With this information, defence counsel argued that the issue of liability was straightforward and did not require a trial. Specifically, defence counsel argued that the collision was caused by the plaintiff, who made an improper left turn, and that the defendant should not be held liable for the plaintiff's bad driving. Defence counsel proposed that a summary judgment is "the more expeditious way to address this issue, which would alleviate the need for a protracted trial where damages would be hotly contested."2
Plaintiff's counsel opposed the motion on the basis that there was conflicting evidence and that it would be inappropriate for His Honour to summarily decide the case at that stage of litigation.
A party resisting a motion must “lead trump or risk losing.”
The Decision: Lead Trump or Risk Losing
Justice George relied upon the expanded powers found in the Rules of Civil Procedure to weigh evidence, assess credibility, and draw inferences. His Honour held that there was a sufficient evidentiary record available to find that the plaintiff was in an improper lane, and that the defendant met the standard of care expected of an ordinary, reasonable and prudent person in the same circumstances. His Honour determined that there was no genuine issue requiring trial.
In the decision, Justice George indicated that a party cannot, in opposition to summary judgment, simply allude to further evidence that might be available at trial.3 In this case, the plaintiff failed to lead sufficient evidence to support the allegations that the defendant was distracted and/or speeding. Both parties have a duty to tender all evidence they intend to use at trial. A party resisting a motion must “lead trump or risk losing.” His Honour put it simply, “allegations and denials do not suffice.”4
Justice George acknowledged that the defendant was faced with unforeseeable circumstances, and despite exercising reasonable care, she could not have avoided this collision. Further, His Honour indicated that plaintiff's counsel was incorrect in arguing that where there are conflicts in evidence, summary judgment is inappropriate.
Despite the rarity of successful summary judgment motions in motor vehicle accident cases, the facts in this case made summary judgment appropriate. The dismissal of the action at this stage of the litigation resulted in significant cost savings for the client; the client was able to avoid the legal costs of trial, and all of the associated costs that would have been incurred in challenging the plaintiff's claim for damages. While there can be no doubt that advancing a summary judgment motion can be an expensive proposition, the costs seem reasonable when compared with the costs of proceeding to trial for the appropriate cases.
This is McCague Borlack's second summary judgment win in the motor vehicle context over the last six months. Given the current backlog present in the courts, it seems like judges are more aware of the benefits of summary judgment motions on the appropriate files and so should be considered a viable strategy for files where liability appears clear.
1 2016 ONSC 7104.
2 Ibid at 5.
3 Ibid at 5.
4 Ibid at 34.