The Plaintiff, a pedestrian, alleged that he was crossing the intersection pursuant to the crosswalk signal when he was struck by the Defendant who was making a right turn. The Defendant admitted to not seeing the Plaintiff before the impact. There was an independent witness, a TTC bus driver, who gave evidence to the police that she saw the pedestrian run into the middle of the right passenger side of a van which had been in the process of making a right hand turn. The Plaintiff denied running or being in a rush. The Plaintiff disputed the appropriateness of a summary judgment motion even if it pertained only to liability.
Both parties agreed that credibility was important. Mew J. recognized that Rule 20.04(2.1) expressly permits the Court to evaluate the credibility of a deponent or to draw any reasonable inference from the evidence, but expressed concerns about the insufficiency of the record on the motion. Mew J. listed various questions that have not been asked of the witnesses and pieces of evidence that have not been provided, both of which he believed would have helped him in evaluating the credibility of the evidence of the witnesses. As a result, Mew J. concluded that based on the record, he could not fairly resolve the issue of liability.
In deciding whether it would be appropriate to do a mini-trial, Mew J. found that he would end up hearing most, if not all, of the same evidence on liability that would be presented at a trial, that a determination of the issue presented for summary judgment would not necessarily resolve the whole case and that the existence of the jury notice was a significant factor militating against ordering a mini-trial in this case. Mew J. also noted that this action was a fairly routine personal injury action which required mandatory mediation and a pre-trial, both of which will offer opportunities for resolution; interposing a mini-trial at this juncture would be a disproportionate measure. Mew J. concluded that a mini-trial was not appropriate and the motion was dismissed.