Beau Stephen Montgomery Ferris Chapman

An appeal concerning the vicarious liability of co-owners of a motor vehicle under the Highway Traffic Act and the scope of insurance coverage under the Insurance Act.

The appellant insurance company argued that where two co-owners jointly own a vehicle, only the co-owner who consented to a third party's possession of the vehicle should be vicariously liable for negligent operation by that third party.

The court rejected this argument, holding that if either co-owner consents to possession by a non-owner, both co-owners are vicariously liable under section 192(2) of the Highway Traffic Act.

The court also clarified that section 239(1) of the Insurance Act does not create liability but merely requires coverage of liabilities imposed by law.

The court considered whether the removal of an underground storage tank by the plaintiff, Fleetway Fuels Inc., was a “voluntary removal” under Endorsement No. 10 of an insurance policy issued by Liberty Mutual Insurance Company.

The court found that the removal was voluntary, as it was undertaken as a result of a contractual obligation in a commercial lease, not due to compulsion by law or governmental order.

The exclusion in the policy therefore applied, and the insurer was not required to indemnify the plaintiff for environmental cleanup costs discovered during the removal.

These supplementary reasons correct a previous decision regarding liability under s. 192 of the Highway Traffic Act.

The court, upon discovering a Court of Appeal decision (Mazur v. Elias et al.), clarified that co-owner consent is not required for liability to attach to both owners under the Act.

This correction amends paragraph 29 of the original reasons, affirming that liability attaches to co-owners regardless of consent flow.

The plaintiff and her insurer brought a motion for a determination of a question of law regarding whether the "personal" consent of a co-owner is required for a motor vehicle policy to provide insurance coverage for liability arising from the use of an insured automobile.

The court examined the interplay between section 239(1) of the Insurance Act and section 192(2) of the Highway Traffic Act, particularly in light of the 1990 amendment to the Insurance Act which removed the word "personally." The court determined that the personal consent of the co-owner was not required, as consent could flow through an intermediary, and the two statutory schemes operate independently.

The plaintiff, an Ontario resident, was injured in British Columbia while driving for an Alberta-based company.

He elected to receive Alberta workers' compensation benefits and subsequently initiated a tort action in Ontario against the defendant, the truck's owner and also an Ontario resident, alleging improper maintenance.

The defendant moved to stay or dismiss the action, arguing it was statute-barred by the plaintiff's election to receive workers' compensation benefits and constituted an abuse of process.

The Ontario Superior Court of Justice allowed the motion, finding the tort action was statute-barred based on principles of inter-provincial comity and that it represented an abuse of process, as it sought to relitigate a matter covered by the workers' compensation scheme and allowed for potential double recovery, thereby circumventing the 'historic trade-off' inherent in such legislation.