



COURT OF APPEAL FOR ONTARIO

CITATION: Mayers v. Khan, 2017 ONCA 524

DATE: 20170622

DOCKET: C63331

Epstein, Hourigan and Paciocco JJ.A.

BETWEEN

Victola Mayers

Plaintiff (Appellant)

and

Ammar Khan and Brinks Canada Ltd.

Defendants (Respondents)

Bryan Fromstein and A. Fabio Longo, for the appellant

Gordon McKee and Daniel Styler, for the respondents

Heard and released orally: June 20, 2017

On appeal from the order of Justice Benjamin T. Glustein
    of the Superior Court of Justice, dated January 13, 2017, with reasons reported
    at 2017 ONSC 200.

REASONS FOR DECISION

[1]

The

a
pp
e
l
l
a
nt,

Vi
c
to
l
a

M
a
y
e
rs,

a
p
p
ea
ls

the

mo
t
ion

jud
g
e
s

o
r
d
e
r

dis
m
is
s
ing

th
i
s

mo
t
or
    v
e
hicle

n
e
g
l
i
g
e
n
c
e

c
laim

on

a

sum
m
a
r
y
    ju
d
g
me
n
t

mo
t
ion.

The

mo
t
ion

jud
g
e

a
c
ce
pted

e
vide
n
c
e,
    including that of an independent witness, that

Ms. Mayers made

a le
f
t
-
h
a
nd

turn,

f
a
c
i
n
g

a

y
e
l
l
o
w

l
i
g
ht,

in

f
r
ont
o
f

an

on
c
om
i
n
g
truck, owned by the respondent,
B
rink

s
    C
a
n
a
da

L
td.,

and driven by

the

r
e
s
p
ond
e
nt,

Ammar

Kh
a
n.
    The motion judge also accepted evidence that Mr.

Kh
a
n

did

not
g
o

thro
u
g
h

a
r
e
d

l
i
g
ht

a
s

Ms.
    Mayers
a
l
le
g
e
d

i
n

h
e
r

c
laim.
The motion judge further
f
o
und

that

the
r
e
w
a
s

no
e
viden
c
e

that

Mr.

Kh
a
n

ou
g
ht

to

h
a
ve

a
nt
i
c
ipat
e
d

that

Ms. Mayers would turn

in

f
r
ont

of

him

or
    that

he

c
ould

h
a
ve

a
voi
d
e
d

the

acc
ident.


[2]

On the basis of these findings the mo
t
ion

jud
g
e

c
on
c
l
u
d
e
d

that

the
r
e

w
a
s

no
g
e
nui
n
e

is
s
ue
re
quiri
n
g
    a

trial that M
r
. Kh
a
n w
a
s in any way
responsible
f
o
r the

a
cc
ident.

[3]

Ms. Mayers a
r
g
u
e
s
    that

the mot
i
on

jud
g
e
re
v
e
rs
e
d
    the
e
videntia
r
y

bur
d
e
n
    on the mot
i
on,
a
nd

e
r
r
e
d

in

g
r
a
nt
i
ng

s
u
m
m
a
r
y
    ju
d
g
ment.

She

a
lso

a
r
g
u
e
s

that

the

mo
t
i
on

jud
g
e

should
    h
a
ve

o
rd
e
r
e
d

a

m
i
n
i
-
trial

ins
t
ea
d

o
f

g
r
a
nt
i
ng

sum
m
a
r
y
    ju
d
g
m
e
nt

a
n
d

made

p
a
lpable

a
nd ov
e
r
r
id
i
n
g
factual
e
r
ro
r
s.

[4]

I
n our view, the

mo
t
ion

judge

c
o
r
r
e
c
t
l
y

identified and applied the b
u
rd
e
n

o
f

p
roof

a
ppl
ic
a
ble
    on

a

sum
m
a
r
y ju
d
g
m
e
nt

mo
t
ion. The motion judge stated the shifting
    onus on motions for summary judgment, at para. 20:

The moving party bears the evidentiary burden of demonstrating
    that there is no genuine issue requiring a trial. Only after the moving party
    has discharged its evidentiary burden of proving that there is no genuine issue
    requiring a trial for its resolution does the burden shift to the responding
    party to prove that its claim has a real chance of success (
Sanzone v.
    Schechter
, 2016 ONCA 566 (Ont. C.A.), at para. 30).

[5]

The motion judge rejected Ms.
    Mayers' initial theory for why a trial was necessary  that she was turning on
    an "advance green light" and that Mr. Khan ran a red light. This
    conclusion was not appealed. Ms. Mayers advanced a secondary theory that a
    trial was necessary to determine whether Mr. Khan was contributorily negligent
    for failing to take reasonable precautions to avoid the accident.
Ms. Mayers submits that the onus was on the
    respondents to lead expert evidence that Mr. Khan could have done nothing to
    avoid the accident.

[6]

We disagree. Having concluded that
    the respondents had demonstrated that there was no genuine issue requiring a
    trial, Ms. Mayers was obliged to lead evidence to satisfy the burden that had
    shifted to her to demonstrate that Mr. Khan contributed to the accident such as
    by not driving more slowly, given the conditions. This she did not do. It
    follows that the motion judge did not err in the identification or application
    of the burden of proof. Rather, Ms. Mayers did not meet the onus that shifted
    to her, in the circumstances of this case.

[7]

As to the remaining arguments, we are
    satisfied that the mo
t
ion

jud
g
e
s

c
o
n
c
lus
i
ons

a
re

foun
de
d

u
p
on

his

c
onsid
e
r
a
t
i
on
a
nd w
e
i
g
hi
n
g

of

the

e
vide
n
c
e

p
r
ovid
e
d

b
y

the

th
r
e
e

witness
e
s

to

the

acc
i
d
e
n
t

a
nd

upon

a n
u
mber of findin
g
s

of

f
ac
t

a
nd

m
i
x
e
d

f
a
c
t

a
nd

la
w
.
    Ms. Mayers

h
a
s

not

d
e
monstr
a
ted

a
n
y

e
r
r
o
r

in

p
r
inciple,

or

a
n
y p
a
lpa
b
le

or

ov
e
r
r
id
i
n
g

e
r
ro
r
,
    that

would

provide

a

b
a
sis

for

r
e
je
c
t
i
n
g
    the
motion judges appreciation of the
    evidence and his
fin
d
in
g
s of fact based on that evidence
.

[8]

The motion
    judges
re
a
soning r
e
v
ea
ls no
r
e
v
e
rsible
e
r
r
o
r. The appeal is therefore dismissed.

[9]

Costs are awarded to the
    respondents in the amount of $10,000, plus applicable HST, as agreed upon by
    the parties.

Gloria Epstein J.A.

C.W. Hourigan J.A.

David M. Paciocco J.A.


