




CITATION:
Martin-Vandenhende v. Myslik, 2012
          ONCA 53



DATE: 20120130



DOCKET: C53348



COURT OF APPEAL FOR ONTARIO



Blair and Juriansz JJ.A., and Pepall J. (
ad hoc
)



BETWEEN:



Janice Martin-Vandenhende



Plaintiff (Respondent)



and



Peter Myslik and Edward Myslik



Defendants (Appellants)



David M.  Miller, for the appellants



Tanya A. Pagliaroli, for the respondent



Heard: October 28, 2011



On appeal from the judgment of Justice Bruce G. Thomas of the
          Superior Court of Justice, dated January 31, 2011.



R.A. Blair J.A.:



Overview

[1]

During the afternoon of December 31, 2001 a Toyota Camry driven by Ms.
    Martin-Vandenhende and a GMC Sierra pickup truck driven by Peter Myslik collided. 
    Both vehicles were travelling southbound on Erie Street in Ridgetown, Ontario,
    at the time, with Ms. Martin-Vandenhende in the lead.  She was in the process
    of making a left-hand turn into a driveway in order to return to her work at
    Home Hardware when the collision occurred.

[2]

The parties had differing versions of how the accident occurred, and it
    is the disputed circumstances surrounding the making of that left-hand turn that
    give rise to the issues on this appeal.  The trial judge did not resolve the
    conflicting testimony.  Instead, he proceeded to determine liability  as he put
    it  by taking the Myslik position at its highest.

[3]

The appellants argue that the trial judge erred in failing to resolve
    the conflicting testimony and either did not apply the evidence by taking the
    Myslik position at its highest or, if he did, he erred in finding that Peter
    Myslik was negligent or, at least, in failing to find that Ms. Martin-Vandenhende
    was contributorily negligent.  I agree that the trial judge erred  although
    not necessarily in finding Mr. Myslik negligent  and, for the reasons that follow,
    would allow the appeal and order a new trial.

Facts

[4]

It was a snowy New Years Eve.  Ms. Martin-Vandenhende left her work at
    Home Hardware at about 4 oclock and was proceeding southbound on Erie Street
    when she realized she had forgotten something.  She decided to return to the
    store to retrieve it.  Peter Myslik  then a high school student nine days
    short of his 17
th
birthday  was returning home from a hockey
    tournament with his father.  They were driving in his fathers new Sierra
    pickup, Peter at the wheel, his father in the passengers seat.

[5]

The Mysliks were travelling at the posted 60 kmph speed limit when they
    first saw the Martin-Vandenhende car about 200-300 yards ahead of them.  It was
    travelling at a slower speed (about 40 kmph) and the gap was closing between
    the two vehicles.  From this point the evidence of the parties diverges with
    respect to what happened leading up to the collision.

[6]

According to Ms. Martin-Vandenhende, she activated her left-turn signal
    and slowed to 20-30 kmph with the intention of turning left into a private
    driveway on the east side of the road in order to complete her turn and retrace
    her steps to pick up the forgotten article.  As she was about to make her left
    turn, and before her vehicle crossed the centre line of the road, she was
    struck violently from the rear.  The next thing she recalled was that her car
    was in the ditch on the opposite (east) side of the road and she was bleeding
    from the head and had a severe headache.

[7]

Ms. Martin-Vandenhende acknowledged that she could not recall looking in
    her rear view or side view mirrors or checking her blind spots to verify if
    there was any oncoming traffic from behind.

[8]

The Myslik version was somewhat different.  Both Peter and his father
    testified that when the two vehicles were about 100 yards apart, Ms. Martin-Vandenhende
    activated her
right-turn
signal and, as she did so, pulled her vehicle
    to the right with both right wheels on the right shoulder of the road.  She
    slowed to the point where, according to Peter, she was close to dead still. 
    Peter thought that she was pulling over to let him pass and he decided to do so
    by pulling into the northbound lane and going by.  When the pickup was about
    20-30 yards behind and moving to the northbound lane, however, Ms. Martin-Vandenhende
    suddenly turned her vehicle left directly into the path of the Myslik pickup. 
    According to Peters evidence, her right-hand turn indicator was still
    activated at the time she commenced her turn.  Neither Peter nor his father saw
    a left-turn signal.

[9]

When Peter saw the Martin-Vandenhende vehicle turn left, he braked and
    attempted to steer the pickup toward the right in the hopes of passing Ms.
    Martin-Vandenhende on the right because it seemed that she was fully into her
    left turn.

[10]

Ms. Martin-Vandenhende testified that she did not pull her vehicle onto
    the right-hand shoulder of the road and that she did not activate her
    right-hand turn signal.

[11]

The parties accept that the actual collision took place while both
    vehicles were in the southbound lane.  The trial judge concluded that the
    Martin-Vandenhende vehicle was heavily damaged on the left rear corner,
    consistent with the vehicle being slightly turned to the left when hit from the
    rear.  Peter Myslik testified that if he had not turned to the right he would
    have collided with the driver door on the other vehicle.

[12]

Damages were settled.  The trial proceeded on the issue of liability
    only.  The trial judge found Peter Myslik to be totally responsible.

Analysis

[13]

In my view, the trial judge initially went astray when he failed to
    resolve the divergent testimony between the parties on the crucial factual
    issues surrounding which turning signal Ms. Martin-Vandenhende activated, and
    when and how she manoeuvred her vehicle just prior to the collision.  This
    error, in turn, led to other flaws in his reasoning.  In particular, although
    he purported to determine the issues on the basis of the Myslik position taken
    at its highest, he does not appear to have done so in fact.  Rather, he constructed
    his liability conclusions on facts that  although they may have been open to
    him to find, had he resolved the credibility conflicts in the evidence  are
    not drawn from a view of the evidence taking the Myslik position at its
    highest.

[14]

Let me explain.

Failure to Make
    Factual Findings

[15]

A trial judge has an obligation to make factual findings on conflicting
    evidence with respect to material facts that were essential to a proper
    determination of the issues before him or her.  As Denning L.J. observed, in
Jones
    v. National Coal Board
, [1957] 2 Q.B. 55, at p. 64, it is the judges role
    at the end to make up his mind where the truth lies.  This Court expressed a
    similar sentiment a year earlier when it said that a trial judge must make the
    findings of fact that enable the Court to say whether or not there is liability
    involved: see
Waring v. Jarvis
, [1956] O.J. No. 246 (C.A.), at paras. 4-5. 
    See also
Aujla v. Hayes
(1997), 100 O.A.C. 129 (C.A.), at para. 31.  The
    fact-finding exercise in itself brings a certain discipline and rigour to a
    trial judges analysis of the evidence and guards against imprecise thinking
    and the risk of a case being decided on the basis of facts that were not
    actually found.

[16]

As Mr. Miller points out on behalf of the appellants, it was incumbent
    on the trial judge to make a number of findings of fact in order to resolve the
    issues of liability.  These included whether:

a)

Ms.
    Martin-Vandenhende pulled her vehicle over to the west (right) shoulder of the
    road, or continued to travel down the southbound lane of Erie Street right up
    until the time of the collision;

b)

she
    activated her right-hand turn signal as she pulled her vehicle onto the west
    shoulder of the road;

c)

she slowed
    almost to a stop in the process of doing this;

d)

Peter
    Myslik reasonably believed Ms. Martin-Vandenhende was inviting him to pass her
    to the left by engaging in this manoeuvre;

e)

Ms.
    Martin-Vandenhende suddenly commenced a left-hand turn from the right shoulder
    of the road directly into the path of the Myslik vehicle;

f)

Ms.
    Martin-Vandenhende left her right-hand turn signal activated or had activated
    her left-hand turn signal prior to the collision; and

g)

Peter
    Myslik admitted fault to Ms. Martin-Vandenhende in a conversation she alleges
    to have had with him while his father was calling emergency services.

[17]

The failure to make these findings of fact reveals that although the
    trial judge professed to take the Myslik position at its highest, he does not
    appear to have done so.

[18]

The operative portions of the trial judges liability analysis are found
    in the following portions of his reasons:

[21]  I accept the position taken by the plaintiff
    to this extent.  The collision here on all the evidence took place entirely in
    the southbound lane of Erie Street.
I am unable to resolve the divergent
    testimony of the signalling of the Martin vehicle, but taking the Myslik
    position at its highest
, the Martin vehicle was plainly visible ahead.  It
    moved from a position of having its right tires just off the paved southbound
    lane onto the shoulder and then moved back to the left so that its left tires,
    while close to the centre line with the front wheels turned somewhat to the
    left, were still fully in the southbound lane.  The defendants vehicle then
    collided with the left rear corner of the Martin vehicle.  The move to the left
    by Martin happened when Peter Myslik was still 20-30 yards away.  He locked up
    his brakes and slid into the rear of the Martine vehicle.

[22]  If in fact Janice Martin was signalling a
    move to the right,
while perhaps confusing to Peter Myslik
, it
    nonetheless does not detract from his obligation to have his vehicle on such
    control that on these road conditions he can stop without colliding with her
    vehicle no matter what she chooses to do, within her own lane.  That is so even
    recognizing that Martin took no steps to see what was behind her in the
    southbound lane.

...

[26]  It is my view that Peter Myslik was an
    inexperienced driver, proceeding too quickly for the road conditions, who when
    faced with a slow moving vehicle in front of him,
perhaps giving him
    inconsistent signals
, failed to have his vehicle under the necessary
    control to avoid this collision. [Emphasis added.]

[19]

Respectfully, this analysis does not reflect the Myslik evidence taken
    at its highest.

[20]

For example, the trial judge gave little, if any, weight to the evidence
    that the Martin-Vandenhende vehicle slowed almost to a complete stop while
    pulling over onto the shoulder of the road.  In addition, the statement that
    the Martin-Vandenhende vehicle [had] its right tires
just off
the paved
    southbound lane onto the shoulder (emphasis added) does not accurately reflect
    the evidence of the Mysliks, suggesting as it does that the vehicle had barely
    left the roadway and feeding the respondents argument that Ms. Martin-Vandenhende
    never stopped and never exited her lane.

[21]

Such a finding might have been open to the trial judge, but it does not
    reflect Peter Mysliks testimony.  He acknowledged in cross-examination that
    the shoulder on the right side of the southbound lane on Erie Street was
    narrower than most, but nonetheless maintained that its not small by any
    means.  He remained resolute that Ms. Martin-Vandenhende was definitely on
    the shoulder and it was visible from where [he] was driving in the southbound lane
    that she was definitely pulled off to the right, and that she was off enough
    that [he could] judge that she was on the shoulder.

[22]

Coupled with the foregoing misconceptions, the trial judge made an
    important finding that is inconsistent with the Peter Mysliks testimony.  As
    noted in para. 22 of his reasons, cited above, the trial judge found that if in
    fact Ms. Martin-Vandenhende was signalling a move to the right, the signal
    would have been perhaps confusing to Peter Myslik.  At para. 26, the trial
    judge concluded that she was perhaps giving him inconsistent signals.  However,
    there is no room on Mr. Mysliks evidence for a finding that he was confused,
    or that Ms. Martin-Vandenhende was giving him inconsistent signals.  His
    evidence was unequivocal: Ms. Martin-Vandenhende activated her right-turn
    signal only, pulled off onto the right shoulder of the road, and slowed down to
    a near stop in a manner that led him to believe he was being invited to go by
    her.  Peter Myslik believed he was being signalled by the driver of the vehicle
    ahead of him to pass it on the left, and began his manoeuvre to do so safely. 
    On his evidence, he was not confused about anything nor had he received
    inconsistent signals.

[23]

Had the trial judge resolved the conflicting credibility issues with
    respect to the turning signals and the manner in which Ms. Martin-Vandenhende
    manoeuvred her vehicle, he may well have rejected Mr. Mysliks testimony and
    found that he was confused by inconsistent signals and that the Camry was not
    really off the road.  On the other hand, he might have accepted Mr. Mysliks
    testimony and rejected that of Ms. Martin-Vandenhende  a viewpoint that could
    well have led him to consider the liability of Peter Myslik in a different
    light (something to which I will return).  But the trial judge could not make the
    findings that Mr. Myslik was confused and receiving inconsistent signals or
    that the Camry tires were just off the southbound lane,
taking his
    testimony at its highest
.

[24]

Taking the Myslik position at its highest would have required the
    liability issue to have been determined on the basis of at least the following
    evidence:

(a) Ms. Martin-Vandenhende
    activate her right turn signal and moved her vehicle over onto the right
    shoulder of Erie Street when the Myslik vehicle was approximately 100 yards
    behind her, slowing down to a near complete stop.

(b)  Peter Myslik believed
    that she was pulling over to let him pass, and turned his vehicle towards the
    centre of the road in order to do so on the left.

(c)  When the Myslik
    vehicle was only a short distance behind the Martin-Vandenhende vehicle, Ms.
    Martin-Vandenhende suddenly turned her vehicle to the left directly into the
    path of the Myslik vehicle.

(d)  Ms. Martin-Vandenhende
    did not activate her left turn signal prior to the collision.  In fact, the
    right turn signal was still activated when she commenced her left turn.

(e)  Peter
    Myslik applied his brakes and steered his vehicle hard to the right in order to
    avoid striking the Martin-Vandenhende vehicle.  The front left of the Myslik
    vehicle struck the rear of the Martin-Vandenhende vehicle which was angled
    sufficiently into a left turn that if Peter Myslik had not made the sharp right
    turn, the front of his vehicle would have struck the driver door on the left
    side of the Martin-Vandenhende vehicle.

[25]

The trial judges failure to make these findings of facts lead to a
    flawed liability analysis, in my view.

Flawed Liability
    Analysis

[26]

The trial judge addressed the common law respecting the onus on a
    following driver, as expressed by this Court in
Beaumont v. Ruddy
,
    [1932] O.R. 441 (C.A.), at p. 442:

Generally speaking
,
    when one car runs into another from behind, the fault is in the driving of the
    rear car, and the driver of the rear car must satisfy the Court that the
    collision did not occur as a result of his negligence. [Emphasis added.]

[27]

He also relied upon the following too closely provisions of s. 158(1)
    of the
Highway Traffic Act
R.S.O. 1990, c. H.8:

The driver of a motor
    vehicle or street car shall not follow another vehicle or street car more
    closely than is reasonable and prudent having due regard for the speed of the
    vehicle and the traffic on and the conditions of the highway.

[28]

In the end, however, the trial judge treated the case as a rear-end
    collision case in which an inexperienced driver, perhaps confused by
    inconsistent signals from the lead vehicle, was proceeding too quickly without
    having his vehicle under proper control in the circumstances and who, as a
    result, failed in his obligation to have his vehicle on such control that on
    these road conditions he can stop without colliding with her vehicle
no matter
    what she chooses to do, within her own lane
 (emphasis added). This
    approach was neither justified in law or on the facts, taking the Myslik position
    at its highest.

[29]

The approach is unjustified on the facts because, as outlined above, it
    is not compatible with the Myslik evidence taken at its highest, which is the
    basis upon which the trial judge purported to impose liability.  For one thing,
    Ms. Martin-Vandenhende did not stay within her own lane as the trial judge
    appears to have found.  He was correct in that respect in terms of whether her
    vehicle had crossed into the northbound lane, but on the Myslik testimony she
    left her southbound lane and moved her vehicle well onto the right hand
    shoulder of the road.  This was not staying within her own lane and was
    important in terms of the signal Peter Myslik believed Ms. Martin-Vandenhende
    was sending him, inviting him to pass her on the left.

[30]

More generally, though, on the Myslik version of events, Peter Myslik provided
    an explanation as to why the accident did not occur as a result of his
    negligence but was instead caused by the negligence of Ms. Martin-Vandenhende,
    or by a combination of the negligence of each driver  the onus contemplated in
Beaumont v. Ruddy
.  The trial judge did not reject that explanation.  He
    simply declined to make the necessary factual findings in order to resolve the
    conflicting testimony.  On that basis it could not be said one way or the other
    whether the
Beaumont v. Ruddy
onus had been satisfied.

[31]

In addition, the trial judges approach was wrong in law, in my view.  The
    common law principle enunciated in
Beaumont v. Ruddy
does not prescribe
    that a following driver is
always
at fault if he or she runs into
    another from behind.  It simply states that
generally speaking
this will
    be the case, and shifts the onus to the following driver to show otherwise. 
    There is no principle of law of which I am aware that automatically fixes a
    following driver who runs into another vehicle from the rear with liability no
    matter what [the lead driver] chooses to do, within [his or] her own lane.  Subject
    to the laws general bias in favour of fault on the part of the following driver
    and the following too closely jurisprudence, liability  as in any negligence
    case  depends upon whether the following driver was acting reasonably in the
    circumstances and, conversely, whether the lead driver was as well.

Conclusion

[32]

The upshot of the foregoing analysis is twofold, for purposes of the
    appeal.

Contributory
    Negligence

[33]

Section 3 of the
Negligence Act
, R.S.O. 1990, c. N.1 requires the
    judge to apportion damages if fault or negligence is found on the part of the
    plaintiff that contributed to the damages.

[34]

The trial judge did not directly address the issue of contributory
    negligence, but he did refer to three authorities cited to him by the
    appellants, which he said all [found] fault in the operator of the lead
    vehicle when abruptly changing lanes, or directions of travel, without
    signalling or ensuring the way was clear.  The three authorities were
Adshade
    v. Jackson
(1987), 82 N.S.R. (2d) 8 (C.A.);
Wierenga v. Hemmons
,
    1993 Carswell BC 1845 (S.C.); and
Schleiermacher v. Neider
(1996) Carswell
    BC 2761 (S.C.).

[35]

The trial judge distinguished all three cases on the basis that in all
    of them the offending lead vehicle had changed lanes and in none of them had
    the point of the collision been in the single lane originally travelled by both
    drivers.  The flaw in the trial judges distinction is that it is rooted in a
    version of the facts that he was not entitled to take if he were determining
    liability on the basis of the Myslik position at its highest, for the reasons
    outlined above.  If the Myslik position is taken at its highest, Ms. Martin-Vandenhende
did
change lanes by moving onto the shoulder.

[36]

Particularly telling as an example of how his approach to liability and
    contributory negligence was based on a non-Myslik version of events, is the
    trial judges treatment of the
Schleiermacher
decision.  At para. 29 of
    his reasons he said:

In
Schleiermacher
the offending vehicle was
    off the road fully on the shoulder and then, as it was being passed, re-entered
    the roadway without signalling cutting off the other vehicle.

[37]

Far from being
distinguishable
on that basis, however,
Schleiermacher
 with the exception of the vehicle being fully on the shoulder as opposed to
    being partially but definitely on the shoulder  is a case
very similar
to the facts as presented by the Mysliks.  Indeed, here there is the added
    dimension of the lead drivers conduct apparently leading the following driver
    to believe that he was being invited to pass the lead vehicle on the left.
Schleiermacher
is not binding of course, but it is instructive.  The law as presented to the
    trial judge provided a basis upon which he should have considered Ms. Martin-Vandenhendes
    contributory negligence.

[38]

In concluding that the trial judge erred in his liability analysis, I do
    not think it matters whether the standard of review on this issue is
    correctness or palpable and overriding error, or something in between the two. 
    On the Myslik version of events, taken at its highest, I am satisfied that
    the trial judges failure to find that Ms. Martin-Vandenhende was at least
    contributorily negligent amounted to palpable and overriding error.

[39]

Given the facts outlined in para. 24 above, it is inconceivable to me
    that the driver of a lead vehicle, who signals a turn to the right, pulls her
    vehicle off to the side of the road and slows almost to a dead stop  thereby
    reasonably signalling to a following vehicle that she intends to let the
    following vehicle pass  and then suddenly, without warning and without even
    changing to a left-turn signal, cuts across in front of the oncoming vehicle to
    make a sharp left turn across the roadway, is not at least contributorily
    negligent.  This was not a case about a lead car simply stopping suddenly or
    engaging in some confusing manoeuvres within its own lane, and the driver of a
    following vehicle not having proper care and control of the following vehicle
    sufficient to enable him or her to react to the sudden stop.  This was a case
    in which the lead driver  based on the Myslik evidence taken at its highest 
    operated her vehicle in a fashion that sent a clear signal to the following
    driver that she was pulling off the road to let him pass.

[40]

In my view, a new trial is required to resolve the issue of contributory
    negligence.

Peter Mysliks
    Liability

[41]

Although I am more reluctant to do so, I would also order a new trial on
    the issue of Peter Mysliks liability.

[42]

In doing so, I am mindful that, even taking the Myslik testimony at its
    highest, there may well have been evidence upon which the trial judge could have
    justified a finding of liability on Peter Mysliks part.  However, as I alluded
    to earlier in these reasons, it cannot be said with assurance that the trial
    judge would necessarily have come to that conclusion if he had made the
    required findings of fact and if those findings had favoured the Mysliks.  As I
    have tried to explain, I do not believe that he was approaching his
    determination of liability through the lens of the Myslik case taken at its
    highest.

[43]

At a new trial, the trial judge might arrive at the same conclusion that
    the trial judge here arrived at, based on findings of fact favouring Ms.
    Martin-Vandenhende.  But he or she might reach a different conclusion, based on
    findings of fact in favour of the Mysliks, too.  I am not satisfied that a new
    trial should only be ordered on the question of contributory negligence.

Disposition

[44]

For all of the foregoing reasons, I would allow the appeal and order a
    new trial.

[45]

The appellants are entitled to their costs of the appeal, fixed in the
    amount of $14,513.96, including disbursements and all applicable taxes.  I
    would leave the costs of the trial to be disposed of by the judge hearing the
    new trial.

R.A. Blair J.A.

I agree R.G. Juriansz
    J.A.

I agree S.E. Pepall J.

RELEASED:  January 30.2012


