Broussard v. Hawley

Broussard v. Hawley Court Supreme Court Date 2009-01-05 Citation 2009 NSSC 1 Docket SH 272038 Judge/Registrar/Adjudicator Coady, Kevin (Honourable Justice) (SC) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Broussard v Hawley, 2009 NSSC 1 Date: 20090105 Docket: SH 272038 Registry: Halifax Between: Christopher John Broussard Plaintiff and Lynette Hawley and AXA Insurance (Canada) Defendants Judge: The Honourable Justice Kevin Coady Heard: December 11, 2008, in Halifax, Nova Scotia Decision: January 5, 2009 Counsel: David Brannen, for the plaintiff Philip Chapman, for the defendants By the Court: [1] This application was heard in chambers on December 11, 2008 at Halifax. A Notice of Discontinuance respecting AXA Insurance (Canada) was filed with this Court on February 19, 2007. The Plaintiff brings this application seeking the following relief: · Leave to initiate interlocutory proceedings pursuant to Civil Procedure Rule 28.05; · An order for summary judgment on the issue of liability pursuant to Civil Procedure Rule 13; [4] The Plaintiff filed a Notice of Trial with Jury on January 23, 2008. A date assignment conference was held on July 11, 2008. While these steps would normally preclude any further interlocutory proceedings, the date assignment Justice set trial dates notwithstanding that the “plaintiff is considering an application for summary judgment”. I am satisfied that the Defendant acquiesced in this approach as they did not argue “leave” in their written or oral submissions. Consequently the only application remaining is summary judgment. [5] There is another development that does not impact on the merits of this application but is worthy of mention as it represents the motivation for bringing this application at this time. In 2007 a second action arising from this same accident was commenced. The Defendant is contemplating an amalgamation application. Obviously the Plaintiff has waited for trial dates and now faces the possibility of considerable delay while the second action works its way through the litigation. If the Plaintiff succeeds on this application, he can utilize the scheduled dates for an assessment of damages. If he does not succeed, there is a good chance that these trial dates will be lost. The Defendant argues that summary judgment is not warranted as there is an element of contributory negligence. [6] Factors respecting liability are quite different in each action. In this case the Plaintiff was operating a motorcycle. In the second action the Plaintiff is the mother of the Defendant and was a passenger in the Defendant’s motor vehicle when it was struck by the Plaintiff. There looms the possibility that this Plaintiff, Mr. Broussard, will be joined as a third party in the second action. The Defendant is obviously concerned that the success of this application will materially impact on the second action. Notwithstanding these factors, I will decide this application on its own merits. I do not feel that Mr. Broussard should be held up because of the second plaintiff’s delay in bringing her action. [7] While it is not my role to make findings of fact, it is necessary to review the circumstances surrounding this accident in order to rule on this application. [8] This accident occurred on September 7, 2004 on the Old Antigonish Road at 1:30pm. The Plaintiff Mr. Broussard was operating a motorcycle and the Defendant Ms. Hawley was operating an automobile. The Defendant’s mother was a passenger in the Defendants’ vehicle. The Plaintiff was approaching the oncoming Defendant vehicle when, he alleges, the Defendant stopped in his lane and he ran into the side of that vehicle. It is the position of the Plaintiff that he had no opportunity to avoid the collision. [9] The Plaintiff was thrown from his motorcycle and suffered injuries that he describes as “permanent serious impairment of important bodily functions”. [10] The Originating Notice and Statement of Claim were filed on September 29, 2006 and alleged negligence on the part of Ms. Hawley. On November 17, 2006 Ms. Hawley filed her defence denying any negligence on her part and pleading contributory negligence. [11] In oral submissions the Defendant argued that there is a factual basis for shared liability and that dictates against summary judgment on liability. Obviously a ruling on shared liability would impact on the second action brought by the Defendant’s mother. The Defendant argued that Mr. Broussard’s statement and discovery indicate that he was looking at his speedometer and was therefore distracted from noting the obstacle before him. The Plaintiff explains his words as indicating that he looked down at his speedometer only after he noted the obstacle in front of him. He says he slammed on his brakes and had no time to avoid the collision. [12] The Defendant also argues that Mr. Broussard may have been distracted as a result of passing another vehicle. The following appears in his October 9, 2008 affidavit: 3. I described my recollection of the motor vehicle accident at a discovery examinations held on March 15, 2007. My description of the accident is found at pages 130-135 of his discovery transcript, which is attached as Exhibit 4 of the Affidavit of David Brannen. 4. At page 131, of my discovery transcript, lines 16-23, I state that I passed a car just before the collision: So on my way there, I was just cruising along. I wasn’t really – I was just, I was paying attention to everything that was going on and from what I can remember, I remember there was a car. I don’t remember a car behind me. I remember there being a car in front of me and I passed that car. And all of a sudden, she pulled out in front of me and I stood up, slammed on my back brake [emphasis added]. 5. I want to clarify my discovery evidence cited above. When I said I passed a car I was referring to a car that was in the oncoming lane. I can’t remember exactly when I passed that car, but it was very close to the time of the collision. I did not pass any cars, on my side of the road from the time I left the mall to the time of the collision. [13] The Defendant argues that this response brings credibility into issue. The Plaintiff argues that this is nothing more than a correction to a misunderstanding of his discovery evidence. [14] I also had before me the affidavit evidence of Margaret MacDonald who was an independent witness to the accident. She states that the Defendant vehicle was going slow and stopped at 2-3 driveways as if she was looking for a particular driveway. She stated the Defendant turned left towards the entrance to “Frenchys”, then stopped suddenly blocking the oncoming lane. She saw the Plaintiff’s motorcycle crash into the vehicle as he “had nowhere to go”. [15] The Defendant’s affidavit of October 6, 2008 does not differ significantly from Ms. MacDonald’s. She states that she was travelling slowly while looking for the “Frenchys” driveway. She states that she took an alert look before turning and saw nothing coming. She stated that after starting the turn her mother yelled and that she stopped her vehicle 2/3 across the oncoming lane. She adds that she was later convicted for failing to yield. In her affidavit filed October 6, 2008 she states as follows: 5. Prior to attempting to turn left into the driveway, I checked both directions for traffic in the eastbound lane. I made note of a curve in the road further west along the road. I did not see any oncoming vehicles. 6. I started to make a left hand turn across the eastbound lane of travel. My vehicle was approximately 3/4 across the centre line when my mother hollered my name. I immediately stopped my vehicle. Approximately 3-4 seconds had elapsed from when I started to turn until this point in time. 7. My vehicle was stopped for approximately 6-7 seconds prior to being struck by a motorcycle being operated by Mr. Broussard. I saw the motorcycle just seconds before impact and did not have time to move out of the way. The motorcycle struck the front passenger door of my vehicle. [16] The critical issue on this application relates to whether the Plaintiff failed to keep a proper lookout thereby contributing to the collision. There is no doubt in my mind that the Defendant was negligent far beyond any possible contributory negligence. [17] Civil Procedure Rule 13.01(c) states as follows: 13.01. After the close of pleadings, any party may apply to the court for judgment on the ground that: (a) there is no arguable issue to be tried with respect to the claim or any part thereof; (b) there is no arguable issue to be tried with respect to the defence or any part thereof; or (c) the only arguable issue to be tried is as to the amount of any damages claimed. [18] The two part test for summary judgment was described in Fournier v Green [2005] N.S.S.C. 253 as follows: The plaintiff, in order to succeed in a summary judgment application, first has the obligation to prove her claim and then the burden shifts to the defendant to satisfy that he has a bonafide defence or at least an arguable issue to be tried before the court. He must disclose the nature of the defence or issue to be tried with clarity through sufficient facts to indicate that it is a bonafide defence or issue to be tried. [19] The test for summary judgment was articulated in Pricewaterhouse Coopers Inc. v County Realty Ltd. 2006 N.S.S.C. 132: “[10] The test for summary judgment in Nova Scotia is well established. In Canadian Imperial Bank of Commerce v. Tench (1990), 97 N.S.R. (2d) 325 (C.A.), Macdonald, J.A. stated at paragraph 9: The law is clear that a plaintiff is entitled to obtain summary judgment if he can prove his claim clearly and if the defendant is unable to set up a bona fide defence or raise an arguable issue to be tried - see Bank of Nova Scotia v. Dombroswski (1977), 23 N.S.R. (2d) 532; 32 A.P.R. 532 ... Under the circumstances of this case, if the allegations contained in the statement of defence are correct, they would afford an answer to the bank’s claim. [11] In D.E. & Son Fisheries Ltd. v. Goreham (2003), 217 N.S.R. (2d) 199, (N.S.C.A.), Cromwell, J.A. stated at para. 2: Summary judgment may be granted to a plaintiff if the plaintiff can prove the claim clearly and the defendant is unable to set up a bona fide defence or raise an issue against the claim which ought to be tried. Bank of Nova Scotia and Simpson (Robert) Eastern v. Dombrowski (1978), 23 N.S.R. (2d) 523, A.P.R. 532 (C.A.) at 537; Oceanus Marine Inc. v. Saunders (1996), 153 N.S.R. (2d) 267, 450 A.P.R. 267 (C.A.) at para 15. [12] There is no meaningful difference between an “arguable” issue and a “genuine” or “bona fide” issue: see Roscoe J.A. in United Gulf Developments Ltd. v Iskandar, 2004 N.S.C.A. 35 (N.S.C.A.). [20] It is clear from a reading of Rule 13 and the cases above cited that an onus rests upon the Defendant to bring forth sufficient facts to show that a bona fide defence or issue exists which ought to be tried. [21] In opposing an application for summary judgment credibility can come into play. If there is a reasonable issue as to credibility, then the application is likely to fail. In Karen Turner-Lienaux and Smith’s Field Manor Development Limited v Wesley Campbell (1998), 167 N.S.R. (2d) 196 Cromwell J.A. stated at paragraph 3: 3. The Summary Judgment Application:] With respect to the first ground of appeal, the Chambers judge applied the correct principles and arrived at a just result. He said: ...here, the credibility of the parties is such a critical issue to the ultimate resolution of the claim, a trial is the only arena for that to be assessed and decided by the trier of fact. As I and other judges in Nova Scotia have said repeatedly, is not my function in this setting to determine matters of fact or of law which are in serious dispute. Such matters should only be left for resolution at trial. [22] And also at page 3: ... Summary judgment applications are not the appropriate vehicle for determining disputed facts, difficult questions about the appropriate inferences to be drawn from facts or complex legal questions. This application raised all of these. [23] I am satisfied that the Plaintiff has met the initial burden of establishing he has a claim in negligence against the Defendant. On the facts before me I am satisfied that he has a strong case. After all, the Defendant placed her motor vehicle in the Plaintiff’s lane and then suddenly stopped. The affidavit of Margaret MacDonald supports the position of Mr. Broussard respecting the circumstances surrounding this collision. The Defendant’s evidence raises the possibility of the Plaintiff passing another vehicle, failing to keep an alert outlook and failing to take evasive action. If I find that these partial defences have an “air of reality”, then I am precluded from granting summary judgment on liability. MacNeil v Black, [1998] N.S.J. No. 83. This case also stands for the proposition that the threshold for showing the existence of a defence worthy of trial is not a high one. [24] I have read Stevens v Corkum, [1971] N.S.J. No. 116 (NSCA), Nicholson v Cobb, [1983] P.E.I.J. No. 21, McKim v. Oakley, [1994] B.C.J. No. 1130, and Cawson v Quandt, [1999] B.C.J. No. 1341. These cases establish that where obstacles are placed in the path of oncoming vehicles, such does not relieve the oncoming driver of being alert and attempting to avoid the obstacle. [25] I am satisfied that the Defendant has raised contributory negligence to the point of an “arguable issue”. There are factual issues and credibility issues which should be determined at trial. In light of this conclusion, this application is dismissed. [26] I will award $750.00 costs to the Defendant. J.