



COURT OF APPEAL FOR ONTARIO

CITATION: Chernet v. RBC General Insurance Company, 2017 ONCA
    337

DATE: 20170426

DOCKET: C62414

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

John Chernet

Plaintiff (Appellant)

and

RBC General Insurance Company, State Farm Insurance
    Company, Gregorio V. Galaites and Galites Gounell Zamora

Defendants (Respondents)

Martin Zatovkanuk, for the appellant

Cassandra Kleinman, for the respondents Gregorio V.
    Galaites and Galites Gounell Zamora

Ross Donald Rollo, for the respondent RBC General
    Insurance Company

Heard: April 21, 2017

On appeal from the order of Justice Thomas R. Lederer of
    the Superior Court of Justice, dated June 22, 2016, with reasons reported at 2016
    ONSC 4023.

By the Court:


[1]

We dismissed this appeal, with reasons to follow. These
    are our reasons.

[2]

The appellant appeals an order granting summary
    judgment dismissing his claim for damages arising from a motor vehicle
    accident.

[3]

He asserts that the motion judge erred: (a) by
    improperly taking judicial notice of scientific and technical matters in
    determining how the accident occurred and by failing to give the parties an
    opportunity to respond to his conclusions; (b) by misapprehending the evidence;
    and (c) by concluding that there was no genuine issue requiring a trial.

Standard of Review

[4]

The standard of review
    applicable to an appeal of summary judgment is
set out
in
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 81: "[w]hen the motion
    judge exercises her new fact-finding powers under Rule 20.04(2.1) and
    determines whether there is a genuine issue requiring a trial, this is a
    question of mixed fact and law." When there is no extricable error in
    principle, findings of mixed fact and law should not be overturned, absent
    palpable and overriding error:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at
    para. 36. We reject the appellants submission, for which he cited no
    authority, that less deference is owed to the motion judges findings of fact
    because they were based on a paper record.

Judicial Notice

[5]

The appellant impugns the motion judges
    conclusion that the physical evidence established that the accident was a
    straight-forward rear-end collision. The judge pointed to the absence of
    physical evidence that the respondents vehicle swerved or turned suddenly into
    the path of the appellants car, which would require the appellant to stop so
    quickly that a collision could not reasonably be avoided. There were no skid
    marks on the road and the collision damage was at the
centre
rear of the respondents car and not at the side.

[6]

The trial judge rejected the appellants
    argument that the respondents vehicle suddenly swerved in front of him and
    came to a sudden stop, making it impossible to avoid a collision. He said, at
    para. 7:

Geometry alone makes this plain. For the
    damage to occur, as it did, it would be necessary for the [respondents]
    vehicle to have swerved cleanly into the path of the car being driven by the
    plaintiff in time for it to straighten out the path it was travelling such that
    it was in place to be struck cleanly in the rear without any skid-marks or
    other sign of this kind of precipitous
manoeuvre
.

[7]

These conclusions must be considered in the
    context of the respondents evidence that they were stopped at the intersection
    waiting for the light to change when they were hit without warning in the rear
    by the appellants vehicle. They must also be considered in the context of the
    appellants conflicting evidence on discovery and in his affidavit on the
    motion. On discovery, the appellant said that he never saw any vehicle in front
    of him and he thought the collision was an explosion. In his affidavit on the
    motion, in contrast, he said that the respondents vehicle suddenly appeared in
    front of him and came to an abrupt stop.

[8]

We disagree that the motion judge improperly
    took judicial notice of matters that should have been the subject of expert
    evidence. He was simply drawing reasonable inferences from the uncontested
    facts. The damages to the respondents car were in the middle of the back and
    there was no damage to either car to suggest that the appellants car was
    sideswiped or cut off. Nor was there evidence of tire marks to suggest that one
    vehicle suddenly swerved in front of the other or that either vehicle came to a
    sudden stop. The inferences he drew were reasonable and refuted the appellants
    theory of how the accident occurred.

[9]

The motion judge was not required to advise the
    parties of the inferences he drew from these unchallenged facts. He was
    entitled to conclude that this evidence supported the evidence of the
    respondents and was inconsistent with the evidence of the appellant.

Misapprehension of the Evidence

[10]

The appellant acknowledges that as the
    rear-ending party in a rear-end collision, he bears the onus of satisfying the
    court that the collision did not arise due to his negligence:
Beaumont
    v. Ruddy
, [1932] O.R. 441 (C.A.), at p. 442.

[11]

The appellant asks us to review the evidence and
    to come to different conclusions than the motion judge. He asks us to draw the
    following conclusions: the accident occurred 150 meters from the intersection
    (and not a few car lengths from the intersection as the respondents deposed);
    the accident occurred because the respondents vehicle suddenly changed lanes
    and came to a sudden stop; there were discrepancies in the respondents
    evidence; the appellants evidence was credible; and the accident must have happened
    because the respondent driver was distracted and tired.

[12]

It is trite law that both parties on a summary
    judgment motion are required to put their best foot forward. Summary judgment
    motions are decided by evidence of the facts and by inferences drawn from those
    facts. Not by speculation about the facts.

[13]

This motion was decided based in part on the
    failure of the appellant to give any coherent explanation of how the accident
    actually happened. No affidavit was filed by the passenger in the appellants
    car, who admitted on discovery that he never saw how the accident happened. The
    appellant, who did not adduce evidence from the police officer who investigated
    the accident, asks us to interpret the unproven and hearsay accident report in
    a manner that is speculative at best.

[14]

The appellant, as we have noted, gave
    conflicting explanations for how the accident occurred. His assertion that the
    respondents suddenly swerved in front of him and stopped was inconsistent with
    the physical evidence and with the respondents evidence, which the trial judge
    accepted. We do not agree that there was inconsistency in the respondents
    evidence or that the respondent driver admitted to having changed lanes prior
    to the accident. Nor do we accept the appellants pure speculation about how
    the accident might have happened.

Conclusion

[15]

As we have explained, the appellant has failed
    to demonstrate either an extricable error in principle or a palpable and
    overriding error in the motion judges assessment of the evidence. The motion
    judges conclusion that there was no genuine issue for trial is entitled to
    deference.

[16]

In the result, the appeal is dismissed. Costs
    to the Galaites respondents in the amount of $10,000 and to RBC General
    Insurance Co. in the amount of $5,000, both amounts inclusive of disbursements
    and all applicable taxes.

Released: G.R.S.  April 26, 2017

G.R. Strathy C.J.O.

E.E.
    Gillese J.A.

G. Pardu J.A.


