Fridays With Rogers Partners

At our weekly firm meeting, Matthew Umbrio addressed the Ontario Superior Court decision’s in Moxam v. Anderson, 2020 ONSC 4173. This action arose from two motor vehicle accidents. The first occurred on April 12, 2012, and the second on March 27, 2013. The plaintiff, Moxam, was a passenger in each of the subject accidents. With respect to the first collision, the moving party defendant, Gray, was the driver of the vehicle carrying Moxam. The Gray vehicle collided with the Anderson vehicle. The Anderson defendant had failed to obey a stop sign before the collision.

Gray brought a summary judgment motion to have the claims against him dismissed. The plaintiff took no position on the motion and did not participate. The Anderson defendant opposed the motion, as they had commenced a cross-claim against Gray pleading that he had been speeding.

It was an undisputed fact that Gray had the right of way and that Anderson had been primarily responsible for the accident. Anderson had already pleaded guilty to a Highway Traffic Act offence for failing to stop at a stop sign. Anderson’ position was that there was a genuine issue requiring a trial on the question of whether Gray bears some responsibility, and, if so, to what degree.

Justice George found that Gray had removed his foot from the accelerator as he approached the intersection. He did so because he saw the Anderson vehicle approaching. Gray’s evidence was that he felt it was not necessary to do anything further since the Gray vehicle and the Anderson vehicle were both a fair distance from the intersection.

Justice George also reviewed the evidence of the other passengers and concluded that Gray was not distracted, had not driven in a problematic fashion, and had applied his brakes to try to avoid the collision as he got closer to the intersection. Visibility was also not a factor.

In contrast to the evidence of Gray and his passengers, Anderson’s police statement included that he had stopped 30 feet before the stop sign to relieve himself, then proceed to, and stopped at, the stop sign. He then stated he entered the intersection at about five miles per hour and was struck. Justice George also noted that Anderson’s discovery transcript contained nothing of note as Anderson had simply stated he could not remember anything from the day at all.

After reviewing the Anderson evidence, Justice George completely rejected Anderson’s argument. He held that Anderson’s evidence contradicts every other piece of evidence and cannot have any weight assigned to it.

Justice George also reviewed case law in coming to his decision. Gray cited Brownlee v Harmon, a 1952 Supreme Court of Canada decision which stated that if the driver in the servient position proceeds through an intersection in complete disregard of his statutory duty to yield the right of way and a collision results, that driver must prove that the driver with the right of way had become aware, or should have been aware, of the at fault driver’s disregard of the law and avoided the accident.

Gray also cited Toronto Railway v King, a 1908 Ontario Judicial Committee of the Privy Council decision, which stood for the common sense principle that each driver should proceed more or less on the assumption that the drivers of other vehicles will observe the appropriate rules of the road. Although these decisions do not absolve the dominant driver of responsibility, they are a useful starting point and a finding of liability against the dominant driver must proceed from same.

After reviewing the above, Justice George felt it appropriate to use the enhanced powers and find in favour of Gray. A ruling that a dominant driver had a reasonable opportunity to avoid the collision and failed to do so, resulting in liability also being apportioned to that driver, is a valid ruling, but not one supported by the record in this case. The fact was that Gray could not have avoided the collision and a reasonable driver would have acted the same way.

Despite the above, it was noted that there are features of this decision that weigh against the granting of partial summary judgment. Specifically, facts and issues on this motion are identical to those which will be decided at trial, which in most cases would run the risk of inconsistent verdicts and findings. Further, granting this motion would not eliminate or materially shorten the trial’s length.

However, Justice George felt that the test to grant summary judgment is clear – if there is no genuine issue requiring trial, the motion should be granted. Weighing the evidence against the underlying objectives of summary judgment still favoured granting the motion in this case.

As a result, the motion was granted and Gray was dismissed.