BARRIE COURT FILE NO.: 10-0142

DATE: 20120911

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

DANIEL FYFE and DIANNE FYFE Plaintiffs – and – S.B. and L.B. and INTACT INSURANCE COMPANY Defendants

D. Lewis, for the Plaintiffs
B. Kazemi, for the Defendants

HEARD: August 22, 2012

REASONS FOR DECISION

MULLIGAN J.:

[ 1 ] The defendant, L.B. (“L.B..”) brings a motion for summary judgment dismissing the plaintiffs’ claims against him. The plaintiffs were injured in a motor vehicle accident when their vehicle was struck by a vehicle owned by L.B. Sr. and operated by his son the defendant S.B. (“S.B. Jr..”). L.B. Sr. brings this motion on the basis that he did not give consent, either express or implied, to S.B. Jr. to operate his motor vehicle, and therefore he seeks the protection of the Highway Traffic Act, R.S.O. 1990 c.H.10 . The plaintiffs oppose the motion on the basis that even if there is no actual consent, there is sufficient evidence of implied consent in the evidentiary record that the motion ought to be dismissed, allowing the issue to proceed to trial.

BACKGROUND

[ 2 ] A number of facts, as set out in the affidavits filed, are not in dispute. On May 2, 2009, S.B. Jr. was involved in a motor vehicle accident. He was 17 years of age, and did not have a valid Ontario driver’s license. He resided at home with his parents and early in the morning, he returned home while his parents were sleeping, located the keys to his father’s 2001 vehicle, and drove it from their residence. Very shortly thereafter, with passengers in the vehicle with him, he was involved in a motor vehicle accident. Parties on the scene were injured and he remained on the scene and was arrested and charged.

[ 3 ] S.B. Jr. was charged with driving a motor vehicle without a license, under s.32(1) of the Highway Traffic Act and impaired operation of a motor vehicle causing bodily harm, under s.255(2) of the Criminal Code . A breathalyser test taken following his arrest indicated he had a level of alcohol in his system which exceeded the legal limit.

[ 4 ] S.B. Jr. pleaded guilty to a lesser offence of dangerous operation of a motor vehicle under s.249 of the Criminal Code and was sentenced in the Ontario Court of Justice Youth Justice Court.

RULE 20.04

[ 5 ] L.B. Sr. submits that this is a matter that can be dealt with on a summary judgment motion pursuant to this court’s expanded jurisdiction under Rule 20.04 and the guidance provided by the Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 , [2011] O.J. No. 5431. However, the plaintiffs are of the view that there are issues of credibility and the issue of implied consent ought to be left to the trial judge on a full evidentiary record.

THE OWNER’S CONSENT

[ 6 ] The issue of the owner’s consent, whether express or implied, is relevant based on s.192(1) and (2) of the Highway Traffic Act, R.S.O. 1990, c.H.10 which provides as follows:

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. 2005, c.31 , Sched. 10, s.2.

(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. 2005, c.31 , Sched. 10, s.2.

[ 7 ] Simply put, if L.B. Sr. can satisfy the court, on a balance of probabilities, that there was no consent, express or implied, then the plaintiffs’ action as against him ought to be dismissed. L.B. Sr. relies on the following facts taken from his affidavit and supporting material as the basis for his application. S.B. Jr. did not have a license or even a beginner’s license. L.B. Sr. did not give consent, nor had he ever given consent for his son to drive his vehicle. He kept his keys in his coat pocket or in his bedroom. His son did not have a set of keys. His son had never driven a vehicle.

[ 8 ] As to discussions with his son about driving the vehicle, L.B. Sr. said at para. 11, 12 and 13 of his affidavit:

Prior to the accident, I had explained to S.B. that he would not be allowed to drive any vehicle until he went through the same driver education program that his older brother went through. More specifically, he was advised that he would have to obtain his G1, enrol in a driver education course, obtain his G2 and then drive with either his mother or I for a period of time before he was allowed to drive on his own.

Prior to the accident, S.B. had never asked for my permission to take my vehicle because he knew that my answer would have been “no”. As far as I am aware, S.B. had never even operated a motor vehicle prior to May 2, 2009, as he was unlicensed. Therefore, I never suspected or expected that S.B. would ever take my vehicle.

S.B. knew that he was not allowed to take my vehicle, even if he thought it was for a good reason such as helping a friend that was in trouble. He knew he did not and would not have my permission because he was still unlicensed and also because he was aware of the steps and process he would have to go through before he would be allowed to drive.

[ 9 ] L.B. Sr. was awoken at about 3:00 in the morning by a telephone call from the police that his son had been in an accident. As para. 15 of his affidavit states:

I advised the police officer that S.B. did not even have a G1 license and did not have my consent to take my vehicle. The police officer inquired as to whether I would like to press charges of theft as against my son, which I declined to do as he was already under arrest for impaired driving.

[ 10 ] S.B. Jr. was examined for discovery in connection with this proceeding. The following questions and answers were obtained:

Q. Okay. Did you ask anyone if you could operate that car on the day of or the day before the accident?

A. No, I did not.

Q. Okay. At any time, did you ask anyone if you could use that car that evening?

A. No, I did not.

Q. Did he discuss either permission or did he otherwise discuss in any other context your taking that vehicle out on that particular evening?

A. Not to my knowledge, no, I did not.

Q. And when you took the car that morning, did you assume that your dad would be okay with your taking the car?

A. No. I did not assume that.

Q. But back then, when you were taking the car, what did you think would happen then if your dad learnt? What did you expect would happen then if your dad learnt?

A. If he were to find out, I knew that he would be angry about it. For sure.

Q. And when you took the car out for the purpose of giving your friend a ride home, did you think at that time, when you took the car out, that your dad would be okay with your driving the vehicle for that purpose?

A. No.

Q. Before that accident on May 2 nd , 2009, when had you last operated the Acura?

A. Never.

THE PLAINTIFFS’ SUBMISSIONS RE IMPLIED CONSENT

[ 11 ] The plaintiffs point to the evidentiary record to suggest that there is sufficient indicia to indicate consent should be implied in the circumstances here. The plaintiffs rely on eight points in the evidentiary record and the defendant responds to each point as follows:

(a) S.B. Jr. pleaded guilty and in the transcript of his guilty plea, there was no mention that he was operating the vehicle without consent.

L.B. Sr. responds that the issue of lack of consent was not before the Ontario Court of Justice as an issue. No transcript was provided as to the Crown’s submissions leading to the guilty plea. The only comments provided were those of S.B. Jr..’s counsel as to submissions to the court on sentencing.

(b) Failure to acknowledge the vehicle as stolen and insurance documents: The plaintiffs submit that L.B..’s insurance denied coverage and there is no record in the material provided that he had reported the vehicle as stolen.

L.B. Sr. responds that the insurance claim was a separate proceeding and not relevant to the issue of implied consent.

(c) Contradictory evidence regarding Mr. Inglis: The plaintiffs submit that S.B. Jr. gave contradictory evidence about the role of Mr. Inglis in his statements to his father or the police. He first indicated that he took the car to help Mr. Inglis. Later, it appeared that Mr. Inglis could not fit into the car because it was already occupied by other passengers of S.B. Jr.

L.B. Sr. suggests that this is not relevant to the central issue.

(d) Theft charges: The plaintiffs submit that L.B. Sr. did not proceed with the theft charges and there is no record in the police notes filed that he advised the police that his vehicle was taken without his consent.

L.B. Sr. responds that his son was already facing considerable jeopardy with respect to the charges already laid and he declined to increase that jeopardy by pressing further charges against his son.

(e) Failing to forbid S.B. Jr. from driving: The plaintiffs submit that L.B. Sr. did not explicitly forbid his son from operating the vehicle and he was not disallowed from driving it.

L.B. Sr. responds that he had a discussion with his son which made it very clear that his son could not drive until he had obtained a temporary permit and taken lessons, as was the case with L.B..’s older son.

(f) Failure to secure keys: The plaintiffs submit that L.B. Sr. failed to secure keys and thus their availability provided an element of implied consent.

L.B. Sr. responds that there was no history of previous taking of the car by his son and thus no obligation to keep the keys secured under these facts.

(g) Starting the engine: The plaintiffs submit that S.B. Jr. admitted to starting an engine while sitting in the passenger side of his mother’s vehicle and this contradicted this evidence that he had never operated a motor vehicle or ever started the engine of a vehicle.

L.B. Sr. submits that the behaviour admitted to, taken at its highest, would not imply constructive consent.

(h) Lying to the police: The plaintiffs submit that S.B. Jr. lied to the police about the number of passengers in the vehicle, initially saying it was one and later disclosing that there were other passengers who had fled the scene after the accident.

L.B. Sr. submits that at the time of the accident, his son was preoccupied with rendering aid to the plaintiff, Daniel Fyfe, one of his passengers, and that was his first priority. He later indicated truthfully that there were other passengers in the vehicle.

[ 12 ] I am satisfied on the record before me that there was no consent given by L.B. Sr. to allow his son to operate the motor vehicle. The issue before the court on this motion is whether or not the issue of implied consent can be determined on a motion for summary judgment or should the matter proceed to trial on a full evidentiary record? Both counsel provided a number of decisions on the issue of implied consent in the context of trials or summary judgment motions.

[ 13 ] The Supreme Court of Canada addressed this issue in Palsky v. Humphrey, 1964 96 (SCC) , [1964] S.C.R. 580. The test was summarized in Crangle v. Kelset (2003), 41 M.V.R. (4 th ), 232 (O.S.C.J.) at para. 19 :

The leading decision on the subject is still that of the Supreme Court of Canada in Palsky v. Humphrey , 1964 96 (SCC) , [1964] S.C.R. 580, (S.C.C.), upholding the trial judge’s judgment that the proper approach was a subjective one from the point of view of the driver, namely, whether the driver, under all the circumstances, would be justified in deeming that he had implied consent to drive. The words “under all the circumstances” import a definite subjective component to the analysis.

[ 14 ] It is clear in reviewing the cases submitted by counsel that the issue of whether or not there is implied consent is very much a fact-driven based exercise. In Burwash v. Guerin, [1994] O.J. 2525 , Cusson J. found implied consent. In that case, the driver had driven the vehicle on other occasions, had access to the keys, and had never been refused the right to drive.

[ 15 ] In Aarsen v. Deakins, 1970 27 (SCC) , [1971] S.C.R. 609, the Supreme Court of Canada agreed with the trial judge’s finding that there was implied consent in circumstances which indicated that the owner’s son was an irresponsible young man, his mother, the owner, could exercise no control over him. He allowed his girlfriend to drive the vehicle, and she had done so on previous occasions.

[ 16 ] In Ahmetspacic v. Love, [2002] O.J. No. 5093 , Cavarzan J. determined on a motion that the issue of consent ought to be determined by the trial judge. As Cavarzan J. noted at para. 19:

Consent or no consent is an issue which is fact-driven. Whether or not consent was given expressly or by implication, involves a finding of fact based on the circumstances of each case.

[ 17 ] In reviewing this matter prior to the amendments to Rule 20, the court noted, “It is not my role to weigh the evidence and to make findings of fact. That is the function of the trial judge.”

[ 18 ] In Haynes v. Harnden, [2002] O.J. No. 1630 , Marchand J. found implied consent based on a number of factual findings including that the owner had allowed the driver to drive the car through a carwash and that she allowed him to test drive it on another occasion.

[ 19 ] In Korody v. Bell, [2009] O.J. No. 1716 , Quinn J. reviewed the law with respect to implied consent and on the facts before him, found that there was implied consent. In noting that the driver had used the vehicle previously, Quinn J. stated at para. 197:

Bell was operating the 1990 Chevrolet Astro van with Hunt’s implied consent. Had Bell sought Hunt’s express consent that night, it would have been granted. Bell’s use of the van was consistent with his usage in the previous three months.

[ 20 ] In Emond v. Reid, [1993] O.J. No. 1349 , Beaulieu J. found implied consent on the facts of that case. He found that the owner admitted that she was fully aware that the driver almost regularly took the car without her express permission by simply taking the keys from her purse. As he stated at para. 76, “Even if the alleged refusal to consent had been established as express, her course of conduct revealed otherwise.”

[ 21 ] In McIntyre v. Gilmar, [2011] O.J. No. 884 , Frank J. refused to grant summary judgment dismissing a claim against the driver. With respect to the onus, the court noted at para. 6, “The onus is on [the owner] as owner of the car, to show that [the driver] did not have her consent to be in possession of her car.” The court noted that the driver had a G1 license and that the driver was entitled to drive the car when the owner was in the vehicle, in accordance with the licensing regime. The court noted that the owner did not explain to the police officer that the driver was driving without her consent. The court refused to grant summary judgment dismissing the action against the driver and noted, on the circumstances before her, at para. 24:

“Ms. Watson relied on a number of cases, none of which assist her, in my view. Although summary judgment on the issue of consent was granted in Oliviera v. Mullings, it was in very different circumstances. In that case, all of the evidence, including that of the driver, was that he did not have the owner’s consent to drive.

[ 22 ] L.B. Sr. relies on the following cases indicating circumstances where courts have found a lack of implied consent when considering the matter.

[ 23 ] In Crangle v. Kelsey, [2003] O.J. No. 2186 , Dilks J. found on the facts before him that the owner would never have permitted the driver to operate the vehicle. As Dilks J. said at para. 20:

But it is quite unnecessary to rely on a consideration of [the owner’s] viewpoint, because [the driver] himself was of the view that she would probably not have allowed him to drive the Jeep had he asked. That is enough to resolve the issue. There was no implied consent to [the driver’s] operation.

[ 24 ] In Gerl v. Barton, 2010 ONSC 6022 , [2010] O.J. No. 5237, Corrick J. dealt with a facts situation involving a father and his son who did have a G1 driver’s license. The court noted that the son took a set of car keys from the kitchen counter. The court noted, “[The son] testified that he knew he would be in trouble with his father if he took the car without permission.” The court noted that the father had told the police the car was taken without his consent. The son was not charged with theft or any other offence in that case. As the court noted at para. 29:

[The father] had no reason to suspect that [the son] would take one of the cars without his permission. He had two sons older than David, who were both licensed to drive. The rules of the house required the children to ask permission before driving the cars. David knew that rule. [The father] testified that before March 29, 2003, he had no concerns about trusting [his son]. [His son] had never been in trouble with the law.

[ 25 ] In Oliviera v. Mullings, 2007 19621 (ON SC) , [2007] O.J. No. 2119, Lederer J. proceeded on a motion for summary judgment under former Rule 20. On the facts before him, the motions judge determined that the son took his mother’s vehicle without her consent, either express or implied. The court noted that the son had stated unequivocally that he did not have his mother’s permission when he drove the car on the day of the accident. He took the keys from her bedroom drawer without asking, knowing that if he asked, he would not receive permission. On the facts of that case there was some evidence that the son had disobeyed his mother on earlier occasions, but the court noted that there was no evidence he had taken the car on an earlier occasion and the court stated at para. 21:

This does not advance the proposition that inferred consent was present. In this case, a genuine issue for trial is not demonstrated by the past conduct of Phillip Mullings, which bears no relationship to the issues at hand.

A CONSIDERATION OF COMBINED AIR MECHANICAL INC. V. FLESCH

[ 26 ] Revised Rule 20 provides the court with expanded powers to grant summary judgment including weighing the evidence, evaluating the credibility of a deponent, and drawing any reasonable inferences from the evidence. The Court of Appeal provided guidance on the application of this rule in Combined Air. As the court stated at para. 73:

[a] judge may use the powers provided by Rules 20.04(2.1) and (2.2) to be satisfied that a claim or defence has no chance of success. The availability of these enhanced powers to determine if a claim or defence has no chance of success will permit more actions to be weeded out through the mechanism of summary judgment. However, before the motions judge decides to weigh evidence, evaluate credibility or draw reasonable inferences from the evidence, the motions judge must apply the full appreciation test.

[ 27 ] The court described the full appreciation test as follows at para. 50:

In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motions judge must ask the following question: Can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this appreciation only be achieved by way of a trial?

CONCLUSION

[ 28 ] There is no question that S.B. Jr. had no express consent to drive his father’s vehicle. I am satisfied that in all the circumstances here, he did not have implied consent either. Prior to the accident, he had no license or beginner’s license, and had never operated a motor vehicle. He knew that if he asked, his father would not consent to enable him to drive the vehicle. The rules of the house were very clear. The son would not be able to drive the vehicle until he obtained a beginner’s permit and suitable instruction with his parents. There was no evidence of previous bad behaviour by the son, nor any evidence that he had ever taken the vehicle on previous occasions. In my view, the failure of L.B. Sr. to secure the keys does not imply consent absent bad conduct or previous use of the vehicle. The police were well aware of the son’s operation of the vehicle on the night in question, so there was no failure on the part of L.B. Sr. to report the vehicle as taken without consent. His evidence was that he told the police that his son did not have consent. His son faced considerable jeopardy in connection with the charges laid that evening, which provides a logical explanation for the father not wishing to press further charges against the son.

[ 29 ] Although the plaintiff points out some inconsistencies in the evidence of S.B. Jr.., those inconsistencies taken at their highest do not cause me to conclude that under the circumstances here, he thought that he had implied consent to take his father’s vehicle in the middle of the night when he had never driven before.

[ 30 ] The defendant’s motion for summary judgment is granted.

COSTS

[ 31 ] If the parties are unable to resolve the issue of costs, then the defendants may make written submissions within twenty days of the release of this judgment. The plaintiff will then have ten days to make written submissions in response.

MULLIGAN J.

Released: September 11, 2012