Fournier v. Green

Fournier v. Green Court Supreme Court Date 2005-11-29 Citation 2005 NSSC 253 Docket SH 225931 Judge/Registrar/Adjudicator MacDonald, Simon J. (Honourable Justice) Document Type Decision Relations Library Sheet - Fournier v. Green - 2005 NSSC 253 - 2005-11-29 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Fournier v Green, 2005 NSSC 253 Date: 20050908 Docket: SH 225931 Registry: Halifax Between: Michelle Fournier Plaintiff v. Debra Green and Eric Craig Defendant Revised decision: The text of the decision has been corrected on November 29, 2005 and replaces the previously distributed decision. Judge: The Honourable Justice Simon J. MacDonald Heard: June 10, 2005 in Port Hawkesbury, Nova Scotia Counsel: Gerald A. MacDonald, for the plaintiff Sandra Arab Clarke, for the defendant By the Court: [1] This is an application for an Order for summary judgement pursuant to Civil Procedure Rule 13 and an interim payment under Civil Procedure Rule 31.01. I have read the affidavits on file as well as the briefs submitted by counsel. I as well heard Counsel representing both sides in oral argument at the chambers hearing for this application. [2] Civil Procedural Rule 13.01 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. [3] The Plaintiff ,in order to succeed in a summary judgement application, first has the obligation to prove her claim and then the burden shifts to the Defendant to satisfy the court 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 the issue to be tried with clarity through sufficient facts to indicate that it is a bonafide defence or issue to be tried. [4] A comprehensive review of the law applicable in summary judgement matters can be found in the judgement of Justice Jamie Saunders in Webber et al v. Canadian Surety Company (4) (1992) 112 N.S.R. (2d) 284. [5] The court must also be aware of the comments made by MacKeigan C.J.N.S. in Lunenburg County Press Ltd. v. Deamond (1977) 18 N.S.R. (2d) 689 at para. 5: “ We are very conscious, however, as a Judge should be in dealing with an application of this sort, that summary judgment is a summary proceeding which should not be lightly granted so as to deprive a litigant of his right to have any bona fide case disposed of after full trial. We must accordingly allow the appeal and set aside the order of His Honour Judge Burke dated June 14, 1976. We direct that the costs of this appeal and of the application before Judge Burke be costs in the cause of the action.” [6] In this particular application involving a rear-end collision, there is a heavier burden upon the Defendant. This authority can be found in the words of Freeman, J.A. in MacNeil v. Black [1998] N.S.J. No. 83 at paragraph 8 where he said as follows: “A further burden of proof, and a considerably heavier one, falls on the defendant in rear‑end collision cases. The driver of the rear car must rebut a presumption that the collision occurred as a result of his negligence. See the judgment of Roscoe J. in Wilson v. McInnis (1992), 111 N.S.R. (2d) 78. “ [7] This accident happened at the intersection of Kings Road and Alexander Street in Sydney, Nova Scotia, on the 4th of March, 2004. The Plaintiff was operating her motor vehicle and said in her affidavit that she was struck from behind by one of the Defendants named in the action. [8] In describing how the accident occurred the defendant, Eric Craig stated in his affidavit: “4. THAT the intersection of Kings Road and Alexander Street is governed by traffic lights. As I approached the intersection, I noticed that there were three or four vehicles ahead of mine, including a Pontiac Montana van (“Montana”) being operated by an individual who was later identified to me as the plaintiff, Michelle Fournier, and which was the vehicle immediately ahead of mine. 5. THAT two or three of the vehicles referred to in paragraph 4 above proceeded through the traffic light. As I advanced toward the traffic light, my speed was approximately 10 to 15 km per hour. As the traffic light turned red, I did not see brake lights on the Montana and the front of my vehicle struck the rear bumper of the Montana.” [9] In a second affidavit filed by Michelle Fournier, she stated as follows in paragraph 4 and 5: 4. THAT attached hereto and marked Exhibit “A” by the person swearing this my Affidavit is a photo of a vehicle similar to the vehicle that I was driving, which is a Pontiac Montana, and the tail lights are quite high off the ground and would have been visible to any person paying the slightest attention to the vehicle in front of them. 5. THAT I have checked with Pat LeBlanc, who repaired my vehicle after the accident and I have checked with Shawn Aucoin, who was the insurance adjuster for my insurance, Co-Op Insurance, and both have declared to me that the tail lights were working when I took the vehicle to be appraised and took it in for repair. [10] The defendant argues summary judgment ought not to be allowed because there is an arguable issue to be tried, namely, that even if one accepts the evidence of the Plaintiff that one has to consider the issue of contributory negligence. Mr. Craig said in his affidavit, he did not see any brake lights on the Montana. Thus the defendant says there is an issue as to whether or not they were on or working. Secondly, the defence argues there might possibly be a contributory negligence issue in this case because the Plaintiff suddenly stopped. [11] I adopt the position of Freeman, J.A. in MacNeil v Black, supra at para 10, where he said: “The threshold for showing the existence of a defence worthy of trial is not a high one, but the defendant has not met it. The standard pleading that the plaintiff stopped abruptly, without more by way of supporting facts, lacks an air of reality. It does not meet, nor suggest how the defendant hoped to meet, the plaintiff's assertion that she had been stopped for 45 seconds. It was necessary for the defendant in his pleadings or by way of affidavit or other evidence to assert facts capable, if proven at trial, of rebutting the presumption that the collision resulted from his negligence. The bald statement in the pleadings does not disclose the existence of an actual or probable defence and cannot fend off an application for summary judgment.” [12] I have listened to the argument of the defendant and have read her affidavits and material attached thereto. I am satisfied there has to be an “air of realty” to the defendant’s argument. If the brake lights did not work then the defendant drove straight into the rear of the plaintiff’s car. Secondly if the plaintiff stopped suddenly and as the defendant noted in his affidavit, the traffic light turned red then the plaintiff’s vehicle was supposed to stop as well. To strike the plaintiff’s vehicle from behind on these facts then the defendant was travelling too close or didn’t have enough care or control of his vehicle and consequently the collision occurred. In any event, I am satisfied when you read the material there was no “air of reality” to the defendant’s argument. [13] The defendant also argued that plaintiff ought not to be successful in her application for summary judgment because she has not been able to establish the motor vehicle accident resulted in her suffering injuries. The defendant referred to the case of Griffiths v Martell [1999] N.S.J. No. 285. At paragraph 6 Hamilton J.A. states as follows: “I considered if this Rule authorizes me to issue a summary judgment limited only to liability for the accident itself and not causation, because of its use of the words "a part thereof", but on reading the whole of Civil Procedure Rule 13.01, I am satisfied that it means that summary judgment is not to be granted when there is any issue other than the amount of damages still in issue between the parties, which I interpret to only be the case after causation has been determined as part of the summary judgment application.” [14] I am satisfied upon reading the reports of Doctor Steve Crosby and Doctor Douglas Watt attached as appendix 1 and 2 to the plaintiff’s affidavit that the causation of a certain amount of her physical injuries resulted from the accident. [15] I am not satisfied the defendant has met the required burden and I allow the application. Judgement is entered against the respondent/defendant as to liability with damages to be assessed. [16] INTERIM PAYMENT The Plaintiff, now having obtained summary judgement, fulfills the conditional precedent for the application for interim payment under Rule 33.01 (A)(1). Which states as follows: “Nothwithstanding the provision of rule 33.01, the court may order the defendant to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set off, cross-claim or counter-claim on which the defendant may be entitled to relay, if the court is satisfied: (a) that the defendant against whom the order is sought had admitted liability for the plaintiff’s damages or (b) the plaintiff has obtained judgment against the defendant for damages to be assessed. [17] The general principles involving interim payments where summary judgment has been allowed was discussed in Bogaczewicz v Faulkner, [1997] N.S.J. No. 237. See also Mahoney v Almeco Leasing Limited [1999] N.S.J. No. 390 and MacDonald v MacPherson [1999] N.S.J. No. 283 affirmed on Appeal 1999 N.S.J. No. 445. The case law may be summarized as follows: 1. It is not the function of the Court in determining the matter of an interim payment to make findings of credibility or even to dwell on them. This might ultimately be for a Trial Judge at an assessment of damages. 2. An Order of an interim payment is not mandatory. It is a discretionary Order of the Chambers Judge. 3. The Court must exercise caution in assessing likely recovery of a plaintiff in the early stages of litigation particularly where there is a lack of medical opinion in the discovery of experts where necessary. 4. An application under Rule 33.01(A) is not to be a trial or mini trial where an estimate of the plaintiff’s ultimate recovery can be difficult and may amount to nothing more than a haphazard guess. In such cases the Court should refrain from making an order of interim payment. 5. In cases where there is considerable uncertainty existing as to what is likely to be recovered by the Plaintiff, the proper approach is that where the Court is faced with such a degree of uncertainly, it should conclude that it is unable to make a determination of reaching an opinion as to what is likely to be recovered in those damage areas of uncertainty. [18] The evidence submitted by way of the Plaintiff’s affidavits causes the court difficulty. The plaintiff is making a significant claim yet when one listens to defendant’s counsel and reads the material attached to the defendant’s affidavit, one concludes there is a significant amount of other factors relating to the health of the plaintiff. There is no doubt this would impact on any assessment of damages that might be made in this particular case. I am looking at the evidence submitted in the affidavits without the benefit of any examination or cross examination before me in an attempt to decide what is likely to be recovered by the plaintiff. I have however, read the discovery evidence of the plaintiff submitted as attached to the affidavit of Ms. Sandra Arab Clarke, the defendant’s counsel. [19] The plaintiff blames her neck injury, shoulder injuries, tingling in her hands and arms as well as other injuries on the accident. There is conflict in her evidence about her depression and other problems she is having with her health in the report of Doctor Watt dated November 8, 2004 where the plaintiff interpreted comments from a visit with her family doctor that her problems were not related to her motor vehicle accident. [20] Defence counsel has gone to great extent to show the Plaintiff’s prior conditions would all combine to contribute in a significant way to her current health complaints. These range from an injury to her right shoulder and elbow prior to the motor vehicle accident, tennis elbow in the right arm, malaise and fatigue, pain in joints, as well as obstructive lung defect to name but a few. Defence counsel states there is a long medical history involved here and has argued strenuously there are credibility issues in relation to certain claims relating to her injuries. [21] It is not the function of this court in determining the matter of an interim payment to make findings of credibility or even to dwell on them. I am satisfied any amount of assessed damages which might be arrived at will depend largely upon credibility and medical evidence at trial. The defendant argues there has yet to even be an independent medical examination of the plaintiff. In my opinion to assess any amount in this case at this point in time would be a most difficult task and would only be a haphazard guess. [22] Serious issues exist between the parties as to whether or not the plaintiff’s injuries sustained in the motor vehicle accident have resulted in any on going inability of the plaintiff to work in any capacity. As well there is a question as to her claim involving loss of valuable service as to whether or not the amount claimed is appropriate when the plaintiff stated in discovery that she was able to do some housework and did so. [23] The plaintiff’s damage claim is further complicated in this particular matter as a result of the recent amendments in 2003 to the Insurance Act, R.S.N.S. 1989, C-23, especially as it would relate to non-pecuniary general damages. On the information provided to the Court from both parties it is conceivable with the material before me, the plaintiff’s injuries could be described as minor. If, after trial, a Court assessed that Ms. Fournier suffered a minor injury, it would bring her under the new legislation. Her general damages could be capped at $2,500. [24] Thus, a Court should be extremely cautious in approaching an award in this particular category in absence of significant medical evidence which would clearly establish this injury classification could be overcome. It must be recalled that under the legislation the onus is on the plaintiff to prove that any injuries she sustained are not minor injuries. [25] On a review of the material supplied for this application, I am not satisfied that this is an appropriate case to order an interim payment at this point in time and I decline to do so. In my opinion, to assess any amount of interim payment on facts presented would be a most difficult task and would only be a haphazard guess. [26] However, as I said before, I would order summary judgment be entered against the defendant with damages to be assessed. [27] Each party having been partially successful, I would order no costs to either side. [28] Order accordingly. J.