The Ontario Court of Appeal ordered a re-trial in a case that apportioned liability for a rear-end collision on the basis that the trial judge failed to resolve divergent testimony.
In Martin-Vandenhende v. Myslik, the Appeal Court notes Janice Martin-Vandenhende was traveling southbound on a street in Ridgetown, Ontario, returning home from her work at Home Hardware. Behind her, also traveling southbound, Peter Myslik was driving his father in a GMC Sierra pickup truck.
Martin-Vandenhende testified that as she was driving, she realized she had forgotten something at her work. She testified she activated her left-turn signal and slowed down to a speed of 20 km-h to 30 km-h.
She intended to turn into a private driveway in order to retrace her steps back to the store. Before she made her left turn, however, and before she crossed the centre lane, she was violently struck from behind.
The Mysliks testified that Martin-Vandenhende had actually turned on her right-turn signal, slowed down almost to a dead stop, and pulled her vehicle over to the right so that both of her vehicle's right wheels were on the shoulder.
Thinking that she was allowing them to pass her on the left, the Mysliks attempted to pass. When they realized she had started to turn left, the driver, Peter Myslik, performed evasive action, hitting the right rear end of her car.
The trial judge did not resolve the divergent testimony. Instead, the judge ruled, taking the Myslik version of events "at the highest," the Mysliks were nevertheless 100% responsible for the collision.
The Appeal Court found the judge made an error by not resolving the conflicting testimony.
In fact, if the trial judge had taken the Mysliks' testimony "at the highest" – including the testimony that she had turned on her right-turn signal and pulled over onto the shoulder – the Appeal Court found it was open for the trial judge to conclude that Martin-Vandenhende's actions were at least partially responsible for the collision.
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