In Hussain v. Uddin, Mr. Justice Gerald F. Day has taken the somewhat unusual step of granting a defence motion for summary judgment in an action arising out of a motor vehicle accident.
The moving defendants, Mr. and Mrs. Noack, had been driving southbound in a Dodge Caravan. Their car was struck, in the southbound lane, by a Honda, operated by another defendant. One passenger in the Honda was killed and another was injured.
The Noacks brought this motion for summary judgment, contending that there was no genuine issue for trial as to liability for the accident. Justice Day’s reasons suggest that the motion was opposed by the plaintiffs (the injured passenger and the family of passenger who was killed). Presumably, counsel for the defendant Honda driver would also have resisted the motion, although the reasons don’t indicate this.
Plaintiffs’ counsel argued that a trial was necessary in order to determine whether Mr. Noack should have sounded his horn, flashed his lights, noticed the fish-tailing Honda sooner than he did, etc. The plaintiffs also pointed to the fact that no affidavit evidence had been filed on behalf of the Noacks and that the Rules of Civil Procedure allow a court, on a motion for summary judgment, to draw an adverse inference from this.
Commenting on the latter point, Justice Day said that while it is true that the Rules would permit him to draw an adverse inference against the Noacks for having failed to file affidavit evidence, such an inference can only be drawn if there is some evidence on the other side that can thereby be accorded greater weight. No adverse inference can be drawn so as to favour a proposition which, itself, is completely unsupported by evidence.
Justice Day noted that the eye-witness accounts and the police report all stated that the Honda had crossed the centre-line of the highway, into the path of the Noacks’ Dodge Caravan. He concluded that “a prima facie presumption arises against the driver of a vehicle involved in an accident when the driver crosses over into the driving lane of the other vehicle involved in the collision.…The presumption can, of course, be rebutted; however in this case, it was not.”
This is a heartening decision. Too often, we see this sort of case (where the dispute is factual, rather than legal) sent on to trial on the basis of issues that really exist only in theory. Like the recent ruling by Master Joan Haberman in Nelson v. Thiruchelvam, Hussain makes it clear that a court acts on the basis of evidence placed before it.