Court File and Parties
COURT FILE NO.: DC-07-001 DATE: 2007-07-05
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Jennings, Greer, Cusinato JJ.
B E T W E E N:
RODDY McKAY Plaintiff (Respondent)
- and -
WAWANESA MUTUAL INSURANCE COMPANY Defendant (Appellant)
Counsel: M. McCarl, for the Plaintiff (Respondent) D. Scott, for the Defendant (Appellant)
HEARD: June 6, 2007
Reasons
Jennings J: (orally)
[1] The appellant’s counsel, Mr. Scott has, with commendable frankness, conceded that if the trial judge’s finding that the vehicle was being driven without the owner’s consent is sustained by this court, this appeal must fail. The only evidence on this issue before the trial judge was that of the owner of the vehicle. The trial judge found the owner to be a “very credible witness”. The owner’s evidence may be summarized as follows:
(1) His daughter was required to ask his permission to use his truck.
(2) She could not use his truck when he was not in the community.
(3) He was away from the community on the day of the accident and she had not asked for his permission to use the vehicle, nor had he given it.
(4) Prior to leaving the community, he had taken the vehicle and the keys to it to his son’s residence, so that his daughter could not use the vehicle during his absence.
The trial judge accepted that evidence.
[2] The trial judge found the owner had neither expressly nor implicitly permitted his daughter to operate the vehicle on the day in question.
[3] In accepting the only evidence available to him on the issue of consent to use, the finding of the trial judge was virtually inevitable.
[4] The trial judge was alert to the onus upon the owner to prove the vehicle was being driven without his consent. He found that the owner had satisfied that onus.
[5] There is no basis which would permit us to interfere with that finding and the conclusion reached by the trial judge.
[6] The appeal must be dismissed.
Jennings J.
I agree ___________________________ Greer J.
I agree ___________________________ Cusinato J.
Released: July 5, 2007
COURT FILE NO.: DC-07-001 DATE: 2007-07-05
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Jennings, Greer, Cusinato JJ.
B E T W E E N:
RODDY McKAY Plaintiff (Respondent)
- and -
WAWANESA MUTUAL INSURANCE COMPANY Defendant (Appellant)
REASONS
Jennings J. (orally)
Released: July 5, 2007