Importance of Putting Best Foot Forward At Trial Underscored - Mayers v. Khan 2017 ONCA 524

July 17, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Importance of Putting Best Foot Forward At Trial Underscored - Mayers v. Khan 2017 ONCA 524

COURT OF APPEAL FOR ONTARIO

Date of Decision: June 22, 2017
Heard Before:  Epstein, Hourigan and Paciocco JJ.A.

On appeal from the order of Justice Benjamin T. Glustein of the Superior Court of Justice, dated January 13, 2017, with reasons reported at 2017 ONSC 200.

REASONS FOR DECISION

Ms. Mayers was struck by a Brinks truck at an intersection when she turned left on what she claims was an advanced green. She claims the oncoming Brinks truck driven by Mr. Khan, drove through a red light and struck her. Ms. Mayers is appealing the motion judge’s order dismissing her motor vehicle negligence claim on a summary judgment motion. The motion judge accepted evidence from Ms. Myers, Mr. Khan, and an independent witness and accepted the evidence Mr. Khan did not go through a red light, nor could he have anticipated that Ms. Mayers would turn in front of him. On this basis the trial judge found there was no enuine issue requiring a trial to test if Mr. Khan was responsible for the accident.

Ms. Mayers argues that the motion judge reversed the evidentiary burden on the motion, and erred in granting summary judgment. She also argues that the motion judge should have ordered a mini-trial instead of granting summary judgment and made palpable and overriding factual errors.

On review of the facts the Court of Appeal found the motion judge correctly identified and applied the burden of proof applicable on a summary judgment motion. The motion judge stated the shifting onus on motions for summary judgment, indicating that the evidentiary burden of demonstrating there is no issue requiring a trial falls is borne by the moving party. Only once the moving party discharges this burden, does the burden shift to the responding party to prove that the claim has a real chance of success. The motion judge rejected Ms. Mayers' initial theory for why a trial was necessary – that she was turning on an "advance green light" and that Mr. Khan ran a red light. This conclusion was not appealed. Ms. Mayers advanced a secondary theory that a trial was necessary to determine whether Mr. Khan was contributorily negligent for failing to take reasonable precautions to avoid the accident. Ms. Mayers submits that the onus was on the respondents to lead expert evidence that Mr. Khan could have done nothing to avoid the accident.

The Court of Appeal disagreed with Ms. Mayers submission. Having concluded that Mr. Khan had demonstrated that there was no genuine issue requiring a trial, Ms. Mayers was obliged to lead evidence to satisfy the burden that had shifted to her to demonstrate that Mr. Khan contributed to the accident such as by not driving more slowly, given the conditions. This she did not do. It follows that the motion judge did not err in the identification or application of the burden of proof. Rather, Ms. Mayers did not meet the onus that shifted to her, in the circumstances of this case. Ms. Mayers has failed to demonstrate any error in principle, or any palpable or overriding error, that would provide a basis for rejecting the motion judge’s appreciation of the evidence and his findings of fact based on that evidence.

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