Impeachment Process: Plaintiff rear-ends car in front, sues and loses

  • January 09, 2018
  • Jordan Black

In Chernet v. RBC General Insurance Company, the Ontario Court of Appeal upheld the motion judge’s decision to dismiss a Plaintiff’s case by way of summary judgment.  The Plaintiff’s allegations in the case seemed at odds, from the start, with the generally accepted rules about rear-end accidents.  The law overwhelmingly favours the forward-most vehicle, and places a heavy onus on the rear-most driver to prove the accident was unavoidable.  Otherwise, the rear driver is expected to keep enough distance from the car in front to be able to stop in time, even if that car stops abruptly. 

In this case, the Plaintiff hit the Defendant from behind.  As such, he had a steep hill to overcome.  The motion judge assessed that no evidence existed which could allow for a conclusion that the Defendant’s car suddenly cut in front of the Plaintiff’s, such that the rear-end impact was unavoidable.  Examples of such evidence could have been skid marks on the road or even evidence showing an off-center impact to the rear of the Defendant’s vehicle.  There was none. 

The Plaintiff appealed on the basis that the motion judge made “geometrical” findings of fact, without the assistance of expert evidence.  The Court of Appeal rejected this submission, and found the motion judge’s inferences to be reasonable.  The findings were not just reasonable by virtue of the lack of evidence, but also reasonable when considering (a) the Defendant’s evidence that he was stopped at a red light when he was hit from behind and (b) the Plaintiff’s entirely equivocal evidence when comparing his discovery testimony and his sworn affidavit in response to the motion (he told two obviously different stories). 

The motion judge’s finding of facts were entitled to a high degree of deference, in accordance with Supreme Court’s decisions in Hryniak and earlier in Housen, seeing as his decision was one of mixed fact and law. 

One can argue that the Court of Appeal is effectively saying that the threshold where expert evidence would be required was simply not met, given the fact that the Plaintiff’s own evidence was wholly insufficient, especially considering the high burden against him and the need to put his best foot forward in defending the summary judgment motion.  This is yet another example of the growing the tendency of the courts to find fact and weigh evidence on a summary judgment motion.  


About the author

Jordan Black, Dutton Brock LLP

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