COURT OF APPEAL FOR ONTARIO

CITATION: Myers-Gordon v. Martin, 2014 ONCA 767

DATE: 20141104

DOCKET: C57734

MacFarland, LaForme and Lauwers JJ.A.

BETWEEN

Kelly Myers-Gordon, a mentally incapable person by her Litigation Guardian, Cynthia Gordon, Cynthia Gordon, personally, Amy Gordon, Christy Gordon, Stephen Myers-Gordon and Stephen Gregory Myers

Plaintiffs

(Respondents)

and

Randy Martin, Karen Martin, Christina Beauregard, Cody Van Every and State Farm Mutual Automobile Insurance Company

Defendants

(Appellant, State Farm)

Chris G. Paliare and Andrew K. Lokan, for the appellant, State Farm

C. Kirk Boggs, for the respondent, Karen Martin

Heard: October 9, 2014

On appeal from the order of Justice James C. Kent of the Superior Court of Justice, dated August 29, 2013.

ENDORSEMENT

[1] This is an appeal from the order of Kent J. dismissing this action as against the respondent Karen Martin.

[2] In the early hours of September 26, 2009, Randy Martin, while impaired by alcohol and driving a 2005 Dodge Durango motor vehicle owned by his mother, Karen Martin, struck and killed two young persons and seriously injured two others.

[3] Randy Martin entered a plea of guilty to the following charges:

two counts of impaired driving causing death

two counts of impaired driving causing bodily harm

one count of leaving the scene of an accident causing bodily harm.

[4] As part of the plea process, Randy Martin agreed to and admitted certain facts. The principal admission relevant to this appeal is that he did not have his mother’s consent to operate the vehicle at the time of the accident. Karen Martin’s evidence was to the same effect and there was no evidence before the motion judge to contradict their evidence in this respect.

[5] The respondent Karen Martin moved for summary judgment dismissing the action against her and the motion judge granted her motion.

[6] The appellant, State Farm, argues two grounds of appeal. First, it says the motion judge applied the wrong test and second, the motion judge ought to have ordered the trial of an issue.

[7] After carefully reviewing all of the evidence including the evidence which the appellant argues is indicative of implied consent, the motion judge said at paragraph 33 of his reasons:

Nevertheless it is Randy’s credibility that is more the issue. Counsel for the responding parties argue that Randy’s credibility should be assessed by the jury in the context of a trial. They point out that discovery transcripts are not a full record. Randy was, however, examined (and cross-examined) at discovery by five experienced counsel and his evidence appears consistent. The test is subjective. It is what Randy believed at the time that is determinative.

[8] The appellant submits that in describing the test as a purely subjective one, the motion judge erred. The test, it argues, is not a purely subjective one but there is an objective element to it as well.

[9] The appellant refers to the seminal case in this area Palsky (Next friend of) v. Humphrey, 1964 CanLII 96 (SCC), [1964] S.C.R. 580 a decision of the Supreme Court of Canada. The driver had been killed in the accident giving rise to the action. The trial judge found that the driver had the implied consent of the owner to have the vehicle. The Alberta Court of Appeal allowed the appeal and criticized the test the trial judge used in coming to that finding. The Supreme Court of Canada allowed the appeal and restored the decision of the trial judge. At page 3 of the Quicklaw version of the case the court quoted the trial judge’s reasons:

It is my conception of the meaning of that statute that in dealing with the implied consent it means that one must approach the problem in a somewhat subjective fashion from the point of view of the person who was driving. That is to say whether in all of the circumstances the person, who was driving, would have been justified in deeming that he had implied consent to drive.

and said in relation to those reasons:

What the learned trial judge was doing was putting to himself the question whether all the circumstances were such as would show that the person who was driving had the implied consent of the owner and therefore, of course, whether he would have been justified in deeming that he had that consent.

[10] And as the court noted, the trial judge’s finding should not be reversed unless the inferences which he drew were clearly wrong or he acted on some incorrect principle of law. The court concluded the trial judge had done neither.

[11] The appellant emphasizes the words “somewhat subjective fashion” and “under all the circumstances” and submits that those words import an objective component into the test; accordingly the motion judge erred in law when he described the test as “subjective”.

[12] We do not accept this submission. A review of the motion judge’s reasons demonstrate that he gave careful consideration to all of the evidence before him. At paragraph 26 of his reasons he considered what he described as “the strongest facts supporting a finding of implied consent”. He concluded, however, that in the particular circumstances of this case, where both Randy, the driver and his mother, the owner, state that Randy did not have her consent to have the vehicle on the night of the accident, that Randy’s credibility was more the issue. There was no evidence before the motion judge that challenged the credibility of either Randy or his mother on this point.

[13] In our view, it was open to the motion judge to accept their evidence and find that the respondent, Karen Martin had met the onus and satisfied the court that, on the evening of the accident, Randy Martin did not have her consent to have her automobile. We would not give effect to this ground of appeal.

[14] The appellant submits, as its second ground of appeal, that the trial judge ought to have directed a trial of the issue. When this motion was heard the Supreme Court of Canada had not yet released its judgment in Hryniak v. Mauldin et al., [2014] S.C.C. 7. The motion judge relied on this court’s judgment in Combined Air Mechanical Services Inc. v. Flesch, [2011] ONCA 764 – a more restrictive test.

[15] As the Supreme Court noted in Hryniak at para. 50:

It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[16] The motion judge noted that the case did not involve “significant contentious facts”, and that the moving party relied on the evidence of three parties, all of whom had been examined for discovery. He noted that none of the responding parties, of which only State Farm appeals to this court, had added any evidence. In the circumstances, he was satisfied that he could decide the issue of implied consent on the motion for summary judgment.

[17] We are not persuaded he made any error in doing so and we would not give effect to this ground of appeal.

[18] As a result, the appeal is dismissed. Costs to the respondent, Karen Martin fixed in the sum of $15,000.00 inclusive of disbursements and H.S.T., the figure to which counsel have agreed.

“J. MacFarland J.A.”

“H.S. LaForme J.A.”

“P. Lauwers J.A.”