Yvonne Compton Plaintiff And: Toyota Canada Defendant, 2018 NLSC 13

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Compton v. Toyota Canada Inc. , 2018 NLSC 13 Date : January 26, 2018 Docket : 201701G1937 Between: Yvonne Compton Plaintiff And: Toyota Canada Defendant Before: Justice Garrett A. Handrigan Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 18, 2018

Summary: Yvonne Compton sued Toyota Canada in damages, claiming that the brakes on her 2009 Toyota Yaris motor vehicle failed, causing her to collide with another vehicle, damaging her vehicle and injuring herself. Toyota Canada applied for a

summary trial. The Court allowed a

summary trial. It dismissed Ms. Compton’s claim and ordered her to pay costs. Ms. Compton failed to prove on a balance of probabilities that the brakes on her vehicle failed, causing her to crash it. Appearances:

Yvonne Compton Appearing on her own behalf Joseph J. Thorne Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317,405 A.P.R. 317 (Nfld. S.C. (T.D.)); Ultramar Canada Inc. v. Atjem Holdings Ltd. (1995), (NL SC), 133 Nfld. &P.E.I.R. 31, 413 A.P.R. 31 (Nfld. S.C. (T.D.)) RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Handrigan, J.: INTRODUCTION [1] Yvonne Compton sued Toyota Canada Inc. on March 8, 2017 for the loss of her motor vehicle in a collision with anothervehicle on September 9, 2016. Toyota defended the claim on April 7, 2017. While Toyota noted in its defence that Ms. Compton’sStatement of Claim “… lacks any particulars”, it acknowledged that Ms. Compton “… alleges that a defect in the Vehicle’s brakingsystem caused her to be unable to brake in time to avoid colliding with the vehicle ahead of her”. Ms.

Compton amended her Statementof Claim on April 17, 2017 to include a claim for damages for personal injuries that she says she suffered in the accident. [2] On June 1, 2017, Toyota Canada applied under Rule 17A of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. Dfor an order that I hear Ms. Compton’s claim as a

summary trial. In effect, Toyota Canada claims that there is no genuine issue for trialand asks me to dismiss Ms. Compton’s claim. Alternatively, Toyota Canada says that if there is a genuine issue for trial, Ms. Compton’sclaim can be decided on the materials Toyota Canada filed with its application. I heard the application on January 18, 2018 and reservedmy judgment until now. the issueS Issue No. 1: Should I hear the matter as a

summary trial? Issue No. 2: If so, should I allow Ms. Compton’s claim or dismiss it? the law [3] Green, J. explained the Rule 17A procedure in detail in Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R. 317 (Nfld. S.C. (T.D.)), shortly after the Rule was adopted.

At paragraph 13 hesaw the potential for the procedure to be a “...very beneficial means of disposing of a case without the necessity of a full trial in a cost-effective and time-efficient manner while still respecting the rights of the parties to have a proper determination of the issues in dispute”. [4] Not every case is amenable to the procedure and Rule 17A applications should not be made frivolously.

As Green, J. alsosaid (Marco, paragraph 13): 13. … counsel have a responsibility to give careful consideration to whether the circumstances are appropriate for bringing anapplication and to ensure that, if brought, the application is carefully prepared and organized so that the matter can be dealt with in asummary fashion consistent with the purpose and intent of the rule. [5] It is clear from Rule 17A that

summary trials can be conducted in one of the following circumstances: • There is no genuine issue for trial between the parties (Rule 17A.03 (1)). • There is a genuine issue for trial but the court can find, from the record, the facts necessary to decide the facts and lawpertinent to that issue. But even then, it must not be "unjust to decide the issues on the application" (Rule 17A.03 (2)). [6] If the only genuine issue for trial is the amount to which a party is entitled, the court may order a trial of that issue or grantjudgment with a reference to determine the amount: Rule 17A.03(3). Similarly, if the only genuine issue for trial is a question of law, the

court may answer that question and grant judgment: Rule 17A.03(4). A "genuine issue for trial" is one that is ... not spurious and ...relates to a material fact or point of law that is necessary to be decided to resolve the ultimate controversy between the parties" (Marco,paragraph 11). [7] The party applying for

summary trial must prove there is no genuine issue for trial; or, if there is, the applicant must showhow the court can find from the record the facts necessary to decide the questions of fact and law in respect of that issue; and theapplicant must also show that it would not be unjust to decide the issue on the application (Ultramar Canada Inc. v. Atjem Holdings Ltd.(1995), (NL SC), 133 Nfld. & P.E.I.R. 31, 413 A.P.R. 31 (Nfld. S.C. (T.D.)). [8] The party applying must also put forward evidence to support each element of its claim, counterclaim or defence, as the casemay be.

If it does, the onus shifts to the responding party, if it opposes the application, to show there is a genuine issue for trial and thatit would be unjust to decide the issue on the application. Each party must "put its best foot forward" when making or opposing a Rule17A application. [9] When deciding whether it would be unjust to decide the case by

summary trial the court may consider various factors,including, but not limited to (Reference: Ultramar Canada, paragraph 14): • the absence, for reasons other than the parties' neglect, of material evidence at the time of the application; • the complexity of the matter; • any prejudice from delay in going to trial in the usual course; • any prejudice to a party's ability to present its case properly in a

summary trial; and, • costs. [10]

Summary trial is an abridged procedure but it is no less a "trial": the court judges and decides the issues as on a trial and theburdens and standards of proof apply with the same vigor. There is, however, latitude afforded to the parties in the form andpresentation of evidence. Thus, evidence may be presented by affidavit, drawn from answers to interrogatories or examinations fordiscovery. Affiants may be cross-examined and re-examined on their affidavits and inferences can be drawn from a failure to fileaffidavits or cross-examine on those affidavits that are filed, generally (Rule 17A.02). [11] The court may dismiss an application for

summary trial if the procedure is not appropriate in the circumstances of the case, butit "shall" grant

summary judgment if there is no genuine issue for trial: Rule 17A.03(1). Rule 17A applies, as stated by Green, J. inUltramar Canada v. Atjem on an "issue by issue" basis: Ultramar Canada v. Atjem, paragraph 15; so that "...issues...[that] can bedisposed of summarily ... ought to be, leaving only those issues which cannot be disposed of to be dealt with on a more limited andfocused trial" (Ultramar, paragraph 15). [12] This is the law I will apply to Toyota Canada’s application for a

summary trial. I turn now to analyze the application, startingwith the background to it. analysis Background [13] Yvonne Compton bought a 2010 Toyota Yaris motor vehicle from Western Toyota in Corner Brook, NL on December 23,2010. Ms. Compton used the vehicle continuously until September 9, 2016 when she collided with the rear end of another vehicle onTopsail Road, in St. John’s, NL, destroying the Yaris. Ms. Compton replaced the 2010 Toyota Yaris with a 2016 Toyota Corolla. Shesettled with her insurance company for the value of the Yaris and took a payout from her insurer for it.

While she appears to be happywith her new Corolla, she has numerous complaints about the Yaris. [14] On March 8, 2017, Ms. Compton issued a Statement of Claim in this Court suing Toyota Canada for “…damages and loss ofvehicle … on Sept. 09/2016”. Ms. Compton amended her claim on April 17, 2017 to include a claim “… for injuries received at the timeof the accident”. Ms. Compton says that the brakes on her Yaris failed on September 9, 2016 causing her to strike the rear of a vehicle infront of her on Topsail Road, in St. John’s, NL. Toyota Canada denies that the brakes on Ms.

Compton’s Yaris failed on September 9,2016 or that brake failure caused or contributed to the rear-end collision. [15] Ms. Compton filed a document (Allegations against Toyota Canada Inc.) with this Court on January 18, 2018 setting out thecircumstances of the accident. I drew this statement from pages 1 and 2 of that document: I was driving across the city [of St. John’s] on Topsail Road on my way to Paradise. I was very relaxed, enjoying the moment I was notworking two full time jobs anymore. I was not in a hurry. I noticed a truck in front of the car ahead. I also noticed the driver aheadbraked.

I was not alarmed for the moment as I had plenty of space in front of me. Because the car in front braked as well, but when I hitmy brake, there was nothing, the brake pedal went to the floor and didn’t come back up. There was no response from the brake, noresistance and the break (sic) did not produce braking power to stop the car. There was nothing I could do. I thought I am in trouble; thishas happened before. I kept trying and pushing down the brake (pumping the break (sic)) but there was nothing. I was horrified. Then I

knew I was going to crash into the car that had now stopped ahead of me. In a split second, I turned my body and shoulder to the left to brace myself for the impact. All these (sic) happened very quickly but my last thought was ‘I won’t be killed because I am not speeding’. My car crashed into the car ahead of me and stopped. Then I turned off the ignition. [ 16 ] Nicholas Manz is a Senior Consultant, Product Engineering, with Toyota Canada.

He holds a Bachelor of Engineering degree from McMaster University from which he graduated in 2003 and is a member of the Society of Automotive Engineers, the Canadian Association of Road Safety Professionals and the Canadian Association of Technical Accident Investigators and Reconstructionists. Mr. Manz has a long history of investigating and collecting data from motor vehicle investigations. Mr. Manz has engaged in vehicle and mechanical inspections, he has analyzed vehicle crashes, airbag and product incident investigations, as well as road surveys and assessments.

He is also a crash data retrieval analyst and a certified instructor for a technician’s course on crash data retrieval. [ 17 ] Mr. Manz reviewed Toyota Canada’s service records for Ms. Compton’s Yaris motor vehicle from June 9, 2011, approximately six months after she bought the vehicle to September 9, 2016, the date of the accident. Ms. Manz noted that Ms. Compton complained to Toyota Canada 18 times about her Yaris between those dates, the last time being September 9, 2016 when she had the rear-end collision this claim relates to.

Of those 18 complaints, 3 related to the brakes on the Yaris: 1) April 30, 2012 (scraping noise emitting from the brakes); 2) April 14, 2014 (noise in the brakes caused by aftermarket brake pads and rotors that seized up); and 3) September 9, 2016, when she says brake failure caused her to collide with the vehicle in front of her on Topsail Road. [ 18 ] Mr. Manz noted from Ms.

Compton’s service of the Yaris that they inspected or attended to the brakes on the vehicle several other times over that five-year period but only to perform routine maintenance or to note the condition of the brake components, including brake shoes, brake drums, rotors and pads. Mr. Manz inspected Ms. Compton’s Yaris on November 23, 2016 and carried out a “limited test drive of … [the Yaris] and tested brake performance”. From the “limited test drive”, Mr.

Manz concluded that “… [the Yaris] functioned normally, and “[w]hen I applied the brakes they held … [the Yaris] stationary and overpowered the engine” (All references in this paragraph are to paragraph 9 his affidavit, dated May 15, 2017, that Mr. Manz filed to support Toyota Canada’s

summary trial application). [ 19 ] Ms. Manz also retrieved data from Ms. Compton’s vehicle, by downloading it from the Event Data Recorder (“EDR”) in the car. He prepared a Bosch Data Retrieval Report for the Yaris on November 22, 2016 from the data recorder and he attached the report as

Schedule “D” to the affidavit he provided to support Toyota Canada’s

summary trial application. I reproduce the relevant table from that Report below: [ 20 ] Table 1: Pre-Crash Data, -5 to 0 Seconds (Most Recent Event, TRG 3) Time (sec) -4.5 -3.5 -2.5 -1.5 -0.5 0 (TRG) Vehicle Speed (mph/km/h) 27.3 [44] 27.3 [44] 29.8 [48] 31.5 [50] 8.7 [14] 0 [0] Brake Switch Off Off Off On On On Accelerator Rate (V) 0.78 1.17 1.21 0.78 0.78 0.78 Engine RPM (RPM) 800 800 1,600 1,200 400 400 [ 21 ] From his review of the data in this table, Mr.

Manz offered this opinion: “… the brakes were applied less than 1.5 seconds prior to impact and the Vehicle speed decreased accordingly, from 50 km/h to 14 km/h to 0 km/h”. [ 22 ] Mr. Manz also inspected the vehicle overall and prepared a Technical Investigation Report that he attached to his affidavit as “Schedule” C.

He stated the following conclusions in his Report from his inspection: • The accelerator pedal and throttle assembly were operating normally and without evidence of binding or sticking; • The brake system, including the brake master cylinder, the brake calipers, the brake pads and rotors were in good condition and operating normally.

Although front brake calipers were rusted they operated normally; • A diagnostic test of the vehicle confirmed there was a good correlation between the accelerator pedal sensors, throttle position sensors and engine speed; and • External examination of the damage to the frontal area of the Yaris indicated that it had been in a “low to moderate impact” which is consistent with the data retrieved from the EDR and stated in the Bosch Data Retrieval Report. [ 23 ] Finally, Mr. Manz noted that the front tires on Ms.

Compton’s Yaris were “… worn to the wear indicator mark (less than 3 mm of tread depth remaining)” (See note dated December 16, 2016, in Exhibit “B” to Ms. Arbour’s affidavit of May 15, 2017 supporting Toyota Canada’s

summary trial application). [ 24 ] Ghislaine Arbour is a Consultant, Customer Relations with Toyota Canada. She also noted the wear on the tires and reported it to Ms. Compton on December 20, 2016. At the same time, Ms. Arbour advised Ms. Compton that the “… vehicle was found to function normally” and, in particular, “[w]hen the brakes ware applied the brakes were found to hold the vehicle stationary and overpower the

engine. The vehicle was found to function normally” (See note dated December 16, 2016, in Exhibit “B” to Ms. Arbour’s affidavit of May 15, 2017 supporting Toyota’s

summary trial application). [ 25 ] Ms. Compton retained Jaunty Aidamenbor to advise her about the mechanism of the accident and to comment on Mr. Manz’s findings. Ms. Compton filed an affidavit from Mr. Aidamenbor and called him as a witness at the

summary trial. Counsel for Toyota Canada cross-examined Mr. Aidamenbor on his affidavit and I allowed Ms. Compton to clarify matters with Mr. Aidamenbor that counsel brought up during cross-examination. [ 26 ] Ms. Compton relies heavily on Mr. Aidamenbor’s affidavit. Mr. Aidamenbor identifies himself as a “Lead Incident Investigator” for Seadrill, a company that is involved in the oil industry, offshore of this Province. Mr. Aidamenbor says he is “trained in various methods of investigating incidents, accidents and near misses” and has worked in his present job for 10 years.

He offered copies of some certificates indicating that he is a “Canadian Registered Safety Professional”. Mr. Aidamenbor acknowledges that he has no training or background in motor vehicle investigations, but discounts his lack of training because “the principles for incident investigations are the same regardless of the type of incident being investigated”. [ 27 ] Mr. Aidamenbor says he reviewed all data that was available to Ms. Compton about the September 9, 2016 crash of her motor vehicle and offered his opinions about both Mr.

Manz’s observations and the of the accident: • This statement made by Nick Manz (“The brakes were applied less than 1.5 seconds prior to impact…”) is…not true from my examination of the Bosch Data Retrieval Report ” (bolding added by Mr. Aidamenbor); • From Mr. Aidamenbor’s examination of the Report, “…the brake was depressed anywhere between 2.5 and 1.5 before impact. Hence, the time should be stated as 1.5 seconds before impact (possibly more) and not ‘ less than 1.5 seconds ’ prior to impact as stated by Nick Manz” (underlining added by Mr.

Aidamenbor); • The timing of the braking is a “determining root cause in this incident”; • … Ms. Compton applied the brakes well in advance of the collision and…the break (sic) did not function as it was supposed to”; • The Bosch Data Retrieval Report …clearly confirmed that the brakes were applied at least 1.5 seconds before the crash, yet the vehicle did not come to a stop”; and • This report confirmed that she depressed the break (sic), yet the car did not come to a stop in over 1.5 seconds (excluding reaction time) at under 50 km/hr driving speed.

Based on the popular ‘2 Seconds Rule’ used in road safety and defensive driving coaching…, it is clear that Ms Compton was driving safely, and that she depressed the break (sic) in a timely manner; leaving a full 1.5 seconds for the vehicle to come to a stop but the vehicle did not. This indicates a malfunctioning of the braking system. The brakes did not do what they were supposed to do”. [ 28 ] Counsel for Toyota Canada cross-examined Mr. Aidamenbor closely on his affidavit. I note the following from Mr. Aidamenbor’s cross-examination: • Mr. Aidamenbor did not visit the crash scene; • Mr.

Aidamenbor did not know the angle of elevation of the road surface at the crash scene; • Mr. Aidamenbor could not explain why the speed of the vehicle increased from 48 km/h to 50 km/h, between 2.5 seconds and 1.5 seconds before the accident if, as he says, Ms. Compton braked during that interval; • Mr. Aidamenbor could not explain why the speed of the vehicle decreased from 50 km/h to 14 km/h, between 1.5 seconds and 0.5 seconds before the accident if the brakes on Ms. Compton’s vehicle were not working; • Mr.

Aidamenbor says that wet roads and rainy weather at the time of the accident did not contribute to the crash; and • Mr. Aidamenbor made no allowance for the proximity of Ms. Compton’s vehicle and the vehicle that she collided with. [ 29 ] This is the background to Ms. Compton’s claim. I turn now to analyze the issues I stated earlier against this background.

Proceeding as a

Summary Trial [ 30 ] Toyota Canada applied for an order that this matter proceed as a

summary trial. In the Memorandum of Fact and Law that counsel for Toyota Canada filed, counsel submitted that the following considerations were relevant to that determination: • The amount of the claim is likely to be modest; • The matter is not complex; • The matter is not urgent; • A

summary trial will not cause prejudice to either party; • The cost of a full trial would be disproportionate to the amount of the claim, especially if Toyota Canada was to engage witnesses from out of province; and • The proceeding involves a discrete issue and is not factually or procedurally complex. [ 31 ] I agree with counsel’s analysis and accept that this matter is suitable for a

summary trial; and so did Ms. Compton. I explained the

summary trial process to her before we began and she appeared to understand it. She also expressed her interest in proceeding expeditiously and she consented to Toyota Canada’s application. [ 32 ] Moreover, Toyota Canada and Ms. Compton made it clear they were relying on the affidavits that each filed. I referred to those affidavits above, noting that Toyota Canada filed affidavits from Nicholas Manz and Ghislaine Arbour and Ms. Compton filed an affidavit from Jaunty Aidamenbor. Toyota Canada also had Mr. Manz and Ms. Arbour available in the courtroom for cross-examination on their affidavits. I inquired of Ms.

Compton if she wished to cross-examine them. It appeared at first that Ms. Compton wanted to cross-examine Mr. Manz so I had him sworn, but then Ms. Compton declined to cross-examine him. She did not ask to cross-examine Ms. Arbour. Of course, counsel for Toyota Canada cross-examined Mr. Aidamenbor extensively on his affidavit. [ 33 ] While the matter proceeded as a

summary trial, there is no genuine issue for trial. Ms. Compton’s claim, as supported by Mr. Aidamenbor’s affidavit, clearly puts in issue the proper functioning of the brakes on Ms. Compton’s vehicle. Toyota Canada says that there was nothing wrong with her brakes and claims that Ms. Compton did not engage the brakes soon enough to avoid colliding with the vehicle in front of her. Toyota Canada also notes that the treads on the front tires on Ms. Compton’s vehicle were worn down to “wear indicator bars”, implying that the wearing may have contributed to the collision. [ 34 ] Mr.

Aidamenbor, both in his affidavit and in his oral evidence, challenged both of Toyota Canada’s submissions. In the first instance, he claimed that Ms. Compton had engaged the brakes soon enough to avoid the collision and concluded that the “… break (sic) did not do what it was supposed to do”; as to the worn tires, he questioned whether the tires were worn. In paragraph 12 of his affidavit, Mr. Aidamenbor, said, “the pictures provided of the tires and vehicle were not clear enough to support” Toyota Canada’s observation that the “tires were at the end of their recommended service life”. Otherwise, Mr.

Aidamenbor said the police report of the accident noted that the tires were “in ‘Good’ condition”. [ 35 ] I find that the functioning of the brakes is a genuine issue for trial and the primary one in this matter; and the condition of the tires is of interest as well, although of secondary concern. I turn now to analyze those issues and make my findings on the merits of Ms. Compton’s claim. Merits of Yvonne Compton’s Claim [ 36 ] Ms. Compton filed her statement of claim in this Court on March 8, 2017. She filed an amended statement of claim on April 17, 2017. Ms.

Compton did not state the basis of her claim, in either the first or the subsequent document, other than to say she was “suing Toyota Canada for damages and loss of vehicle received on September 09/2016”. It is clear from other materials Ms. Compton filed and especially Mr. Aidamenbor’s affidavit that Ms. Compton believes Toyota Canada sold her a defective product. [ 37 ] Ms. Compton provided details of her complaints against Toyota Canada about problems she says she had with the 2009 Toyota Yaris, from when she bought it in December 2010 until she destroyed the car in the September 2016 rear end collision.

While Toyota Canada appears to have addressed all of Ms. Compton’s complaints appropriately and took remedial action where necessary, only those complaints that relate to the brakes on the vehicle are relevant to this matter. [ 38 ] The onus is on Ms. Compton to prove on a balance of probabilities that the brakes on her vehicle failed on September 9, 2016; and that she collided with the rear of the other vehicle because the brakes failed, causing damage to her vehicle and the injuries she says she suffered in that accident. Ms. Compton failed to meet that onus of proof and her claim fails.

Let me explain why. [ 39 ] Nicholas Manz provided details of Toyota Canada’s service record for Ms. Compton’s Toyota Yaris, from June 9, 2011, approximately six months after she bought the vehicle to September 9, 2016, the date of the accident. Of 18 complaints that Ms. Compton made to Toyota Canada during that time, only three related to the brakes on the Yaris and Toyota Canada attended to the brake

problems about which Ms. Compton complained. [ 40 ] However, and more importantly, Mr. Manz inspected the brakes on the Yaris after the accident and found they were working properly. In fact, Ms. Manz also carried out a “limited test drive” of the Yaris after the accident and tested the brake performance; from which he concluded, “the brakes…held the Vehicle stationary and overpowered the engine”. As to his observations from inspecting the brakes, Mr. Manz noted “…the brake master cylinder, the brake calipers, the brake pads, and rotors were in good condition and operating normally”.

Although he “found that the front brake calipers were rusted”, he was satisfied, they were “operating normally”. [ 41 ] The Yaris was equipped with an Event Data Recorder, or “EDR” for short. The EDR is sometimes referred to as the automotive industry’s "black box", an obvious reference to the flight recorders used in the airline industry. In effect, the EDR is a device installed in some automobiles to record information related to vehicle crashes or accidents . Toyota Canada downloaded the information recorded on the EDR in Ms. Compton’s vehicle and Mr.

Manz presented the data as a Bosch Data Retrieval Report in Exhibit “D” to his affidavit. [ 42 ] I set the table out earlier in these reasons. It displays the data for the vehicle from 4.5 seconds before the crash, to the event. During the 3 seconds from 4.5 seconds to 1.5 seconds, the speed of Ms. Compton’s vehicle increased from 44 km/h (at 4.5 & 3.5 seconds) to 48 km/h (at 2.5 seconds, to 50 km/h (at 1.5 seconds) and only decreased after 1.5 seconds. The speed could not have increased during this time if Ms. Compton had applied the brakes. However, if Ms.

Compton had applied the brakes, the vehicle would have slowed, just as it slowed from 50 km/h to 14 km/h between 1.5 and 0.5 seconds, when Ms. Compton applied the brakes after 1.5 seconds. [ 43 ] It is not clear if Ms. Compton applied the accelerator between 4.5 seconds and 1.5 seconds to cause the speed to increase or if that may simply have been an increase of the momentum of the vehicle for another reason, such as the lie of the road surface or other environmental factors. It is clear that Ms. Compton did not apply the brakes before 1.5 seconds and by then it was too late to avoid the collision.

Thus, it was her failure as the operator of the vehicle to control its movement by applying the brakes that led to the crash and not because the vehicle’s braking system failed. [ 44 ] Mr. Aidamenbor does not agree with this assessment of the data. He believes that Ms. Compton applied the brakes between 2.5 seconds and 1.5 seconds before the crash, soon enough in his estimation to stop the vehicle before the crash, if the brakes had been working. I do not accept Mr. Aidamenbor’s

interpretation of the data; for two reasons: 1) The speed of Ms. Compton’s vehicle increased from 48 km/h to 50 km/h between 2.5 seconds and 1.5 seconds and that would not have happened if Ms. Compton had applied the brakes; and 2) The brakes were working before the accident because the vehicle slowed from 50 km/h to 14 km/h between 1.5 seconds and 0.5 seconds, after Ms. Compton applied the brakes. [ 45 ] Overall, I did not find Mr. Aidamenbor to be a credible witness. He appeared more as an advocate for Ms. Compton than a witness offering independent opinion to this Court.

He also became argumentative and defensive when counsel for Toyota Canada challenged him on cross-examination. Moreover, as I noted earlier, Mr. Aidamenbor made no allowance for the proximity of Ms. Compton’s vehicle and the vehicle that she struck; and strangely, Mr. Aidamenbor said that wet roads and rainy weather at the time of the accident did not contribute to the crash. [ 46 ] I find that Ms. Compton has failed to prove on a balance of probabilities that the brakes failed on her vehicle causing her to crash it on September 9, 2016.

While I do not have to find what caused the crash, it is more likely that the Ms. Compton caused the crash by driving inattentively and failing to apply the brakes in a timely manner. Costs [ 47 ] There is no reason to depart from the rule that costs follow the cause. Thus, Toyota Canada will have its costs, taxed by Column 3 of the Scale of Costs.

Summary and Disposition [ 48 ] Yvonne Compton sued Toyota Canada in damages, claiming that the brakes on her 2009 Toyota Yaris motor vehicle failed, causing her to collide with another vehicle, damaging her vehicle and injuring herself. Toyota Canada applied for a

summary trial. [ 49 ] The Court allowed a

summary trial. It dismissed Ms. Compton’s claim and ordered her to pay costs. Ms. Compton failed to prove on a balance of probabilities that the brakes on her vehicle failed, causing her to crash it. Order [ 50 ] In the result, I order that: 1) Yvonne Compton’s claim for damages from Toyota Canada is dismissed. 2) Yvonne Compton pay costs to Toyota Canada to be taxed by Column 3 of the Scale of Costs.

_____________________________ Garrett A. Handrigan Justice