DATE: 20031224

DOCKET: C37407

COURT OF APPEAL FOR ONTARIO

ABELLA, BORINS and ARMSTRONG JJ.A.

B E T W E E N:

HARVEY THORNE, CHUCK MITCHELL and JUDY MITCHELL

Plaintiffs

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TRACEY PRETS, THE ESTATE OF MICHAEL JOHN MacNEIL and JOHN PRETS

John Friendly for the appellant

Appellant (Defendant)

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THE GUARANTEE COMPANY OF NORTH AMERICA added as a party pursuant to the Insurance Act, R.S.O. 1990, c. I.8, s. 258 (14) as amended

Douglas O. Smith for the respondent

Respondent (Third Party)

Heard: May 15, 2003

On appeal from the judgment of Justice Nancy M. Mossip of the Superior Court of Justice dated November 26, 2001.

ARMSTRONG J.A.:

[1] The estate of Michael John MacNeil appeals from the judgment of Justice Nancy M. Mossip of the Superior Court of Justice dated November 26, 2001, in which she awarded damages to the plaintiff, Harvey Thorne, for injuries suffered in a car accident.

Background to the Appeal

[2] Harvey Thorne was a passenger in a car driven by Michael John MacNeil. They were involved in an accident in which MacNeil was killed and Thorne was seriously injured.

[3] Thorne sued the estate of Michael John MacNeil and the owner of the car, John Prets. The Guarantee Company of North America (“Guarantee Company”) was added as a third party pursuant to the Insurance Act, R.S.O. 1990, c. I.8. The Guarantee Company is the insurer of John Prets.

[4] The trial judge decided three issues:

(i) Who was the owner of the car? There was a dispute on this issue because John Prets and Harvey Thorne were in the midst of completing the sale of the car at the time of the accident.

(ii) Who was the driver of the car? There were no wit-nesses to the accident.

(iii) Who was in possession of the car at the time of the accident?

[5] The trial judge determined that Prets was the owner of the car, that MacNeil was the driver of the car and that Thorne was a passenger in the car. There is no challenge to these findings on this appeal.

[6] The issue in this appeal concerns the trial judge’s application of s. 166(1) of the Highway Traffic Act, R.S.O. 1980, c. 198 (now s. 192(1) R.S.O. 1990, c. H.8) which provides:

The owner of a motor vehicle is liable for loss or damage sustained by any person by reason of negligence in the operation of a motor vehicle on a highway unless the motor vehicle was without the owner’s consent in the possession of some person other than the owner or his chauffer, and the driver of a motor vehicle not being the owner is liable to the same extent as the owner.

[7] Liability in this case turns on whether Thorne, who had been given unrestricted possession of the car by Prets prior to the accident, was in possession of the car at the time of the accident. If Thorne was in possession of the car at the time of the accident, then s. 166(1) is engaged, Prets is liable, and the Guarantee Company is responsible for the payment of Thorne’s damages. The trial judge in response to the third issue in paragraph 4 above found that Thorne was not in possession of the car at the time of the accident and therefore the responsibility for the payment of his damages rested with the Motor Vehicle Accident Claims Fund. The appellant submits that the trial judge erred in making this finding.

The Facts

[8] Prets had agreed to sell his car to Thorne. With the consent of Prets, Thorne drove the car prior to the accident but before the sale had been completed. There was some dispute in the evidence as to the period of time during which Thorne drove the car prior to the accident. However, this dispute is not relevant to the issue in this appeal. At no time did Prets give MacNeil express consent to drive the car.

[9] On the evening of the accident, September 28, 1989, Thorne and MacNeil were together in the Acton/Milton area west of Toronto. They drove in Prets’ car. Thorne was the driver. At some point in the evening, MacNeil asked Thorne if he could drive the car and Thorne refused to let him drive. Thorne knew that MacNeil did not have a driver’s licence.

[10] After Thorne and MacNeil spent some time in a tavern in Milton, Thorne left the tavern and returned to the car, which was located in the tavern parking lot. Thorne was tired and was concerned about driving after drinking several beers. He sat in the passenger side of the car with his feet up.

[11] Within five minutes, MacNeil went to the car. Thorne said to MacNeil, “give me about an hour, half an hour and come and check me to see if I’m ready to go.” As a result, MacNeil went back into the tavern. Thorne turned on the car radio and placed the car keys in the utility tray in the middle of the car.

[12] The next thing Thorne recalled was hearing MacNeil shouting a warning. Thorne was still in the passenger seat and MacNeil was driving the car. The car moved sideways and left the road. MacNeil was killed. Thorne suffered back injuries which required surgery.

The Trial Judgment

[13] The trial judge approached the application of s. 166(1) of the Highway Traffic Act as follows:

The final legal question I must then answer is as follows: Was the car in MacNeil’s possession at the time of the accident? In other words, was it no longer in Thorne’s possession.

There is no dispute that John Prets had not consented to Michael MacNeil possessing the Horizon. He had consented to Harvey Thorne being in possession of his car. Accordingly, if I answer the above question yes, that is, that the car was in Michael MacNeil’s possession at the time of the accident, then John Prets as owner and the third party, his insurance company, have a valid defence to the strict liability provisions of s. 166 of the Highway Traffic Act. If I do so find, then the Fund alone, on behalf of Michael MacNeil is solely liable, subject to the issue of contributory negligence, for Harvey’s damages.

If I find that Michael MacNeil was not in possession, and accordingly Harvey Thorne was, then John Prets and his insurer are liable for the damages, as Harvey was in possession of the car with the owner’s consent.

[14] Counsel for the appellant relied, at trial and in this court, on Thompson v. Bourchier, 1933 106 (ON CA), [1933] O.R. 525 (C.A.) in support of his submission that a proper application of s. 166(1) of the Highway Traffic Act would impose liability on Prets as owner of the car. He argued that s. 166(1) is a strict liability provision. He argued that it would be contrary to the purpose of the legislation if the owner of a car could escape liability because he did not give his consent to the person ultimately in control of the car at the time of an accident.

[15] The trial judge distinguished Thompson from the case at bar on the basis that, in Thompson, the person who had been given the consent of the owner was a passenger in the car and he acquiesced (although reluctantly) to someone else driving it at the time of the accident. I agree with the distinction made by the trial judge.

[16] The trial judge made the following finding:

Specifically, I find that the facts of this case are distinguishable from Thompson v. Bourchier because MacNeil was never driving the car as Thorne’s guest or with his permission either tacit or otherwise. Harvey who was at the least asleep, and was perhaps in addition impaired by alcohol to some level of unawareness, was incapable himself of exercising possession of a car, and he was not in any position to transfer possession either directly or indirectly to MacNeil.

Accordingly, I find that Harvey was not in “possession” of the car at the time of the accident. I find that MacNeil was in possession of the vehicle, and he was in possession without Thorne or Prets’ consent and, therefore, Prets is not liable pursuant to s. 166 of the Highway Traffic Act for MacNeil’s negligence.

[17] The evidence before the trial judge provided ample support for her finding. In my view, Thorne was in possession of the car during the evening. However, MacNeil deprived Thorne of possession by taking control of the car and driving it while Thorne was asleep. He thereby took possession of the car without the consent of either the owner or Thorne.

[18] This court has held previously that the question of whether a motor vehicle was in the possession of some other person without the owner’s consent is a question of fact to be decided by the evidence in each particular case. See Barham v. Marsden, [1960] O.W.N. 153 at 154 (C.A.); Newman and Newman v. Terdik, 1952 97 (ON CA), [1953] O.R. 1 at 7 (C.A.).

[19] In my view, there is no basis upon which this court could find that the trial judge committed a palpable and overriding error in her conclusion that Thorne was not in possession of the car at the time of the accident. That said, there is no basis upon which this court could interfere with the judgment. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

DISPOSITION

[20] In the result, I would dismiss the appeal. I would award costs to the respondent fixed in the amount of $7,500 inclusive of disbursements and Goods and Services Tax.

RELEASED:

“DEC 24 2003” “Robert P. Armstrong J.A.”

“RSA” “I agree R.S. Abella J.A.”

“I agree S. Borins J.A.”