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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:
The onus is on the defendant to
establish on a balance of probabilities that there is no genuine
issue requiring a trial
The court should determine this based
only on the evidence before the Court
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 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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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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