



COURT OF APPEAL FOR ONTARIO

CITATION: Isaac Estate v. Matuszynska, 2018 ONCA 177

DATE: 20180223

DOCKET: C62869

Pepall, Lauwers and Huscroft JJ.A.

BETWEEN

Judith
    Isaac as Estate Trustee of the Estate of Glen Michael Isaac, deceased,

Judith
    Isaac in her personal capacity, Darren Isaac, Desiree Chretien,

Alysha
    Bassinette by her litigation guardian Judith Isaac, and

Isabella Rose Wood by her litigation
    guardian Judith Isaac

Plaintiffs (Appellants)

and

Ilona
    Irena Matuszynska
, Jean Lafontaine and

AXA
    Insurance (Canada)

Defendants
    (Respondent)

and

State
    Farm Mutual Automobile Insurance Company

added
    by Order pursuant to Section 258(14) of the

Insurance Act
, R.S.O. 1990 c. I.8, as amended

Third Party (Respondent)

Kevin Egan, for the appellants

Gerard
    Tillmann, for the respondent Ilona Irena Matuszynska

Sonia
    Fabiani and Laura Emmett, for the respondent State Farm Mutual Automobile
    Insurance Company

Heard: May 24, 2017

On appeal from the order of
    Justice Helen A. Rady of the Superior Court of Justice, dated November 2, 2016,
    with reasons reported at 2016 ONSC 3617, and from the costs order dated
    November 2, 2016.

Huscroft J.A.:

OVERVIEW

[1]

On April 14, 2009, Glen Michael Isaac and Jean Lafontaine met at a
    London residence to arrange a drug deal. Lafontaine drove the two of them in a car
    owned by the respondent, Ilona Irena Matuszynska, to a darkened parking lot
    behind a bar in London to rendezvous with the drug dealers. There were two
    additional passengers in Lafontaines car,
Tawnia
    Bailey and Monica Turnbull.

[2]

An argument ensued between Isaac and Lafontaine, and Isaac exited
    Lafontaines car. At some point Isaac smashed the drivers side window of
    Lafontaines car with an unknown object. He then reached inside Lafontaines
    car and was attempting to open the car door and grab the steering wheel. The
    passengers in Lafontaines vehicle thought that Isaac had a weapon of some
    sort.

[3]

Lafontaine attempted to escape from the altercation and drove off in a
    panic, with Isaac holding onto and partly inside the car, apparently attempting
    to get in. Lafontaine attempted to dislodge Isaac by swerving his car and by kicking
    him. The car hit a curb and Isaac fell from the car. He hit his head on the curb
    and died.

[4]

Lafontaine was charged with driving while prohibited, breach of a
    recognizance, and a drug offence, but was not charged with any offences
    relating directly to the accident, such as dangerous driving causing death. The
    police concluded that Isaacs death was accidental.

[5]

Judith Isaac, the deceaseds mother, commenced proceedings claiming
    damages pursuant to the
Family Law Act
, R.S.O. 1990, c. F.3 (
FLA
)
    against various defendants in her personal capacity and as estate trustee of
    her sons estate. The action was framed in negligence.

[6]

The motion judge granted summary judgment dismissing the action at the
    request of State Farm Mutual Automobile Insurance Company (the statutory third
    party) and the respondent, Ilona Irena Matuszynska. The motion judge found Lafontaine
    feared for his safety and that of his passengers and reacted quickly in trying
    to escape. In these circumstances, the doctrine of emergency applied and
    Lafontaine was not to be held to a standard of perfection. The motion judge concluded
    that Lafontaine could not be faulted for his reaction to Isaacs actions, and
    that Isaac was the author of his own misfortune.

[7]

The appellants submit that the motion judge erred in granting summary
    judgment. Specifically, the motion judge erred (i) in applying the doctrine of
    emergency to find that Lafontaine did not fall short of the standard of care
    expected of him; and (ii) in awarding costs against the
FLA
claimants.

[8]

In my view, the motion judge made no such errors.

[9]

I would dismiss the appeal for the reasons that follow.

THE MOTION JUDGES DECISION

[10]

The
    motion judge set out and applied the test for summary judgment from
Hryniak
    v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 66. She considered the
    record before her using summary judgment powers under Rule 20.04(2.1) of the
Rules
    of Civil Procedure,
R.R.O. 1990, Reg. 194, which allowed her to weigh
    evidence, assess credibility and draw inferences of fact. The evidence on the
    motion included several affidavits from Ms. Emmett, a lawyer from the moving
    partys law firm.

[11]

There
    were several attachments to the Emmett affidavits, including a motor vehicle
    accident report relating to the accident; a narrative prosecution summary
    prepared by London Police; Lafontaines statement to the police; a transcript
    of the hearing in which Lafontaine pleaded guilty to offences relating to the
    accident; as well as civilian witness statements and police interviews from Tawnia
    Bailey and Monica Turnbull, passengers in the car driven by Lafontaine, and
    Bonnie Shute, one of the drug dealers and a passenger in the car owned by  Isaac.
    By the time of the motion, Bailey had died and Lafontaines whereabouts were
    unknown.

[12]

The
    motion judge found that the essence of the encounter between Lafontaine and
    Isaac was captured in this passage of Lafontaines statement to police:

I lifted the power window up and I just left a little crack  I
    turned around to look at Glen [Isaac] and the window of the car exploded. Then
    Monica and Tawnia just started screaming  and he was trying to get into the
    vehicle  Glen, into the drivers seat. Thats when I put it in gear and
    stepped on the gas and tried to get away and he held onto the window frame and
    I was just trying to go we were going, the [other vehicle]  started to follow
    me at the same time and thats when I was a bit swerving a little bit trying
    to get for him to let go and hitting him at the same time for him to let go and
    he managed to pull himself in pretty good. I thought he was going to get into
    the vehicle and thats when I just sort of lifted my leg and kicked him in the
    face pretty, pretty, a couple of times.

[13]

The
    motion judge found that Lafontaines essential version of events did not change
    in any significant way. He described an angry confrontation between Mr. Isaac
    and him; the drivers side window was broken in some fashion; Mr. Isaac gained
    entrance through the window; the occupants of the vehicle were panicky; and Mr.
    Lafontaine reacted.

[14]

The
    motion judge quoted extensively from the agreed statement of facts that was
    taken when Lafontaine pleaded guilty to driving while prohibited, breach of a
    recognizance, and a drug offence. Among other things, the Crown Attorney reading
    the agreed statement noted that:

·

Lafontaine closed the drivers window after the deceased left his
    car;

·

the deceased allegedly smashed the drivers window with some type
    of instrument, thought to be a knife sharpener or screwdriver;

·

the passengers in Lafontaines car thought the deceased smashed
    the window with a firearm; however, no firearm was ever discovered;

·

the deceased attempted to leap into the car through the smashed
    window in order to retrieve drugs, which led to a physical struggle with
    Lafontaine;

·

one of the passengers, Ms. Turnbull, said she thought that the
    deceased had a gun;

·

Lafontaine put the vehicle in motion as he fought with the
    deceased over the steering wheel; and

·

Lafontaine attempted to use his knee to dislodge the deceased as
    the car sped off; the fight over the steering wheel continued, and the car
    veered off the road and struck the curb, dislodging the deceased from the
    vehicle.

[15]

The
    motion judge noted that the facts underpinning Lafontaines guilty pleas were
    very closely aligned with what Lafontaine said in his statement to the police.
    As agreed facts, they were taken as proven beyond a reasonable doubt and were
    binding on Lafontaine. The motion judge found that these facts provided
    important corroboration for his earlier police statement, and enhanced his
    credibility.

[16]

The
    motion judge then reviewed the evidence of Ms. Turnbull, Ms. Bailey, and Ms.
    Shute, as provided in their interviews with police, affidavits, and statements
    to police, and found it was similar to and corroborative of the evidence of
    Lafontaine in the salient aspects. The motion judge summed up the evidence before
    her and her findings as follows, at para. 94:

[W]hen all of the evidence is considered, it persuasively
    demonstrates that Mr. Isaac was acting aggressively toward Mr. Lafontaine; he
    was agitated and angry; he confronted Mr. Lafontaine; the drivers side window
    of the Lafontaine vehicle broke; the witnesses considered that Mr. Isaac had a
    weapon of some sort; he attempted to gain entry to the vehicle through the
    window; Mr. Lafontaine took evasive action; and Mr. Isaac fell from the car.

[17]

The
    motion judge noted that it was not in dispute that the appellants entitlement
    to damages was dependent on the deceaseds entitlement to maintain an action
    himself, had he lived. If he had no such entitlement, neither did the
    derivative claimants.

[18]

The
    motion judge rejected the moving parties submission that the doctrine of
volenti
    non fit injuria
applied. However, she concluded that the doctrine of
    emergency applied in this case. She stated that the only logical conclusion on
    the evidence was that Lafontaine acted in a matter of seconds, in a time of
    panic and confusion, when he reasonably feared for his safety and that of his
    passengers. In these circumstances, Lafontaine was not to be held to a standard
    of perfection; the standard expected of him was that of an ordinarily prudent
    person acting in the stress of an emergency.

[19]

The
    motion judge concluded that the deceased could not successfully maintain an
    action against the moving parties and that the derivative claims necessarily
    failed. There was therefore no genuine issue requiring a trial and the motion for
    summary judgment was granted.

[20]

The
    motion judge awarded costs to both Matuszynska and State Farm and against all
    of the appellants, including the
FLA
claimants.

DISCUSSION

(1)

The standard of review

[21]

The
    motion judges decision that there was no genuine issue requiring a trial is a
    finding of mixed fact and law that is subject to review for palpable and
    overriding error:
Hryniak
, at para. 81. The motion judges application
    of the doctrine of emergency to define the standard of care owed by Lafontaine
    is an extricable question of law subject to review for correctness.

(2)

Did the doctrine of emergency apply?

[22]

The
    appellants submit that the motion judge erred in law by not considering and
    applying the conceptual limitations on the availability of the doctrine of
    emergency.

[23]

First,
    they submit that the doctrine applies only if the emergent situation is
    imminent and unforeseen and could not have been reasonably anticipated by the
    party alleged to have been negligent. The appellants argue that it was not
    available in this case because Lafontaine was alert to the possibility of
    danger prior to the deceased smashing his car window. Lafontaine reasonably
    anticipated that Mr. Isaac was about to act negligently and expose himself to
    danger; he foresaw that Mr. Isaac was about to do something unreasonable and
    foolish, which is why he put his car into gear before the window was smashed.
    He could have left before anything happened, and was urged to do so by his
    passengers, but chose not to. Thus, there was no emergency and Lafontaine
    cannot rely on the emergency doctrine.

[24]

Second,
    a person must still exercise the standard of care of a reasonable person notwithstanding
    an emergency situation. The appellants argue that Lafontaine failed to do so; a
    reasonably competent person would not have attempted to speed off when the
    deceased was climbing into the car through the window, driven erratically and
    kicked the deceased in an attempt to dislodge him from the moving vehicle.

[25]

Third,
    the appellants argue that Lafontaine cannot take advantage of the emergency
    doctrine because his own negligence brought about or contributed to the
    emergency. This includes his admissions that he had consumed crack cocaine
    before getting behind the wheel of a car; drove while prohibited from doing so;
    to a darkened parking lot late at night; brought his crack cocaine with him;
    engaged with a person who he knew usually to be under the influence of drugs,
    and; was there to buy drugs.

[26]

I
    would reject these submissions.

[27]

The
    emergency doctrine allows exigent circumstances to be taken into account in
    determining whether the standard of care was met. The question for the motion
    judge was whether the emergency doctrine applied in these circumstances.

[28]

Two
    elements must be established in order for the emergency doctrine to apply.
    First, the harm must be imminent. Second, it must be unforeseen: G.H.L.
    Fridman,
The Law of Torts in Canada

3rd ed. (Toronto: Thomson
    Reuters Canada Ltd., 2010), at p. 378. Put another way, the doctrine will not
    apply where the emergency could have been reasonably anticipated: Lewis N. Klar,
Tort Law
, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2012), at p.
    360.

[29]

The
    appellants argue that the second element was not established. In essence, they
    say that Lafontaine could have reasonably anticipated that Isaac was about to
    act negligently and expose himself to danger. The appellants point to the
    following evidence:

·

he recognized that Isaac was increasingly agitated;

·

he put the car in gear because he thought that something was
    going to happen;

·

Tawnia Bailey and Monica Turnbull, the passengers in his vehicle,
    told him to leave but he chose not to do so.

[30]

The
    difficulty with this submission is that all of this evidence was considered by
    the motion judge. It cannot be said that she failed to consider it in
    determining that the doctrine of emergency applied. It is implicit in her
    decision that she concluded that Lafontaine did not anticipate the aggressive
    action taken by Isaac  his sudden attack  that caused the emergency.

[31]

Putting
    the appellants case at its highest, Lafontaine had reason to believe that
something
might happen in the course of a drug deal, occurring in the middle of the night
    in an empty parking lot. The appellants assert that Lafontaine foresaw that
    Mr. Isaac was about to do something unreasonable and foolish. But this does
    not come close to establishing that Lafontaine foresaw, or should have foreseen,
    what actually occurred: an attack by Isaac and an attempt to force his way into
    Lafontaines car. This was confirmed by the only witness whose evidence was
    cross-examined, Monica Turnbull, who indicated that she wanted to leave, but
    added: "Well, I mean I don't think [Lafontaine] anticipated what was gonna
    happen to happen."

[32]

The
    motion judge reviews Turnbull's evidence at para. 77 of her decision:

I have the impression that Ms. Turnbull's recent affidavit
    attempted to downplay Mr. Isaac's behaviour and to suggest that Mr. Lafontaine
    was not acting in response to an emergency situation and that he had an
    opportunity to leave.
To the extent that this evidence might have
    raised a genuine issue, it is totally eliminated by her
    cross-examination.
What she says at that time is very similar to what
    she said to police  Mr. Isaac's aggression; the breaking of the window; the
    fear that Mr. Isaac had a weapon; the reaction of the passengers; Mr. Isaac
    coming into the vehicle through the broken window; the ensuing struggle; and
    Mr. Lafontaine's response. [Emphasis added]

[33]

It
    was no error, much less a palpable and overriding error, for the motion judge
    to conclude that Lafontaine did not anticipate Isaacs actions. The appellants
    submission is, in essence, an invitation to this court to reweigh the evidence
    that was before the motion judge and reach a different conclusion. That is not
    the role of this court on appeal.

[34]

The
    principal case relied on by the appellants does not support their position. In
Gellie
    v. Naylor
(1986), 55 O.R. (2d) 400 (C.A.), this court was concerned with a
    claim of emergency by a motorist who struck a pedestrian on the Burlington Bay
    Skyway. The pedestrian had left his vehicle, which had run out of gas, and was
    attempting to cross the bridge to find an emergency telephone when he was hit
    by the defendants truck. As he was driving towards the plaintiff, the
    defendant had seen the plaintiffs car on the shoulder and observed people
    standing behind it. In addition, he had seen the plaintiff attempt to cross the
    bridge, only to be pulled back by a passenger in his car. Nevertheless, the
    defendant proceeded without slowing down and struck the plaintiff as he made a
    second attempt to cross the bridge.

[35]

This
    court held, at p. 402, that although it could be assumed that pedestrians as
    well as other motorists would not act unreasonably and foolishly,

[I[f the motorist is alerted, by the previously observed
    conduct of another person that there is a distinct possibility the other person
    may act negligently and expose himself to danger, then the assumption loses its
    justification. The anticipation of negligent conduct renders such conduct
    foreseeable and makes it incumbent on the motorist to take additional
    precautions.

[36]

Thus,
    the court concluded that the trial judge misdirected the jury by failing to
    direct that the doctrine of emergency applied only if there was no reason to
    anticipate that the plaintiff would not repeat his foolhardy attempt to cross the
    heavily travelled highway again.

[37]

The
    anticipation of negligent conduct in
Gellie
concerned specific conduct
     conduct the defendant had observed as he approached the scene of the
    accident. It is nothing like the circumstances in this case, in which Isaac suddenly
    attacked Lafontaine in the course of a drug deal.

[38]

As
    for the actions taken by Lafontaine, the law is not so unreasonable as to hold
    people to a standard of perfection in determining the appropriate standard of
    conduct in an emergency:
Canadian Pacific Railway v. Gill et al.
,
    [1973] S.C.R. 654, at p. 665. In this case, the motion judge considered all of
    the relevant circumstances and found that the respondent acted reasonably in
    the context of the emergency he faced. She considered and rejected the very
    argument the appellants reiterate on appeal, describing it as parsing the
    chronology of events in minute detail, ignor[ing] the dynamic and rapidly
    escalating situation that was unfoldingthe very danger of judging the events
    of the night with perfect hindsight.

[39]

The
    motion judge found, specifically, that Isaac was solely responsible for what
    had occurred. She summarized her conclusion as follows at para. 104:

[A]s harsh as it may sound, Mr. [Isaac] was the author of his
    own misfortune. By all accounts, he initiated the confrontation with Mr.
    Lafontaine. He acted angrily and aggressively. He broke the drivers side
    window. The passengers thought he had a weapon. They were alarmed. He intruded
    through the broken window of the Lafontaine vehicle. His motive for doing so
    cannot be described as benign, even on the most generous view of the facts. Mr.
    Lafontaine took evasive action in a situation of panic, which unfortunately
    resulted in Mr. Isaacs fall and death. However, in the circumstances, the only
    rational conclusion is he alone is responsible.

[40]

The
    motion judges findings are supported on the record that was before her. There
    is no basis to interfere with them on appeal. The motion judge was entitled to
    conclude that there was no genuine issue requiring a trial and that summary
    judgment was appropriate.

(3)

Did the motion judge err in awarding costs against the
FLA
claimants?

[41]

The
    motion judge awarded costs of $20,000 to State Farm and $12,500 to Matuszynka,
    inclusive of taxes and disbursements. The appellants are jointly and severally
    liable to pay these costs, in accordance with the normal practice.

[42]

The
    appellants acknowledge that
FLA
claimants are not generally exempt from
    costs awards: see
Winters v. Halimand (County),
2015 ONCA 98, 33
    M.P.L.R. (5th) 1, at para. 22. However, the appellants submit that the motion
    judge failed to consider their submission that the
FLA
claimants should
    not be personally liable for costs in this case, as their claims were
    derivative of the Estates claim and would not go ahead if the Estates claim
    failed. They say the motion judge erred in stating in her costs endorsement
    that the Plaintiffs recognize their liability for costs.

[43]

The
    respondents submit that the motion judges costs order was reasonable in all of
    the circumstances. They note that the
FLA
claimants advanced a claim
    that exceeded that of the Estate, and that the cost award was less than the
    already discounted costs outline that the respondents submitted.

[44]

It
    is well established that costs orders are discretionary. This court will
    interfere with them only if the court below 
has made
    an error in principle or if the costs award is plainly wrong
:
Hamilton
    v. Open Window Bakery Ltd
., 2004 SCC 9, [2004] 1 S.C.R. 303, at p. 313.

[45]

In
    my view, the costs order was reasonable and there is no basis to interfere with
    it on appeal.

CONCLUSION

[46]

I
    would dismiss the appeal. I would grant leave to appeal the costs order but
    would also dismiss that appeal.

[47]

The
    third party respondent is entitled to costs on appeal of $10,000, inclusive of
    taxes and disbursements. The respondent Ilona Irena Matuszynska is entitled to
    $2,000.

Grant Huscroft J.A.

I agree. P. Lauwers J.A.




Pepall J.A. (dissenting):

A.

Introduction

[48]

Glen Michael Isaac died in an
    unfortunate motor vehicle accident on April 14, 2009.  The appellant, Judith
    Isaac, is his mother.  She instituted proceedings claiming damages against
    various defendants in both her personal capacity and as estate trustee of her
    sons estate.  The remaining appellants are relatives of the deceased and
Family
    Law Act, R.S.O. 1990, c. F.3
(FLA) claimants.  Summary judgment motions
    were successfully brought by the statutory third party, State Farm Mutual
    Automobile Insurance Company, and the respondent, Ilona Irena Matuszynska, the
    owner of the motor vehicle involved.  The motions judge relied on the doctrine
    of emergency and granted summary judgment dismissing the appellants action.

[49]

My colleague would dismiss the
    appeal.  With respect, I do not agree.  I would allow the appeal, set aside the
    summary judgment dismissing the appellants action, set aside the costs award
    payable by the deceaseds mother, his two infant children, and his two siblings
    made in favour of State Farm and Ms. Matuszynska, and order that the action
    proceed to trial.

[50]

In my view, the new and welcomed
    approach to summary judgment described in
Hryniak

v. Mauldin
,
    2014 SCC 7, [2014] 1 S.C.R. 87 does not call for the granting of a judgment
    anchored on minimal factual findings made in the face of unresolved material
    inconsistencies in the evidence, dependent on an infrequently used and
    ill-defined doctrine of emergency absent any analysis of the elements of that
    doctrine, and based on a finding not actually made by the motions judge but
    determined by my colleague to be implicit in her decision.

B.

Facts

[51]

The facts may be briefly
    summarized.  The relevant events took place in London, Ontario.  Jean
    Lafontaine, one of the defendants at trial, was the driver of the motor vehicle
    involved in the deceaseds death.  The vehicle was owned by the respondent, Ms.
    Matuszynska, who was not present during the events in question.  Mr. Lafontaine
    was accompanied by two passengers, Tawnia Bailey and Monica Turnbull.  The
    deceased was the owner of another motor vehicle in which he was a passenger. 
    There were three others in that car: an unnamed driver and two drug dealers,
    Johnny Walker and Bonnie Shute.  Travelling in their respective vehicles, the
    two men met late at night to conduct a drug deal.

[52]

When the two vehicles arrived at a
    pre-determined rendezvous point, the deceased exited his vehicle and entered
    Mr. Lafontaines vehicle.  Mr. Lafontaine then drove his vehicle to a parking
    lot, where he was joined by the other vehicle and its passengers.

[53]

Once they arrived in the parking
    lot, a dispute arose between the deceased and Mr. Lafontaine.  The deceased got
    out of Mr. Lafontaines vehicle, and the two men continued to argue.  Based on
    Mr. Lafontaines statement to the police, the deceased went to the other
    vehicle and Mr. Lafontaine spoke on the telephone with Ms. Shute who said in a
    low voice to get out of here.  The deceased returned to talk to Mr. Lafontaine
    and subsequently broke the drivers side window of Mr. Lafontaines vehicle
    and, with his left hand, reached inside the car to either try to open the car
    door, grab something, get into the vehicle, or turn the vehicle off.  The
    passengers in Mr. Lafontaines vehicle, Ms. Bailey and Ms. Turnbull, considered
    that the deceased had a weapon of some sort.  Mr. Lafontaine began to drive
    away while the deceased was holding the side of the vehicle or was partly into
    the vehicle.  Mr. Lafontaine drove some distance out of the parking lot and on
    to Dundas St., where he continued driving.  He was swerving and intermittently
    would slam on the brakes and then press on the gas.  Eventually, the vehicle
    swerved and mounted a curb.  The deceased fell, struck his head, and died
    instantly.

[54]

In the statement given to the
    police prior to his conviction, Mr. Lafontaine admitted that he had taken crack
    cocaine before the accident, and was pretty fucked up.  He stated that he
    anticipated something was about to happen between him and the deceased.  He was
    also aware that the deceased was likely high on drugs and he told police that
    the deceased looked tense, didnt look himself, like he was doing something
    he didnt want to do.  Mr. Lafontaine himself felt like something was wrong.

[55]

Furthermore, as mentioned, Mr.
    Lafontaine admitted that Ms. Shute, who was a passenger in the other vehicle,
    called him on his cell phone to warn[] him and told him to get out of
    here.  When he turned around to look at her, [s]he had an expression on her
    face that something wasnt right.

[56]

Mr. Lafontaine ignored the
    warnings of others that he should leave the scene, as well as his own gut
    feeling that something wasnt right, even as it was evident to him that the
    deceased was becoming increasingly agitated and was getting angry. 
    Instead, he kept the vehicle where it was, but shifted it into drive in
    response to the deceaseds growing agitation.

[57]

Mr. Lafontaine was charged with
    driving while prohibited, breach of a recognizance, and a drug offence.  The
    London Police Service concluded that the deceaseds death was accidental.  Mr.
    Lafontaine was convicted of driving while disqualified in violation of s.
    259(4) of the
Criminal Code,
R.S.C. 1985, c. C-46, and also pleaded
    guilty to the other offences with which he was charged.

[58]

The deceaseds mother, siblings,
    and two infant daughters commenced an action alleging, among other things, that
    Mr. Lafontaine had contributed to the deceaseds death.  They sought damages
    against Mr. Lafontaine and others pursuant to the
FLA
. State Farm was
    added as a statutory third party.

[59]

Both State Farm and Ms.
    Matuszynska brought motions for summary judgment asking that the action be
    dismissed.  The motions were heard on April 29, 2016, and the motions judge
    granted the motions on September 22, 2016.

C.

Motions Judges Decision

[60]

The motions judge set forth the
    applicable test for summary judgment and then turned to the paper record before
    her.  The evidence before the motions judge consisted of: six affidavits sworn
    by State Farms lawyer; one affidavit from State Farms investigator reporting
    on his interview with Ms. Bailey, who was the front-seat passenger in
    Lafontaines car; an affidavit that was filed by the appellants and that was
    sworn by Ms. Turnbull, who was the back-seat passenger in Mr. Lafontaines car;
    and a transcript of State Farms cross-examination of Ms. Turnbull.  The only
    evidence under oath of anyone who was at the scene was that of Ms. Turnbull,
    and she was the only witness at the scene whose evidence was tested under
    cross-examination.  The motions judge did not hear any
viva voce
evidence.

[61]

The record also included Mr.
    Lafontaines statement to the police.  At the time of the summary judgment, Mr.
    Lafontaines whereabouts were unknown and Ms. Bailey had passed away.

[62]

The motions judges reasons
    reproduced excerpts from the evidence, reciting at length the contents of the
    affidavits of State Farms lawyer and also reproducing nine and one half pages
    from the transcript of Ms. Turnbulls cross-examination.

[63]

There was an issue as to the
    admissibility of the statements Mr. Lafontaine made to the police due to
    hearsay and credibility concerns.  The motions judge addressed this issue,
    quoting at length from the exchange of counsel and the court at Mr.
    Lafontaines criminal proceeding.  However, nowhere did the motions judge make
    any findings at this stage.

[64]

The motions judge then reviewed
    Ms. Turnbulls affidavit and portions of the transcript of her
    cross-examination.  As she noted, in that cross-examination, Ms. Turnbull had
    testified that the deceased seemed nervous or agitated, and that she was
    uncomfortable and did not have a good feeling.  Ms. Turnbull also indicated
    that the deceased was obviously using drugs, and that she did not know whether
    the deceased had a knife or gun in his pocket as she never saw anything, but
    that he kept his hands in the front pocket of his hoodie.  She responded
    affirmatively when counsel for State Farm asked whether it was her assumption
    that he had a knife or a gun or something like that in the hoodie pocket.

[65]

Ms. Turnbull further testified
    that, when the two vehicles arrived in the parking lot, she went to the other
    car to purchase her stuff from Bonnie Shute and when she got back, the
    deceased was a little more heated and getting more upset.  She said to Mr.
    Lafontaine: lets get out of here and lets go.  Specifically, she stated:
    there was like a bit of a maybe a minute or two where I had already said to
    [Mr. Lafontaine], like lets go, you know.  So I, I dont know why he didnt, I
    dont know why he didnt go.  He was very calm.  She reiterated later in her
    cross-examination that Mr. Lafontaine was like very calm through the entire
    thing, you know, like very calm, even though she agreed she ha[d] a really
    bad feeling and continued to press Mr. Lafontaine to leave.  Commencing at
    question 315 in the transcript, she was asked and answered the following
    questions:

Q.  And you told [the deceased], sorry, you told [Mr. Lafontaine]
    to roll up the window and get out of there?

A.   Yes.

Q.   What specifically did you say?

A.  Thats exactly what I said.  Yeah.  And I said it a few
    times actually.

[66]

Later, at question 356, she
    stated:

Well, I mean I dont think he anticipated what was gonna happen
    to happen.
But there was a couple of times where I think it could have been
    avoided, you know, where I had sort of said like, lets go, and I dont know
    why he didnt, you know.  Like before things got really heated there was a
    couple opportunities where he couldve just driven away
, you know. 
    [Emphasis added.]

[67]

Although the motions judge failed
    to make note of this, Ms. Turnbulls observation that the deceaseds death
    could have been avoided accorded with Mr. Lafontaines own statement to police
    that the events were pretty unnecessary.

[68]

The motions judge also recited
    from Ms. Turnbulls police interview, concluding that this evidence provided
    important corroboration of Mr. Lafontaines version of events in his police
    statement and the facts outlined in his subsequent guilty pleas.  In considering
    the admissibility of Ms. Turnbulls statement, the motions judge held that that
    there was no reason it was inadmissible.  Despite several material
    inconsistencies between the statement and Ms. Turnbulls sworn testimony, the
    motions judge reasoned at para. 79 that Ms. Turnbull would undoubtedly be
    cross-examined on [the statement] if she were to give inconsistent evidence at
    trial.  However, the statement was not put to Ms. Turnbull in
    cross-examination.

[69]

Apart from four paragraphs at the
    commencement of her reasons, the motions judges actual findings are, for the
    most part, confined to one paragraph.

[70]

At para. 101, the motions judge
    determined that the doctrine of emergency was applicable to Mr. Lafontaines
    conduct.  She concluded that the only logical conclusion was that Mr.
    Lafontaine acted at a time when he reasonably feared for his own safety and
    that of his passengers.  He reacted in a matter of seconds, in a time of panic
    and confusion, if not outright chaos.  He was not to be held to a standard of
    perfection.  Relying on
Walls v. Mussens et al
.
(1969), 11
    D.L.R. (3d) 245 (N.B.C.A.), she noted at para. 102 that a party will not be
    adjudged guilty of contributory negligence merely because, as it turns out, he
    unwittingly took the wrong course.

[71]

The motions judge concluded at
    para. 104 that the deceased was the author of his own misfortune.  He
    initiated the confrontation with Mr. Lafontaine, acted angrily and
    aggressively, and broke the drivers side window.  He attempted to gain entry
    to the vehicle through the window.  The witnesses considered that he had a
    weapon of some sort.  She found that Mr. Lafontaine took evasive action in a
    situation of panic, which unfortunately resulted in the deceaseds fall and
    death.  In the circumstances, the only rational conclusion was that the
    deceased alone was responsible.

[72]

As such, she decided that the
    appellants, including the derivative claimants, could not successfully maintain
    their action.  There was therefore no genuine issue requiring a trial and the
    motions for summary judgment were granted.

D.

The Appeal

[73]

The appellants submit that the
    motions judge erred in her treatment of the doctrine of emergency in finding
    that Mr. Lafontaine bore no responsibility in this case, and in her conclusion
    on contributory negligence.  The appellants argue that the motions judge failed
    to consider the deceaseds behaviour that put Mr. Lafontaine on notice of the
    possibility of danger.

[74]

I agree with the appellants that
    the motions judge erred in her treatment of the doctrine of emergency.  At no
    time did the motions judge consider the elements of the doctrine of emergency. 
    Nor did she attempt to justify her conclusion in the face of conflicting
    evidence from Ms. Turnbull  the only person at the scene of the accident who
    provided affidavit evidence and was cross-examined  that Mr. Lafontaine was
    not in a panic and that she had repeatedly told him to leave, as had Ms.
    Shute.  The motions judge failed to consider whether the confrontation could
    have reasonably been anticipated by Mr. Lafontaine, and therefore fell into
    reversible error. As stated in
Hryniak
at para. 84:

[W]here the motion judge applies an incorrect principle of law,
    or errs with regard to a purely legal question, such as the elements that must
    be proved for the plaintiff to make out her cause of action, the decision will
    be reviewed on a correctness standard. [Citation omitted.]

[75]

In tort law, emergencies may arise
    in a variety of contexts. In certain intentional torts, for example, assault or
    trespass to property, the defences of self-defence or necessity may be
    available and in that way, consideration of an emergency may be appropriate. 
    In contrast, with negligence, an emergency does not amount to a defence; rather
    it informs the standard of care.

[76]

In this case, the appellants
    claim is framed in negligence.

[77]

To avoid liability, a person must
    exercise the standard of care that would be expected of an ordinary,
    reasonable, and prudent person in the same circumstances.  What is reasonable
    depends in part on the likelihood of a foreseeable harm:
Ryan v. Victoria
    (City)
, [1999] 1 S.C.R. 201, at para. 28. In an emergency, a person is not
    to be held to a standard of perfection.  As the Supreme Court stated in
Canadian
    Pacific Ltd. v. Gill et al.
, [1973] S.C.R. 654, at p. 665, [i]t is trite
    law that faced with a sudden emergency for the creation of which the driver is
    not responsible he cannot be held to a standard of conduct which one sitting in
    the calmness of a courtroom later might determine was the best course.  See
    also:
Horsley v. MacLaren
, [1972] S.C.R. 441.  In this way, the doctrine
    of emergency demands an analysis of the applicable standard of care.

[78]

However, to constitute an
    emergency in a legal sense, the emergent situation must be imminent and
    unforeseen: G.H.L. Fridman et al,
The Law of Torts
in Canada
, 3rd
    ed. (Toronto: Thomson Reuters Canada Ltd., 2010), at p. 378.

[79]

The
CIVJIl Jury Instructions,
    2nd ed,
2017 Update [February 2017], at §8.04.1, put it this way:

A person who, without negligence on his or her part, is
suddenly
    and unexpectedly confronted
with an emergency arising from either the
    actual presence or the appearance of
imminent danger
to self or to
    others is not expected or required to use the same judgment and care that is
    expected of him or her in calmer and less hurried moments. Such a person is not
    required to exercise extraordinary care and control. His or her duty is to
    exercise only the care that an ordinary, prudent person would exercise in the
    same situation.  The test in such a case is not whether a better course of
    action was open, but whether what was done was what an ordinary prudent person
    might reasonably be expected to do in such an emergency. [Emphasis added.]

[80]

As described by Lewis N. Klar, in
Tort
    Law
, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2012), at p. 360, the
    doctrine will not apply where the emergency could have been reasonably
    anticipated.  This was explained by this court in
Gellie v. Naylor et al.
(1986), 55 O.R. (2d) 400 (C.A.).  In that case, the trial judge failed to
    properly instruct the jury because he had not instructed them that, in the
    particular factual circumstances of that case, they could find that the
    antecedent conduct of the plaintiff factually negated the existence of an
    emergency in its legal sense.  This court stated at p. 402:

[I]f the motorist is alerted, by the previously observed
    conduct of another person that there is a distinct possibility the other person
    may act negligently and expose himself to danger, then the assumption loses its
    justification. The anticipation of negligent conduct renders such conduct
    foreseeable and makes it incumbent on the motorist to take additional
    precautions: see generally Fleming,
The Law of Torts,
6th ed. (1983), at
    pp. 115-6:

Liberty to act on an expectation of non-negligence in others
    ceases as soon as there are indications that they are, or are likely to be,
    acting imprudently. The ever present possibility of negligent behaviour demands
    constant scrutiny in every direction whence danger may loom, and the greater
    the risk the more tentative must be the assumption that others will conduct
    themselves with reasonable care.

[81]

Similarly, as explained in
Holizki
    Estate v. Alberta (Public Trustee)
, 2008
    ABQB 716, 462 A.R. 85, at para. 173:

The case law establishes limitations on when this doctrine can
    be invoked. First, the defence is only applicable if the emergent situation is
    imminent and unforeseen and could not have been reasonably anticipated by the
    reacting driver. If the defendant driver anticipates a dangerous situation and
    has sufficient opportunity to apply his brakes or take other evasive action to
    avoid the collision, but does not, then the doctrine is not applicable and the
    defendant driver will be held contributorily liable for the resulting damages.

[82]

The duty arises when the
    possibility of danger first becomes apparent:
Holizki
,
at para.
    175.

[83]

The motions judge did not turn her
    mind to the elements of the doctrine of emergency.  She did not consider
    whether the evidence of an emergent situation was imminent, unforeseen, or
    unanticipated, and failed to consider the applicable law as set out in
Gellie
.  There was evidence in the record before her that
    might support such a finding, but the motions judge did not consider the
    elements of the doctrine.  Examples of evidence on which a finding of imminence
    and foreseeability might be based include the following:

-

The
    passenger in the deceaseds vehicle, Ms. Shute, called Mr. Lafontaine on her
    cell phone and repeatedly urged him to drive away;

-

Mr.
    Lafontaine himself had a gut feeling something wasnt right.  This feeling of
    unease was echoed by Ms. Turnbull;

-

Mr.
    Lafontaine noted the way the deceased was just standing with his hands in the
    pockets of his hoodie, appearing tense, and that he just kept looking at the
    other driver, getting increasingly agitated.  Ms. Turnbull similarly observed
    that the deceased was nervous and agitated;

-

Mr.
    Lafontaine had already put the car in drive because he had a feeling something
    was going to be happening;

-

Mr.
    Lafontaine knew the deceased was high all the time pretty much, knowledge
    again shared by Ms. Turnbull;

-

As
    the argument escalated, the deceaseds voice was a bit threatening and he was
    getting angry;

-

Mr.
    Lafontaine rolled up the window at some point during the argument as it got
    more heated;

-

Ms.
    Turnbull had repeatedly told Mr. Lafontaine to leave.  She testified that there
    was a minute or two between the times she told him to do so;

-

Mr.
    Lafontaine drove some distance intermittently slamming on the brakes, pressing
    on the gas, slamming on the brakes before the deceased was flung off of the
    car.  As Mr. Lafontaine told the police, his passengers were screaming at the
    top of their lungs, like telling me to stop, like stop the vehicle and I didnt
    want to stop the vehicle;

-

Mr.
    Lafontaine kicked the deceased in the face trying to dislodge him; and

-

When
    asked by the police how he felt about what happened, Mr. Lafontaine responded:
    It was  Id say it was pretty unnecessary.  I was pretty fucked up.  This
    reflected Ms. Turnbulls observation that the outcome could have been
    avoided.

[84]

The motions judge failed to
    consider whether the evidence of antecedent conduct rendered the subsequent
    events imminent and reasonably foreseeable.  If it was reasonably possible for
    Mr. Lafontaine to anticipate negligent conduct, he should not be able to rely
    on the doctrine to escape any liability.  Having failed to consider the
    elements of the doctrine of emergency, the motions judge erred in granting
    summary judgment against the appellants on that basis.  Having failed to
    consider these factors, the motions judges determination was not available to
    her.

[85]

My colleague also states that the
    motions judge did not err because she considered the evidentiary record and
    that it is implicit in her decision that Lafontaine did not anticipate the
    harm that gave rise to the emergency.

[86]

I disagree with this analysis for
    three reasons.

[87]

First, contrary to my colleagues
    reasons, the motions judge did not consider the record as she should have. It
    is not enough to simply reproduce all of the evidence and then say it has been
    considered; there has to be some analysis.  This is particularly true given the
    motions judges clear preference for the witness statements over the sworn testimony
    of Ms. Turnbull, and her failure to resolve material inconsistencies between
    the two.

[88]

When asked about some of these
    inconsistencies on cross-examination, Ms. Turnbull explained that she knew
    significant parts of Ms. Baileys witness statement were fabricated  for
    example, Ms. Bailey lied about consuming and purchasing drugs on the day of the
    events.  Despite her preference for the police statements of other witnesses
    over Ms. Turnbulls sworn testimony, the motions judge did not wrestle with the
    credibility issues engaged by the differing accounts.

[89]

Nor did the motions judge grapple
    with Ms. Turnbulls own admission on cross-examination that, at the time her
    police statement was made, she was high on narcotics, living a lifestyle where
    she was okay with lying to police, and was trying to protect Mr. Lafontaine,
    her-then boyfriend.  In contrast, Ms. Turnbulls affidavit was made after three
    years sobriety from narcotics, when she was no longer involved with Mr.
    Lafontaine and had no further impetus to protect him.  However, the motions
    judge did not explain why, in the face of these factors, she nonetheless
    treated Ms. Turnbulls police statement as more reliable than her subsequent
    sworn testimony.

[90]

Second, the key evidence that was
    given by Ms. Turnbull and contradicted by no one was that she repeatedly told
    Mr. Lafontaine to leave and there was time to do so.  He had also received the
    same advice from one of the passengers in the other car, Bonnie Shute.  The
    motions judge did not consider this evidence or wrestle with it.

[91]

Third, the question is not just
    what Mr. Lafontaine actually did, as my colleague suggests, but whether a
    reasonable and prudent person in those circumstances would have acted
    differently.

[92]

I reject my colleagues contention
    that this appeal was simply an invitation by the appellants for this court to
    reweigh the evidence.  This was not a case where Mr. Lafontaine was nervous
    because he was engaged in a drug deal in the middle of the night in an empty
    parking lot as my colleague asserts.  Both cars were present in the lot, as
    were all of the passengers.  The operation was not described by the motions
    judge  or indeed anyone else  as covert or hasty.  The evidence of Ms.
    Turnbull was that Mr. Lafontaine was calm.  In addition, both Ms. Turnbull and
    Mr. Lafontaine were clearly anticipating an altercation, as they both shared a
    feeling of unease.  At a minimum, the appellants were entitled to expect that
    the motions judge would consider whether Mr. Lafontaine exercised the care that
    an ordinary, prudent person would exercise in the same situation.  That
    expectation was not met in this case.

[93]

Hryniak
ushered in a new approach to summary judgment.  This
    was at least in part a response to the need to provide for greater access to
    justice.  Superior Court judges have answered the Supreme Courts entreaty with
    a huge degree of professional commitment and diligence.  This is to be lauded. 
    A major goal of summary judgment is costs savings.  However, the goal is not
    summary judgment at all costs.  There will still be some cases that ought to go
    to trial.  Some caution must be used.  This is particularly so in a case such
    as this that involves a largely unexplored area of the law and which would
    benefit from the full record that a trial provides.

[94]

Moreover, this summary judgment
    was anchored on minimal first hand evidence, unresolved contradictions in the
    evidence, and no recourse to
viva voce
evidence.  In my view, it should
    be set aside.

E.

Disposition

[95]

For these reasons, I would allow
    the appeal, set aside the summary judgment dismissing the appellants action,
    and order that the action proceed to trial.

[96]

On the issue of costs of the
    appeal, I would order the respondents to pay on a joint and several basis the
    costs of the appeal fixed in the amount of $12,000 inclusive of disbursements
    and applicable taxes.  On the issue of costs of the summary judgment motion, I
    would set aside the motions judges costs award of $20,000 in favour of State
    Farm and $12,500 in favour of Ms. Matuszynka against the appellants and remit
    the costs to be fixed by the trial judge.

Released: February 23, 2018 (S.E.P.)

S.E. Pepall J.A.


