



COURT OF APPEAL FOR ONTARIO

CITATION: Ozimkowski v. Raymond, 2019 ONCA 435

DATE: 20190524

DOCKET: C66053

Tulloch, Benotto and Huscroft JJ.A.

BETWEEN

Margaret
    Ozimkowski

Plaintiff (Respondent)

and

Luc Raymond

Defendants (Appellant)

and

The
    Corporation of the County of Lanark

Third Party

Michael White and Jeff Pasternak, for the appellant

Shawn OConnor and Kelly Santini, for the respondent

Heard and released orally: May 22, 2019

On appeal from the
    judgment of Justice Robyn M. Ryan Bell of the Superior Court of Justice, dated
    September 28, 2018.

REASONS FOR DECISION

[1]

The appellant submits that the motion judge applied the wrong test in
    granting partial summary judgment in the context of a rear end motor vehicle
    collision on an icy road during freezing rain. He submits that the motion judge
    erred by failing to address the alleged contributory negligence of the
    respondent whose vehicle was hit from behind by the appellant. He submits the
    respondent should not have stopped on the highway.

[2]

We disagree. Paragraph 39 of the motion judges reasons deals with this.

[The appellant] has failed to
    persuade us that [the respondent] was wholly or partially responsible for the
    accident. I find that [the respondent] did not act negligently in bringing her
    jeep to a stop given the road conditions that evening, the fact that she
    observed emergency vehicles at the bottom of the hill and the fact that she was
    unable to see in front of her. On [the appellants] own evidence, this was the
    kind of road where a driver had to be ready to stop because it is not easy to
    see what is ahead. Given the admission and the poor driving conditions that
    evening. [The appellants] evidence that [the respondent] had no reason to stop
    is not credible. His position that he could be forgiven for not seeing the
    flashing lights does not discharge his burden of disproving his own
    negligence.

[3]

We are not satisfied that the motion judge committed any palpable or
    overriding error, nor are we satisfied that she applied the wrong test on
    summary judgment.

[4]

Therefore, the appeal is dismissed with costs to the respondent in the
    amount of $15,000 all inclusive.

M. Tulloch J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


