



COURT OF APPEAL FOR ONTARIO

CITATION: Martin-Vandenhende
    v. Myslik, 2015 ONCA 806

DATE: 20151124

DOCKET: C58650

MacPherson, Epstein and Roberts JJ.A.

BETWEEN

Janice Martin-Vandenhende

Plaintiff (Appellant)

and

Peter Myslik and Edward Myslik

Defendants (Respondents)

Nicolas M. Rouleau, for the appellant

David M. Miller, for the respondents

Heard: June 9, 2015

On appeal from the judgment of Justice Terrence L.J.
    Patterson of the Superior Court of Justice, dated March 19, 2014.

Epstein J.A.:

OVERVIEW

[1]

Late in the afternoon on New Years Eve 2001, the
    appellant, Janice Martin-Vandenhende, left her place of work and drove her Toyota
    Camry south on Erie Street, a two-lane roadway in the town of Ridgetown.  The
    respondents, Peter Myslik and his father, Edward Myslik, were behind her in a GM
    pickup truck.  Peter Myslik was driving.  His father was in the passenger seat.

[2]

Ms. Martin-Vandenhende realized she had left something
    behind.  She decided to turn left into a private driveway to turn around and go
    back to work to retrieve the item.  As she started the turn, the Myslik vehicle
    came up from behind and collided with the left side of the back of her car.

[3]

Ms. Martin-Vandenhende was injured and taken to
    hospital.  No charges were laid.

[4]

The amount of damages has been settled. 
    Liability remains in issue.

[5]

During the 14 years since the accident, two
    trials have taken place to determine responsibility for the collision.  The
    first trial judge, Thomas J., held that Peter Myslik was 100 percent at fault. The
    Mysliks appealed.  The appeal was allowed and a new trial ordered. The second
    trial judge, Patterson J., apportioned 50 percent liability to both parties.

[6]

Ms. Martin-Vandenhende appeals.  She asks this
    court to overturn the trial judges finding of contributory negligence against
    her on the grounds that she neither breached the standard of care nor caused
    the accident.   Alternatively, Ms. Martin-Vandenhende seeks to reduce her
    degree of responsibility to between five to ten percent.

[7]

Based on the following analysis, I would allow
    the appeal.  I would set aside the judgment and hold Peter Myslik 90 percent
    responsible for the collision and Ms. Martin-Vandenhende 10 percent responsible.

THE CIRCUMSTANCES SURROUNDING THE COLLISION

[8]

The posted speed limit on Erie Street where the
    accident took place was 60 k.p.h.  Each of the two paved lanes was just over 11
    feet wide. There was evidence that at the location where the collision took
    place, the gravel shoulder was approximately two to three feet wide and sloped
    sharply away from the road. The centre line was a single solid yellow line.

[9]

Driving conditions were not good. It was snowing
    heavily on the day of the accident.  The roads were slippery. Snow was blowing,
    impairing visibility. The centre line could not be seen, although the shoulder
    remained discernible.

[10]

The evidence differed as to the circumstances
    surrounding the collision.

[11]

Ms. Martin-Vandenhendes evidence was that due
    to the weather and road conditions, she was traveling below the speed limit. Since
    she could not see the centre line, she was driving on the right side of the lane
    so she could use the shoulder to help her determine her position on the road.

[12]

Ms. Martin-Vandenhende described her actions after
    identifying the driveway where she could turn around, as follows.

[13]

She applied her brakes, reduced her speed to
    approximately 20 to 30 k.p.h., and activated her left-turn signal approximately
    75 feet before the accident site.  She then started to make a gradual left turn.
    Ms. Martin-Vandenhende testified that she could not recall whether, before the
    impact, she looked in her mirrors or checked her blind spot to determine whether
    there was any traffic approaching from behind.  Her evidence was that because
    of the weather conditions, she was focusing on the driveway and what was ahead.

[14]

According to Ms. Martin-Vandenhende, as she
    angled her car left toward the centre line, the back of her car was hit by
    another vehicle.  When the accident took place, the front of her car was near,
    but not over, the centre line of Erie Street. The impact of the collision was
    severe.

[15]

Peter Myslik testified that as he was driving
    southbound on Erie Street, he saw a Camry about 200 to 300 yards ahead.  He was
    driving about 50 to 60 k.p.h. and was catching up to it.

[16]

According to the Mysliks, when the two vehicles were
    about 100 yards apart, the driver of the Camry signaled right and moved to the right
    shoulder. The Camry slowed down to the point of almost stopping.

[17]

Peter Myslik testified that based on the
    movement of the Camry, he concluded that the driver intended to let him pass. 
    He therefore decided to go out and around the car, to the left. However, when he
    was about 60 to 90 feet behind the Camry, and while the right turn signal of
    the car remained activated, the driver of the Camry turned left, directly into
    his path.

[18]

Peter Myslik braked hard and attempted to steer the
    pickup truck toward the right but was unable to avoid a collision. The front left
    corner of the pickup hit the back left corner of the Camry. The Camry spun
    around and landed in the ditch on the east side of the roadway.

[19]

Peter Myslik agreed that he did nothing to warn the
    driver ahead that he intended to pass, such as honk his horn or activate his
    left-turn signal.

[20]

Both Peter and Edward Myslik testified that before the collision,
    the farthest left the pickup truck traveled in the southbound lane was that its
    left wheels were somewhere close to the centre line.

REASONS FOR JUDGMENT

[21]

In his brief reasons, the trial judge first reviewed
    the parties evidence concerning the circumstances leading up to the collision.

[22]

He acknowledged the testimony of accident
    reconstruction and perception reaction time experts, but found, at para. 21,
    that they could not assist in determining how the accident took place having
    regard to the conflicting evidence of the parties.

[23]

The trial judge then relied on
Beaumont v.
    Ruddy
, [1932] O.R. 441 (C.A.), in which this court observed that
    generally, in a rear-end collision, the rear driver is at fault and must prove
    that his or her negligence did not cause the collision.

[24]

The trial judge also noted two sections of the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8 (the 
HTA
): s. 158.1, which
    makes it an offence to follow another vehicle too closely, and s. 142(1), which
    provides that:

The driver or operator of a vehicle upon a highway before
    turning to the left or right at any intersection or into a private road or
    driveway or from one lane for traffic to another lane for traffic or to leave
    the roadway shall first see that the movement can be made in safety, and if the
    operation of any other vehicle may be affected by the movement shall give a
    signal plainly visible to the driver or operator of the other vehicle of the
    intention to make the movement.

[25]

In the following four paragraphs, the trial
    judge made the findings he considered relevant and determined that Peter Myslik
    and Ms. Martin-Vandenhende were each 50 percent responsible for the collision:

[25] I am not sure whether [Ms. Martin-Vandenhende] signaled to
    turn right but if I accept that she signaled to turn left, in my opinion she
    did so too late, having regard to the weather conditions to turn left safely.
    This is especially so because she did not check to see if anyone was
    approaching from the rear.

[26] I acknowledge that there are two competing issues. Peter
    [Myslik] is required to explain that he was not negligent when he ran into the
    rear of [Ms. Martin-Vandenhende] and [Ms. Martin-Vandenhende] is required to
    explain that she made a left turn safely.

[27] In my opinion both parties are equally responsible for the
    accident with 50 percent liability on each party. Peter Myslik should have been
    in control of his vehicle and because of the snow conditions should have been
    driving less than the speed limit. Further he should have been more cautious
    approaching a vehicle going more slowly than he on the road ahead. As a result
    he is 50 percent negligent regarding the accident.

[28] In regard to Ms. Martin-Vandenhende she slowed up
    significantly below what was less than highway speed on a snowy day, signaled
    too late to make a left turn and did not check in her rear-view mirror before
    she made a left turn to see that she could do so safely. As a result she is 50
    percent negligent regarding the accident.

ISSUES

[26]

The Mysliks have not cross-appealed the trial
    judges finding that Peter Myslik was 50 percent responsible for the accident. 
    The issues in this appeal are therefore as follows:

1.

Did the trial judge err in finding Ms. Martin-Vandenhende negligent?

2.

If Ms. Martin-Vandenhende was negligent, did the trial judge err in concluding
    that her negligence was causally connected to the accident and in assigning 50
    percent of the responsibility to her?

3.

If the trial judge erred in concluding that Ms. Martin-Vandenhendes
    negligence was causally connected to the accident and in assigning 50 percent
    of the responsibility to her, what is the appropriate remedy?

ANALYSIS

1.

Did the trial judge err in finding Ms.
    Martin-Vandenhende negligent?

[27]

At trial, the Mysliks relied on two arguments in
    support of their position that Ms. Martin-Vandenhende was negligent and bore
    some of the responsibility for the collision.

The Primary Argument  Improper Lane Change

[28]

According to the Mysliks, the evidence
    demonstrated that before starting her turn, Ms. Martin-Vandenhende veered right
    and pulled onto the right shoulder. Their primary argument was that by jumping
    back into the southbound lane, Ms. Martin-Vandenhende made an unsafe lane
    change.

[29]

I agree with Ms. Martin-Vandenhende that the
    trial judge did not hold her negligent based on this argument.  This argument
    depended on the trial judges finding that when Ms. Martin-Vandenhende veered
    to the right, she moved out of the southbound lane and onto the shoulder.  The
    trial judge made no such finding.

The Secondary Argument  Failure to Ensure the Left Turn Could
    be Made Safely

[30]

The Mysliks secondary argument was that the
    evidence supported a finding that Ms. Martin-Vandenhende did not check her
    mirrors or blind spot and did not activate her left-turn signal before she
    started to turn left.  By failing to determine that she could safely turn and to
    signal her intention to turn, Ms. Martin-Vandenhende breached s. 142(1) of the
HTA
and fell below the standard of care.

[31]

Paragraph 28 of the reasons, set out above, shows
    that this was the basis for the trial judges conclusion that that Ms.
    Martin-Vandenhende was negligent.

[32]

Ms. Martin-Vandenhendes position is that the
    trial judge erred in finding her liable based on a breach of s. 142(1) of the
HTA
because, in the circumstances, the section does not apply.

[33]

She argues that, based on the wording of the
    provision, s. 142(1) of the
HTA
makes it an offence for a driver to
    fail to check to see if he or she can turn in safety and signal an intention to
    turn, only in circumstances where the turn involves a lane change.  Here, says
    Ms. Martin-Vandenhende, the trial judge found there was no lane change.  She
    submits that the trial judge made this finding in para. 8 of his reasons, where
    he describes where she was hit, saying that [Ms. Martin-Vandenhende] was still
    in her lane but with her front drivers side tire at or about the centre line
    of the road.

[34]

In support of her position that s. 142(1) does
    not apply in these circumstances, Ms. Martin-Vandenhende relies on the decision
    in
Ottawa Brick v. Terra Cotta Co. Ltd. v. Marsh
, [1940] S.C.R. 392, a
    case in which the Supreme Court found a rear driver entirely responsible for negligently
    passing the car ahead  for failing to ensure that he could safely pass the car
    ahead.

[35]

Ms. Martin-Vandenhende points to one of several
    concurring opinions in
Ottawa Brick
, in which Hudson J. says, at p.
    405:

I do not think that the argument based on [the improper left
    turn provision of] the
Highway Traffic Act
applies to the facts here.
    The defendant [the car making the left turn] had not yet started to make the
    turn contemplated by the statute.
[1]

[36]

Ms. Martin-Vandenhende submits that this passage
    supports her argument that the requirements set out in s. 142(1) of the
HTA
only impose an obligation on drivers to check and to signal once they start a
    turn in which they actually change lanes.

[37]

For the following reasons, I do not agree.

[38]

I begin with the findings of fact upon which
    this argument depends.

[39]

The first is whether Ms. Martin-Vandenhende looked
    in her mirrors or checked her blind spot to see if her intended turn might
    interfere with another vehicle.

[40]

In my view, the trial judge erred when, at para.
    19, he said that Ms. Martin-Vandenhende testi[fied] that she did not check her
    rear-view mirror or side mirrors or her blind spot to see if there was any
    traffic coming from the rear prior to her making her left turn. The transcript
    indicates that Ms. Martin-Vandenhendes evidence was that she could not recall
    if she checked her mirrors before the impact.

[41]

That said, I am of the view that the record
    supports a finding that Ms.  Martin-Vandenhende did not check to see if she
    could turn left safely before initiating her turn.  If she had, she would have
    seen the Myslik vehicle, a sizable truck, a short distance behind.

[42]

The second requirement of s. 142(1) of the
HTA
is that a driver, before turning, should signal his or her intention if
    another driver may be affected by the movement. There was a conflict in the
    evidence as to whether Ms. Martin-Vandenhende activated her left-turn signal. She
    testified that she did; the Mysliks evidence was that they saw no such
    signal.  The trial judge made a finding on this issue.  As can be seen from
    para. 28, he found that she did signal but that she signaled too late to make
    a left turn.

[43]

It is clear that Ms. Martin-Vandenhende did not comply
    with the requirements of s. 142(1) of the
HTA
as before turning she
    did not check that she could turn safely.  But did the requirements of the
    section apply to her given that she remained in the southbound lane at all
    times?

[44]

In my view, they did.  In my view, s. 142(1)
    means what it says.  Before turning, a driver must check to see if the turn can
    be done in safety and signal the turn if another vehicle may be affected by the
    movement. I see nothing in the wording of the section that supports the
    limitation Ms. Martin-Vandenhende suggests  that the section only applies in
    cases where the offending driver actually changes lanes.

[45]

I do not read the
Ottawa Brick
decision
    as standing for the proposition advanced by Ms. Martin-Vandenhende. The facts
    in that case were very different.  Among other things, the defendant (the
    driver of the car making the left turn) clearly signaled his intention to
    turn.  Significantly, in the passage set out above upon which Ms.
    Martin-Vandenhende relies, Hudson J. found that the comparable section of the
Highway
    Traffic Act
, R.S.O. 1937, c. 288, did not apply, not on the basis of a
    limited application of the provision, but on the basis of a finding that the
    defendant 
had not yet started to make the turn
contemplated
    by the statute (emphasis added).

[46]

Here, there was a finding that Ms.
    Martin-Vandenhende had started her left turn when the accident took place.  I
    refer to para. 15, where the trial judge held that Peter Myslik braked hard
    [w]hen [he] became aware that [Ms. Martin-Vandenhende] was turning left in
    front of him.  He concluded, at para. 28, that Ms. Martin-Vandenhende did not
    check in her rear view mirror before she made a left turn to see that she could
    do so safely.

[47]

The evidence, including evidence from Ms.
    Martin-Vandenhende herself, supported this finding.  When asked to describe the
    position of her car at the time the accident took place, she responded as
    follows:

Q.      And in terms of your left turn, what, your turn to go
    left into the driveway, what stage were you at in making your left turn?

A.      I was just doing a gradual turn so like an  you mean
    on an angle?

Q.      Yeah.

A.      What angle, probably 30-40.

[48]

In cross-examination, she stated that [she] was
    getting prepared to turn. [She] had not turned at all yet. She further
    clarified:

Q.      All right, so I thought you said you were making a
    gradual turn?

A.      Thats what I meant by preparing to turn. I was making
    a gradual turn.

[49]

The record supports the findings that Ms. Martin-Vandenhende
    had started her turn to the left when the accident took place and that she did
    not check her mirrors or blind spot before turning.  It follows that she violated
    s. 142(1) of the
HTA
.  Ms. Martin-Vandenhende failed to ensure that
    she could turn safely before initiating her turn.  Her conduct fell below the
    standard of care.

[50]

I would therefore not give effect to Ms. Martin-Vandenhendes
    argument that the trial judge erred in finding her negligent based on her
    failure to comply with s. 142(1) of the
HTA
.

2.

If Ms. Martin-Vandenhende was negligent, did the trial judge err in
    concluding that her negligence was causally connected to the accident and in
    assigning 50 percent of the responsibility to her?

[51]

I now turn to the issue of causation.

The Causal Connection Requirement

[52]

The Mysliks bear the burden of proving the
    defence of contributory negligence on a balance of probabilities:
Nance v.
    British Columbia Electric Railway
, [1951] 2 All E.R. 448 (J.C.P.C.). The
    contributory negligence complained of must be causally related to the
    plaintiffs loss:
Koeppel v. Colonial Coach Lines Ltd.
, [1933] S.C.R.
    529; see also
Zsoldos

v. Canadian Pacific Railway
, 2009 ONCA
    55, 93 O.R. (3d) 321, at para. 56, leave to appeal refused, 400 N.R. 384.

[53]

Ms. Martin-Vandenhende submits that the trial
    judge erred in failing to evaluate whether her negligence caused or contributed
    to her loss. She argues that, on this basis alone, the finding that she is
    partially responsible for the accident must be set aside.

The Standard of Review

[54]

Appellate courts rarely interfere with a trial
    judges apportionment of liability since the test is an exacting one:
Ault
    v. Canada (Attorney General
), 2011 ONCA 147, 274 O.A.C. 200, at para. 56. 
    As held by the Supreme Court in
Ingles v. Tutkaluk Construction Ltd
.,
    2000 SCC 12, [2000] 1 S.C.R. 298, at para. 57, the trial judges apportionment
    should not be interfered with unless there is demonstrable error in the trial
    judges appreciation of the facts or applicable legal principles (citations
    omitted).

The Trial Judges Failure to Consider
    Causation

[55]

I agree with Ms. Martin-Vandenhende that there
    is no indication that the trial judge considered whether there was any causal
    connection between her negligence and the collision. It was a demonstrable
    legal error to find Ms. Martin-Vandenhende contributorily negligent without considering
    the critical issue of causation.

[56]

It follows that the trial judges apportionment of
    liability is not entitled to the deference it would normally attract.

3.

If the trial judge erred in concluding that Ms. Martin-Vandenhendes
    negligence was causally connected to the accident and in assigning 50 percent
    of the responsibility to her, what is the appropriate remedy?

[57]

In the circumstances of this case, a new trial should
    be avoided if possible. The accident took place almost 14 years ago. Memories
    will be stale. And, the parties deserve to be protected from yet more cost,
    financial and otherwise.  Simply put, a new trial would clearly not be in the
    interests of justice.

[58]

In my view, on this record, yet another trial
    can be avoided. The record is sufficient to allow for a determination of
    causation and, if necessary, apportionment of liability.

[59]

There is a heavy onus on the driver of a vehicle
    attempting to pass another from the rear to excuse himself from liability for a
    collision with the car ahead:
Ottawa Brick
,
per
Hudson J.,
    at p. 405. The Court of Appeal for British Columbia clarified in
Samograd
    v. Collison
(1995), 17 B.C.L.R. (3d) 51, at para. 68, that this heavy onus
    is due to the passing vehicles greater opportunity to see the potential for a collision
    rather than due to a legal duty, statutory or otherwise.

[60]

It is clear that on the facts of this case, Peter
    Myslik must be held primarily responsible for the collision.  He was 16 years
    old at the time. The road was slippery and snow-covered.  Visibility was
    limited.  He was driving faster than he should have been given those
    conditions.

[61]

It was in these circumstances that Peter Myslik,
    an inexperienced driver, assumed that by veering slightly to the right and by
    slowing down, Ms. Martin-Vandenhende was inviting him to pass.

[62]

Peter Myslik was in the best position to judge
    the situation.  He misjudged it.  He played a major role in causing the
    accident.

[63]

That said, I have also concluded that Ms.
    Martin-Vandenhende was negligent in failing to check to see that she could turn
    left safely before doing so, and in failing to give Peter Myslik adequate warning
    of her intention to turn left.

[64]

But what are the consequences of her negligence?
    Did her negligence cause the collision?  If so, to what extent?

Did Ms. Martin-Vandenhendes Negligence Cause the Collision?

[65]

The basic test for determining causation is the
    but for test:
Clements v. (Litigation Guardian of) Clements
, 2012
    SCC 32, [2012] 2 S.C.R. 181, at para. 8.  The plaintiff must show that
    but for the defendants negligent act, the injury would not have occurred.

Only if special circumstances make it
    impossible to prove but for causation and if applying the test would offend
    basic notions of fairness and justice will the material contribution test
    apply:
Hanke v. Resurfice Corp.
, 2007 SCC 7, [2007] 1 S.C.R. 333, at
    paras. 24-25;
Clements
, at paras. 27-28.

[66]

Since there is no suggestion that the but for
    test could not be applied in this case, I will consider the issue whether Ms. Martin-Vandenhendes
    negligence caused the accident using a robust and common sense approach to this
    test repeatedly sanctioned by the Supreme Court in
Clements
, at paras.
    9, 28 and
    49.

[67]

My review of the evidence of the parties, the
    investigating officer, and the accident reconstruction experts, supports a
    conclusion that Ms. Martin-Vandenhendes failure to check her mirrors or her blind
    spot and her failure to give timely warning of her intention to turn had a
    causal connection to the accident.

[68]

Ms.  Martin-Vandenhende testified that she was
    not aware that the Myslik vehicle was following her.  When she left work and
    turned onto Erie Street, she did not see any oncoming vehicles. She was focused
    on what was ahead.  Significantly, she testified that when she began to angle
    her car to the left to turn into the driveway, she maintained her focus on what
    was ahead.  She did not consider what may be happening behind her.

[69]

Ms. Martin-Vandenhende admitted that if she had
    checked her mirrors, she would have seen the Myslik vehicle. But Ms.
    Martin-Vandenhende did not look.  She did not see the Myslik vehicle behind
    her.  She proceeded to turn left.  She signaled a left turn but did so too
    late.

[70]

Peter Myslik concluded that Ms.
    Martin-Vandenhende was inviting him to pass her. He saw that the Camry was
    turning left.  He saw the car veer to the left. Too late he saw the left-turn
    signal. Peter Myslik was committed to a course of action.  A collision was
    inevitable.  All he could do was try to limit the impact by turning sharply to
    the right.

[71]

These are the circumstances that caused the
    pickup truck to hit the left side of the back of the Camry.

[72]

The record supports the following conclusions. If
    Ms. Martin-Vandenhende had complied with her duty to check her mirrors before
    turning left, she may not have turned. If Ms. Martin-Vandenhende had activated
    her left-turn signal earlier, Peter Myslik may not have misread Ms.
    Martin-Vandenhendes actions. If Ms. Martin-Vandenhende had complied with her statutory
    obligations, the events of the late afternoon of December 31, 2001 may have
    been different.

[73]

I conclude that, by not checking her mirrors and
    not signaling in time to warn Peter Myslik of her intention to turn left until
    it was too late, Ms. Martin-Vandenhende was negligent, and her negligence
    contributed to her loss.

If Ms. Martin Vandenhendes Negligence Caused the Collision,
    what is her Degree of Responsibility?

[74]

The final issue is the apportionment of
    liability.

[75]

Apportionment of liability under s. 3 of the
Negligence
    Act
, R.S.O. 1990, c. N.1, is based on the degree to which each party
    departed from the standard of care and not the degree to which each partys
    fault caused the plaintiffs loss.

[76]

In all the circumstances, I find that Peter
    Myslik should be held 90 percent responsible for the accident and Ms.
    Martin-Vandenhende 10 percent responsible.

[77]

This apportionment is not the product of precise
    calculation.  It comes from a common sense consideration of the facts, including
    the fact that Peter Myslik was driving too fast for the road and weather
    conditions, that he decided to try to pass Ms. Martin-Vandenhende despite, at a
    minimum, being uncertain about her intentions, and that the collision occurred
    entirely within the southbound lane.  For Ms. Martin-Vandenhendes part, she
    contributed to her loss by failing to conduct herself in accordance with the
    requirements of s. 142(1) of the
HTA
, thereby depriving both drivers
    of the opportunity to alter their course.

[78]

In coming to the conclusion that these
    circumstances support an apportionment of liability that Peter Myslik is 90
    percent responsible for the accident and Ms. Martin-Vandenhende 10 percent
    responsible, I have employed the pragmatism endorsed by the Supreme Court in
Clements
. 
    In my view, this practical approach is particularly warranted in this case, having
    regard to the resources the parties have expended as they turned to the courts for
    assistance in resolving the issue of liability.

DISPOSITION

[79]

For these
reasons, I would allow the appeal,
    set aside the judgment below, and replace it with a judgment in accordance with
    these reasons.

[80]

I would award Ms. Martin-Vandenhende her costs
    of the appeal, fixed in the amount of $20,000, including disbursements and all
    applicable taxes.

Released: November 24, 2015 (JM)

Gloria
    Epstein J.A.

I
    agree J.C. MacPherson J.A.

I
    agree L.B. Roberts J.A.





[1]
There is no material difference in the provision referred to by Hudson J. and
    what is now s. 142(1) of the
HTA
.


