DIVISIONAL COURT FILE NO.: CV-10-444
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Mr Justice Ramsay
BETWEEN:
Hydro One Networks Inc.
Plaintiff (respondent)
– and –
Wendy White
Defendant (appellant)
Mr Lou Fortini for the respondent
Ms Melissa Hoestra for the appellant
HEARD: 2011-03-21 at Brantford
[1]
Introduction
The defendant appeals under s.19 of the Courts of Justice Act from the decision of a deputy judge of the Small Claims Court. The judge awarded damages to the plaintiff to replace a hydro pole that was demolished by the defendant appellant’s pickup truck. At the trial the parties agreed on the amount of damages. The appellant defended the action on the basis that she was not liable.
[2]
Standard of Review
The standard of review is correctness. I owe deference, however, to the trial judge’s findings of fact absent palpable and overriding error.
[3]
Background and Evidence
The respondent plaintiff called as a witness the deputy chief of police who testified from police records of the observations of the investigating officer, who had since died. According to the records, on September 9, 2006 the appellant’s pickup truck was found by police in a ditch near Bicentennial Trail in the Six Nations territory, not far from the appellant’s residence. It appeared that the driver of the truck was doing burnouts, lost control and destroyed the hydro pole. Police were told that several young kids were seen fleeing the vehicle. There was blood on the passenger’s door, on the seat and on the middle console of the vehicle. The appellant attended the scene and advised that she was in Brantford all night and had left a baby sitter at her residence. She had no idea who would have taken her vehicle. There was no damage to the locks or the steering column, from which it could be inferred that the person who took the vehicle had the key. The appellant produced a key to the vehicle which looked like a spare key to the officer because it still had the dealer’s tag attached to it. The appellant did not appear to be sober in the officer’s opinion. Neither did she appear to be injured. She had not reported her vehicle stolen by the time of the accident.
4The appellant testified that on the day of the accident she worked until 5 pm and then went home. Her sister came over at 9 pm to pick up the appellant’s children to babysit them. The appellant and a friend then went to Brantford to a dance. They stayed at the dance until 1:30 or 2 am and then went to a house party. At the party, another friend sent her a text message saying that he or she had seen the appellant’s vehicle in a crash. The appellant went home to see if her vehicle was there. When it was not, she went to the scene and spoke to the police officer. The appellant’s first friend was driving on all these occasions. The appellant argued with the police officer. According to her, he said there was a party at her residence, but she said there was not. The appellant admitted that she had been drinking, but not driving. The plaintiff respondent’s agent confirmed to the police on October 19, 2006 that there had been no party at the respondent’s house. The appellant told her own insurer the next day that her truck had been stolen and damaged.
5The appellant testified that she had originally had two sets of keys to the truck, but one set was lost the previous July. At the time of the accident she had only one set of keys, which she produced to the officer at the scene of the accident. She testified that she lives in a bad neighbourhood and that she has had problems with vandalism before.
[6]
Analysis
The judge observed correctly that once it is proved that a motor vehicle driven on highway causes damage, s.193 of the Highway Traffic Act puts the onus on the owner of the motor vehicle to prove that the damage was not caused by negligence or improper conduct on his or her part. He noted inconsistencies in the police report and the unavailability of the author of the report, and said that he did not think that the appellant had been driving the vehicle. He then concluded,
In my view, the defence has not met the onus, they’ve missed an opportunity to present evidence that would let me say that they had indeed met the onus and therefore I’m going to provide, there will be judgment for the plaintiff in the amount of the claim.
7It was obvious that the driver of the appellant’s motor vehicle damaged the hydro pole through negligence. The appellant was liable under s.193 of the Highway Traffic Act if she herself was negligent or under s.192 (2) of the Act if she consented to the driver’s possession of her vehicle. It was open to the judge to infer either on the plaintiff’s case, if he did not accept the appellant’s evidence to the contrary. The judge did not say why he did not accept the appellant’s evidence, other than to note that it was not corroborated and that she could have called other witnesses.
8The appellant’s evidence was not entirely uncorroborated. She did not appear to have shed blood. That evidence confirmed that she was telling the truth about the material fact that she was not the driver. It was capable of supporting her credibility as a witness in general.
9As to the evidence the appellant should have called, I do not know what it might have been. The appellant’s evidence that she had not been driving and that there was no party at her place was accepted or admitted. No one but she would have been in a position give evidence of the negative averment that she did not give anyone consent to drive her truck.
10The evidence does make one wonder how a thief could have taken the truck without the keys and without damaging the steering column, but it could have happened. Or, in a small community the thief could have found, or have taken, the missing key. The plaintiff did not have the onus of proving precisely how her truck was taken without her consent. She had only to make out a likely explanation that tipped the scales in her favour. Given the cogency of her evidence and the judge’s omission to give any good reason for rejecting it, I conclude that the judge made a palpable and overriding error in applying s.193 of the Highway Traffic Act to the evidence, and, as a result, in his findings of fact.
[11]
Disposition
The appeal is allowed. The judgement and resulting cost order are set aside. Judgment is given to the appellant.
[12]
Costs
If the parties do not agree on costs they may make written submissions within 14 days.
J.A. Ramsay J.
Released: 2011-03-22
Hydro One Networks Inc. v. White, 2011 ONSC 1795
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Mr Justice Ramsay
BETWEEN:
Hydro One Networks Inc.
Plaintiff (respondent)
– and –
Wendy White
Defendant (appellant)
REASONS FOR JUDGMENT
Released: 2011-03-22