Case Summary: Moxam v. Anderson, 2020 ONSC 4173 

This 2012 car accident came up for a summary judgment motion in March, 2020.

This is a dispute between the two vehicles, only, which means that it was the two insurers were arguing over this point.  The plaintiff, a passenger in the Hockey Dad’s car, did not argue this motion – this means that there was likely enough insurance coverage, on the Anderson vehicle, to cover the Plaintiff’s potential claims.

This was a car accident at an intersection without lights.  One road (travelled by Gray, the Hockey Dad) did not have a stop sign, it was a right-of-way.  The intersecting road (travelled by Anderson) did have a stop sign, which Anderson says he stopped at before proceeding through the intersection.  The Accident involved the Hockey Dad’s car hitting the rear portion of the Anderson vehicle, in a T-bone (or “L” shaped) type of impact, within the intersection.

The issue was that the Hockey Dad’s insurer sought to end the lawsuit, early, against the Hockey Dad on the basis that there was no evidence of negligence against the Hockey Dad.

On this motion, the Hockey Dad won and was let out of the lawsuit.


The facts are summarized nicely by the Judge but a few facts jump out:

  • The Anderson driver plead guilty to the Highway Traffic Act charge against him for this Accident for failing to stop at his stop sign;
  • The Anderson driver had an engineering expert report opining that the Hockey Dad could have avoided the Accident but, apparently, that engineering expert did not opine that the Hockey Dad was driving above the speed limit just prior to the Accident (i.e. could have avoided Accident if he was going slower / the speed limit), which seems a critical point;
  • The Hockey Dad apparently was late, driving players to a game, and had been driving up to 10km/hr over the speed limit (of 80 km/hr) prior to reaching the Accident intersection; he slowed down to under the speed limit prior to reaching the intersection;
  • Unusually, the son of the Hockey Dad indicated that his father was driving 80 – 100km/hr prior to reaching the intersection, where the evidence was that he slowed down prior to reaching the intersection;
  •  Anderson stopped his car about 30 feet before the intersection and getting out, to go to the washroom at the side of the road.  This testimony was found contrary to evidence indicating that the Hockey Dad and another witness saw the Anderson car approaching the intersection (i.e. while it was around ¼ km to ½ km from the intersection) so that the two cars were likely to reach the intersection at the same time.

Not an easy case for Mr. Justice George to decide.  But the decision, after weighing the evidence in favour of Hockey Dad, was as follows: 

[30]      Having made these findings, I deem it appropriate to use the enhanced powers afforded me in the rules and, in the result, find in favour of Gray.  I appreciate that in some instances, when the servient driver disobeys a traffic sign, responsibility can be assigned to the dominant driver; see Sant (Litigation Guardian of) v. Sekhon, 2013 ONSC 2982, and Ashim v. Zia, 2014 ONSC 6460.  As a general proposition that is of course true.  However, this rests upon a finding that the dominant driver had a reasonable opportunity to avoid the collision but failed to do so.  In this case the record is such that I can safely find that, short of coming to a complete stop before arriving at the intersection, there is nothing Gray could have done to avoid the consequences of Anderson’s admittedly bad driving.  I am well equipped to make the finding that nothing that occurred before the accident, nor anything that Gray observed, would have led a reasonable driver to do anything different than what Gray in fact did.  A trial is not required to resolve that issue.

[31]      I concede that there are features of this case that weigh against the granting of partial summary judgment: The facts and issues on this motion are, not just closely intertwined with, but identical to those which will be decided at trial, which in most cases would run the risk of inconsistent verdicts and findings.  And, of course, to grant this motion would not eliminate or materially shorten the trial’s length.  No real efficiencies would be gained as the trial will proceed in any event.  The point is, caution should always be used when addressing a request for partial summary judgment.

[32]      That said, the test is the test.  Is there a genuine issue requiring a trial? Which, in this case, mandates an examination of the request in the context of the litigation as a whole.  And, upon weighing the evidence I heard against the underlying objectives set out in Hryniak, I find that this is one of those rare cases where partial summary judgment is called for.  Which is to say, even after exercising an appropriate level of caution, there is no realistic possibility that a jury would find Gray in any way responsible for the collision.  This is an unavoidable conclusion.

[33]      The result may very well have been different if, as in the authorities cited and relied upon by Anderson, there was actually a contest between competing versions of events.  But there is none.  Anderson has no recollection of the events and brought nothing of direct value to this motion 

[34]      For these reasons, Gray’s motion for partial summary judgment is granted.  All claims and cross-claims as against Gray are dismissed.