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January 2019

Summary Judgment Motions in MVA Cases

A Viable Option for Defendants

Theomarcus Giannou
Theomarcus Giannou,
Law Student

By Theomarcus Giannou

In Pavlovic v. Vankar, 2019 ONSC 61, Justice Nightingale of the Ontario Superior Court of Justice granted a summary judgment motion in favour of the defendant Pavlovic, dismissing the plaintiff's action and the cross-claim of the co-defendants as against him despite conflicting evidence on a key liability issue.

Background

The action arose from a motor vehicle accident. The defendant Pavlovic was the driver of a motor vehicle with his spouse, who was the plaintiff in the action, as the front-seated passenger. A collision took place between his vehicle and one operated by the defendant Vankar. The plaintiff spouse sustained personal injuries as a result of the collision. These would essentially be the only agreed upon facts before the Motion Judge.

The most contentious issue was the location of the collision. Vankar's position was that the collision took place in the right westbound lane of Highway 403 as the plaintiff's vehicle was merging into it. Accordingly, the defendant Pavlovic was at least partially liable for the plaintiff's injuries.

The defendant Pavlovic brought this motion for summary judgement to dismiss the plaintiff's action and the cross-claim of the co-defendants Vankar against him. Both parties brought forth evidence in support of their respective positions including experts and witnesses that had conflicting opinions as to the location and nature of the collision.

Decision

The Motion Judge outlined the process for summary judgment motions:

  1. The onus is on the defendant to establish on a balance of probabilities that there is no genuine issue requiring a trial
  2. The court should determine this based only on the evidence before the Court
  3. There will be no genuine issue requiring a trial if the summary judgement process provides the motion judge with the evidence required to make findings of fact, apply the law to the facts fairly and justly adjudicate the dispute in a more expeditious and less expensive proportionate procedure to achieve a just result.

The onus is on the defendant to establish on a balance of probabilities that there is no genuine issue requiring a trial

The Court found that the conflicting evidence was insufficient to find that there was no genuine issue requiring a trial. However, the Motion Judge opted to exercise his discretion to weigh the evidence and draw reasonable inferences to determine whether the need for a trial could be avoided. Interestingly, the Motion Judge found that the opportunity to assess a witness's demeanor was of limited value in this case, especially given that the witnesses and experts have already been subject to a detailed cross-examination. It was also highly unlikely that more evidence would become available at trial on the issue of liability. Therefore, the need for trial could be avoided through careful evaluation and weighing of the evidence.

The Motion Judge was able to wade through the conflicting evidence and determine what was to be discounted or accepted. He reached the conclusion that the evidence provided full corroboration and support for the defendant Pavlovic's version of the accident and also that of the plaintiff who witnessed the collision.

The summary judgment motion was granted and the claim and cross-claim were dismissed as against Pavlovic.

Implications Going Forward

This decision demonstrates that there is an appetite for shortening trials or disposing of the need for one altogether.

Conventionally, a summary judgment motion would not be the forum to dispose of a case such as this with significant conflicting evidence. However, conventional thinking is bound to produce conventional results.

This decision, in our view, kicks the door wide open to pursue more aggressive strategies on behalf of defendants and their insurers who are looking to avoid the delay and costs of a full trial.


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