Executive Summary: Key Legal and Evidentiary Issues

• Allocation of liability in a rear-end motor vehicle collision where the rear driver admits following too closely but alleges the front driver “brake-checked” without justification.
• Significance of engineering and expert evidence (including Event Data Recorder inspection) to support or undermine allegations of capricious braking and contributory negligence by the lead driver.
• Proper sequencing and limits of affidavit, reply, and proposed sur-reply evidence on a contested summary judgment motion under the Rules of Civil Procedure.
• Judicial discretion to enforce and amend litigation timetables after multiple case conferences while balancing fairness and the need for finality (“at some point the back and forth must end”).
• Application of the well-established negligence principles governing rear-end collisions and the shifting evidentiary burden between the lead and following drivers.
• Use of the enhanced fact-finding powers on summary judgment (Rule 20.04(2.1)) to potentially resolve expert disputes without sending the matter to trial.

Factual background

The underlying action arises from a motor vehicle accident that occurred on June 7, 2019. The plaintiff, Chadwick Thompson, was a pedestrian walking on the shoulder of the road when a chain-reaction collision took place. The defendant Thomas E. Hegenauer was driving a pickup truck ahead of the defendant Rebecca Lee Bursey, who was operating a following vehicle. Bursey’s vehicle struck the rear of Hegenauer’s pickup truck, and then Bursey’s vehicle hit the plaintiff on the shoulder. Bursey admits that she was travelling closely behind Hegenauer’s vehicle at the time of the incident. The Hegenauer defendants (Thomas E. Hegenauer, Wilsand Holdings Ltd., 402981 Ontario Limited, and Suburban Landscaping) face claims for negligence, while Bursey likewise faces negligence allegations as the rear driver in a classic rear-end collision scenario. There is no discussion in this endorsement of any insurance policy terms or coverage clauses; the focus is on liability and procedural management of the summary judgment motion.

Procedural history and case conferences

The Hegenauer defendants brought a motion for summary judgment seeking to have the claims against them dismissed. They served their notice of motion and motion record on March 13, 2024. Over time, the court held six separate case conferences to manage the timetable and evidentiary steps for this summary judgment motion. At the first case conference on May 29, 2024, the plaintiff had already brought a motion under Rule 30.10 to inspect Hegenauer’s vehicle, which had been sold to a non-party. The plaintiff argued that the Event Data Recorder (EDR) might reveal whether Hegenauer applied his brakes before the rear-end impact, so he sought to delay the summary judgment motion until that inspection occurred. Initially, the plaintiff provided no expert evidence that a five-year-late inspection would still produce relevant data. The court adjourned to allow the plaintiff to obtain such expert support, and by the second and third case conferences the Rule 30.10 motion had been granted, the former vehicle inspected, and it was confirmed that the EDR contained no details about the accident relevant to this litigation. After that inspection, the Hegenauer defendants confirmed their intention to proceed with the summary judgment motion. Originally, counsel for Bursey said she would take no position on that motion, but later the Bursey defendant, through different counsel from the same firm, decided to oppose the motion and to file affidavit evidence asserting that relative liability among the defendants required a trial. In a May 15, 2025 case conference, the court allowed Bursey to change her stance, provided her position on the motion was consistent with her pleaded defence. Because her position—arguing that the allocation of fault among defendants was still in dispute—aligned with her statement of defence, she was permitted to participate fully in the motion as long as she complied with the existing timetable. The timetable was adjusted modestly to extend cross-examination deadlines and to allow a reply factum from the moving party. Later, on May 26, 2025, the Hegenauer defendants sought leave to file an expert reply affidavit to respond to one of the plaintiff’s experts. This was initially opposed, but the court ultimately allowed the moving party to serve a reply affidavit within 30 days, with directions that the parties agree to a revised schedule that would still preserve the August 19, 2025 triage date. When agreement proved impossible, another case conference followed.

Expert evidence, late affidavits, and timetable amendments

By the fifth case conference in October 2025, the evidentiary record had grown more complex. Bursey had served yet another expert affidavit on October 1, 2025, outside the court-ordered timetable. Counsel for the Hegenauer defendants objected on the basis that this was not contemplated by the prior orders and risked further delaying the summary judgment hearing. Although the affidavit was late and contrary to the parties’ agreed schedule, the court exercised its discretion to allow the Bursey defendant to rely on it. The judge emphasized that he wanted each party to be able to put its “best foot forward” on the motion, while ensuring that the moving party retained the right to a final reply. The timetable was therefore amended to allow a reply affidavit from the moving party by January 15, 2026, and to set firm dates for completion of cross-examinations and for serving factums. Importantly, the amended timetable expressly provided that no further affidavits could be served without leave of the court. A triage court date was set for February 10, 2026, with the expectation that the summary judgment motion would then be scheduled for a date after April 30, 2026. Despite this explicit prohibition on further affidavits, on January 21, 2026 the plaintiff and Bursey jointly sought leave to file additional “sur-reply” expert reports responding to the Hegenauer defendants’ reply affidavit. They also requested that cross-examinations, already scheduled for February 11 and 12, be adjourned to March 31, 2026, and that the triage date be moved. Their proposal would have allowed them to file their sur-reply material without giving the moving party any further right of response. The Hegenauer defendants opposed this request as unnecessary and prejudicial, arguing that the record was already extensive and that the motion had been delayed long enough.

Summary judgment and rear-end collision legal framework

The judge set out the governing principles for summary judgment motions and the specific context of rear-end collisions. On a summary judgment motion, the moving party must first show there is no genuine issue requiring a trial; only then does the evidentiary burden shift to the responding party to demonstrate that its claim or defence has a real chance of success. In the rear-end collision context, once the lead driver establishes that a rear-end collision occurred, the evidentiary burden shifts to the rear driver to show that he or she was not negligent. The rear driver must keep a proper lookout, maintain a reasonable following distance, control speed, and anticipate that the vehicle ahead may stop unexpectedly. Canadian jurisprudence has long held that, generally, when one car strikes another from behind, the default inference is negligence on the part of the rear driver, who must then satisfy the court that the collision was not due to his or her fault. In this case, Bursey admits she was travelling closely behind Hegenauer and that her vehicle struck his truck before hitting the plaintiff. The responding parties rely on engineering opinions suggesting that the degree of damage to Bursey’s vehicle is consistent with Hegenauer having applied his brakes. They characterize this as a deliberate or capricious “brake-check” because Bursey was following too closely, and they say this behavior gives rise to contributory negligence by the lead driver. Hegenauer denies braking before the impact, and the Hegenauer defendants have filed reply affidavits addressing and contesting the engineering evidence. The judge notes that on the eventual summary judgment motion there will likely be two central issues: first, even accepting the responding parties’ version of events, whether their defence has a real chance of success in the face of established rear-end collision principles; and second, whether the summary judgment judge can resolve the conflict in expert evidence using the enhanced fact-finding tools under Rule 20.04(2.1), including weighing evidence, assessing credibility on the paper record, and drawing reasonable inferences, without needing a full trial.

Decision on additional affidavit evidence

By the time of the sixth telephone case conference on February 4, 2026, the record stood as follows: the moving party had served its motion record and reply affidavit; the responding parties had delivered their responding and late expert affidavits; and the court had repeatedly adjusted deadlines at the request of both sides. The only remaining evidentiary step was cross-examination on the existing affidavits. The accident was now almost seven years old, and the summary judgment motion had been pending for nearly two years. The judge concluded that the litigation had already seen extensive “back and forth” on affidavits and schedules. In that context, and given the express earlier direction that no further affidavits be served without leave, the court refused the plaintiff’s and Bursey’s joint request to serve additional sur-reply affidavits and to push out the timetable yet again. The judge stressed that all parties had had a fair opportunity to marshal expert and lay evidence and to respond to one another’s positions. Allowing yet another round of expert materials would undermine the goal of efficiency that underpins summary judgment procedure and modern case management.

Implications and outcome

The endorsement does not resolve the underlying question of liability or damages; rather, it decides a focused procedural issue: whether the plaintiff and the Bursey defendant may serve further sur-reply expert affidavits and obtain consequential timetable changes. The court held that they may not. As a result, the evidentiary record on the summary judgment motion is closed, and the parties must proceed to cross-examinations on the existing affidavits and move forward to triage and, ultimately, the hearing of the summary judgment motion. In this procedural skirmish, the successful party is the moving party—the Hegenauer defendants—because the court accepted their position that no additional sur-reply evidence should be permitted and that the timetable should stand. No damages or costs are awarded or quantified in this endorsement, and the total monetary amount, if any, that may ultimately be ordered in favour of any party on the merits cannot be determined from this decision.