Abreu v. Gingerich, 2020 ONSC 6797

Full Decision

This decision relates to a summary judgment motion, brought by the defendant. Justice Braid notes that if the matter is to be resolved by way of summary judgment, “I must make findings of credibility on the issue of whether Ms. Abreu stopped before the intersection where the collision occurred.”[1] This to say, the court must be able to “fairly resolve the credibility issues by way of summary judgment.” Justice Braid subsequently dismisses the motion, commenting that she is “unable to fairly assess credibility,” and that there is a “genuine issue for trial.”[2]

The plaintiff, Abreu, was involved in a motor vehicle collision on September 2, 2016. The traffic signals were not operating at the time of the subject collision. The defendant, Gingerich, was travelling northbound and the plaintiff was travelling in the westbound direction.[3] The initial impact involved Ms. Abreu’s vehicle, a Toyota Scion, and Ms. Gingerich’s vehicle, a Dodge Ram truck. Following the impact, the Gingerich vehicle was pushed into a separate vehicle driven by an Elizabeth Reyes. Ms. Reyes was to the left of Ms. Gingerich’s vehicle, and the Reyes vehicle had entered the intersection at approximately the same time as the Gingerich vehicle.[4]

Evidence considered by the court at this summary judgment motion includes discovery evidence of the defendant and the plaintiff. There was also affidavit evidence, and transcripts from cross-examination, pertaining to multiple independent witnesses.[5] Ms. Abreu’s evidence was that she stopped before the crosswalk at the intersection and she did not see any other vehicles in the intersection. She then proceeded into the intersection and her vehicle was struck in a T-bone collision. Ms. Abreu told police that she was travelling about 40 km/hr when the impact occurred. She did not see the vehicle that struck her until the impact occurred.[6]

The defendant likewise testified that she treated the intersection as a four-way stop and she waited until the intersection was clear before proceeding.[7] Ms. Gingerich testified that she was looking straight ahead when the impact occurred. She did not scan the intersection for other vehicles, which may have improperly entered the intersection.[8] Ms. Gingerich stated that she was travelling about 20 km/hr when the impact occurred and she did not have time to react and avoid the collision.[9]

The investigating police officer was Constable Trussler. His evidence was that the plaintiff failed to yield. Cst. Trussler identified Ms. Abreu as the at-fault driver and charged her with contravening section 135(2) of the Highway Traffic Act: failing to yield the right-of-way. Ms. Abreu later pled guilty to a lesser offence of making an unsafe move, under section 142(2) of the Highway Traffic Act.[10] The defendant Gingerich was not charged with an offence, as a result of this collision.[11]

The court also considers the evidence of Cody Freriks, who was driving an elevated hydro truck in the left through lane immediately behind the Abreu vehicle. The court notes Mr. Freriks was paying “careful attention because it had to be treated like a four-way stop.”[12] Mr. Freriks observed 2 – 3 vehicles in the lane, in front of Ms. Abreu. He began paying close attention to the Abreu vehicle when he believed it was not going to stop behind the other vehicles waiting at the intersection. Ms. Abreu’s vehicle allegedly moved from the left lane, with the stopped vehicles in front, over to the right lane, where there were no cars. Ms. Abreu then allegedly proceeded into the intersection and did not stop. She appeared to accelerate into the intersection.[13]

Mr. Freriks further stated that he saw the Gingerich vehicle stop, and then entered the intersection. The Abreu vehicle proceeded into the intersection after the Gingerich vehicle was already driving through the intersection. Mr. Freriks’ evidence was that the Abreu vehicle entered the intersection “when it was not safe to do so,” and he determined that “the accident would not have occurred but for the Abreu vehicle not stopping.” Moreover, Ms. Gingerich did not have an opportunity to avoid the collision.[14]

The court also references evidence from Anna DeSouza, who swore an affidavit and was also cross-examined. She was in the left-turn lane, directly to the left of the hydro truck operated by Mr. Freriks. Ms. DeSouza “was proceeding with extra caution because cars were moving into the intersection out of order.”[15] She saw the collision occur and believed that Ms. Gingerich was travelling too fast. Ms. DeSouza did not however observe either the Abreu or Gingerich vehicle enter into the intersection.[16]

The court also considered evidence from the plaintiff’s expert, William Jennings, who was asked to reconstruct the collision. Mr. Jennings produced two reports. Justice Braid notes some concerns about Mr. Jennings’ reports, which do not significantly impact the court’s ruling on the summary judgment motion. Mr. Jennings’ findings include the following:

  1. If the Abreu vehicle did not stop before entering the intersection, the collision was likely unavoidable for Ms. Gingerich.
  2. If the Abreu vehicle stopped before entering the intersection, there was sufficient time available for Ms. Gingerich to respond by braking prior to colliding with the Abreu vehicle.[17]

Statements were given to the police by additional witnesses: Elizabeth Reyes, Meylin Zelaya and Jack Devine. But these individuals did not provide evidence for the motion, and thus their statements were considered “merely hearsay.”[18]

Under the section “analysis,” the court references Rule 20.04(2)(a) of the Rules of Civil Procedure, and notes that the court shall consider the evidence submitted by parties, and may exercise any of the following powers (noted below), for the purposes of determining if there is a genuine issue requiring a trial:

  1. Weighing the evidence
  2. Evaluating the credibility of a deponent
  3. Drawing any reasonable inference from the evidence.[19]

The court also recognizes it may be in the interest of justice for such powers to only be exercised at trial.[20] Justice Braid reviews a two-step “roadmap,” from Hryniak v. Mauldin, which should be taken in a summary judgment process:

  1. Determine whether there is a genuine interest requiring trial, based upon the evidence.
  2. If there appears to be a genuine issue requiring a trial, the court should determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). These powers may be used, so long as it is not against the interest of justice.[21]

Under the present facts, Justice Braid notes that in assessing whether the defendant should be assigned any liability, Her Honour must determine whether Ms. Gingerich could or should have done anything differently to avoid the collision. Her Honour also acknowledges that the court is “required to make a finding of fact regarding whether Ms. Abreu stopped before entering the intersection.”[22] Justice Braid ultimately determines that credibility issues cannot be resolved at the summary judgement motion and there is a genuine issue requiring a trial.[23]

To elaborate further upon the need for a trial, Justice Braid points out that the parties “failed to properly cross-examine opposing witnesses on the critical issue of whether Ms. Abreu stopped before entering the intersection.”[24] Justice Braid notes that the rule in Browne v. Dunn has not been followed.[25] When Ms. Abreu was examined at discovery, the contradictory evidence of Mr. Freriks was not put to her.[26] When Mr. Freriks was cross-examined, the contradictory evidence of Ms. Abreu was not put to him.[27] Neither Ms. Abreu or Mr. Freriks was challenged regarding the contradictory evidence, and thus, Justice Braid declines to “evaluate credibility without a fulsome cross-examination of these witnesses.”[28]

[1] Abreu v. Gingerich et al., 2020 ONSC 6797, at para 2

[2] Ibid, at para 4.

[3]Ibid, at para 6.

[4] Ibid, at para 6.

[5] Ibid, at para 5.

[6] Ibid, at para 8.

[7] Ibid, at para 10.

[8] Ibid, at para 11.

[9] Ibid, at para 12.

[10] Ibid, at para 13.

[11] Ibid, at para 14.

[12] Ibid, at para 15.

[13] Ibid, at para 16.

[14] Ibid, at para 17.

[15] Ibid, at para 18.

[16] Ibid, at para 19.

[17] Ibid, at para 22.

[18] Ibid, at para 24.

[19] Ibid, at para 25.

[20] Ibid, at para 25.

[21] Ibid, at para 26; in Hryniak v. Mauldin, 2014 SCC 7, at para 66. The court in Abreu also elaborates that it will not be against the interests of justice if utilizing the powers under Rules 20.04(2.1) and (2.2) will lead to a fair and just result, and serve the goals of timeliness, affordability and proportionality.

[22] Supra note 1, at para 29.

[23] Supra note 1, at para 30.

[24] Supra note 1, at para 34.

[25] The rule in Browne v. Dunn (1893), which is referenced by the court, is that a party seeking to impeach the credibility of a witness must put contradictory evidence to the witness during cross-examination. This gives the witness an opportunity to address the inconsistency.

[26] Supra note 1, at para 35.

[27] Supra note 1, at para 36.

[28] Supra note 1, at para 37.

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