


COURT OF APPEAL FOR ONTARIO

CITATION: Brown v. Dalessandro, 2017 ONCA 80

DATE: 20170127

DOCKET: C61965

Doherty, Brown and Roberts JJ.A.

BETWEEN

Michelle Brown

Plaintiff (Appellant)

and

Antonio Dalessandro
, Chris Hall, Meter Mix
    Concrete Ltd., Robert Vansteeg (also known as "Bob Vansteeg"), John
    Doe and Trillium Mutual Insurance Company

Defendants (
Respondent
)

Chris Nicolis, for the appellant

Michelle Packer and Erika Webb, for the respondent

Bryan M. Hicks, for the defendant, Trillium Mutual Insurance
    Company

Heard and released orally: January 26, 2017

On appeal from the order of Justice Alissa K. Mitchell of
    the Superior Court of Justice, dated March 9, 2016, with reasons reported at 2016
    ONSC 1724.

ENDORSEMENT

[1]

The appellant, Michelle Brown, appeals the
    summary judgment dismissing her motor vehicle action against the respondent,
    Antonio Dalessandro. The motion judge dismissed the summary judgment motion
    brought by the other defendants, Meter Mix Concrete Ltd. and Chris Hall, the
    alleged owner and driver of the cement truck.

[2]

The appellant drove her car into the
    respondents pickup truck at the intersection of Eleanor and Florence Streets
    in London, Ontario. At that location, Florence is a four-lane through-street;
    stop signs on two-lane Eleanor control traffic proceeding onto or across
    Florence.

[3]

At the time of the collision, the respondent
    was driving westbound along Florence. As he approached the intersection with
    Eleanor, he was driving in the curb lane. At the intersection, a cement truck
    was stopped on Florence, in the inside, westbound lane, awaiting an opportunity
    to turn left onto Eleanor. The appellant was stopped at the stop sign in the
    northbound Eleanor lane. She proceeded to drive straight across Florence, in
    front of the cement truck. The appellant struck the respondents pickup truck,
    pushing it off the road. There is a dispute as to whether the cement truck
    driver gestured to the appellant to proceed across his path.

[4]

The motion judge held the respondent was not
    speeding at the time and was unable to see the appellants vehicle because the
    cement truck was blocking his view. The appellant does not challenge those
    findings. Indeed, the appellant submits the material facts in this case are not
    in dispute.

[5]

However, the appellant submits the motion
    judge erred in failing to address whether the respondent should have been
    mindful of the stopped vehicles to his left and the necessity of proceeding
    with caution. She argues the motion judge failed to address and follow the
    decision of this court in
Nash v. Sullivan
(1974), 1 O.R. (2d) 133 (C.A.), a case she contends is almost identical to the
    present one.

[6]

We do not accept this submission. Although
    the motion judge did not refer to the
Nash
decision in her analysis of the respondents liability, she expressly
    considered the principle discussed in it  i.e. depending upon the particular
    circumstances, a driver with the right-of-way may have an obligation to slow
    down and take extra care to look out for other drivers.  The motion judge found,
    at paras. 24 and 25:

By virtue of the state of the traffic and what he was able to
    observe while travelling westbound on Florence Street at the posted speed
    limit, Dalessandro would not have been alerted to a situation of impending
    danger imposing on him a duty to reduce his speed and take other steps to avoid
    an accident with the plaintiffs vehicle.

There is no evidence to support a finding by a jury that the
    plaintiff should have reduced his speed to avoid a collision with the
    plaintiffs vehicle  a collision he could not have anticipated or predicted in
    these circumstances.

[7]

The appellant has not demonstrated the motion
    judge made any palpable and overriding error in so finding. The appeal is
    dismissed.

[8]

The appellant seeks leave to appeal the
    motion judges cost decision. We grant leave, but dismiss her costs appeal. The
    appellant has not persuaded us the motion judge made any error in principle in
    exercising her discretion to award costs.

[9]

The respondent is entitled to his costs of
    the appeal fixed in the amount of $8,000, inclusive of HST and disbursements.

"Doherty J.A."

"David Brown J.A."

"L.B. Roberts J.A."


