butera v. Chown, Cairns LLP, 2017 ONCA 783, para 34; Malik v. Attia, 2020 ONCA 787, paras 61-62.

Abuse of Process by Relitigation

[18] The plaintiffs do not rely upon the doctrine of issue estoppel in support of their argument. They rely instead upon the doctrine of abuse of process by relitigation.

[19] The doctrine of abuse of process by relitigation (“the doctrine”) acts to bar a second proceeding where it would undermine the judicial decision-making in a prior proceeding. It applies to relitigation of proceedings, relitigation of motions in the same proceeding, and relitigation of issues in different proceedings: Lange, Donald J. The Doctrine of Res Judicata in Canada (5th ed.), Lexis Nexis Canada Inc, 2021 at p.199.

[20] The doctrine reflects the court’s inherent and residual jurisdiction to control its own processes. As noted by the Court in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, para 37:

…Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.

[21] The doctrine was described in Canadian Tire Corp. v. Summers as follows:

In order to apply non-mutual issue estoppel to a particular situation, it is necessary that the party who will be prevented from proceeding in a subsequent case has already received a full and fair opportunity to have the issue in question raised, tried and determined in an earlier proceeding. Ontario courts have held that where, in a given situation, the issue can be identified and specific evidence relating to the issue can be isolated, re-litigating a matter would constitute an abuse of the process.

[22] Applying the doctrine is an exercise of the Court’s discretion. A request to exercise that discretion may be initiated by any party to the litigation at issue, and that party has the onus of satisfying the Court that it should exercise its discretion. The focus of the analysis is on the integrity of the adjudicative process, and specifically the public’s perception that the process achieves results which are consistent, fair, and accurate. The analysis is necessarily case-specific, and the categories of abuse of process are not closed: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, paras 35-55; Solomon v. Smith; Canam Enterprises Inc. v. Coles, 2002 SCC 63; Withler v. Canada (Attorney General), 2002 BCSC 820, para 25.

[23] Although it serves a similar objective, the doctrine is different from issue estoppel. While both apply the “same question” test, the doctrine does not apply the “same parties” test. With that said, many of the discretionary factors considered in issue estoppel are also engaged in considering the doctrine: Lange, at pp. 199, 207.

[24] The factors to be considered in determining whether to exercise the Court’s discretion are open: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, para 67. Some of the factors identified in the case law include the following:

a. The character of the prior and current litigation;
b. The role of the parties, if any, in the prior litigation;
c. Whether the issues inherent to the litigation have been decided;
d. Whether the decision of the issues was final;
e. The nature of the potential injustice; and,
f. The risk of inconsistent results between the prior and current litigation.

See: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, para 80; Withler v. Canada (Attorney General), 2002 BCSC 820, para 38; Minott v. O'Shanter Development Company Ltd..

[25] A party seeking to oppose the application of the doctrine, in addition to arguing the absence of an abuse of process, may argue that it ought not to apply due to new evidence, special circumstances, or equitable reasons: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, para 52.

[26] The power to stay proceedings for an abuse of process should be exercised sparingly and only in very exceptional cases. It should be reserved for cases in which allowing the action to proceed would bring the administration of justice into disrepute: Re Abitibi Paper Company Limited and The Queen; Phillion v. Ontario (Attorney General), 2014 ONCA 567, para 49.

Careless Driving and the Burden of Proof

[27] Section 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8 establishes the offence of Careless Driving as follows:

Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway or in a specified place without due care and attention or without reasonable consideration for other persons using the highway or specified place.

[28] Careless driving is a strict liability offence. To prove a charge of Careless Driving, the Crown must establish the following elements beyond a reasonable doubt:

a. The date of the offence;
b. The road where the offence took place;
c. The district where the offence took place;
d. The identity of the defendant;
e. That the defendant was driving a vehicle;
f. That the defendant was driving the vehicle on a public highway; and,
g. That the defendant drove the vehicle without due care and attention or without reasonable consideration for other persons on the highway.

See: Regina v. Beauchamp; McIver v. R.; R. v. Sault Ste. Marie.

[29] Once the Crown has met its onus, the burden shifts to the defence to demonstrate due diligence, also referred to as reasonable care, on a balance of probabilities: R. v. Sault Ste. Marie; R. v. Wholesale Travel Group Inc..

The Use of Acquittals or Convictions in Civil Actions

[30] In R. v. Hundal, [1993] 1 SCR 867 at p. 885, Cory J. made the following observation about the relationship between civil liability and criminal liability for driving offences:

Negligent driving can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code.

[31] A judgment in a provincial offences or criminal proceeding does not act as an estoppel in a related civil proceeding. If a record of a conviction or an acquittal is evidence in a civil proceeding at all, it is only presumptive evidence of the absence or commission of an offence. That presumption is rebuttable and relitigation of the issue giving rise to the acquittal or the finding of guilt is not an abuse of process: Foncière Cie d'Assurance de France v. Perras; Becamon v. Wawanesa Mutual Insurance Company, 2009 ONCA 113, para 18.

Analysis

[32] The plaintiffs’ motion seeks partial summary judgment with respect to a defence raised by the defendant regarding the issue of liability. They ask the Court to make findings of fact and ultimately to conclude that Plante, a non-party, did not cause or contribute to the accident.

[33] While the decision of J.P. Bourbonnais was a final decision with respect to Plante’s culpability for the offence of careless driving, I cannot agree with the plaintiffs’ submission that the findings in the HTA trial are determinative of issues inherent to this litigation.

[34] In my view, requiring the issue of Plante’s role in causing the accident to be litigated in this proceeding would not be an abuse of process. A finding of negligence by Plante in this civil action would not be inconsistent with his acquittal for the offence of careless driving. Such a finding would not undermine the integrity of the administration of justice.

[35] The HTA trial was a provincial offences trial. The Crown bore the onus of proving Plante’s guilt, and the facts supporting that guilt, beyond a reasonable doubt. This is a significantly different burden than the one facing the parties in this proceeding, where the defendant must only satisfy the Court on a balance of probabilities that Plante caused or contributed to the accident to be successful in its liability defence.

[36] I am mindful of the fact that J.P. Bourbonnais went further and commented that Plante, “was able to demonstrate, on a balance of probabilities, that he exercised reasonable care to try to avoid the accident.” It was not strictly necessary for her to address this defence raised by Plante, having made the finding that the Crown had not met its burden beyond a reasonable doubt. She did not specify whether her comment was a finding forming part of her ratio decidendi or whether it was an observation amounting to obiter dicta.

[37] Even if J.P. Bourbonnais’ comment was intended to stand as a final decision on the issue of Plante’s exercise of “reasonable care”, one cannot lose sight of the fact that the assessment of “reasonable care” in response to a charge of careless driving is different than the assessment of whether a driver has met the “standard of care” in a civil action. As the defendant correctly notes, “a simple moment of inattention or an error of judgment” may be insufficient to establish guilt for careless driving, but it may be sufficient to establish negligence in a civil action.

[38] Fairness dictates that the Ministry, which was not a party to the HTA trial, be given an opportunity to fully marshall evidence at trial in support of its defence. The role, if any, of the findings of J.P. Bourbonnais in this action are best determined by the trial judge, who will have the benefit of considering them in the context of a complete evidentiary record, viewed through the lens of the civil burden of proof.

[39] I find that it would be incompatible with the persuasive and evidentiary burdens on the parties to this action to summarily import J.P. Bourbonnais’ trial findings into this proceeding. None of the principles of judicial economy, consistency or finality outweigh the likelihood of an injustice to the defendant by making such a ruling. In the circumstances, the plaintiffs’ motion must fail.

Disposition

[40] For these reasons, I find that partial summary judgment would be inappropriate in this matter and the plaintiffs’ motion is denied.

[41] The parties may serve and file written costs submissions not to exceed 3 pages (not including Costs Outlines) within 30 days of this decision.

Released: July 2, 2025

Cullin J.