R. v. Villasenor, 2022 ONCJ 578

CITATION: R. v. Villasenor, 2022 ONCJ 578

DATE: December 15, 2022

Information #999-21-5442

IN THE MATTER OF

the Compulsory Automobile Insurance Act, R.S.O 1990, c. C.25

Between

His Majesty the King

prosecutor

and

Carlos GUTIERREZ VILLASENOR

defendant

Ontario Court of Justice

Brampton, Ontario

Quon J.P.

Reasons for Judgment

Trial held: July 26, 2022.

Judgment released on: December 15, 2022.

Charges: s. 2(1)(a) C.A.I.A. – “owner operate motor vehicle on highway without insurance”

Counsel:

Bauer, M., provincial prosecutor

Tashos, J.T., legal representative for the defendant, Carlos GUTIERREZ VILLASENOR

Cases Considered or Referred To:

Hayduk (Next friend of) v. Pidoborozny, 1972 136 (SCC), [1972] S.C.R. 879 (S.C.C.).

Honan v. Gerhold, 1974 26 (SCC), [1975] 2 S.C.R. 866, 50 D.L.R. (3d) 582 (S.C.C.).

Keizer v. Hanna (1975), 1975 47 (ON CA), 10 O.R. (2d) 597, 64 D.L.R. (3d) 193 (Ont. C.A.), per Kelly, Arnup, and Howland, JJ.A.

MacInnis v. Rayner, [2016] P.E.I.J. No. 55 (P.E.I. Supreme Ct.), Cheverie J.

Olympia & York Developments Ltd. and City of Toronto (1980), 1980 1752 (ON SC), 29 O.R. (2d) 353, 113 D.L.R. (3d) 695 (O.H.C.J. (Div. Ct.)), per Pennell, Robins, and Steele, JJ.

Passero Estate v. Fitt, [2015] O.J. No. 5904 (Ont. S.C.J.), Ramsay J.

Pyke v. Pyke, [1998] P.E.I.J. No. 78 (P.E.I. Supreme Court (Trial Div.)), Webber J. (In Chambers)

R. v. Cordoba, 2016 ONCJ 13, [2016] O.J. No. 75, 128 O.R. (3d) 594 (Ont. C.J.), Quon J.P.

R. v. Zwicker, 1994 1221 (ON CA), [1994] O.J. No. 197 (O.C.A.), per Lacourcière, Robins, and Finlayson JJ.A.

Wynne v. Dalby (1913), 1913 578 (ON CA), 30 O.L.R. 67 (Supreme Ct. of Ont. (App. Div.)), per Meredith C.J.O., Magee, and Hodgins JJ.A. and Sutherland J.

Statutes, Regulations and Rules cited:

Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, ss. 1(1), 2(1), 2(1)(a), 2(1)(b), 2(3)(a), and 2(7).

Highway Traffic Act, R.S.O. 1990, C. H.8, s. 192.

Insurance Act, R.S.O. 1990, c. I.8, ss. 251 and 265.

Family Law Act, R.S.O. 1990, c. F.3, ss. 4(1), 4(2), 5(1), 5(3).

Exhibits entered:

Exhibit "1" - certified Ministry of Transportation document dated March 8, 2022, indicating that the registered owner of a two-door silver-coloured 2007 Austin Cooper passenger motor vehicle, with V.I.N. number WMWMF73587TT84910, with attached license plate number CLVV132, on February 16, 2021 is Myriam De Jesus URREGO BARRIENTOS with an address of [removed for privacy], Mississauga, Ontario, and which also indicates that the permit for the vehicle had been issued on March 20, 2020 and had also expired on December 1, 2020 (2 pages).

1. INTRODUCTION

[1] For the purposes of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, the “owner” of a motor vehicle can either be the registered legal owner or anyone else that has the indicia of being a “common law owner” for that motor vehicle: R. v. Zwicker, 1994 1221 (ON CA), [1994] O.J. No. 197 (Ont. C.A.). To be clear, a “common law owner” of a motor vehicle does not have to be the person who is registered as the owner of the motor vehicle with the Ministry of Transportation and may be the person who exclusively or predominately drives or uses the motor vehicle and who also arranges for, pays for, and cancels the insurance for the motor vehicle, or is the person who was the co-signer on the purchase agreement in the purchase of the motor vehicle. Moreover, courts have also adopted and recognized other indicia besides those specific ones that have been mentioned, which can also be relied on to find someone to be a “common law owner” of a motor vehicle.

[2] In the present case, Carlos GUTIERREZ VILLASENOR, the defendant, has been charged with committing the offence of “owner operate motor vehicle on highway without insurance”, despite the fact that the vehicle he had been observed driving had been registered in the name of his wife. On February 16, 2021, at approximately 8:36 p.m., Officer Gill of the Peel Regional Police, had observed the defendant driving a 2007 Silver-coloured Mini Cooper motor vehicle with a licence plate numbered CLVV132, on a highway in Brampton. At trial, Officer Gill had testified that he had concluded that the defendant was the “common law owner” of the Mini Cooper motor vehicle, which had been legally registered to the defendant’s wife, Myriam De Jesus URREGO BARRIENTOS. Officer Gill also testified that he had stopped the defendant to investigate the insurance status for the Mini Cooper motor vehicle, as Gill’s licence plate status check on the Mini Cooper vehicle had revealed that the insurance status for that vehicle had been unconfirmed. After completing his investigation into the insurance status for the Mini Cooper vehicle, Officer Gill had charged the defendant with contra contravening s. 2(1)(a) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, for the offence of “owner operate motor vehicle on highway without insurance”. Furthermore, Officer Gill testified that he had formed reasonable and probable grounds to believe that the defendant was a “common law owner” of the Mini Cooper vehicle that had been based on particular indicia of common law ownership, which had been voluntarily uttered and revealed by the defendant to Officer Gill.

[3] That indicia of common law ownership, Officer Gill stated, included the following: (1) that the defendant had voluntarily uttered that he had cancelled the insurance on the Mini Cooper motor vehicle because they were going on vacation and that he would switch it back to the vehicle that he was driving; (2) that the defendant was observed by Officer Gill driving alone; (3) that the defendant had voluntarily informed Officer Gill that he was the one who paid for the insurance which was in his wife’s name for the Mini Cooper; (4) that the defendant had informed Officer Gill that the defendant been driving at that particular time to pick up his wife from her workplace; and (5) that the defendant had been married for 3 years. However, when asked, Officer Gill did acknowledge that the defendant did not actually state to Officer Gill that he was the owner or co-owner of the Mini Cooper motor vehicle. In addition, Officer Gill had testified that he did not lay any other charges against anyone else related to this particular event. In other words, the assumption or inference from that testimony is that Officer Gill did not charge the registered owner of the Mini Cooper motor vehicle with the offence of “owner permit or caused motor vehicle to be driven on a highway without insurance”, contrary to s. 2(1)(b) of the Compulsory Automobile Insurance Act.

[4] However, on the issue of whether the defendant is an “owner” of the Mini Cooper motor vehicle, the defendant’s legal representative emphatically argues that there is no evidence that the defendant had ever admitted to Officer Gill that he was the owner of the Mini Cooper motor vehicle and that just because the defendant admitted to paying the insurance premiums for the Mini Cooper motor vehicle does not necessarily mean that the defendant is the owner of the Mini Cooper motor vehicle, and as the defendant is not the registered legal owner of the Mini Cooper motor vehicle then the defendant’s legal representative submits that the defendant should be acquitted of the charge.

[5] In response to the defence submissions for an acquittal, the prosecution submits that the defendant should be found nevertheless to be a “common law owner” of the Mini Cooper motor vehicle, since it was the defendant who had been arranging for, paying for, and cancelling the insurance on the Mini Cooper, and also because the defendant cannot insure something that he does not own. In addition, the prosecution contends further that under the Ontario Family Law Act, R.S.O. 1990, c. F.3, the defendant would be the owner of half of the Mini Cooper motor vehicle, as part of the equal division of the matrimonial property of the defendant and his wife, which would also make the defendant a “common law owner” of the vehicle.

[6] Ergo, the question that has to be decided in determining whether the defendant has committed the offence of “owner operate motor vehicle on highway without insurance” under s. 2(1)(a) of the Compulsory Automobile Insurance Act, is whether the prosecution has proven beyond a reasonable doubt that the defendant is indeed a “common law owner” of the Mini Cooper motor vehicle that happens to be legally registered in his wife’s name. If it is determined beyond a reasonable doubt that the defendant is a “common law owner” of the vehicle, then he would be guilty of committing the offence of “owner operate motor vehicle on a highway without insurance”, since there is no evidence that there had been a valid contract of automobile insurance on the Mini Cooper motor vehicle on February 16, 2021, when it was being driven on a highway by the defendant.

[7] But more importantly, the defendant in not admitting or stating to Officer Gill that he is the owner or co-owner of the Mini Cooper motor vehicle does not automatically exclude the defendant from being found to be a “common law owner” of the vehicle. In this case, the legal ownership of the Mini Cooper vehicle is in the name of the defendant’s wife, but the prosecution is contending that the defendant is ultimately the one who owns or controls an interest in that property, and is therefore, the beneficial owner or co-owner of the vehicle. Hence, if the defendant were to have admitted to Officer Gill to being the beneficial owner or co-owner of the Mini Cooper, then that would be one indicator that could ground a finding of common law ownership. However, adducing such evidence would not be the only indicator of common law ownership, since there is other indicia that can be used to support a finding of common law ownership and which could also be used to prove that the defendant is indeed a “common law owner” of the Mini Cooper motor vehicle. For instance, other indicia of common law ownership could include the defendant arranging for, paying the insurance premiums, and calling the insurance broker to cancel the insurance for the Mini Cooper vehicle; the defendant being the predominant driver of the Mini Cooper vehicle; and the defendant also being married to the registered owner of the Mini Cooper. And, even though it has not been proven beyond a reasonable doubt that the defendant had the “exclusive” or “dominant” use of the Mini Cooper vehicle or that the registered owner of the Mini Cooper infrequently drives or uses the Mini Cooper vehicle, which when coupled with the evidence that the defendant arranged, paid for, and cancelled the insurance for the Mini Cooper and is married to the registered owner, would have been evidence that could have shown the defendant to be a “common law owner”. Furthermore, evidence that the defendant is married to the registered owner of the Mini Cooper would be evidence that could be proffered to support a circumstance that would be an indicia of common law ownership, since one possible scenario would be that the defendant and his wife had purposely registered the Mini Cooper vehicle in the defendant’s wife’s name in order to obtain lower cost insurance premiums, but that the vehicle would still be exclusively used or predominantly used by the defendant. However, to make that inference would require evidence that the Mini Cooper had been registered in the defendant’s wife’s name for obtaining a lower cost in insurance premiums and that the Mini Cooper was predominantly driven by the defendant. In this case, there is no evidence that has been adduced to prove the existence of this particular hypothetical scenario.

[8] Furthermore, despite the defendant having a right to the equalization of matrimonial property upon dissolution of his marriage under the Family Law Act, R.S.O. 1990, c. F.33, it is still an unrealized and contingent claim and is only brought to fruition when the marriage is dissolved or when the defendant and his wife separate and agree to an equalization of the matrimonial property that had been obtained by the defendant and his wife after their marriage. The value of property bought and owned by the defendant or bought or owned by the defendant’s wife before the marriage may not necessarily count toward the calculation of the value of the matrimonial property to be equalized. Consequently, certain property may be excluded from the matrimonial property for determining the equalization of property between the defendant and his wife upon the dissolution of their marriage. For example, if the Mini Cooper motor vehicle was purchased by the defendant’s wife or had been gifted to the defendant’s wife before their marriage, it may be excluded from the calculation of the value of the matrimonial property for equalization upon dissolution of the marriage. On the other hand, even though evidence of the defendant’s marriage to the registered owner of the Mini Cooper motor vehicle may be some indicia of common law ownership, that evidence alone in this case is not sufficient to prove that the defendant is a “common law owner” of the Mini Cooper motor vehicle beyond a reasonable doubt.

[9] Accordingly, after a review of the jurisprudence on common law ownership of a motor vehicle, and despite there being some evidence that has been adduced by the prosecution that the defendant could be a “common law owner” of the Mini Cooper motor vehicle, that evidence is not sufficient to prove beyond a reasonable doubt that the defendant is indeed a “common law owner” of that motor vehicle. And, as such, the prosecution has not met its legal burden of proving beyond a reasonable doubt that the defendant has committed the “owner operate motor vehicle on a highway without insurance” offence.

[10] The trial of this Compulsory Automobile Insurance Act charge had been held on July 26, 2022. After final submissions were made by the prosecution and the defendant, judgment was reserved and adjourned for the judgment to be rendered. These, therefore, are the written reasons for judgment that are being released as of December 15, 2022:

2. BACKGROUND

[11] Only one witness testified in the trial and that had been Officer Gill, of the Peel Regional Police. Officer Gill had been the police officer who had charged the defendant with committing the Compulsory Automobile Insurance Act offence.

[12] In his testimony, Officer Gill said that on Tuesday, February 16, 2021, at 8:36 p.m., he had been in uniform and operating a marked cruiser, and driving southbound on Kennedy Road North in lane number #1 in the City of Brampton. Officer Gill also said that he had been approaching a red traffic light located at Queen Street and Kennedy Road North when he had observed a 2007 silver-coloured Mini Cooper motor vehicle in lane #2 with licence plate number CLVV132. Officer Gill then said he had conducted a status check on that licence plate and received information that the insurance status for the Mini Cooper vehicle was unconfirmed.

[13] Officer Gill then said he had stopped the driver of that Mini Cooper motor vehicle, who had pulled into 230 Queen Street East in Brampton. Gill then said that he had advised the driver of the Mini Cooper vehicle of the purpose for the traffic stop, which had been so that Officer Gill could check on the insurance status of that vehicle. Gill then testified that the driver had immediately made an utterance to Officer Gill in reply to Officer Gill’s stated purpose for the traffic stop.

[14] After a voir dire was conducted into the voluntariness of the driver’s utterances or statements to Officer Gill, it was determined that the utterances or statements made by the driver to Officer Gill had been made voluntarily and that Officer Gill had still been at the investigation stage and not at the offence-gathering stage.

[15] In the trial proper, Officer Gill then testified that the driver of the Mini Cooper vehicle had provided Gill with an Ontario driver’s licence in the name of Carlos GUTIERREZ VILLASENOR. Officer Gill also said that he was satisfied that the person in front of him was Carlos GUTIERREZ VILLASENOR with a date of birth of [removed for privacy reasons]. After having been told by Officer Gill of the purpose of the traffic stop had been to investigate the insurance status of the Mini Cooper vehicle, the defendant had voluntarily uttered to Officer Gill that he had cancelled it in December, since the defendant had been on scheduled vacation.

[16] Moreover, Officer Gill said that the defendant had also provided him with proof of ownership for the Mini Cooper vehicle, but that the defendant was not the registered owner of the vehicle and that the defendant’s wife, Myriam De Jesus URREGO BARRIENTOS, was the registered owner of the Mini Cooper vehicle. Officer Gill also said that the defendant had told him that the defendant had been married for approximately 3 years.

[17] In addition. Officer Gill said that he had concluded that the defendant was a “common law owner” of the Mini Cooper motor vehicle.

[18] Furthermore, Officer Gill said that the defendant had also provided him an expired insurance slip for the vehicle. More importantly when asked in cross-examination if it had been correct that the defendant had never identified himself or had stated to Officer Gill that the defendant was the owner or part owner of the Mini Cooper motor vehicle, Officer Gill replied that the statement had been correct.

[19] Officer Gill also said that he had never made a decision to lay other charges in respect to the same investigation on the insurance status of the Mini Cooper motor vehicle and had further said that he had never thought to charge anyone with the offence of “owner permit or cause motor vehicle to be operated on a highway without insurance”, contrary to s. 2(1)(b) of the Compulsory Automobile Insurance Act. In addition, Officer Gill testified that the defendant had informed Gill that the defendant had handled the insurance himself. Furthermore, Officer Gill had confirmed that the expired (or cancelled) insurance slip that the defendant had provided to Officer Gill had indicated that it was for the period from April 12, 2020 to April 12, 2021.

[20] Moreover, Officer Gill testified that the defendant had told him that the defendant had been on route to pick up his wife. Officer Gill also said that the defendant had told him that the insurance on the vehicle was in his wife’s name, but that the defendant pays for the insurance, and that the defendant was going to switch it back on later.

3. THE CHARGE

[21] The defendant has been charged under a Part III Information (#999-21-5442) that was sworn on March 16, 2021, for committing the following offence:

Information #999-21-5442:

Carlos GUTIERREZ VILLASENOR, of [residential address removed for privacy], York, Ontario,

on or about 16th day of February , 2021

at the City of Brampton in the said region

did commit the offence of

being the owner of a motor vehicle, licence number CLVV132, did unlawfully operate the said motor vehicle on a highway, to wit: Kennedy Road North at Queen Street East, at approximately 8:36 p.m., when it was not insured under a contract of automobile insurance contrary to the Compulsory Automobile Insurance Act section 2(1)(a)

4. ISSUES

[22] In order to determine if the defendant has committed the Compulsory Automobile Insurance Act offence beyond a reasonable doubt, the following issues need to be resolved in this trial:

(1) Even though the defendant is not the registered legal owner of the Mini Cooper motor vehicle, has the prosecution proven beyond a reasonable doubt that defendant is nevertheless a “common law owner” of that Mini Cooper motor vehicle on February 16, 2021?

(2) Because the registered legal owner of the Mini Cooper motor vehicle is the defendant’s spouse, then does the defendant’s unrealized and contingent rights under the Family Law Act, R.S.O. 1990, c. F.3, for equalization of the matrimonial property, proof or evidence that the defendant is a “common law owner” of the Mini Cooper motor vehicle on February 16, 2021?

(3) Is evidence that the defendant had cancelled the insurance coverage on the Mini Cooper motor vehicle that had been under his wife’s name, that the defendant had been paying the insurance premiums, and that the defendant said that he would switch the insurance back onto the Mini Cooper motor vehicle, proof or evidence that the defendant is a “common law owner” of the Mini Cooper motor vehicle on February 16, 2021?

(4) If the prosecution has proven beyond a reasonable doubt that the defendant is the “common law owner” of the Mini Cooper motor vehicle on February 16, 2021, then has the prosecution proven beyond a reasonable doubt that the defendant had been operating this motor vehicle on a highway without that motor vehicle being insured under a contract of automobile insurance?

5. ANALYSIS AND DECISION

[23] Subsection 2(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, provides that no owner or lessee of a motor vehicle shall operate or cause or permit a motor vehicle to be operated on a highway unless that motor vehicle is insured under a contract of automobile insurance [emphasis is mine below]:

Compulsory automobile insurance

2(1) Subject to the regulations, no owner or lessee of a motor vehicle shall,

(a) operate the motor vehicle; or

(b) cause or permit the motor vehicle to be operated,

on a highway unless the motor vehicle is insured under a contract of automobile insurance.

Definition

(2) For the purposes of subsection (1), where a permit for a motor vehicle has been issued under subsection 7(7) of the Highway Traffic Act,

"contract of automobile insurance", with respect to that motor vehicle, means a contract of automobile insurance made with an insurer.

[24] Moreover, under s. 2(3)(a) of the Compulsory Automobile Insurance Act, if the owner or lessee of a motor vehicle is convicted of contravening s. 2(1)(a), then they are subject to a minimum fine of $5,000 and up to a maximum fine of $25,000; a potential suspension of their driver's license for a period that does not exceed one year; or the possibility of having the motor vehicle that had been driven by the owner or lessee being impounded for a period of not more than three months under s. 2(7):

Offence

2(3) Every owner or lessee of a motor vehicle who,

(a) contravenes subsection (1) of this section or subsection 13(11); or

(b) surrenders an insurance card for inspection to a police officer, when requested to do so, purporting to show that the motor vehicle is insured under a contract of automobile insurance when the motor vehicle is not so insured,

is guilty of an offence and is liable on a first conviction to a fine of not less than $5,000 and not more than $25,000 and on a subsequent conviction to a fine of not less than $10,000 and not more than $50,000 and, in addition, his or her driver's licence may be suspended for a period of not more than one year.

Impounding motor vehicle

2(7) In the event of a conviction under subsection (3), the justice may order that the motor vehicle,

(a) that was operated in contravention of subsection (1);

(b) for which a false statement in respect of insurance was made in contravention of subsection 13 (11); or

shall be seized, impounded and taken into the custody of the law for a period of not more than three months.

[25] "Automobile insurance" for a motor vehicle is also defined in s. 1(1) of the Compulsory Automobile Insurance Act, and has been defined as insurance against liability arising out of bodily injury to or the death of a person or loss of or damage to property caused by a motor vehicle or the use or operation thereof, and which insures at least to the limit required by s. 251 of the Insurance Act, R.S.O. 1990, c. I.8, and that also provides for the statutory accident benefits set out in the Statutory Accident Benefits Schedule under the Insurance Act and the benefits prescribed under s. 265 of the Insurance Act:

"automobile insurance" means insurance against liability arising out of bodily injury to or the death of a person or loss of or damage to property caused by a motor vehicle or the use or operation thereof, and which,

(a) insures at least to the limit required by section 251 of the Insurance Act,

(b) provides the statutory accident benefits set out in the Statutory Accident Benefits Schedule under the Insurance Act, and

(A) Has the prosecution proven beyond a reasonable doubt that the Mini Cooper motor vehicle that the defendant was driving on February 16, 2021 had not been insured under a contract of automobile insurance?

[26] Through the uncontradicted evidence of Officer Gill, the prosecution has proven beyond a reasonable doubt that the defendant had been driving a Mini Cooper motor vehicle on February 16, 2021 on Kennedy Road North, which is a highway in the City of Brampton, at 8:36 p.m. The prosecution has also proven beyond a reasonable doubt that the Mini Cooper motor vehicle was not insured under a contract of automobile insurance at the time that Officer Gill had observed the Mini Cooper motor vehicle being driven by the defendant on that particular highway in Brampton. This proof came from Officer Gill’s testimony that the defendant had voluntarily uttered to Officer Gill that the defendant had cancelled the insurance on the Mini Cooper motor vehicle in December because they were going on vacation and that he would switch it back to the vehicle that he was driving. In addition, Officer Gill also testified that when he had checked the insurance status for the Mini Cooper vehicle using the Ministry of Transportation database, he had received information back that the insurance status for that vehicle had been “unconfirmed”. Furthermore, no evidence has been adduced at trial that the Mini Cooper motor vehicle had been insured under a contract of automobile insurance at the material time.

[27] However, the defendant will not be guilty of committing the s. 2(1)(a) offence unless the prosecution proves beyond a reasonable that the defendant is indeed the “owner” of the Mini Cooper motor vehicle.

(B) Even Though The Defendant Is Not The Registered Legal Owner Of The Mini Cooper Motor Vehicle, Has The Prosecution Proven Beyond A Reasonable Doubt That Defendant Is Nevertheless A “Common Law Owner” Of The Mini Cooper Motor Vehicle On February 16, 2021?

[28] Unfortunately, the Compulsory Automobile Insurance Act does not provide for a definition of who is an “owner” of a motor vehicle for the purposes of the offence of “no owner … of a motor vehicle shall operate the motor vehicle … on a highway unless the motor vehicle is insured under a contract of automobile insurance” that is set out in s. 2(1)(a) of the Act. The Highway Traffic Act, R.S.O. 1990, H.8. also does not provide a definition of “owner” in respect to the operation of a motor vehicle on a highway.

[29] However, as held by the Court of Appeal for Ontario at paras. 9 to 11 in R. v. Zwicker, 1994 1221 (ON CA), [1994] O.J. No. 197, registration is no longer the sole means of identifying the “owner” of a given vehicle. The Court of Appeal further reasoned that the term "owner" as it appears in s. 2(1) of the Compulsory Automobile Insurance Act cannot properly be limited solely to the "registered owner", since interpreting "owner" in that manner would permit the person with all the rights of “common law ownership” to avoid corresponding responsibilities of ownership. In addition, the Court of Appeal also held that the "owner" in the context of the Compulsory Automobile Insurance Act includes the "common law owner" [emphasis is mine below}:

The present statutory scheme governing automobile operation and insurance is significantly different than the scheme under consideration in R. v. Sherman. The current Highway Traffic Act (s. 11(1)(a)) requires that the vendor of a motor vehicle detach from the vehicle his or her number plates at the time of conveyance. Under the prior legislation, number plates were assigned and registered to the motor vehicle and, upon a transfer of ownership, would remain on the vehicle. The purchaser is now obliged to register the vehicle and licence plates in his or her name and to affix his or her own plates to the motor vehicle. The number plates appearing on a newly purchased vehicle must correspond to the new owner, regardless of whether the vehicle itself has been duly registered under the Highway Traffic Act. Registration is thus no longer the sole means of identifying the owner of a given vehicle. The reasoning in R. v. Sherman is accordingly inapplicable to the present scheme.

The Compulsory Automobile Insurance Act is intended to ensure that every car operated in the province is insured. The term "owner" as it appears in s. 2(1) of this Act, in our view, cannot properly be limited solely to the "registered owner". To interpret "owner" in that manner would permit the person with all the rights of common law ownership to avoid corresponding responsibilities of ownership. Under the present Highway Traffic Act the appellant was required to register her ownership within six days of purchase. In direct contravention of this Act, she failed to do so. It would be anomalous indeed if a breach of the Highway Traffic Act could amount to a shield against liability under the Compulsory Automobile Insurance Act.

In sum, responsibility for ensuring that a motor vehicle is insured under a contract of insurance rests on the "owner". The "owner" in the context of the Compulsory Automobile Insurance Act includes the "common law owner". For the indicia of common law ownership reference may be made to cases such as Honan v. Gerhold, 1974 26 (SCC), [1975] 2 S.C.R. 866, 50 D.L.R. (3d) 582, and Keizer v. Hanna (1975), 1975 47 (ON CA), 10 O.R. (2d) 597, 64 D.L.R. (3d) 193 (C.A.). The appellant was the owner of her motor vehicle within the meaning of the Compulsory Automobile Insurance Act and was clearly prohibited from operating the vehicle without insurance on the day in question.

[30] Moreover, in Wynne v. Dalby (1913), 1913 578 (ON CA), 30 O.L.R. 67 (Supreme Ct. of Ont. (App. Div.)), at paras. 15 and 16, the Ontario Appeal Court held that the word "owner" is an elastic term, and the meaning which must be given to it in a statutory enactment depends very much upon the object the enactment is designed to serve. The Appeal Court also adopted the reasoning that “there may be two persons at the same time in different senses not improperly spoken of as the owner” of a property [emphasis is mine below]:

The word "owner" is an elastic term, and the meaning which must be given to it in a statutory enactment depends very much upon the object the enactment is designed to serve.

As was said by Lord Herschell in Baumwoll Manufactur von Carl Scheibler v. Furness, [1893] A.C. 8, 17: "There may be two persons at the same time in different senses not improperly spoken of as the owner of a ship. The person who has the absolute right to the ship, who is the registered owner, the owner (to borrow an expression from real property law) in fee simple, may be properly spoken of, no doubt, as the owner; but at the same time he may have so dealt with the vessel as to have given all the rights of ownership for a limited time to some other person, who, during that time, may equally properly be spoken of as the owner."

[31] Ergo, the “owner” of a motor vehicle for the purposes of s. 2(1) of the Compulsory Automobile Insurance Act can be the legally registered owner of the motor vehicle, as well as someone that has the indicia of being a “common law owner” of the motor vehicle.

[32] The prosecution in the case at bar contends that the defendant is a “common law owner” of the Mini Cooper motor vehicle that he was driving, even though the vehicle is legally registered with the Ministry of Transportation of Ontario as being owned by the defendant’s wife, Myriam De Jesus URREGO BARRIENTOS (see Exhibit #1).

[33] If the prosecution proves beyond a reasonable doubt that the defendant is a “common law owner” of the Mini Cooper motor vehicle, then the prosecution will meet its burden of proving beyond a reasonable doubt that the defendant has committed the offence under s. 2(1)(a) of the Compulsory Automobile Insurance Act, as no evidence has been adduced that there had been a valid contract of insurance on the Mini Cooper vehicle on February 16, 2021, when it was being driven by the defendant on a highway.

(1) What are the indicia in which a court could find that an individual is a “common law owner” of a motor vehicle for the purposes of s. 2(1) of the Compulsory Automobile Insurance Act?

[34] The issue in respect to the common law ownership of a motor vehicle for an “owner operate motor vehicle on highway without insurance” charge also arose before this court in R. v. Cordoba, 2016 ONCJ 13, [2016] O.J. No. 75, 128 O.R. (3d) 594 (Ont. C.J.), where a corporation had been listed as the registered owner of the motor vehicle. The prosecution in that case had argued that the defendant was a “common law owner” of the motor vehicle because of the contention that the corporation was the defendant's alter ego, that the defendant was the owner of the corporation, that the defendant had personally been aware that the Dodge van was not insured, and on the basis that both the defendant and the corporation named "CM Corporate Maintenance Ltd." had the same municipal address. However, this court decided at paras. 23 to 50 in R. v. Cordoba, that it was not appropriate to pierce the corporate veil in order to find that the defendant is the true or common law owner of the Dodge van. In addition, in not finding Cordoba to be a “common law owner” of the van, this court could not conclude that the defendant Cordoba had the exclusive possession of the Dodge van or that the van had been under the defendant's exclusive dominion and control, from the evidence that had been adduced by the prosecution to prove that Cordoba was an owner of the Dodge van in the common law sense. Furthermore, this court noted that the Court of Appeal for Ontario had held in R. v. Zwicker, 1994 1221 (ON CA), [1994] O.J. No. 197, at para. 11, that indicia of common law ownership of a motor vehicle could be derived from the reasoning in Honan v. Gerhold, 1974 26 (SCC), [1975] 2 S.C.R. 866, 50 D.L.R. (3d) 582 (S.C.C.) and from Keizer v. Hanna (1975), 1975 47 (ON CA), 10 O.R. (2d) 597, 64 D.L.R. (3d) 193 (Ont. C.A.). The Court of Appeal for Ontario had decided in Keizer v. Hanna that the basis for determining whether someone is the "common law owner" of a motor vehicle would have to be considered on the relevant circumstances particular to each case [emphasis is mine below]:

(A) FOR THE PURPOSES OF S. 2(1) OF THE C.A.I.A., WHO IS THE "OWNER" OF THE DODGE VAN THAT WAS BEING DRIVEN BY THE DEFENDANT ON MAY 3, 2014?

Regarding whether the defendant is the "owner" of the Dodge van that he was observed driving on May 3, 2014, for the application of s. 2(1) of the C.A.I.A., the prosecution contends that even though the defendant is not listed as the registered owner of the Dodge van with the Ministry of Transportation, the defendant is nonetheless the "common law" owner of the Dodge van on the basis that he had admitted to being the owner of the company listed as the registered owner, which was the defendant's alter ego; on the basis that the defendant had personally been aware that the Dodge van was not insured; and on the basis that both the defendant and the corporation named "CM Corporate Maintenance Ltd." had the same municipal address.

For the purposes of the C.A.I.A., the registered owner of the motor vehicle in question is generally considered to be the "owner" of that motor vehicle under s. 2(1)(a), unless there is evidence which establishes that someone else should be treated as the owner of that motor vehicle.

In the case at bar, the registered owner of the Dodge van at the time the defendant had been stopped by Officer Nicholson, as proven by Exhibit 1, is a corporation named, "CM Corporate Maintenance Ltd." However, during the traffic stop and conversation between the defendant and Officer Nicholson, the defendant had voluntarily admitted to Officer Nicholson that the defendant was the owner of that company and that the Dodge van was not insured. In addition, both "CM Corporate Maintenance Ltd." and the defendant have the same address of 2100 Sherobee Road, Apt. 302, Mississauga, Ontario. This correlation, the prosecution contends, of the defendant being the owner of "CM Corporate Maintenance Ltd.", of the defendant knowing the Dodge van was not insured, and of the defendant and the corporation sharing the same address, is evidence that "CM Corporate Maintenance Ltd." is really the alter ego of the defendant and sufficient proof that the defendant is the "common law owner" of the Dodge van, which would then make the defendant the "owner" of the van within the meaning of s. 2(1) of the C.A.I.A.

On the surface, this evidence, as the prosecution would suggest, could possibly make the corporation, "CM Corporate Maintenance Ltd.", which is owned by the defendant, a private and small one-person corporation or a private and small closely-held corporation.

However, being mindful of the principle that the shareholder or shareholders of a corporation and the corporation itself are legally distinct and separate entities, then it will have to be determined whether the defendant's voluntary admission that he is the owner of "CM Corporate Maintenance Ltd.", as well as his knowledge that the Dodge van was not insured and that the defendant and the corporation share the same address, is proof beyond a reasonable doubt that the defendant is the common law owner of the Dodge van.

(1) Is the word "owner" defined in the C.A.I.A.?

In considering whether the term "owner" in s. 2(1)(a) of the C.A.I.A., includes the defendant, as the owner of the corporation, which is listed as the registered owner of the Dodge van that was being driven by the defendant on May 3, 2014, the C.A.I.A. and its regulations are not of any assistance in deciding this issue, as the definition section contained in s. 1 of that statute does not contain a definition for the term "owner", nor is the word "owner" defined in any other part of the C.A.I.A. or its regulations.

As well, the term "owner" is not defined in s. 87 of the Legislation Act, 2006, S.O. 2006, c. 21, sched. F, which is a statute that applies to all statutes and regulations enacted by the Ontario Legislature, and which had been enacted as a statutory tool to assist in the interpretation of Ontario statutes and regulations. Similarly, the term "owner" is also not defined in the Provincial Offences Act, R.S.O. 1990, c. P.33, or in its regulations, which is the procedural legislation that governs this regulatory prosecution.

As a result, dictionary definitions and prior judicial consideration of the term "owner" will have to be relied upon in order to resolve the issue of whether the defendant, as the owner of "CM Corporate Maintenance Ltd.", is the "owner" of the Dodge van for the purposes of s. 2(1)(a) of the C.A.I.A.

(2) Definition of "owner" in Black's Law Dictionary

In Black's Law Dictionary, 4th ed. (St. Paul, Minn.: West Publishing, 1968), the word "owner", is defined as a general term in which "its meaning is to be gathered from the connection in which it is used and from the subject-matter to which it is applied", and to some extent means, the "proprietor" or the "person in whom is vested the ownership, dominion, or title of property":

OWNER. The person in whom is vested the ownership, dominion, or title of property; proprietor.

The term is, however, a nomen generalissimum, and its meaning is to be gathered from the connection in which it is used, and from the subject-matter to which it is applied. ... The primary meaning of the word as applied to land is one who owns the fee and who has the right to dispose of the property, but the term also includes one having a possessory right to land or the person occupying or cultivating it.

(3) Judicial consideration of the term "owner"

In Olympia & York Developments Ltd. and City of Toronto (1980), 1980 1752 (ON SC), 29 O.R. (2d) 353, 113 D.L.R. (3d) 695, the Divisional Court of Ontario in determining the meaning of the word "owner" used in a statutory provision where that word had not been specifically defined in that statute, had relied on the reasoning used in Wynne v. Dalby (1913), 1913 578 (ON CA), 30 O.L.R. 67 (Supreme Ct. of Ont. (App. Div.)), which had considered the possibility that two persons may at the same time be properly viewed to be the owner of a thing, which included the registered owner of the thing and someone who had been given the rights of ownership to that thing for a limited time [emphasis is mine below]:

The real issue in dispute is what is the meaning of the word "owner" in s. 35a of the Act? Does it exclude the owner in fee simple of the lands where such owner is not the person undertaking the development? The term "owner" has been considered judicially in many different contexts and referred to by legal authors. In Wynne v. Dalby (1913), 1913 578 (ON CA), 30 O.L.R. 67, 6 D.L.R. 710, reference was made at p. 72 O.L.R., p. 714 D.L.R., as follows:

The word "owner" is an elastic term, and the meaning which must be given to it in a statutory enactment depends very much upon the object the enactment is designed to serve.

Moreover, the appeal court at para. 15 in Wynne v. Dalby, 1913 578 (ON CA), [1913] O.J. No. 9, had emphasized that the meaning which must be given to the term "owner" in a statutory enactment would depend on the object the enactment is designed to serve:

The word "owner" is an elastic term, and the meaning which must be given to it in a statutory enactment depends very much upon the object the enactment is designed to serve.

And, even though the term "owner" is not defined in the C.A.I.A., its meaning in respect to that statute had been considered by the Court of Appeal for Ontario in R. v. Zwicker, 1994 1221 (ON CA), [1994] O.J. No. 197. In that case, the Court of Appeal had to consider whether someone who had just bought a vehicle, but had not yet registered that vehicle in their own name with the Ministry of Transportation, would in the context of s. 2(1) of the C.A.I.A. be the "owner" of that vehicle. Although the accused, Zwicker, in that case had bought the motor vehicle from a friend three days earlier and had legally owned that motor vehicle when she was stopped by a police officer, she had not yet registered herself with the Ministry as the owner of that vehicle until three days after she had been stopped and charged. At her trial, Zwicker had argued that since the vehicle had still been registered under the name of her friend who had sold the vehicle to Zwicker, then she should not be convicted under s. 2 of the C.A.I.A. as that vehicle's owner because she had not been the registered owner of the vehicle when she had been stopped.

However, the Court of Appeal did not agree with Zwicker's argument and held at paras. 10 and 11 of their judgment that the application of s. 2(1) cannot be simply limited to only the registered owners of vehicles, since that interpretation would allow the person with all the rights of common law ownership the means and ability to avoid the corresponding responsibilities of ownership. The Court of Appeal had also reasoned that since the buyer of the vehicle, Zwicker, had been the legal owner of the vehicle when the offence had been committed, then Zwicker would be the owner under s. 2(1), since she would be the common law owner of the vehicle at the material time, even though the vehicle had been still registered in the name of the person who had just sold the vehicle to her. Moreover, the Court of Appeal indicated that under Ontario's Highway Traffic Act, Zwicker had been legally obligated and required to register her ownership of that vehicle within 6 days of purchasing the vehicle and that the responsibility for ensuring that the motor vehicle is insured under a contract of insurance would rest on the "owner" of that motor vehicle, which would have been on Zwicker and not on the seller of the vehicle, so that the word "owner" in the context of the C.A.I.A. would also include the "common law owner" of the motor vehicle [emphasis is mine below]:

Accordingly, whether the defendant is the common law owner of the Dodge van at the material time would depend on the circumstances particular to the defendant.

(4) What is the object of the C.A.I.A.?

The Court of Appeal held at para. 10 in R. v. Zwicker that the purpose of the C.A.I.A. is to ensure that every car operated in the province of Ontario is insured:

The Compulsory Automobile Insurance Act is intended to ensure that every car operated in the province is insured. ...

(5) Has the prosecution proven beyond a reasonable doubt that the defendant is the "common law owner" of the Dodge van?

The prosecution contends that based on the C.A.I.A.'s object of ensuring that every car operated in Ontario is properly insured; the ruling in Zwicker that someone who is not the registered owner of a motor vehicle could still be found to be its common law owner; that the defendant is the owner of the corporation that is the registered owner of the Dodge van; that a corporation can only act through a human person; that the defendant had knowledge of the Dodge van not being insured; and that the defendant and the corporation share the same municipal address, that the defendant should be found in the circumstances to be the common law owner of the Dodge van. Otherwise, the prosecution contends that every motorist in Ontario could registered their motors vehicles under the name of a corporation and then not arrange or obtain proper liability insurance for that vehicle, in order to potentially escape or disregard the legal and financial obligations associated with obtaining or purchasing proper liability insurance for their motor vehicles under the C.A.I.A., as well as avoiding the penalties involved if the corporation, as the registered owner of the motor vehicle, is convicted of operating or permitting the vehicle to be operated on a highway in Ontario without insurance.

Ergo, the prosecution contends that in the circumstances of this case and in order that the defendant be held liable for the corporation's acts or omissions in respect to operating or permitting the Dodge van to be operated on a highway without insurance, either the defendant be found to be the common law owner of the Dodge van based on indicia of common law ownership or that the corporate veil should be pierced in order to find that the defendant is the true or common law owner of the Dodge van; or that the defendant should be found to be a party to the offence under the C.A.I.A. based on the defendant being ultimately the human person responsible for the Dodge van and who had failed to ensure that the Dodge van had been properly insured.

(a) What are the indicia of common law ownership of a motor vehicle?

In deciding whether a particular person, who is not the registered owner of a motor vehicle, would be the owner of a motor vehicle in the common law sense, and be liable under s. 2(1) for the insurance obligations for that vehicle, the Court of Appeal had noted in R. v. Zwicker, at para. 11, that indicia of common law ownership of a motor vehicle could be derived from the reasoning in Honan v. Gerhold, 1974 26 (SCC), [1975] 2 S.C.R. 866, 50 D.L.R. (3d) 582 (S.C.C.) and from Keizer v. Hanna (1975), 1975 47 (ON CA), 10 O.R. (2d) 597, 64 D.L.R. (3d) 193 (O.C.A.):

For the indicia of common law ownership reference may be made to cases such as Honan v. Gerhold, 1974 26 (SCC), [1975] 2 S.C.R. 866, 50 D.L.R. (3d) 582, and Keizer v. Hanna (1975), 1975 47 (ON CA), 10 O.R. (2d) 597, 64 D.L.R. (3d) 193 (C.A.). The appellant was the owner of her motor vehicle within the meaning of the Compulsory Automobile Insurance Act and was clearly prohibited from operating the vehicle with-out insurance on the day in question.

In Keizer v. Hanna (1975), 1975 47 (ON CA), 10 O.R. (2d) 597, 64 D.L.R. (3d) 193, at paras. 13 and 14, the Court of Appeal decided that the basis for determining whether someone is the "common law owner" of a motor vehicle would have to be considered on the relevant circumstances particular to each case. In order to decide the issue of common law ownership in that case, the Court of Appeal had reviewed and considered a number of decisions that had dealt with the degree of interest in a motor vehicle or the combination of circumstances in respect to its ownership and control that would be sufficient to render a person vicariously liable under the Highway Traffic Act as an "owner" of that vehicle. After their review, the Court of Appeal surmised that in each of those other decisions the circumstances had varied substantially from case to case, so that there had been no need to set out the precise criteria that had been deduced in those decisions in order to decide the issue of common law ownership for that particular case:

There have been a number of cases dealing with what degree of interest in a motor vehicle, or what combination of circumstances with respect to its ownership and control, is sufficient to render a person vicariously liable under the Highway Traffic Act as an "owner". The most recent pronouncement is that of the Supreme Court of Canada in Honan et al. v. Gerhold et al., 1974 26 (SCC), 50 D.L.R. (3d) 582, 3 N.R. 81, pronounced on October 1, 1974, which reversed the judgment of this Court: 1972 47 (ON CA), [1973] 2 O.R. 341, 33 D.L.R. (3d) 657. Other recent cases are Hawryluk et al. v. Hodgins, 1972 384 (ON CA), [1972] 3 O.R. 741, 29 D.L.R. (3d) 403; Hayduk et al. v. Pidoborozny et al., 1972 136 (SCC), [1972] S.C.R. 879, 29 D.L.R. (3d) 8, [1972] 4 W.W.R. 522; and May et al. v. Municipality of Metropolitan Toronto, 1968 395 (ON SC), [1969] 1 O.R. 419, 2 D.L.R. (3d) 659.

I do not think that the decision of this case requires us to attempt to set out in precise terms the ratio of the various cases to which I have referred, the circumstances of which vary substantially from case to case. ...

Moreover, in Honan v. Gerhold, 1974 26 (SCC), [1975] 2 S.C.R. 866, 50 D.L.R. (3d) 582, the Supreme Court of Canada had to decide whether the registered owner of the automobile involved in an accident should be held liable for the actions of the driver of the automobile, who had injured an infant, who had the exclusive possession and control of the automobile, and who had been the original owner of the automobile who had the automobile registered in the name of his friend in order to prevent the automobile from being seized in a judgment rendered against him.

In the circumstances of the Honan v. Gerhold case, Kathleen Honan, an infant, had been injured in an automobile accident in which Chester Doman had been the driver of the automobile that had held to be at fault for the accident. However, the automobile that Doman had been driving had been registered in the name of a person named Raymond Gerhold. The trial judge had concluded that Chester Doman was responsible for the accident and awarded damages to the infant Honan against the estate of Chester Doman, who had died sometime later from the injuries he had received in the accident. The infant Honan had also sued Raymond Gerhold as the registered own-er of the automobile driven by Chester Doman, but the trial judge had dismissed the action against Gerhold. The matter was eventually appealed to the Supreme Court of Canada, where the Supreme Court did find that Raymond Gerhold did have common law ownership of the automobile that Chester Doman had been driving in the accident where the infant Kathleen Honan had been seriously injured.

Gerhold, as the registered owner, had argued that he was not the real owner of the automobile despite the evidence that the automobile had been registered in his name, but that Gerhold had only registered the automobile in his name so that his friend Chester Doman, the true owner of the automobile, would be able to keep the automobile from being seized in a judgment that had been awarded to Doman's wife. However, despite Raymond Gerhold's argument about not being the true owner, the Supreme Court concluded that Gerhold was nonetheless the owner of the automobile in a common law sense. And, although there had been evidence from Gerhold that Chester Doman had only transferred the automobile to Gerhold to protect the automobile from being seized in execution of a judgment for alimony held by Doman's wife, that Chester Doman still continued to have the exclusive possession of the automobile, and that Doman had the automobile under his dominion and control, the Supreme Court concluded that there had been a legal transfer of the vehicle from Doman to Gerhold, which gave Gerhold legal title to the automobile. More importantly, the Supreme Court had also concluded that Gerhold did manifest his ownership in the automobile through several important actions, namely that Gerhold had first placed the vehicle under his insurance policy and had certified to the insurance company that the automobile was Gerhold's vehicle, and that second, Gerhold had applied for the registration of the automobile in the first place in 1966 and again in 1968 and 1969, and had taken great objection to Chester Doman having done so in Gerhold's name in the year 1967. In addition, the Supreme Court had put significant emphasis on the fact that Raymond Gerhold had also disposed of the wrecked automobile after the accident and had taken all the proceeds for his own use without accounting to the estate of the late Chester Doman, and had also found that this particular action by Gerhold in keeping the proceeds of the sale to be only consistent with an assertion of Raymond Gerhold's ownership of the automobile. Under those circumstances, the Supreme Court had concluded that Raymond Gerhold was the owner in common law of that automobile, which had been involved in the accident, so that Gerhold would be held jointly liable in the action brought by the Honan infant [emphasis is mine below]:

With every respect for the learned justice on appeal, I am not so persuaded. What had moved Chester Doman was to protect the vehicle from seizure in execution of the judgment held by his wife. That end could not be accomplished un-less he transferred the automobile. He, therefore, did transfer the automobile. The transfer gave Gerhold the legal title and it was intended to have that exact effect. The form of application for register of the transfer does, in my view, contain words which show that there has been a conveyance. Such a form appears in Ex. 19 and it should be noted that the form is signed both by the transferor and the transferee and it contains the words: "I hereby give notice of the change of ownership of the vehicle described hereon and make application for transfer of the permit". Of course, under the circumstances, the late Chester Doman continued to have the exclusive possession of the automobile and have it under his dominion and control. That was part of the transaction. In fact exclusive dominion and control was present in both Haberl v. Richardson and Hayduk v. Pidoborozny. Despite this, however, Gerhold did manifest his ownership in several important actions. Firstly, he placed the vehicle under his insurance policy, and so certified to the insurance company that the vehicle was his. Secondly, he applied for the registration, in the first place in 1966 and again in 1968 and 1969, and he took great objection to Doman having done so in Gerhold's name in the year 1967. Finally, and in my view most important, he disposed of the wrecked car and took the proceeds for his own use with evidently no intention of accounting to the estate of the late Chester Doman. This latter action could only be consistent with an assertion of his ownership of the vehicle.

Similarly, in Keizer v. Hanna (1975), 1975 47 (ON CA), 10 O.R. (2d) 597, 64 D.L.R. (3d) 193, the Court of Appeal for Ontario had to determine from the circumstances whether John Buch, who was the registered owner of a motor vehicle driven by Herbert Hanna that had been involved in an automobile accident with Marilyn Keizer, should be held jointly liable for Keizer's injuries. In that case, Buch, a car dealer, had sold the automobile involved in the accident to Herbert Hanna, the driver of the motor vehicle that had been held responsible for the accident. However, Buch had decided not to transfer the title for the car to Hanna until such time as Hanna had obtained insurance for the car or until Hanna had paid Buch fully for the car. At para. 14 of their judgment, the Court of Appeal had concluded that Buch intended that the automobile should remain in Buch's name until Hanna had either produced evidence that the automobile was insured under Hanna's policy or had produced $25 so that the transfer could take place or be registered with no evidence of insurance intended to be produced to the issuer of permits. The Court of Appeal had also concluded that it was not an unreasonable inference from the evidence that Buch had not been prepared to transfer the automobile into Hanna's name until he got the balance of $200 owing on the purchase price. Moreover, the Court of Appeal held that these facts, coupled with the certification by Buch that he was the owner of the automobile and that the automobile had been insured under Buch's own policy, provided ample foundation for the trial judge's finding that John Buch was the owner of the automobile for the purposes of the Highway Traffic Act, even though Buch had sold the automobile to Hanna and Hanna had been driving the car exclusively [emphasis is mine below]:

... In this case the conclusion is irresistible that Buch intended that the car should remain in his name at least until Hanna had either produced evidence that the car was insured under Hanna's policy or produced $25 so that the transfer could take place with no evidence of insurance produced to the issuer of permits. Indeed, it is not an unreasonable inference from the evidence that Buch was not prepared to transfer the car into Hanna's name until he got the balance of $200 owing on the purchase price. These facts, coupled with the certification by Buch that he was the owner and that the car was insured under his own policy, provided ample foundation for the finding by the trial Judge that Buch was the owner for the purposes of the Highway Traffic Act. Accordingly, I would dismiss the appeal against that finding.

(b) In the present proceeding, are there indicia that the defendant is the common law owner of the Dodge van?

Undoubtedly, the evidence from Officer Nicholson that the defendant had admitted or acknowledged that he is the owner of the company named on the ownership permit, that he had been aware that the Dodge van had not been insured, and that the defendant and the corporation had shared the same municipal address could infer that the defendant is either the sole shareholder of the corporation or just one of the shareholders of the corporation. However, this is not necessarily mean that the defendant is the common law owner of the Dodge van in respect to the application of s. 2(1)(a) of the C.A.I.A.

(i) Is there evidence that the defendant had exclusive possession, dominion, and control of the Dodge van?

On whether the defendant had exclusive possession, dominion, and control of the Dodge van to support a finding of common law ownership, there is no evidence that the defendant is the sole driver of the Dodge van or that he is the only person who drives the Dodge van.

Therefore, it cannot be concluded that the defendant had the exclusive possession of the Dodge van or that the van had been under the defendant's exclusive dominion and control, as evidence to prove the defendant is the owner of the Dodge van in the common law sense.

(ii) Is there evidence that the defendant had registered the Dodge van under the name of the corporation for some ulterior purpose, but remained its true owner?

On this issue, there has been no evidence adduced by the prosecution that the defendant had the Dodge van registered in the corporation's name for some ulterior purpose, so that the defendant could remain the true owner of the Dodge van.

Accordingly, up this stage of the analysis, the prosecution has not provided sufficient evidence to prove beyond a reasonable doubt that the defendant is the owner of the Dodge van in the common law sense. As such, the prosecution's arguments that the corporate veil should be lifted in order to find that the defendant is the owner of the Dodge van within the meaning of s. 2(1)(a), or that the defendant has participated in or abetted the corporation in the commission of the offence, so as to be a party to the offence, will then have to be considered to determine whether the defendant should be held legally responsible for the corporation's unlawful act or omission pertaining to operating or permitting the Dodge van to be operated on a highway without insurance.

[35] Furthermore, in Passero Estate v. Fitt, [2015] O.J. No. 5904 (Ont. S.C.J.), the issue had arisen in that case of whether the husband of the legally registered owner was a “common law owner” of a Dodge Charger motor vehicle he had been driving that had been involved in an accident, and which had killed and injured other people. Gordon Fitt was the driver of that Dodge Charger vehicle that had been involved in that accident and he had been married to Deanna Stafford, the registered legal owner of the vehicle, but they had legally separated in May of 2009. While driving the Dodge Charger motor vehicle, Gordon Fitt had gotten into that accident on October 21, 2009, with a pickup truck driven by Andrew Passero. Passero was killed and a passenger in the pickup truck had been injured. In addition, a passenger in Gordon Fitt’s vehicle was also injured. The Andrew Passero Estate and the passengers in both vehicles had sued Gordon Fitt for the loss or damage resulting from the motor vehicle accident. The evidence at trial revealed that at the time when Fitt and Stafford were legally separated, Gordon Fitt had also initially taken the 2006 Dodge Charger motor vehicle registered in Deanna Stafford’s name without the consent of Deanna Stafford. While Fitt and Stafford were together, both had used the vehicle during the summer and every winter Gordon Fitt made arrangements to suspend the insurance and every spring he made arrangements to reinstate it (not unlike the case at bar). Fitt had also insured the vehicle with Intact Insurance. In May of 2009, Gordon Fitt separated from his wife and Fitt had left the matrimonial home with the family pickup truck, which was also registered to Deanna Stafford. However, Fitt left the Dodge Charger behind. In July of 2009, Fitt had asked Stafford for the use of the Dodge Charger one weekend, but Stafford had refused Fitt’s request. Gordon Fitt had also stopped paying instalments on the Dodge Charger. In early August of 2009, Deanna Stafford made a payment on the Dodge Charger herself and insured it with State Farm Insurance. Stafford had also called Intact Insurance's agent from the State Farm office to ask Intact Insurance to take the Dodge Charger off the Intact Insurance policy, but Intact Insurance refused to do so. On September 18, 2009, Gordon Fitt took the Dodge Charger without Stafford’s permission. On September 30, 2009 the licence plate sticker expired and Gordon Fitt had renewed it.

[36] Some of the issues that had to be decided at the civil trial included whether Gordon Fitt was a “common law owner” of the Dodge Charger vehicle that had been registered in Deanna Stafford’s name and whether Deanna Stafford was the sole owner of the vehicle. In addition, since Gordon Fitt had taken the Dodge Charger without Deanna Stafford’s consent, Deanna Stafford had argued that she should not be liable for the accident, since s. 192 of the Highway Traffic Act, R.S.O. 1990, H.8, precludes the registered owner of the vehicle from liability for damages and injuries caused in the accident, if the driver of the motor vehicle had been operating the vehicle without the consent of the registered owner of the vehicle.

[37] In deciding whether Gordon Fitt was a “common law owner” of the Dodge Charger, Ramsay J., at paras. 7 to 22 in Passero Estate v. Fitt, confirmed that for the purposes of liability for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle on a highway, the registered owner of the motor vehicle is the “owner” of the vehicle under s. 192 of the Highway Traffic Act, R.S.O. 1990, c. H.8, unless the contrary is proven. However, Ramsay J. also confirmed that another person could be an “owner” of the vehicle if indicia of ownership is so proved. In that specific case, Ramsay J. had held that Gordon Fitt was a “common law owner” of the motor vehicle and liable for damages. Ramsay J. had based his conclusion on the following indicia of common law ownership: (1) before separation Gordon Fitt had participated in negotiating the purchase of the vehicle; (2) Gordon Fitt had co-signed the agreement of purchase and sale; (3) Gordon Fitt had co-signed the conditional sales agreement; (4) Gordon Fitt had paid most of the monthly instalments on the Dodge Charger; (5) Gordon Fitt had insured the Dodge Charger; and (6) Gordon Fitt had used the Dodge Charger regularly. Ramsay J. also found further indicia of common law ownership in Gordon Fitt after his separation from his wife, specifically that (7) Gordon Fitt had withheld payment on the conditional sales agreement in order to regain possession of the car; (8) Gordon Fitt had taken the Dodge Charger; (9) Gordon Fitt drove the Dodge Charger; (10) Gordon Fitt had renewed the licence plate sticker for the Dodge Charger; and (11) Gordon Fitt had received half the insurance proceeds for the loss of the Dodge Charger from the accident [emphasis is mine below]:

Deanna Stafford was the registered owner of the Dodge Charger. She and Gordon Fitt went to the dealership and bought the car together. On the agreement of purchase and sale she is listed as the purchaser and he is listed as the co-signer. On the conditional sales agreement she is the buyer and he is the co-buyer. They both obliged themselves to Daimler Chrysler Financial Services to repay a loan in monthly instalments. The payments were made from an account at Meridian Credit Union held by Fitt's business. Deanna and Gordon both had signing authority on the account. While the parties were together, both used the vehicle during the summer. Every winter Gordon made arrangements to suspend the insurance and every spring he made arrangements to reinstate it. He insured the vehicle with Novex ING (i.e. Intact).

In May 2009 the Fitts separated. Gordon left the matrimonial home with the family pickup truck, which was also registered to Deanna. He left the Charger behind. In July he asked Deanna for the use of the Charger one weekend. She refused.

In July 2009 Gordon began to play hardball. He stopped paying the mortgage on the matrimonial home in the hope that the credit union would foreclose. Deanna would be out and he could redeem the mortgage. This worked; at least, Deanna had to move out on September 19, 2009.

Gordon also stopped paying for the Charger with the same motivation. He thought that Daimler Chrysler would repossess it and he could redeem it. In early August 2009 Deanna made a payment on the Charger herself and insured it with State Farm. She called Intact's agent from the State Farm office to ask Intact to take the Charger off the Intact policy. Intact refused. So State Farm and Intact knew about each other.

Deanna stored the Charger at her uncle's residence. Gordon still had one of the two car keys and Deanna did not want him to take the car. On September 18, 2009, the eve of her move, she moved the car to the garage of the matrimonial home. She was going to use it the next day to move property. Also on September 18 Gordon came over and made a scene. After he left Deanna noticed that the Charger was missing from the garage. She called the police. They were not willing to do anything but find out whether Gordon had the car. He did. Deanna asked for it back and Gordon refused. Deanna told her divorce lawyer. Deanna's and Gordon's lawyers wrote letters back and forth to address the Charger and the other property issues between the parties.

Gordon missed a payment on his insurance. Intact's agent wrote to him to advise him that unless he made the payment, the insurance would be cancelled as of October 29, 2009, which turned out to be eight days after the accident.

On September 30, 2009 the licence plate sticker expired. Gordon renewed it.

On October 16, 2009 Deanna's lawyer found out that Dodie Barker had been seen driving the Charger. The lawyer wrote to Gordon's lawyer, "There is no consent to the vehicle being driven."

By the eve of the accident, Gordon and Deanna had both asked Intact to delete the Charger from Intact's policy. Intact refused to take the Charger off the Intact policy before the overdue premium was paid. Apparently, it preferred to keep the Charger on the policy until October 29, 2009 when the policy would be cancelled.

The accident took place on October 21, 2009. After the accident State Farm paid Deanna for the loss of the Charger. She gave half of the proceeds to Gordon.

Ownership of the Charger

The Highway Traffic Act provides:

192.(1) The driver of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway.

(2) The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner's consent in the possession of some person other than the owner or the owner's chauffeur.

The registered owner is the owner of the vehicle for the purposes of this section, unless the contrary is proven. No one has tried to prove that Deanna Stafford was not the owner.

In addition, another person could be an owner of the vehicle if indicia of ownership so prove: Hayduk v. Pidoborozny, 1972 136 (SCC), [1972] SCR 879; Honan v. Doman Estate, 1974 26 (SCC), [1975] 2 S.C.R. 866.

The indicia of Gordon Fitt's ownership are many.

a. Before separation he participated in negotiating the purchase of the vehicle;

b. he co-signed the agreement of purchase and sale;

c. he co-signed the conditional sales agreement;

d. he paid most of the monthly instalments;

e. he insured the car; and

f. he used the car regularly.

g. After separation he withheld payment on the conditional sales agreement in order to regain possession of the car;

h. took the car;

i. he drove it;

j. he renewed the licence plate sticker; and

k. he received half the insurance proceeds for its loss.

The indicia of ownership are ample to prove that Gordon was an owner of the vehicle for the purposes of s.192 of the Highway Traffic Act, whether I look at the period before separation, the period after separation or both periods together.

I recognize that the Ontario legislation does not define owner as broadly as the Alberta legislation in question in Hayduk. Nevertheless, application of the principles enunciated in that case and in the Ontario case law leads inevitably to the conclusion that Gordon Fitt was an owner of the Dodge Charger within the meaning of s.192 of the Highway Traffic Act.

[38] Additionally, in MacInnis v. Rayner, [2016] P.E.I.J. No. 55 (P.E.I. Supreme Ct.), at paras. 12 to 13, Cheverie J. held that in addition to the statutory regime, ownership of a vehicle may also be established by looking at common law indicators. In that case, it was determined that (1) Raylink Ltd. had purchased the 2010 Ford Escape motor vehicle; (2) Raylink Ltd.'s employees drove the Escape motor vehicle; (3) Raylink Ltd.'s ownership of the Escape motor vehicle was reflected in its corporate financial statements; and (4) Raylink Ltd.'s ownership of the Escape motor vehicle was reflected in its corporate tax return [emphasis is mine below]:

In addition to the statutory regime, ownership of a vehicle may also be established by looking at common law indicators. The leading case is that of Honan v. Gerhold, 1974 26 (SCC), [1975] 2 S.C.R. 866. An accurate summary of that case and its conclusions may be found at para. 66 of the defendants' factum as follows:

In Honan v. Gerhold, 1974 CarswellOnt 249 ["Honan"], the plaintiff was injured in a motor vehicle accident and commenced an action, including against the defendant Doman (driver) and the defendant Gerhold (registered owner). Doman had previously purchased the vehicle but was concerned that his estranged spouse would execute on a judgment and as such Doman requested that the registration of the vehicle be transferred to Gerhold's name. Doman continued to operate the vehicle and have sole control of it. In this case registration did not raise a statutory presumption of ownership under the applicable legislation. Gerhold arranged insurance on the vehicle, signed applicable paper work, (including registration for the vehicle) and also attended to the annual renewal of the license. The trial judge had dismissed the action against Gerhold. However, the Supreme Court of Canada concluded that Gerhold was an owner in a "common law sense".

The defendants also referred the court to a number of other decisions where common law indicators of ownership were established. Of interest is the recent decision of the Ontario Superior Court of Justice in Passero Estate v. Fitt, 2015 ONSC 6723, where the court, relying on the Honan decision, produced a number of indicators sufficient to establish ownership, such as: participation in negotiating the purchase of the vehicle; co-signing the agreement of purchase and sale; co-signing the conditional sales agreement; making most of the monthly instalments; insuring the car; using it regularly; driving it; and renewing the license plate sticker.

Applying the rebuttable presumption of ownership as indicated by the contract of purchase and sale and the registration of the 2010 Ford Escape, one can only conclude Raylink Ltd. was the owner. The plaintiff has offered no evidence to rebut that presumption. However, Raylink Ltd. also meets the common law indicia of ownership in that: (1) Raylink purchased the Escape; (2) Raylink's employees drove the Escape; (3) Raylink's ownership of the Escape was reflected in its corporate financial statements; and (4) Raylink's ownership of the 2010 Ford Escape was reflected in its corporate tax return.

[39] Furthermore, in Hayduk (Next friend of) v. Pidoborozny, 1972 136 (SCC), [1972] S.C.R. 879, the Supreme Court of Canada had to consider the issue of whether a father, who was the registered owner of a motor vehicle, and his son, who had exclusive use of the motor vehicle and who was paying the instalments of the vehicle, were respectively an “owner” of the motor vehicle that was involved in an accident, and therefore liable for damages sustained by the appellants, Mike Hayduk and Alexandra Boyko. The registered owner of the motor vehicle was Peter Pidoborozny, who was the father of Ronald Pidoborozny, the driver of the motor vehicle that had been involved in an accident that had injured the appellants. Ronald Pidoborozny, the defendant-driver, had taken possession of the motor vehicle from his father, Peter Pidoborozny, with Peter Pidoborozny's express consent. In addition, Ronald Pidoborozny had the exclusive possession and control of the motor vehicle at all material times and had made all of the payments due and owing under the conditional sales contract and the promissory note for the motor vehicle. Both Ronald and Peter had testified that they had arranged between themselves that the payments would be made by Ronald, the defendant-driver, and, that the father, Peter, had only become the purchaser of the vehicle for the purpose of guaranteeing payment of the purchase price, so that, if Ronald Pidoborozny, the defendant-driver had refused or failed to pay an instalment due under the conditional sales contract or promissory note, then Peter Pidoborozny, the father, would be liable for the payments. The issue in that case that had to be decided by the Supreme Court of Canada was whether or not on the day of the accident, the defendant, Peter Pidoborozny, was the “owner” of the motor vehicle that had been driven by his co-defendant, Ronald Pidoborozny and whether Peter Pidoborozny, who was the registered owner, is of itself enough to make him vicariously liable under the provisions of the Alberta Highway Traffic Act.

[40] Ritchie J. of the Supreme Court in Hayduk (Next friend of) v. Pidoborozny held that there is a logical reason why the “registered owner” should be treated as "owner" of the motor vehicle within the meaning of the Alberta Highway Traffic Act, since the very purpose of the registration is to give notice to all users of the highway of the identity of an individual to whom they may look to as “owner” of the motor vehicle in the event of an accident. However, Ritchie J. also reasoned that in the present case, the contention that the father, Peter Pidoborozny, was the “owner” of the motor vehicle within the meaning of s. 130 of the Alberta Highway Traffic Act does not rest upon registration alone. Ritchie J. had also noted that the father, Peter Pidoborozny, was the purchaser of the motor vehicle in conformity with the terms of a conditional sales contract which he had signed and that the son, Ronald Pidoborozny, had not. And, while it is true that the son, Ronald Pidoborozny, made all payments under the conditional sales contract from his own resources, the contract had been obtained on the credit of Ronald Pidoborozny’s father and that the payments thereunder had not been fully discharged until after the accident had occurred. However, Ritchie J. had disagreed with the Appeal Court’s finding and instead agreed with the trial judge, who had held that a valid sale of this motor vehicle had been made to the defendant Peter Pidoborozny (the father) and that he was the “owner at common law” notwithstanding the fact that his son, Ronald Pidoborozny, had made the payments under the conditional sales contract and had had exclusive possession of the vehicle from the date of its purchase. Ritchie J. had also held that by virtue of s. 130 of the Alberta Highway Traffic Act, the son, Ronald Pidoborozny, was also an "owner" for the purpose of the Act, but Ritchie J. further surmised that he did not think that by including any person who has had exclusive use of a motor vehicle for more than thirty days within the statutory meaning of the word "owner", that the Legislature intended to exclude or did effectively exclude the registered owner of the motor vehicle from his status as an owner or relieve him from the liability which that status involves under the provisions of s. 130 [emphasis is mine below]:

This is an appeal from a judgment of the Appellate Division of the Supreme Court of Alberta reversing the judgment rendered at trial by Greschuk J., whereby he found that the respondents, who are father and son, were jointly and severally liable for damages sustained by the appellants when they were being driven in a motor vehicle operated by Ronald Pidoborozny of which his father, Peter Pidoborozny, was the registered owner under The vehicles and Highway Traffic Act, R.S.A. 1955, c. 356 (hereinafter referred to as the Act).

The finding of the learned trial judge that the driver was grossly negligent in the operation of the motor vehicle at the time of the accident is not questioned in this appeal in which the main issue is whether the fact of his being the registered owner is of itself enough to make the father vicariously liable under the provisions of the Act. This is made apparent by the submissions contained in the factums filed on behalf of both parties.

The second paragraph of the appellants' factum reads as follows:

The Appellate Division held (reversing the court below that the father who registered a motor vehicle in his own name was not an owner of the motor vehicle within the meaning of Sections 2(M) and 130 of The Vehicles and Highway Traffic Act. This is an appeal from that decision.

and in Part II of the factum of the respondent the matter is bluntly stated as follows:

It is submitted that there is one issue, namely whether a registered owner is an owner within the meaning of Section 130, the vicarious liability section of The Vehicles and Highway Traffic Act of Alberta.

Section 130 provides as follows:

In an action for the recovery of loss or damage sustained by a person by reasons of a motor vehicle upon a highway, a person driving the motor vehicle and living with and as a member of the family of the owner thereof and a person who is driving the motor vehicle and who is in possession of it with the consent, express or implied, of the owner thereof shall be deemed to be the agent or servant of the owner of the motor vehicle and to be employed as such, and shall be deemed to be driving the motor vehicle in the course of his employment, but nothing in this section relieves any person deemed to be the agent or servant of the owner and to be driving the motor vehicle in the course of his employment from the liability for the damages.

The facts concerning the ownership of the car are set out in the judgment of the learned trial judge and reiterated in the reasons for judgment delivered on behalf of the Appellate Division by McDermid J.A., and are as follows:

The defendant-driver was 19 years of age on the day of the accident. On October 8, 1966, he made an offer to Zarowny Motors Ltd. an automobile dealer firm in St. Paul, to purchase a 1962 8-cylinder Dodge sedan vehicle for the sum of $1,125, as shown in ex. 9, but this offer apparently was not accepted. On the same day, the defendant-owner purchased the same vehicle from the same dealer, under and by virtue of a conditional sales agreement at and for the sum of $1,364, which included finance charges of $139, by paying the sum of $500 on account of the purchase price and executing a promissory note for $864 payable in 15 consecutive monthly instalments of $57.60 each. Shortly thereafter he became the registered owner of this vehicle in the Motor Vehicles Branch of the Department of Highways and Transport for the Province and remained the registered owner at all material times. Although all of the payments due and owning under the promissory note and the conditional sales conquest for an unpaid instalment, as shown in ex. 8, was sent to the defendant-owner. at the time of the purchase of the vehicle the defendant-driver was a surveyor and resided in Westlock, Alberta. He had the exclusive use of the vehicle from October 8, 1966, to and including the date of the accident.

I now turn to the first issue which I must determine, which is whether or not on the day of the accident, the defendant, Peter Pidoborozny, was the owner of the motor vehicle driven by his co-defendant. It is unnecessary for me to repeat the facts in respect to the purchase of the vehicle in question by the defendant, Peter Pidoborozny, and, the manner in which he became the registered owner pursuant to the provisions of the Vehicles and Highway Traffic act, R.S.A. 1955, c. 356, and amendments thereto. It is admitted that the defendant-driver took possession of the motor vehicle from his father with the latter's express consent, had exclusive possession and control at all material times and made all of the payments due and owing under the conditional sales contract and the promissory note. Both defendants testified that they had arranged between themselves that the payments would be made by the defendant-driver, and, that the father became the purchaser of the vehicle for the purpose of guaranteeing payment of the purchase price, so that, if the defendant-driver refused or failed to pay and instalment due under the conditional sales contract or promissory note the father would be liable for the same.

I think it well also to reproduce those parts of the cross-examination of the appellants dealing with the ownership of the car which are referred to by the Appellate Division. The father's evidence in this regard was:

Q. In other words then, Mr. Pidoborozny, your son Ronnie had exclusive use of the car from October, 1966 until the date of the accident, June 18th, 1967, is that correct?

A. Yes.

Q. That is to say he had exclusive use of this car well over 30 days for that whole period of time from October, 1966 until June of 1967, is that correct?

A. Yeah, I think so.

Q. ... By the way, when you took registered ownership of the vehicle you did so because if in the event that Ronnie couldn't pay for the financing of it you would have to, is that correct?

A. Yes, that's right.

The son's evidence on the same subject was:

Q. Mr. Pidoborozny, from the time you purchased the car in October of 1966 until the date of the accident on June 18th, 1967 you had exclusive use of that vehicle, is that correct.?

A. Yes.

Q. In fact, you were not even living with your parents for that period of time from when you bought the car until the date of the accident, is that correct?

A. Yes.

Q. And the reason that your father was registered as owner of the vehicle was that in the event that you could not pay for it your dad would have to, is that correct?

A. Yes.

If the father is found to have been an "owner" of the car within the meaning of the Act, I have no doubt that at the time of the accident the son was in possession of it with his father's consent and that by virtue of the provisions of s. 130, he would be deemed to have been driving the car in the course of his employment as a servant or agent of the father so as to make the latter vicariously liable for the damage which ensued.

There have been conflicting decisions in the Trial Division of the Supreme Court of Alberta as to the meaning to be given to the word "owner" as it occurs in s. 130, and the Courts of other provinces have not been uniform in interpreting similar sections in their respective highway traffic acts; but before considering these authorities I think it desirable to examine the internal evidence within the Act itself which indicates the intention of the Legislature. In this regard, I proceed on the assumption that the word "owner" has the same meaning wherever it occurs in the act. It would take the strongest kind of statutory language to satisfy me that the Legislature was attributing one meaning to the word "owner", for example in the financial responsibility sections of the Act, and another in the section dealing with vicarious liability.

As has been pointed out by the Appellate Division, s. 127(1) of the Act is relevant to this issue and I refer particularly to the following portions of that section:

When proof of ownership of any motor vehicle...is required, the production of a certificate purporting to be under the hand of the registrar or his deputy, to the effect that the person named therein is or was the registered owner of the vehicle...is prima facie proof thereof, without proof of signature or official character.

I think it to be a significant indication of the importance and effect that the Legislature intended to give to registration of ownership of a motor vehicle that proof of such registration is, by the clear terms of this section of the statute, to be treated as proof of ownership unless and until the contrary be shown.

Further light is in my view thrown on the intention of the Legislature by the sections of the Act dealing with financial responsibility of owners and drivers. In this regard the following sections appear to me to be particularly apposite:

Proof of financial responsibility shall be given by every driver, and in the case of an owner, by every owner to whom this Part applies for each motor vehicle registered in his name, in the amounts stated in subsection (1a) of section 150, and subject to the limitations, conditions and qualifications prescribed for an owner's and a driver's policy respectively by Part VII of the Alberta Insurance Act.

The italics are my own.

I seems clear to me that the terms of the last-quoted section point to the registered owner as the "owner" for the purpose of furnishing proof of financial responsibility.

There is a logical reason why the registered owner should be treated as "owner" within the meaning of the Act because the very purpose of the registration is to give notice to all users of the highway of the identity of an individual to whom they may look as owner in the event of an accident. In the present case, however, the contention that the father was the owner within the meaning of s. 130 does not rest upon registration alone. Here the father was the purchaser of the motor vehicle in conformity with the terms of a conditional sales contract which he had signed and the son had not. It is true that the son made all payments under this contract from his own resources, but the contract was obtained on the credit of the father and the payments thereunder were not fully discharged until after the accident had occurred. With all respect to the members of the Appellate Division, I agree with the learned trial judge that a valid sale of this motor vehicle had been made to the defendant Peter Pidoborozny (the father) and that he was the owner at common law notwithstanding the fact that his son had made the payments under the conditional sales contract and had had exclusive possession of the vehicle from the date of its purchase.

There can be no dispute about the fact that the son had the exclusive use of the motor vehicle for a period of more than thirty days and this brings into play the extended meaning attached to the word "owner" by s. 2(m) which reads as follows:

In this Act

(m) "owner" includes any person renting a motor vehicle or having the exclusive use thereof, under a lease or otherwise, for a period of more than thirty days.

It cannot be denied that by virtue of this section the son was an "owner" for the purpose of the Act, but I do not think that by including any person who has had exclusive use of a motor vehicle for more than thirty days within the statutory meaning of the word "owner" the Legislature intended to exclude or did effectively exclude the registered owner from his status as an owner or relieve him from the liability which that status involves under the provisions of s. 130.

Like the learned trial judge, I would follow the cases of Chuwick v. Bevans et al. [(1964), 1964 458 (AB SCTD), 49 W.W.R. 699, 47 D.L.R. (2d) 478.], Furjes v. Goodman et al. [(1956), 1956 258 (AB SCTD), 19 W.W.R. 26, 5 D.L.R. (2d) 57.] (Alta.) and Yaeger v. Heilman [ 1948 155 (SK KB), [1948] 2 W.W.R. 135.], in so far as they recognized that there may be more than one owner under the provisions of the Act.

The respondents cited and relied upon a number of decisions of the Court of Appeal of Ontario in this regard and I think it sufficient to say that these cases were decided under The Highway Traffic Act of Ontario and in my opinion are of no assistance in interpreting the Alberta Vehicles and Highway Traffic Act, supra. In my opinion, under the Alberta statute the registered owner remains and "owner" notwithstanding the fact than an extended meaning has been given to the word by s. 2(m) so that a person who has the exclusive use of the motor vehicle for a period of more than thirty days before the collision is also included as an "owner".

Applying the above reasoning to the facts of this case, I would allow this appeal and restore the judgment of the learned trial judge and direct that the appellants do recover from the respondents jointly and severally the amount of damages and costs as assessed at trial.

[41] Moreover, Laskin J. in his ruling in Hayduk (Next friend of) v. Pidoborozny had agreed with Ritchie J. in reversing the Alberta Appeal Court’s decision and upholding the trial judge’s decision. Furthermore, Laskin J. in his ruling had relied on the Ontario Court of Appeal’s decision in Wynne v. Dalby (1913), 1913 578 (ON CA), 30 O.L.R. 67, 16 D.L.R. 710, that had applied a "dominion" test for deciding whether someone is an “owner” of a motor vehicle. Moreover, Laskin J. noted that the Wynne v. Dalby formula had permeated succeeding case law where the issue was whether a person who was registered as owner of a motor vehicle could escape statutory vicarious liability by proof that the legal or beneficial interest in the motor vehicle was in another person [emphasis is mine below]:

I agree that this appeal should succeed in the terms proposed by my brother Ritchie. The issue in appeal, although arising under Alberta legislation, is of Canada-wide concern under similar if not exact legislation in other provinces. The authorities marshalled by counsel on each side make this quite clear.

If any one case can be said to underlie the principle upon which the Alberta Appellate Division in the present case and other provincial Courts have proceeded, it is Wynne v. Dalby [(1913), 1913 578 (ON CA), 30 O.L.R. 67, 16 D.L.R. 710.]. There the issue was not whether the registered owner was liable--indeed, he was also the negligent driver--but whether the conditional seller could be held liable as "owner" as well as the conditional buyer, in addition to the negligent driver. In refusing to hold the conditional seller as "owner", the Ontario Court of Appeal applied a "dominion" test; and this formula permeated succeeding case law where the issue was the different one of whether a person who was registered as owner could escape statutory vicarious liability by proof that the legal or beneficial interest was in another.

Haberl v. Richardson [1951 115 (ON CA), [1951] O.R. 302, [1951] 3 D.L.R. 34.], in the Ontario Court of Appeal was such a case, and, on its facts, similar to the present one. Wynne v. Dalby was applied by that Court in reversing the judgment of my brother Spence, then a member of the Trial Division of the Supreme Court of Ontario. He held the registered owner liable, that person being also the conditional purchaser under a contract that was still on foot at the time of the accident. In my opinion, the judgment of Spence J. reflected the proper approach for the application of the vicarious liability provisions of the provincial Highway Traffic Act.

The issue of ownership, where it arises under a claim of statutory vicarious liability of a car owner to an injured third person, is not one to be decided as if it arose in litigation between the father and son, the defendants in the present case. The applicable statute, The Vehicles and Highway Traffic Act, R.S.A. 1955, c. 356, as amended, cannot be so construed when regard is had to its provisions for public registration of car ownership and, concurrently, for proof of financial responsibility.

(2) Who is the registered legal owner of the Mini Cooper?

[42] Officer Gill testified that the defendant’s wife, Myriam De Jesus URREGO BARRIENTOS, is the legally registered owner of the Mini Cooper motor vehicle. Exhibit #1 confirms that Myriam De Jesus URREGO BARRIENTOS is the legal and registered owner of the vehicle.

(3) Is there proof that the registered legal owner of the Mini Cooper is legally married to the defendant?

[43] The defendant had informed Officer Gill that he had been married for 3 years and that he was on his way to pick up his wife at her workplace.

(4) Is evidence that the defendant had been paying the insurance premiums on the Mini Cooper motor vehicle proof or evidence that the defendant is a “common law owner” of that vehicle?

[44] One of the circumstances in which the prosecution contends is an indicator that the defendant is a common law owner of the Mini Cooper vehicle comes from the defendant having voluntarily made an utterance to Officer Gill that he is the one who arranged for and pays for the insurance on the Mini Cooper motor vehicle that is in his wife’s name, and that he had also taken off the insurance on the Mini Cooper vehicle since they were going on vacation, and that he was going to switch the insurance back on.

[45] However, the defendant argues that just because the defendant pays for the insurance for the Mini Cooper vehicle does not mean that he is the “owner” of the vehicle.

(a) Can a person insure something they do not own?

[46] The prosecution also contends that the defendant could not have insured the Mini Cooper motor vehicle unless he is the one who actually owns the vehicle. Even though there is a principle under insurance law that a person cannot insure something unless they have an insurable interest in that property, an interest in a property does not necessarily require that interest be one of ownership in that property. For example, when a person leases a motor vehicle the lease agreement usually requires the lessee of the vehicle being obligated to and having to purchase or buy insurance for that leased vehicle, even though the lessee is not the registered or legal owner. In that situation, the lessee has an insurable interest for which insurance can be purchased.

[47] On the other hand, by law, you cannot take out an insurance policy on a property if you do not have an insurable interest in it. For instance, you cannot buy a home insurance policy for your neighbour’s house. Such an arrangement would create what is known as a “moral hazard”. A moral hazard arises when one of the parties to an agreement does not act in good faith. Specifically, a moral hazard comes about when a party takes advantage of agreements that shield them from risk. For example, if you were indeed allowed to insure your neighbour’s house, then you would have a strong incentive to destroy or burn your neighbour’s house down. Your illegal insurance policy would pay you to rebuild the house even though you didn’t own it or have any financial stake in it. And, that is why having an insurable interest in a property is a fundamental part of insurance.

[48] Moreover, in the case at bar, the defendant did inform Officer Gill that the insurance on the Mini Cooper vehicle was in his wife’s name. As such, it could be inferred that the defendant had made the arrangements for the insurance for the Mini Cooper vehicle on behalf of his wife for a specific or valid reason. However, there is no evidence adduced at trial on why the defendant was the one who arranges for and pays for the insurance on the vehicle registered in his wife’s name. It also cannot be necessarily inferred from the evidence that the defendant, who arranges for, pays for, and had cancelled the insurance on the Mini Cooper vehicle, is the “owner” of the vehicle, unless there is additional evidence that would show for example that he has exclusive use or dominant use of the Mini Cooper vehicle or that his wife never drives the Mini Cooper vehicle.

[49] On the other hand, if the defendant were in fact the beneficial owner of the Mini Cooper vehicle, then there would be an incentive for the defendant to arrange for, purchase, and pay for the insurance on the vehicle. This would mean that the defendant, if he were the beneficial owner of the Mini Cooper motor vehicle, would have had an insurable interest in that vehicle. However, there is no evidence that has been adduced that the defendant is the beneficial owner or that he has an insurable interest in the Mini Cooper motor vehicle, and that the insurance provider would have paid the defendant for any loss that the defendant could suffer in respect to the Mini Cooper motor vehicle.

[50] Ergo, in respect to the prosecution’s argument that one cannot insure something that they do not own, the evidence adduced does not indicate that when the defendant did pay for the insurance on the Mini Cooper vehicle that the insurance provider either recognized the defendant as having an insurable interest in the vehicle or that the original insurance policy issued for the Mini Cooper listed the defendant as an owner of the vehicle.

[51] In addition, there has been no evidence adduced that the defendant would not be permitted to pay for the insurance premiums on the Mini Cooper motor vehicle on behalf of his wife, who is the registered owner of the Mini Cooper motor vehicle, nor has there been any evidence adduced that the defendant would not have been permitted to pay for the insurance premiums on the Mini Cooper motor vehicle by the insurance company unless he was also listed as an owner of the Mini Cooper vehicle.

[52] Consequently, evidence that the defendant arranges for, pays the insurance premiums, and had cancelled the insurance on the Mini Cooper vehicle, is but one circumstance that could be used as a circumstance to support other indicia of common law ownership. However, in order for this court to indeed find the defendant to be a “common law owner” of the Mini Cooper vehicle additional indicia of common law ownership needed to be proven by the prosecution, such as the Mini Cooper being predominately driven by the defendant. In this particular case, this evidence of the defendant’s role in insuring, cancelling, and paying for the insurance on the Mini Cooper vehicle is not sufficient alone to prove that the defendant is a “common law owner” of the Mini Cooper motor vehicle.

(5) Since the registered legal owner of the Mini Cooper motor vehicle is the defendant’s spouse, then does the defendant’s contingent rights under the Family Law Act for equalization of property, proof or evidence that the defendant is a “common law owner” of the Mini Cooper motor vehicle on February 16, 2021?

(a) Marriage to the registered owner of the motor vehicle could be an indicia of common law ownership

[53] The prosecution also argues that the defendant is a “common law owner” of the Mini Cooper motor vehicle because the defendant is the owner of half of the vehicle, which is based on the contention that the defendant’s right to equalization of the matrimonial property under the Family Law Act, R.S.O. 1990, c. F.3 would legally make him an owner of half of the Mini Cooper vehicle.

[54] In considering this argument, it should be first noted that under s. 5(1) of the Family Law Act, R.S.O. 1990, c. F.3, the defendant and his wife are legally entitled to the equalization of the net family properties. “Net family property” is defined under s. 4(1) of the Family Law Act, as the value of all the property, except property described in s. 4(2), that a spouse owns on the valuation date, after deducting the spouse’s debts and other liabilities and the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage. In particular, s. 5(1) of the Family Law Act provides that when a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, then the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them [emphasis is mine below]:

Definitions

4 (1) In this Part,

“court” means a court as defined in subsection 1 (1), but does not include the Ontario Court of Justice; (“tribunal”)

“matrimonial home” means a matrimonial home under section 18 and includes property that is a matrimonial home under that section at the valuation date; (“foyer conjugal”)

“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,

(a) the spouse’s debts and other liabilities, and

(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage; (“biens familiaux nets”)

“property” means any interest, present or future, vested or contingent, in real or personal property and includes,

(a) property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself,

(b) property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, and

(c) in the case of a spouse’s rights under a pension plan, the imputed value, for family law purposes, of the spouse’s interest in the plan, as determined in accordance with section 10.1, for the period beginning with the date of the marriage and ending on the valuation date; (“bien”)

“valuation date” means the earliest of the following dates:

The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.
The date a divorce is granted.
The date the marriage is declared a nullity.
The date one of the spouses commences an application based on subsection 5 (3) (improvident depletion) that is subsequently granted.
The date before the date on which one of the spouses dies leaving the other spouse surviving. (“date d’évaluation”) R.S.O. 1990, c. F.3, s. 4 (1); 2006, c. 19, Sched. C, s. 1 (2); 2009, c. 11, s. 22 (1-4); 2009, c. 33, Sched. 2, s. 34 (1).

Net family property, liabilities

(1.1) The liabilities referred to in clauses (a) and (b) of the definition of “net family property” in subsection (1) include any applicable contingent tax liabilities in respect of the property. 2009, c. 33, Sched. 2, s. 34 (2).

Excluded property

(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:

Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.
Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property.
Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.
Proceeds or a right to proceeds of a policy of life insurance, as defined under the Insurance Act, that are payable on the death of the life insured.
Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.
Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property.
Unadjusted pensionable earnings under the Canada Pension Plan. R.S.O. 1990, c. F.3, s. 4 (2); 2004, c. 31, Sched. 38, s. 2 (1); 2009, c. 11, s. 22 (5).

Onus of proof re deductions and exclusions

(3) The onus of proving a deduction under the definition of “net family property” or an exclusion under subsection (2) is on the person claiming it. R.S.O. 1990, c. F.3, s. 4 (3).

Close of business

(4) When this section requires that a value be calculated as of a given date, it shall be calculated as of close of business on that date. R.S.O. 1990, c. F.3, s. 4 (4).

Net family property not to be less than zero

(5) If a spouse’s net family property as calculated under subsections (1), (2) and (4) is less than zero, it shall be deemed to be equal to zero. R.S.O. 1990, c. F.3, s. 4 (5).

Equalization of net family properties

Divorce, etc.

5(1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (1).

Death of spouse

(2) When a spouse dies, if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (2).

Improvident depletion of spouse’s net family property

(3) When spouses are cohabiting, if there is a serious danger that one spouse may improvidently deplete his or her net family property, the other spouse may on an application under section 7 have the difference between the net family properties divided as if the spouses were separated and there were no reasonable prospect that they would resume cohabitation. R.S.O. 1990, c. F.3, s. 5 (3).

No further division

(4) After the court has made an order for division based on subsection (3), neither spouse may make a further application under section 7 in respect of their marriage. R.S.O. 1990, c. F.3, s. 5 (4).

Idem

(5) Subsection (4) applies even though the spouses continue to cohabit, unless a domestic contract between the spouses provides otherwise. R.S.O. 1990, c. F.3, s. 5 (5).

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). R.S.O. 1990, c. F.3, s. 5 (7).

[55] Ergo, the defendant and his wife are indeed entitled to an equalization of his and his wife’s net family properties when the defendant and his wife legally separate and there is no reasonable prospect that they will resume cohabitation; a divorce is granted; when the marriage is declared a nullity; when one of the spouses commences an application based on s. 5(3) (improvident depletion) that is subsequently granted; and when one of the spouses dies leaving the other spouse surviving. Moreover, under s. 5(1) of the Family Law Act, the spouse with the higher “net family property” must pay to the spouse with the lower net family property half the difference between their respective net family properties, save and except in certain scenarios (i.e. a short-term marriage). The purpose of an equalization payment is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties.

[56] Furthermore, the Mini Cooper vehicle is a 2007 model. The defendant had also informed Officer Gill that he had been married for 3 years at the time of the traffic stop on February 16, 2021, which would put the date of the defendant’s marriage at approximately 2018. This would make it a possibility that the defendant’s wife could have purchased the vehicle before their marriage if the Mini Cooper vehicle had been purchased new. And, if the Mini Cooper vehicle had been purchased by the defendant’s wife as a new vehicle, then there is also a possibility that the vehicle could be excluded from the matrimonial property, as it may have been purchased before the marriage, or that it may have been a gift to the defendant’s wife. However, it is also a possibility that the vehicle had been purchased as a used vehicle after the marriage and would, therefore, subject the vehicle to be part of the matrimonial property that would be subject to equalization. Ergo, evidence of the defendant being married to the legal registered owner does not automatically make the Mini Cooper vehicle become part of the matrimonial property in which the defendant would have a contingent interest in the ownership of the vehicle under the Family Law Act.

[57] Although there is evidence that the defendant is married to the legal and registered owner of the Mini Cooper motor vehicle, that evidence alone does not prove that the defendant is a “common law owner” of the vehicle. However, this evidence that the defendant is married to the legal and registered owner of the Mini Cooper motor vehicle could be, when considered with other evidence of common law ownership, some indicia that the defendant is a “common law owner” of the vehicle.

(6) Conclusion on whether the prosecution has proven that the defendant is a “common law owner” of the Mini Cooper motor vehicle beyond a reasonable doubt

[58] Even though there is some indicia of common law ownership, the prosecution has nevertheless not proven beyond a reasonable doubt that the defendant is a “common law owner” of the Mini Cooper motor vehicle. In order, to meet that legal or persuasive burden, the prosecution would have had to prove in addition to the evidence that defendant arranged for, pays for, and had cancelled the insurance, and the evidence that the defendant is also married to the legal and registered owner of the Mini Cooper vehicle, that the defendant’s wife does not drive the Mini Cooper vehicle except occasionally, even though she is the registered legal owner, and that the defendant exclusively or predominately drives the Mini Cooper vehicle. In addition, if the Mini Cooper had been purchased from a car dealership, then the prosecution could have also proven that the defendant had signed the purchase agreement alone or with his wife to show who were the purchasers of the Mini Cooper vehicle when it was first purchased, in order to also support the contention that the defendant is a “common law owner” of the Mini Cooper vehicle. However, the prosecution has failed to adduce this additional evidence to show that the defendant is a “common law owner” of the Mini Cooper motor vehicle.

6. DISPOSITION

[59] Accordingly, based on the totality of the evidence, the prosecution has not met its burden in proving beyond a reasonable doubt that the defendant, Carlos GUTIERREZ VILLASENOR, is guilty of committing the offence of “owner operate motor vehicle on a highway without insurance”, contrary to s. 2(1) of the Compulsory Automobile Insurance Act, R.S.O 1990, c. C.25. As such, an acquittal will be entered on behalf of Carlos GUTIERREZ VILLASENOR.

Dated at the City of Brampton on December 15, 2022.

QUON J.P.

Ontario Court of Justice

R. v. Villasenor, 2022 ONCJ 578

Case Summary

R. v. Villasenor, 2022 ONCJ 578

1. INTRODUCTION

2. BACKGROUND

3. THE CHARGE

4. ISSUES

5. ANALYSIS AND DECISION

6. DISPOSITION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 4