CITATION : Leis v. Clarke, 2017 ONSC 4360 COURT FILE NO.: 2106/13 DATE: 2017/08/08 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ) ) Lauren Leis ) ) ) Rein E. Lomax, for the plaintiff ) Plaintiff ) ) - and - ) ) ) Jordan Clarke, Julie Clarke, and Amy L. Patterson ) ) ) Tino J. Kasi, for the defendants Jordan Clarke and Julie Clarke ) ) Janet Clermont, for the defendant Amy L. Patterson Defendants ) ) ) ) HEARD: June 14, 2017 leitch j.

SUMMARY JUDGMENT MOTION [ 1 ] The defendant Amy L. Patterson moves for

summary judgment dismissing the action and cross-claim against her. [ 2 ] The plaintiff takes no position on the motion. [ 3 ] Therefore, the contentious issue is whether the cross-claim by the defendants Julie Clarke and Jordan Clarke (the “Clarke defendants”) against Ms. Patterson raises a genuine issue requiring a trial. Issue [ 4 ] Is there a genuine issue regarding whether Ms. Patterson bears some responsibility for a vehicle accident that occurred on January 18, 2013 that requires a trial?

Background facts [ 5 ] The plaintiff was a passenger in the vehicle owned by the defendant Julie Clarke, which was driven by the defendant Jordan Clarke (the “Clarke vehicle”). [ 6 ] The Clarke vehicle made a left hand turn in front of a vehicle driven by the defendant Ms. Patterson (the “Patterson vehicle”) as it proceeded through a green light at an intersection. [ 7 ] The driver of the Clarke vehicle pleaded guilty to making an unsafe turn in contravention of s. 142(1) of the Highway Traffic Act , R.S.O. 1990, c. H.8 and paid the fine.

Preliminary procedural issue—should leave be granted to the moving party under r. 48.14 to bring this motion? [ 8 ] This action was placed on the trial list on February 19, 2016, and a trial was scheduled to begin March 27, 2017.

[ 9 ] The moving party did not oppose the matter being set down for trial in 2016. [ 10 ] In June 2016, the plaintiff requested an adjournment of the pre-trial conference and the trial given that her vocational future was uncertain. [ 11 ] The responding parties opposed the adjournment. [ 12 ] The moving party did not oppose the plaintiff’s adjournment request, which she thought would be inevitably granted considering the plaintiff’s age and her reason for seeking the adjournment. [ 13 ] The moving party expressed her intention to bring a motion for

summary judgment October 5, 2016. [ 14 ] The motion to adjourn was heard October 7, 2016, and the adjournment was granted. [ 15 ] This motion was brought prior to the April 2017 assignment court at which the pre-trial conference was rescheduled to July 26, 2018 and the trial was rescheduled to November 13 to December 12, 2018. [ 16 ] The responding parties take the position that the plaintiff should not be granted leave to bring this

summary judgment motion and emphasize that the facts underlying this motion have been known to the moving party since the examinations for discovery on January 15, 2015 and July 7, 2015; the moving party did not oppose the plaintiff setting the matter down for trial in November 2015; and the moving party did not oppose the plaintiff’s request to adjourn the pre-trial and trial. [ 17 ] In Fruitland Juices Inc. v.

Custom Farm Services Inc. , 2012 ONSC 4902 , at paras. 27 and 28 , Quinn J. concluded that while earlier jurisprudence under r. 48.14 required “a substantial and unexpected change in circumstances” after an action was set down for trial before leave would be granted, these requirements are not “helpful or logical” in relation to a motion for

summary judgment. As he stated at para 28, “a party is not obliged to bring a

summary judgment motion at the earliest opportunity; neither must there be a precipitating event such as a change in circumstances.” The important question is whether the

summary judgment motion will reduce costs and trial time and will not unduly delay the start of the trial. [ 18 ] The test in Fruitland has been found to be consistent with the development in the law relating to

summary judgment motions set out by the Supreme Court of Canada in Hryniak v. Mauldin , 2014 SCC 7 , and in Asa v. Sacks , 2014 ONSC 4443 ; Rego v. Walmart , 2017 ONSC 812 ; and Villeneuve v.

Canada (Attorney General) , 2016 ONSC 6490 . [ 19 ] Although one could take the position that a 20-month delay in the commencement of the trial is a substantial and/or unexpected change in circumstances as the moving party submits, counsel for the responding parties concede that a substantial and unexpected change in circumstances is no longer required to obtain leave pursuant to r. 48.14. [ 20 ] The main challenge by the responding parties is their assertion that the moving party has not explained why this motion was not brought before the action was placed on the trial list and now has been brought after the moving party consented to an adjournment. [ 21 ] Respectfully, I do not agree with Quinn J. in his suggestion, which can be found in a note to his judgment in Fruitland , that he saw no need for a moving party to satisfy any threshold regarding the merits of a proposed

summary judgment motion as part of the leave requirement thereby imposing on the responding party the obligation to show that the proposed motion is utterly devoid of merit. It seems to me that the relative strength of the motion is part of the context for the court to consider as that is relevant to the issue of the practical value of the motion being brought. [ 22 ] I agree with the view expressed in Dickson v. Di Michele , 2014 ONSC 3043 denying leave to appeal a decision granting leave to bring a motion for partial

summary judgment. As indicated in Dickson , in considering whether a proposed motion is likely to provide a proportionate, more expeditious, and less expensive means to achieve a just result compared to proceeding to trial, most cases would include some consideration of the likelihood of success on the motion. [ 23 ] Here, the moving party does not shy away from the court considering the merits of the

summary judgment motion at this stage when leave to bring the motion is being considered. Indeed, the moving party invited the court to review the merits of the

summary judgment motion noting that it had provided the court with “a complete record with respect to liability”; there are no other witnesses to the motor vehicle accident other than those who have provided evidence on the

summary judgment motion; the moving party filed affidavits from the one independent witness and the investigating officer; and there are no other witnesses with respect to liability forthcoming. [ 24 ] I am satisfied that leave ought to be granted in these circumstances. The liability of the moving party has always been what can be described as “a live issue.” Counsel for the moving party made numerous attempts to have the cross-claim of the responding party dismissed prior to bringing this motion. [ 25 ] I conclude that granting leave to the moving party to bring this

summary judgment motion is a proportionate response to the factual issue that is raised on this motion, namely whether there is any genuine issue requiring a trial with respect to the responding parties’ cross-claim against the moving party. [ 26 ] I agree with the responding parties that the resolution of the issue raised on the

summary judgment will not substantially lessen the time required for trial (it is estimated that this issue will require two to three days of the four week schedule). Nevertheless, it is significant that if successful on this motion, the moving party will not be required to participate in the four-week trial. [ 27 ] While I agree with the view expressed by Thomas J. in Popovich v. Financial Investment Centre Inc. , 2016 ONSC 1888 at para 23 that he could not “embrace Justice Quinn’s enthusiasm for all

summary judgment motions or the low threshold he proposes for leave,” I note that the “state of the litigation” here following a successful

summary judgment motion would be quite different from the circumstances in Popovich in that, if successful, the moving party would no longer be part of the action; the issue raised on the

summary

judgment motion would no longer have to be addressed at trial; and as I will elaborate more fully below, I see no real possibility of inconsistent findings. [ 28 ] Although appeals from the decision on the

summary judgment motion could potentially interfere with a trial date in some circumstances, I am not prepared to conclude that the bringing of this motion will unduly delay the start of the trial in November 2018. I agree with the moving party that there is sufficient time for the

summary judgment motion to be heard and for any appeals that arise to be dealt with. The law relating to

summary judgment [ 29 ] Both parties fully set out the applicable law to be applied on a

summary judgment motion arising from Hryniak and other cases, and those principles need not be repeated here, save and except to set out the procedure proposed by Karakatsanis J. in Hryniak . On a

summary judgment motion, the court must first determine if there is a genuine issue requiring a trial based only on the evidence before the court. Specifically, she stated at para 66 that “there will be no genuine issue requiring a trial if the

summary judgment process provides [the judge] with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).” [ 30 ] If there is a genuine issue requiring a trial, the court must determine whether the need for a trial can be avoided using the powers under rr. 20.04(2.1) and (2.2) and whether discretion ought to be granted to exercise those powers provided such exercise would not be against the interest of justice. [ 31 ] There is no issue that

summary judgment is available in motor vehicle negligent cases (see e.g. Mayers v. Khan , 2017 ONSC 200 ; Aranas v. Kolodziej , 2016 ONSC 7104 ). The evidence filed on this motion [ 32 ] It is trite to say that the evidentiary record on a

summary judgment motion is important. A moving party cannot meet the burden of demonstrating that there is no genuine issue requiring a trial if the evidentiary record is inadequate (see Singh v. Tattrie , 2013 ONSC 5154 ). [ 33 ] In this case, the moving party relies on an affidavit of Ms. Patterson, on which she was cross-examined; an affidavit of Ms. Forron, an independent witness to the accident; an affidavit from Constable Kasper, a police constable with the London Police Service who investigated the accident; and the examination for discovery of the Clarke defendants. [ 34 ] This is an appropriate evidentiary record for a

summary judgment motion. All of the relevant evidence with respect to the contentious issue is before the court. [ 35 ] Ms. Patterson explained in her affidavit that she was in the through lane travelling northbound on Richmond Street. As the North Centre Road intersection is approached, Richmond Street widens for northbound traffic to include a right turn lane eastbound and a left turn lane westbound. Therefore, there are a total of four lanes for northbound traffic (a right turn lane, a left turn lane, and two through lanes). She remained in the left through lane.

She deposed that the cars in the dedicated left turn lane were “potentially obstructing” her view of southbound traffic on Richmond Street. [ 36 ] Ms.

Patterson deposed the following: • she was travelling with the flow of traffic at approximately 60 kilometres an hour as she approached the intersection; • when she entered the intersection, the light was green; • she did not see the Clarke vehicle before the accident; • she was looking straight ahead as her vehicle entered the intersection; • she did not see the Clarke vehicle “until immediately before the accident”; • she “did not have time to take evasive action”; • she did not have time to apply her brakes before the impact or to turn her vehicle to the left or to the right or to sound her horn; • when she first saw the Clarke vehicle, the driver passenger door was directly in front of her vehicle’s bumper; and • she did not observe whether the Clarke vehicle came to a stop before proceeding to make a left hand turn. [ 37 ] Jordan Clarke, the driver of the Clarke vehicle, gave the following evidence on her examination for discovery: • she had stopped completely at the intersection waiting for two or three cars to pass before she attempted her left hand turn; • she recalled that the light was green as she waited for northbound traffic to clear; • she was not stopped behind another vehicle as she pulled into the intersection and had a clear view of northbound traffic; • she stopped for the traffic to clear “more like 3 seconds”; • she made an observation of northbound traffic and judged that she was able to complete her turn and avoid a collision;

• she did not see the Patterson vehicle until a split second before the impact; and • she had no explanation as to why she did not see the Patterson vehicle until just prior to impact. [ 38 ] Constable Kasper deposed that she interviewed an independent witness, whom she identified as Ms. Forron, and included her statement as part of her accident report. Her affidavit included her motor vehicle accident report in which she described the accident as arising because the Clarke vehicle turned in front of the Patterson vehicle and her conclusion that Ms.

Patterson was “driving properly” and the driver of the Clarke vehicle made an “improper turn.” Officer Kasper deposed that she charged the defendant, Jordan Clarke, with the offence of “turn not in safety” pursuant to s. 142(1) of the Highway Traffic Act . [ 39 ] Officer Kasper was not cross-examined on her affidavit. [ 40 ] Ms. Forron deposed that she had an unobstructed view of the accident from her position as a passenger in a vehicle stopped at the red light at the intersection where the accident occurred.

She provided the following evidence: • the Clarke vehicle entered the intersection and immediately turned left in front of the Patterson vehicle; • “there was no time” for Ms. Patterson “to avoid the accident”; • the Clarke vehicle “turned left directly in front of” the Patterson vehicle; • Ms. Patterson “had no time to react”; • the traffic light was green at the time of impact; • she believed the posted speed limit on Richmond Street is 60 kilometres per hour; and • she estimated the speed of the Patterson vehicle as it entered the intersection as between 50 and 60 kilometres per hour. [ 41 ] Ms.

Forron was not cross-examined on her affidavit. Disposition [ 42 ] In assessing the evidence on this motion, it is important to note s. 141(5) and s. 142(1) of the Highway Traffic Act . Section 141(5) provides that no driver or operator of a motor vehicle in an intersection shall turn left across the path of the vehicle approaching from the opposite direction unless he or she has afforded reasonable opportunity to the driver or operator of the approaching vehicle to avoid the collision.

Further, under s. 142(1), the driver or operator of a vehicle before turning to the left or right at any intersection shall first see that the movement can be made in safety and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement. [ 43 ] As the moving party notes, these provisions of the Highway Traffic Act place a high onus on the driver of a left turning vehicle to ensure that he or she has sufficient time to make the turn without causing an accident.

This onus is long-standing and dates back to Payne v. Lane , 1949 CarswellOnt 187 . [ 44 ] Drivers must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. [ 45 ] As set out in Sant (litigation guardian of) v. Sekhon , 2014 ONCA 623 at para 4 , the test for determining when a driver with the right of way could have avoided the collision is as follows: The jurisprudence on the standard of care of a driver with a green light is not in dispute.

A driver with a green light is free to go through the intersection assuming that drivers approaching the intersection from other directions and who necessarily are being shown a red light will stop. However, a statutory right of way does not absolve a driver from exercising proper care.

A driver should not exercise his or her right of way 1) if the driver becomes aware or should become aware that the driver without the right of way is going to go through the intersection and 2) if the circumstances are such that the driver with the right of way had the opportunity to avoid the collision [citations were omitted]. [ 46 ] I begin by noting that I agree with the position of the responding parties that pleading guilty to an offence under the Highway Traffic Act does not render the issue of liability moot (see Becamon v.

Wawanesa Mutual Insurance Company , 2009 ONCA 113 ). [ 47 ] The responding parties indicate that the main case they are relying on is my decision in Singh where, at para. 27 , I indicated that a driver is required to “exercise at all times the same manner of caution as might be expected in like circumstances of a reasonably prudent driver taking proper precautions to guard against such risks which might reasonably be anticipated to arise from time to time as she proceeds along the road.” [ 48 ] I note that these circumstances are very different from those before me in Singh , because in this case the moving party has provided an affidavit from Ms.

Patterson, the driver whose conduct is in issue. [ 49 ] The responding parties submit that Ms. Patterson was negligent in failing to keep a proper look-out as she approached the intersection. [ 50 ] The position of the responding parties is that a properly instructed jury could find that Ms. Patterson did not maintain a proper lookout and adjust her driving to a known hazard. They submit that her evidence needs to be assessed by a trier of fact. They concede that the “lion’s share” of responsibility will be borne by them, but they submit there is a genuine issue requiring a trial as to whether Ms.

Patterson has any liability, which they concede is maybe as low as one to ten percent.

[ 51 ] The responding parties submit that the question of whether Ms. Patterson’s actions were reasonable is a genuine issue requiring a trial given her speed; the point of impact; and the possibility that the plaintiff’s injuries and the collision may have been avoided or reduced in severity had she exercised caution and adjusted her speed, her driving, and her position to guard against an identifiable hazard that was known to her. [ 52 ] The only evidence which the responding parties rely on for their assertion that the moving party bears some liability is the evidence of Ms.

Patterson on discovery. [ 53 ] The responding parties refer to Ms. Patterson’s acknowledgment on her discovery that she was driving a route she took daily to and from her place of employment and was very familiar with the road. She agreed that Richmond Street continues up quite a large hill right after the intersection. She also acknowledged that her view of traffic travelling southbound downhill was quite good. [ 54 ] Ms.

Patterson was queried on her examination for discovery if the Clarke vehicle ever came to a stop before turning left and she responded that she wasn’t sure, that she could not see it, that she believed that cars turning left (westbound) from the northbound turning lane blocked the southbound turning lane, and that she believed that there were vehicles turning left (westbound) as she approached the intersection. [ 55 ] She did not actually remember that there were other vehicles in the northbound turning lane, but she had thought through the accident after it happened and believed there were cars turning left from that lane as an explanation why she had not noticed the Clarke vehicle prior to impact. [ 56 ] The responding parties emphasized the following questions and answers from Ms.

Patterson’s examination for discovery: Q. Okay. Can you tell me then if the vehicle you ultimately came into contact with ever came to a stop prior to it turning left in front of your vehicle? A. I’m not sure. I believe that I couldn’t see it. Like, going through that intersection and how the left turn lanes are, I think it blocked that left turn lane from sight. Q. Okay. What was it blocked by? A. Cars turning left going the other way. Q. Cars turning left which had been travelling northbound? A. Correct. Q.

I see, okay, and as you were approaching the intersection with North Centre Road, were there vehicles turning left from the dedicated left turn lane for northbound traffic? A. I believe so, yes. Q. Okay. Are you saying that as a way of explaining why it is you don’t recall seeing the other vehicle until just prior to impact or do you actually remember that there were other vehicles there turning left? A. The last. Q. There were vehicles there turning left? A. No, I mean, like the first part you had said.

I’m thinking that when I thought through after the fact, I don’t remember at that actual time, but then thinking through the scenario after it had happened, I believe there were cars there turning left. Q. Because that explains why you may not have taken notice of the left turning vehicle prior to, or for any length of time prior to impact? A. Correct. Q. Okay, fair enough. I just want you to tell me what you remember, okay, but thank you for clarifying that. I just wanted to make sure I understood. I appreciate everything you’ve told me, okay.

Do you remember whether the vehicle that you came into contact with had its left turn signal on? A. I don’t know. … Q. So it’s fair to say that you’re aware that obstruction you were talking about, about vehicles turning left when you’re coming up the hill? A. Yes. [ 57 ] I would describe the argument of the responding parties as a theory that Ms. Patterson had an obstructed view and was required to take more care than she did. [ 58 ] There are a number of facts that are not in issue in relation to this accident. Ms. Patterson had the right of way. There is no evidence that she was speeding. Ms.

Patterson was travelling at 60 kilometres an hour in what she thought was a 50 kilometre zone when in fact the speed limit is 60. No evidence that the injuries sustained by the plaintiff would have been less serious if Ms. Patterson had

travelled into the intersection more slowly. The point of impact was in the middle of the left through lane according to Officer Kasper.Ms. Forron described what she observed and has not been cross-examined. [59] It is clear from the evidentiary record that the hill in issue was beyond the intersection and it did not serve as an obstruction. [60] There is no evidence there actually was a car to Ms. Patterson’s left in the northbound left turn lane. The evidence of Ms.Patterson amounts to an admission that there was potentially a vehicle in the northbound left turn lane beside her. Ms.

Patterson indicatedthat she has searched her memory to understand how the accident happened. [61] I cannot conclude that a driver with a right of way has an obligation to proceed in a manner differently than Ms.

Patterson didbecause of a possibility of a car to her left in the northbound left hand turn lane. [62] I agree with the moving party that these circumstances are completely different from those before the court in Nash v.Sullivan, (ON CA), [1973] 1 O.R. (2d) 133, where there was evidence of a hazard; the through vehicle did not have agreen light; and traffic had been stopped. [63] The circumstances are also distinguishable from Sant where there was evidence from an independent witness and an expertfrom which the jury could infer that a reasonably prudent driver should have been aware of the hazard posed by a vehicle about to gothrough a red light.

In that case, the jury found the vehicle entering the intersection on a red light 95 percent liable for the accident andthe through driver on the green light 5 percent liable. [64] I agree with the moving party that these facts are very similar to those considered by the court in Mayers where the courtconcluded there was no evidence to suggest that the driver of the through vehicle was in any way negligent.

Glustein J., in Mayers atpara. 61 concluded: …there is no evidence that Khan ought to have anticipated that Mayers would make a turn in front of him, when Kahn either was drivingthrough a green light or came up on the intersection if it had just changed to yellow as he entered into the intersection. There is noevidence that Khan had sufficient notice of a yellow light or of Mayers turning in front of him so that he could have avoided theAccident. [65] I reach the same conclusion here. I am satisfied that the only reasonable inference is that the accident happened too quicklyfor Ms.

Patterson to avoid the collision, a conclusion consistent with the evidence of Ms. Patterson, Ms. Forron, and indeed thedefendant Jordan Clarke. Putting it another way there is no evidence from which a jury could find that Ms. Patterson had any liability forthe accident. [66] I conclude that an order should go dismissing the action and cross-claim against the moving party. [67] At the hearing of this motion, counsel agreed that the successful party would receive all-inclusive costs in the amount of$12,000. As a result, the moving party is awarded those costs payable by the responding parties. “Justice L. C.

Leitch” Justice L. C. Leitch Released: August 8, 2017 CITATION: Leis v. Clarke, 2017 ONSC 4360 COURT FILE NO.: 2106/13 DATE: 2017/08/08

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Lauren Leis Plaintiff – and – Jordan Clarke, Julie Clarke, and Amy L. Patterson Defendants

SUMMARY JUDGMENT MOTION LEITCH J. Released: August 8, 2017