Guo v. Simpson seems like the classic car accident case in which vehicles collide in an intersection controlled by traffic lights. If both drivers claim that they entered the intersection on a green light, liability issues will turn entirely on credibility, and such cases seem poorly suited to resolution on a motion for summary judgment.
The defendant Simpson did move for summary judgment, however, based on admissions he apparently received from the plaintiff on examinations for discovery and as a result of serving notices to admit.
Simpson’s co-defendant Pamplona, the other involved driver, did not defend the action, and his automobile insurer obtained an order adding it as a third party to the action under section 258(14) of the Insurance Act. Although this insurer initially opposed Simpson’s motion, it eventually decided to take no position. The plaintiff persevered, trying to keep Simpson in the action on the grounds that possible testimony from Pamplona would show that Simpson was contributorily negligent.
In her affidavit, she deposed that she’d spoken to Pamplona at a nursing home. Through a Portuguese-speaking interpreter, she learned that Pamplona had suffered two strokes, had serious diabetes, had undergone an amputation, and had additional serious medical problems. She also indicated that Mr. Pamplona had no recollection of the accident. There was no evidence to suggest that he would ever recover his memory.
Primarily, it appears that the plaintiff relied on information that her counsel had obtained from counsel for Pamplona’s insurer, indicating that Pamplona made statements at the accident scene which, if true, would mean that he had entered the intersection in obedience to the traffic lights.
On Simpson’s motion for summary judgment, the court stated that even if this evidence was admissible for the purposes of the motion, it was not sufficient to counter the moving party’s evidence demonstrating that there was no genuine issue requiring trial with respect to the potential liability of the defendant Simpson: “The plaintiff raises at best a faint possibility that Mr. Pamplona may be able to testify and recover his memory sufficiently to be able to provide further evidence on how the accident occurred.”
According to the court, a summary judgment motion can’t be successfully resisted on the basis of suggestions or speculation as to evidence that might be obtained at a later date. The court is required to make its decision based on the evidence actually adduced on the motion. Simpson’s motion was therefore allowed, and the action against him dismissed.
Link: CanLII – 2011 ONSC 4960 (CanLII)
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