Scott Chafe Plaintiff And: Dylan Joy First Defendant And: Holly Best Second Defendant, 2024 NLSC 19

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Chafe v. Joy , 2024 NLSC 19 Date : January 31, 2024 Docket : 202101G3174 Between: Scott Chafe Plaintiff And: Dylan Joy First Defendant And: Holly Best Second Defendant Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 31, 2024

Summary: The plaintiff claims that, while a pedestrian, he was struck by a vehicle owned by the first defendant, Dylan Joy, and driven by the second defendant, Holly Best. Mr. Joy sought dismissal of the plaintiff's action by

summary trial, as he was neither the owner of the vehicle involved in, nor otherwise associated with, the alleged accident. The court held that the matter was appropriate for a

summary trial. Furthermore, there was no genuine issue for trial. Even if there were, the court could find the facts necessary to decide the questions of fact and law on the existing record. Ultimately, it was held that it would not be unjust to decide the issues on the application. The application was allowed, and the plaintiff’s action was dismissed with costs to the first defendant.

Appearances: Scott Chafe No Appearance Tracy M. Pasley Appearing on behalf of the First Defendant Holly Best No Appearance Authorities Cited: CASES CONSIDERED: Brook Construction

(2007) Inc. v North Atlantic Cement and Construction Ltd., 2020 NLCA 42; UltramarCanada Inc. v. Atjem Holdings Ltd. (1995), (NL SC), 133 Nfld. & P.E.I.R. 31, 56 A.C.W.S. (3d) 80 (Nfld. T.D.);Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R. 317 (Nfld.T.D.); Hryniak v. Mauldin, 2014 SCC 7 RULES CONSIDERED: Rules of Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT stack, J.: INTRODUCTION [1] By a Statement of Claim filed on May 17, 2021, the Plaintiff claims that, while a pedestrian, he was struck by a vehicle ownedby the first defendant, Dylan Joy, and driven by the second defendant, Holly Best. The incident is alleged to have occurred on May 25,2020 at the Bidgood’s Plaza parking lot, in the Goulds area of St. John’s, Newfoundland and Labrador. [2] Mr. Joy seeks dismissal of the plaintiff's action, as he was neither the owner of the vehicle involved in, nor otherwiseassociated with, the alleged accident. He seeks judgment by way of

summary trial pursuant to Rule 17A of the Rules of Supreme Court,1986, S.N.L. 1986, c. 42, Sch. D (the “Rules”). [3] On 21 March 2023, Stephen Barnes, the plaintiff's former solicitor, was granted leave to withdraw as Solicitor of Record forthe plaintiff. The plaintiff, therefore, is self-represented. Notwithstanding being served, he has failed to attend at court since his solicitorwithdrew from the file. [4] The second defendant, Ms. Best has indicated that her name was spelled incorrectly in the Style of Cause. The correct spellingis Holly Best. I order that the Style of Cause be amended accordingly. issues [5] I am satisfied that this is an appropriate matter for

summary trial insofar as the applicant has complied with the formalrequirements of Rule 17A and has put forward some evidentiary basis for his position which, if unanswered, could establish all or part ofthe defense. I am also satisfied that there is no other reason, evident at the outset, why it would be inappropriate to deal with the matterby way of

summary trial. See, Brook Construction

(2007) Inc. v North Atlantic Cement and Construction Ltd., 2020 NLCA 42, perGreen, J.A., at paragraphs 35 to 51. [6] On the

summary trial itself, the following questions must be answered: a. Is there a genuine issue for trial? b. If there is a genuine issue for trial, am I able to find the facts necessary to decide the questions of fact and law on the existingrecord? c. Would it be unjust to decide the issues on the application?

the evidence [7] The applicant filed affidavit evidence in support of his position. [8] The Royal Newfoundland Constabulary ("RNC") investigated the alleged accident. A copy of the RNC file is an exhibit to theaffidavit of Barbara Fleet, Litigation Clerk, Aviva Trial Lawyers, sworn on February 23, 2023. [9] The RNC report concludes that there is no evidence that the incident involving Mr. Chafe was a motor vehicle accident.Moreover, it contains no reference to either Mr. Joy or Ms. Best.

Rather, it states that the truck involved in the alleged accident wasowned by Coedy Drake Cidoruk and was operated by Rebecca Holden. This last point is confirmed in an affidavit sworn by Ms. Holdenon May 26, 2023. [10] In affidavits sworn on April 26 and July 11, 2023, respectively, each of Mr. Joy and Ms. Best deny being involved in a motorvehicle accident involving the plaintiff. [11] The plaintiff has not filed an affidavit or other evidence in response to the application. Is there a genuine issue for trial? [12] In Ultramar Canada Inc. v.

Atjem Holdings Ltd., (1995), (NL SC), 133 Nfld. & P.E.I.R. 31, 56 A.C.W.S.(3d) 80 (Nfld. T.D.), at paragraph 11, it was held: There will be a 'genuine issue for trial' if [the respondent] can establish that the issue in question is not spurious and that it relates to amaterial fact or point of law that is necessary to be decided to resolve the ultimate controversy between the parties. If there is no genuineissue for trial, the court must give judgment in favour of [the applicant]. [13] In paragraph 76 of Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R.317, 405 A.P.R. 317 (Nfld.

T.D.), principle 7 was stated as: 7 If the applying party satisfies the threshold test for the application of the rule by putting forward an evidentiary basis for his or herposition, the responding party then has an evidentiary burden to demonstrate that there is a genuine issue for trial. This cannot beaccomplished by showing an issue raised by the pleadings. The argument on a rule 17A application takes place at a level below thepleadings within the forums of evidence and legal argument.

The responding party must therefore 'put his best foot forward' since failureto do so may lead the court to conclude that there is in fact no genuine issue for trial.

The responding party should therefore set out inaffidavits, or answers given on interrogatories or oral discoveries, an evidentiary foundation for his or her case so that the court can seethat there is a genuine issue of fact or law that is joined and has to be resolved before the court can make an ultimate determination onthe merits. [14] The real issue here is whether there is any evidentiary basis upon which either of the defendants can be held liable for theplaintiff’s injuries as asserted in the Statement of Claim.

Because the plaintiff has not filed any evidence in response to the application, hehas not established that there is a general issue meriting a conventional trial. Availability of Necessary Facts [15] Even if I found that there is a genuine issue for trial, I may also consider whether I am able, and it is appropriate, to decide thematter on the record before me.

Marco, at principle 13 at paragraph 76, addressed where the court can find sufficient facts necessary todecide application: In making that determination the court must keep in mind that it is entitled, on a common sense basis, to draw inferences from theevidence and from failure of a party to comply with Rule 17A.02(4) and (5). It does not mean that the chambers judge must neverthelessbe satisfied that if the proceeding went through the full trial process the result would inevitably be the same as would be given onsummary trial.

It simply means that so long as the chambers judge is satisfied that there is a sufficient evidentiary backdrop againstwhich findings of fact can be made and in which there are no material unanswered questions, he or she should be able to adjudicate onthe merits. [16] The evidence presented in the RNC file, together with the affidavits of Mr. Joy, Ms. Best and Ms. Holden, is more thansufficient to allow me to decide the matter. Just to Decide the Issues [17]

Summary trials improve the efficiency of the civil courts, thereby ensuring justice in appropriate cases (Hryniak v. Mauldin,2014 SCC 7). In this case, a

summary trial is a proportionate means of resolving the dispute that can avoid an expensive and unnecessaryconventional trial (Brook, at paragraph 38). There is no injustice to trying this matter summarily given the evidentiary record. [18] The plaintiff has presented no evidence establishing that he can be successful in the matter.

Furthermore, the applicant hasprovided cogent evidence that shows that neither his vehicle nor the second defendant was present at the time of the alleged accident. [19] Although only the first defendant sought dismissal of the action, the evidentiary record provides an equally cogent defense forthe second defendant. Judicial economy dictates that the plaintiff’s action be dismissed as against both defendants. conclusion [20] It is ordered that:

a. the matter proceed by way of

summary trial, pursuant to Rule 17A of the Rules ; b. the plaintiff's action be dismissed; and, c. The first defendant is awarded costs pursuant to Column 3 of the Scale of Costs. _____________________________ ROBERT P. STACK Justice