Summary Judgment and the Agony of the Moment
In Morales v. Laguardia, 2024 ONCA 869, affirming 2024 ONSC 1533, the Ontario Court of Appeal upheld a summary judgment motion based on a no liability position taken in a motor vehicle accident. Justices MacPherson, Roberts and Wilson penned a strong endorsement of a finding that there was no genuine issue for trial. Beyond determining that there was no palpable and overriding error, the honourable justices explicitly agreed with the trial judge’s reasoning in finding that no reasonable jury, properly instructed, could find negligence against the specific defendant driver.
Summary Judgment
Summary judgment allows for the dismissal of a matter by the court, pursuant to rule 20.04 of the Rules of Civil Procedure if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. The rules permit judges hearing summary judgment motions to weigh evidence, credibility and draw any reasonable inference in making their decision.
It is also important to note that a judge does not need to conduct a mini-trial and does not need to have every piece of evidence that may be available at a trial, but the judge must be confident that they can fairly and justly resolve the material issues.[1]
Brief Recounting of the Facts
The action arises from a terrible motor vehicle collision that occurred in June of 2017. The plaintiffs were passengers (and the family of the passengers, pursuant to the Family Law Act) in a vehicle being driven by Mr. Ramses Laguardia (a defendant). The plaintiffs and Mr. Laguardia were leaving a party when all three fell asleep with their car in motion, resulting in a head-on collision at a high rate of speed with the moving defendant, Phillip Franchetto.
When the accident occurred, Mr. Franchetto was driving his wife to a rehabilitation clinic. Although he was travelling 9 km/h above the speed limit, he was awake and alert. As he drove he noticed the car ahead of him swerve onto the shoulder, then immediately identified the vehicle in the oncoming lane.
Mr. Franchetto attempted to swerve onto the shoulder as well, but then noticed that the other vehicle continued heading straight towards his car. He attempted to brake and swerve in the other direction, but was not able to avoid the collision. Mr. Franchetto was the only witness to the accident, as the plaintiffs and the co-defendant (Mr. Laguardia) were all asleep.
The plaintiffs provided an expert report which stated that Mr. Franchetto made a series of errors that could constitute negligence. The experts opined that, had Mr. Franchetto been travelling at the speed limit and had he not reapplied the accelerator, the severity of the collision could have been lessened, or the collision could have been avoided. The plaintiffs’ experts also alleged that Mr. Franchetto failed to apply the brakes immediately, which would have lessened or avoided the collision.
Degree of Negligence and the Standard of Care
In the hearing of the motion, Justice Akazaki heard submissions that, if 1% negligence could be found against Mr. Franchetto, then a triable issue existed. Justice Akazi specifically noted that this is incorrect. Justice Akazaki determined that the “1% rule,” as it is known, is not about a finding of 1% negligence, but is about apportionment of found negligence between several tortfeasors found fully liable to the plaintiff. Justice Akazaki noted that apportionment is a finding of fact not a finding of law. The question is not whether there could be 1% of negligence, but whether or not Mr. Franchetto breached the standard of care expected of him as a driver.
A further important factor raised in this motion was whether a breach of the speed limit necessarily equates to a breach of the standard of care. In this matter, Mr. Franchetto was travelling 9 km/h above the speed limit immediately prior to the accident. Justice Akazaki found that an inconsequential violation of a speed limit should not subject a violator to civil liability, and there was no evidence as to whether 89 km/h was an unsafe speed for the roadway that was being travelled on. Without evidence to the contrary, Justice Akazaki found that the breach in the speed limit was not a breach of the standard of care.
Agony of the Moment and Expert Evidence
Expert evidence in this matter showed that Mr. Franchetto did not react in the completely optimal way to avoid the collision. However, Justice Akazki identified that Mr. Franchetto was faced with an oncoming vehicle travelling at over 100 km/h, and determined that this was not a typical scenario faced when ordinarily driving, but that it rose to the threshold of a situation of emergency.
As noted by the Supreme Court of Canada in Gill v Canadian Pacific Railway:[2]
It is trite law that faced with a sudden emergency for the creation of which the driver is not responsible he cannot be held to a standard of conduct which one sitting in the calmness of a courtroom later might determine was the best course.
When considering the doctrine of emergency, Justice Akazaki noted that the agony of the moment is a phenomenon of human experience and neurology that creates a range of expectations, especially where quick decisions must be made to unexpected circumstances, all of which may be found to be within the standard of care, even if they are not optimal as suggested by expert evidence using computer models and the inherent value of hindsight.
Justice Akazaki concluded that:[3]
Whether Franchetto had two seconds or five, he reacted immediately. If he took the most obviously safe course but not the most correct one, according to the plaintiffs’ forensic experts, he did not have the time to weigh up his options.
Summary Judgement
Summary judgment was found by the motion judge to be reasonable. Justice Akazaki concluded that Mr. Franchetto was simply in the wrong place at the wrong time, and that he was not a cause to the plaintiffs’ injuries. The actions and all crossclaims against Mr. Franchetto were dismissed.
Appeal
The plaintiffs appealed the decision of Justice Akazaki to the Ontario Court of Appeal, alleging that there was a palpable and overriding error made in the determination that there was no genuine issue requiring a trial.
As noted above, Justices MacPherson, Roberts and Wilson dismissed the appeal, and penned a decision explicitly agreeing with the determinations of Justice Akazaki.
In the appeal decision, it was noted that it was open to the motion judge to accept certain expert evidence on the standard of care over other evidence, even where the experts were conflicted. They explicitly referred to Justice Akazaki’s reasoning as clear and “entirely persuasive”.
Most importantly, the Court of Appeal endorsed Justice Akazaki’s application of the agony of the moment doctrine to determine that the split second judgement of Mr. Franchetto was reasonable, and did not breach the standard of care.
Takeaways
This case, particularly the decision of Justice Akazaki, serves as a wonderful review of the law and the application of the agony of the moment doctrine, and highlights the range of reasonable courses of action that may be taken in a sudden or emergency situation. Further, Justice Akazaki provides an in-depth review of the different types of causation, which is not fully addressed in this blog post.
Finally it is important to note the impact of speed limits on the analysis. The breach of a speed limit is a statutory violation, but that does not make it a negligent act. Almost all drivers are guilty of minor speeding violations every day. Even where a speeding violation actually has an impact on matters such as reaction time, the purpose of the speed limit (for example, is the speed limit in place on that road for road safety purposes or for traffic calming purposes), the actual shape of the road, the extent of the breach of the speed limit and whether the breach actually contributed to the accident must be considered in order to determine the negligence of the driver.
[1] Hryniak v. Mauldin, 2014 SCC 7, [2014]
[2] Gill v. Canadian Pacific Railway, 1973 CanLII 2 (SCC), [1973] S.C.R. 654 at 665
[3] Morales et al. v. Laguardia et al., 2024 ONSC 1533 at para 66.