Oshawa COURT FILE NO.: 64132/09

DATE: 2014\06\13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Joanne Argante

Plaintiff

— and —

Glen Munro, Lori Anne Munro and Waterloo Insurance Company

Defendants

COUNSEL:

Michael Chadwick for Defendant Lori Anne Munro, Applicant,

Lauren Bloom and B. Lanigan for Defendant Waterloo Insurance Company, Respondent

HEARD: May 21 and 22 2014

Shaughnessy J.

REASONS ON MOTION FOR SUMMARY JUDGMENT

[1] The defendant/applicant Lori Anne Munro brings a motion for summary judgment as against the plaintiff and the co-defendant the Waterloo Insurance Company (“Waterloo”) and dismissing this action as against the moving defendant.

[2] Preliminary to this motion was an application by Waterloo that this motion ought not to be heard at the commencement of trial and after a jury had been selected. In Reasons delivered on May 21, 2014 I ruled that it was appropriate in the circumstances for this motion to proceed.

[3] I made a finding at the conclusion of submissions on the motion for summary judgment that I am satisfied that there is no genuine issue requiring a trial. I further find that for the most part the essential facts are not in dispute although there are inconsistencies in the evidence of Lori Anne Munro which I will address in these Reasons. I further find that I am not required to use the expanded fact-finding provisions under Rule 20.04 (2.1) and (2.2).

[4] In this proceeding counsel on consent have obtained an order to bifurcate the issues of liability from damages.

Overview

[5] This action arises from a motor vehicle accident that occurred on April 25, 2008. A vehicle owned by Lori Anne Munro and driven by her estranged spouse Glen Munro struck the plaintiff Joanne Argante’s vehicle. The plaintiff alleges that she suffered physical injury and damages as a result of the collision.

[6] Waterloo Insurance Company issued a policy of insurance to the plaintiff that will respond to this claim if there is a finding that the accident was caused by an uninsured automobile. The defendant Lori Anne Munro’s vehicle was insured with State Farm.

[7] The defendant Glen Munro did not file a statement of defense and pleadings have been noted closed against him. Therefore, Glen Munro is deemed to admit the allegations in the statement of claim. The present whereabouts of Glen Munro is unknown.

Issues

[8] The applicant and respondent agree that that the issues on this motion are:

(1) Has the defendant Lori Anne Munro discharged the onus to prove that she did not provide implied consent to Glen Munro’s possession of the Munro vehicle on the day of the accident?

(2) Alternatively, the defendant Waterloo submits that it has proven that Lori Anne Munro was negligent in the care of her car keys and the foreseeable negligence led to the motor vehicle accident on April 25, 2008.

[9] The onus on the first issue rests with the applicant Lori Anne Munro while the onus on the second issue rests with the defendant Waterloo.

[10] Counsel for Waterloo indicated at the outset of submissions that express consent was not an issue before this court. Apart from the issue of negligence, the only issue is whether Lori Anne Munro gave implied consent to Glen Munro to operate her motor vehicle on April 25, 2008.

Position of the Parties

[11] The position of Lori Anne Munro is that she never impliedly provided her consent to Glen Munro to operate her vehicle. It is submitted that on the evidence she was estranged from Glen Munro and they had been living separate and apart under the same roof solely for economic circumstances. Further, Lori Anne Munro took all reasonable measures of an ordinary prudent person to keep her car keys out of the possession of Glen Munro.

[12] The position of Waterloo is that Lori Anne Munro has not discharged the onus to prove that she did not provide implied consent to Glen Munro’s possession of her vehicle on the day of the accident. Alternatively, Waterloo submits that it has demonstrated on a balance of probabilities that Lori Anne Munro was negligent in the care of her car keys and further that this negligence under the “but for” test of causation led to the foreseeability of a motor vehicle accident and the resultant injuries and damages of the plaintiff.

Background Facts

[13] Glen Munro was operating Lori Anne Munro’s 1998 Dodge Caravan on April 25, 2008 when the collision with the plaintiff’s vehicle occurred at approximately 4:45 pm.

[14] On May 26, 2008 Glen Munro pled guilty and was convicted of impaired operation of a motor vehicle and dangerous operation of a motor vehicle causing bodily harm in relation to the April 25, 2008 collision. The criminal record of Glen Munro filed on consent on this application indicates that he had been convicted on 3 prior occasions for drinking and driving offences and was awaiting trial on a further charge of impaired driving when this April 25, 2008 collision occurred. These prior offences did not involve operation of a vehicle owned by Lori Anne Munro.

Affidavit of Lori Anne Munro

[15] In support of this application for summary judgment Lori Anne Munro has delivered an affidavit sworn April 3, 2014. This affidavit inter alia states:

(a) That in her Amended Statement of Defense dated February 10, 2010 she states that her motor vehicle was taken by her co-defendant Glen Munro without her knowledge or permission, expressed or implied.

(b) At the time of the accident she was separated from her husband Glen Munro. He resided in the basement of the home and she resided upstairs with the two children of the marriage.

(c) She states that she hid her car keys from Glen Munro because she knew he had an alcohol and drug addiction and she did not trust him. (As will be expanded upon she was aware of his prior drinking and driving offences. She also describes Glen Munro as an abusive alcoholic who was also a regular user of marijuana.)

(d) Her common practise was to take the one set of keys up to her bedroom and place the keys under her mattress for safekeeping when she was in her room. In the morning when she went downstairs or was on the main floor of the home she left the keys on the hook next to the front entrance door. (She later expanded on her examination to state that she would also put the keys on the kitchen counter during the day.)

(e) She was aware that Glen Munro did not have a license to operate a motor vehicle. She was also concerned because in 2007 Glen Munro was also convicted of possessing “a vehicle valued at more than $ 5,000 and obtained illegally”. He was involved in an accident in relation to this 2007 incident and he pleaded guilty to a charge of care and control in relation to this incident.

(f) She states that there were no prior occasions of Glen Munro taking the keys to her vehicle. Further she states that Glen Munro never said that he would take the keys and drive her car.

(g) She further states that Glen Munro never drove her vehicle before or after the accident of April 25, 2008.

(h) While she does not have a specific recollection of telling Glen Munro not to drive her vehicle nevertheless she did not allow him to drive her vehicle and her impression was that he knew that she would not let him use her vehicle.

(i) To her knowledge Glen Munro had never taken her vehicle before April 25, 2008 nor was she suspicious that he had taken the vehicle on a prior occasion.

[16] In her affidavit Ms. Munro states that the first thing that came to her mind when she discovered that her vehicle was missing was that “He’s taken it.” She relates that she was in a panic about the vehicle being missing and in light of Glen Munro’s previous 2007 incident she telephoned the Oshawa Hospital and the Durham Regional Police. The police advised her that they had Glen Munro in the holding cells. She was advised that he had been involved in an accident and was under arrest. On receiving this information she states she was “totally freaked out” and crying. At the request of the police she attended at the police station the next day to provide a video statement.

[17] Finally Ms. Munro in her affidavit relates that Glen Munro has since “abandoned our children and moved out of province.” Other evidence from her examination establishes that Glen Munro had no further contact with his children and moved out of Ontario approximately on November 1, 2012.

Police Video Interview

[18] Lori Anne Munro and her mother Pat Layton attended at a Durham Regional Police station at the request of a Constable Minister on April 26, 2008. A transcript of the interview and the video form part of the record on this application. I have reviewed the transcript and watched the video. As a preliminary comment I note that Ms. Munro appears very nervous at many times throughout the interview. Further neither Ms. Munro nor her mother was providing a statement under oath.

Examination for Discovery

[19] The examination for discovery of Lori Anne Munro took place on October 19, 2010. The transcript of the discovery forms part of the Record in this proceeding.

Cross-examination

[20] Lori Anne Munro was cross-examined on her sworn affidavit dated April 3, 2014 referred to above. The cross-examination took place on May 5, 2014 and the transcript forms part of the record on this application.

Inconsistencies in the testimony of Lori Anne Munro

[21] Counsel for Waterloo made extensive submissions on what is alleged to be major inconsistencies in the testimony of Ms. Munro in relation to the police video interview (April 26, 2008), her examination for discovery (October 19, 2010), as well as her cross-examination on her affidavit (May 5, 2014). The position of Waterloo is that the inconsistencies are so extensive as to undermine the credibility of Lori Anne Munro and as a result the onus on that defendant has not been met in relation to the issue of implied consent.

[22] There really is no dispute that based on Lori Anne Munro’s affidavit, her examination for discovery, the police video interview and her cross-examination that she had been concerned for a significant period of time prior to the collision of April 25 2008 and certainly post the 2007 collision about Glen Munro taking her vehicle. She was well aware of his drinking and driving criminal record. I find that she was well aware of Glen Munro’s past bad conduct. She had known since 2003 that he had a significant alcohol addiction. I accept her evidence that for several years prior to 2008 she and Glen Munro had been living separate and apart under the same roof. I also accept her evidence that Glen Munro was emotionally abusive towards her. Her evidence, which I will deal with in more detail, is that economic circumstances necessitated that she and the children continue to reside in the home.

[23] I propose in summary fashion to outline the inconsistencies in Lori Anne Munro’s testimony which are central to the position advanced by Waterloo and were advanced as proof that the applicant has failed to meet the onus in relation to implied consent or alternatively was negligent in her handling of the keys to the vehicle.

(1) Where Glen Munro slept:

Lori Munro’s evidence is that Glen Munro “always” slept in the basement of the home. However the evidence also establishes that her mother Pat Layton resided in the basement until she moved out 2 months prior to the April 25, 2008 motor vehicle accident. Accordingly for the period time that Pat Layton resided in the basement it stands to reason that Glen Munro must have been sleeping on the couch on the main floor. The keys to Ms. Munro’s van during the day were on a hook by the front door or on the kitchen counter.

(2) Common Practise

Lori Anne Munro’s evidence is that she adopted a common practise to guard the keys because she did not trust Glen Munro and because she was aware of his prior drinking and driving offences. Ms. Munro states that as a safeguard she would always take the car keys to her bedroom. She later qualified this to state that she only took the keys upstairs to her room when she went to bed and then she would place the keys under the mattress. She testified that in the morning when she came downstairs she would bring the keys down with her and place them on the hook by the front entrance door or on the kitchen counter while she got the children off to school and she got ready to go to work. In summary the inconsistencies in Ms. Munro’s testimony as argued by Waterloo are that Ms. Munro has stated that the keys:

(a) Were “always “ in her room

(b) Were ‘always “ under her mattress

(c) Were on a hook by the door or on the kitchen counter when she was downstairs and under the mattress if she was upstairs in her bedroom.

(3) What did she do with the vehicle keys on April 25, 2008 ?

Counsel for Waterloo by cross-referencing the examination for discovery and the cross-examination suggests that there are inconsistent statements relating to what Ms. Munro has related as follows:

(a) She is “almost positive” that she did not leave the keys on the hook by the entrance door on the morning of April 25, 2008.

(b) She told the police that she always “hid” the keys at night or when she laid down

(c) She is certain that on the day of the accident the keys were on the hook by the door

(d) She brought the keys down from the bedroom to get the children off to school and to get ready for work. She states that she fell ill and her daughter as well and accordingly they both retreated to her bed and slept for a number of hours.

(4) What time did Lori Anne Munro notice that her Van went missing ?

Counsel for Waterloo again references Ms. Munro’s evidence in the police video interview, her discovery and cross-examination to detail inconsistencies as to when she first noticed that the Van was missing. Suffice to say without detailing all the references that Ms.Munro states that she first noticed the Van was missing anywhere from mid-day to late evening April 25. It is apparent to me after watching the video interview that Ms. Munro was confused about which day the Van went missing and what time she first made this observation. On her examination for discovery she states that she let her dog out of the home at approximately 6:00 pm on Friday April 25 and at that time she first noticed that the Van was not parked in the driveway. Later she states that she does not know the time that she let the dog out. She ultimately admits on her cross-examination that she is not sure of the time that the Van went missing from her driveway.

The police report establishes that the accident occurred at approximately 4:45 pm.

(5) What Lori Anne Munro did when she noticed the Van was missing

Waterloo references paragraph 13 of the affidavit of Lori Anne Munro wherein she states that once aware that the Van was missing she immediately concluded that Glen Munro had taken it. In cross-examination she stated that she did not believe anyone else had taken the Van.

In her police video interview Ms. Munro was asked by the police officer the hypothetical question what she would do if he took the vehicle to which she responded that she would “call 911 straight up.” However counsel for Waterloo submits that Ms. Munro in fact did not call “911” rather she called the Oshawa hospital and the Durham Regional Police as well as friends and his relative in an attempt to locate Glen Munro. Waterloo submits that this is a significant inconsistency in Ms. Munro’s evidence.

[24] Waterloo therefore submits that the various inconsistencies, as summarized above, undermine the credibility of Lori Anne Munro. Further with so many variations on the facts it is submitted that it becomes impossible to draw reasonable inferences and accordingly the applicant has failed to meet the onus on the issue of implied consent.

The Law in relation to Implied Consent

[25] Pursuant to s. 192(2) of the Highway Traffic Act RSO 1990 c. H.8 the owner of a motor vehicle is liable for the negligent operation of a motor vehicle unless the motor vehicle was without the owner’s consent in the possession of some other person other than the owner.

[26] The well settled principles to be used for determining liability pursuant to s. 192(2) of the Highway Traffic Act have been succinctly summarized in Seegmiller v Langer 2008 53138 (ON SC), [2008] O.J. No. 4060 para 34. One of those principles is that the owner’s vicarious liability is based on possession as opposed to operation of the vehicle. The onus is on Lori Anne Munro to prove that she did not provide implied consent to Glen Munro to possess the vehicle. As stated in McIntyre (Litigation Guardian of) v Gilmar {[2011] O.J. No. 884 para 29}, s. 192(2) of the Highway Traffic Act creates a presumption that the driver was driving with the consent and the onus is on the owner to disprove the presumption. “The responding parties have no obligation to put evidence before the court until [the owner] overcomes the presumption.” Therefore Waterloo submits that notwithstanding that Glen Munro was not licensed nevertheless the keys were left in an accessible location, then possession of the vehicle is provided and accordingly the owner is vicariously liable.

[27] I have been referred to a number of cases by counsel including Seegmiller v Langer supra, Fyfe v Bassett (2012) 2012 ONSC 5125, 39 M.V.R. (6th) 94 SCJ; Edmond v Reid (1993) O.J. No. 1349. However, as is apparent from the case law the question of whether a vehicle is in the possession of some person without the consent of the owner, is a question of fact to be determined by the evidence in a particular case.

[28] Waterloo also submits that the subjective perspective of the driver Glen Munro ought to have been presented to the court by Lori Anne Munro in relation to the issue of implied consent. There is no affidavit or any evidence of what was Glen Munro’s belief in relation to operating the Van owned by Lori Anne Munro. There is evidence that following the accident of April 25, 2008 Glen Munro continued to reside in the basement of the home also occupied by Ms. Munro and the children following his arrest and incarceration up to November 1, 2012 when he abandoned his children and moved out of province. On this point I referenced the decision in Palsky v Humphrey 1964 96 (SCC), [1964] S.C.R. 580 wherein the Supreme Court agreed with the trial judge (and rejected the analysis of the Court of Appeal) which is that in dealing with implied consent one must approach the problem in a somewhat subjective fashion from the point of view of the person driving: “that is to say whether under all the circumstances, the person who was driving, would have been justified in deeming that he had an implied consent to drive” (emphasis added). The test then is based on all the circumstances and only one of those factors to be considered is the subjective view of the driver. However the subjective component alone is not determinative of the issue of implied consent. Further, I would not accede to making an adverse inference finding as against Lori Anne Munro as proposed by Waterloo. Glen Munro was a party defendant. He did not file a defence or participate in these proceedings and pleadings were noted closed as against him. The evidence is that he abandoned his children and left the province.

Analysis

[29] I accept that there are certainly inconsistencies in the evidence of Lori Anne Munro as I have detailed above. However, I also find that these inconsistencies are not on the material or most substantive matters relating to the issue of implied consent or on the issue of negligence in the handling of the keys. Further the various inconsistencies do not undermine the credibility of Lori Anne Munro to an extent that this court cannot draw reasonable inferences on the various materials forming part of the record in relation to the issues to be considered. Matters such as whether or when Glen Munro slept on the couch or in the basement, or what time Lori Anne Munro observed that the vehicle went missing or what she did when she noticed the vehicle was missing are simply not material or substantive to the main issues of implied consent or negligence. While the credibility of Lori Anne Munro is germane to the reliability of her testimony I find that on the substantive and material issues she was consistent throughout her affidavit, discovery, video statement and cross-examination.. Where there are inconsistencies they went to mere details concerning her evidence. These inconsistencies are the focal point of the defendant Waterloo’s submissions and accordingly I have weighed these inconsistencies and in the end put them aside as they do not form part of the reasoning process regarding the relevant facts related to the relevant issues.

[30] After considering all the circumstances I find that Lori Anne Munro knew that if Glen Munro was drinking she did not trust him and that he was capable of taking her Van and driving it without her consent. Consequently she set up a common practise of taking her car keys with her to bed and placing them under the mattress. When she got up in the morning she took the keys downstairs and placed them on a hook by the door or on the kitchen counter while she got ready for work and sent the children off to school.

[31] I accept the evidence that she and Glen Munro were living separate and apart under the same roof and that they had been estranged for a significant period of time before the motor vehicle accident of April 25, 2008. I further accept that Glen Munro was an abusive person who was addicted to alcohol and drugs. The evidence establishes that Glen Munro’s mother owned the house and that his mother paid the mortgage on the home. Ms. Munro had lost her job and had obtained new employment that paid her less income. In her new employment she earned approximately $13.00 per hour. While her mother, Ms. Pat Layton was renting the basement, the evidence establishes that she moved to a senior’s residence approximately 2 months prior to April 25, 2008. Economic circumstances explain why Lori Anne Munro did not pack up and together with the children leave Glen Munro. There was no marital relationship. I accept that they were living separate and apart under the same roof.

[32] I find that a reasonable inference to be drawn based on the onus and the evidence is that on April 25, 2008 Lori Anne Munro got up to get herself ready to go to work and to get the children off to school. I find that she brought the car keys from her bedroom to the main floor and placed them on the hook by the front door. Both she and her daughter fell ill and retreated to bed to sleep for a number of hours. The keys remained on the hook by the front door. At some point that day Glen Munro took the keys to the Van without Lori Anne Munro’s consent. On all the evidence I am satisfied that there was no implied consent given by Lori Anne Munro to Glen Munro to have possession or operate the vehicle.

[33] There is no evidence of Lori Anne Munroe ever granting permission to Glen Munro to operate or have possession of the vehicle. There is no evidence whatsoever that Glen Munro operated or had possession of her vehicle before or after the accident of April 25, 2008. There is no evidence that she was suspicious of him having possession or operating her vehicle or using the vehicle at any time apart from April 25, 2008. On these material and substantive issues Lori Anne Munro’s evidence is consistent and I find to be reliable. I accept that particularly following Glen Munroe’s 2007 accident involving another vehicle she knew she could not trust him and she took measures to protect her keys from coming into his possession.

[34] All the circumstances relating to the events before and after April 25, 2008 on the record before me satisfy me that Lori Anne Munro did not provide implied consent to Glen Munro’s possession of her vehicle on the day of the accident. While I will deal with the issue of negligence in the handling of the keys, I do state that I specifically reject the argument by Waterloo that because the keys were left in an accessible location on one day when the plaintiff could not work because of the sudden onset of illness that this provides evidence of implied consent.

[35] I find that Lori Anne Munro took all reasonable steps to ensure that Glen Munro did not have implied consent to operate her vehicle. She knew he was not licensed to drive and could not be trusted. The parties were estranged and living separate and apart under the same roof by reason of economic circumstances.

[36] Therefore I find that Lori Anne Munro has discharged the onus to prove on a balance of probabilities that she did not provide implied consent to Glen Munro to have possession or operate her motor vehicle on April 25, 2008.

Negligence

[37] The alternative position of Waterloo, and on which it bears the onus, is that it has proven that Lori Anne Munroe was negligent in her handling of her car keys and this foreseeable negligence led to the motor vehicle accident of April 25, 2008.

[38] This issue requires a review of the all evidence previously referenced. The factual matrix in relation to implied consent necessarily applies equally to this issue of negligence. This issue relates to what reasonable steps Lori Anne Munro took to control and safeguard her car keys. I have adequately summarized that evidence above and I do not propose to repeat it again.

[39] The relevant case law establishes that this issue is a question of fact. The case law also indicates that one important factor (but not the sole factor) to consider is the relationship of the insured to the driver. The evidence establishes that Lori Anne Munro was estranged and living separate and apart from Glen Munro in the same house. The evidence establishes that Glen Munro was abusive and that because of economic circumstances Lori Anne Munro was required to remain in the home with her two children. She never permitted Glen Munro to operate her vehicle and she carefully and prudently maintained control and possession of her car keys.

[40] I find that the defendant Waterloo has failed to adduce evidence to satisfy me that the single act of Lori Anne Munro taking the car keys from underneath her mattress in her bedroom and down the stairs the morning of April 25, 2008, hanging them on a hook by the door, and then retreating to her bedroom with her child as a result of a sudden onset of illness constitutes negligence. The law of negligence is not perfection but rather the standard of care is that expected of an ordinary prudent person. The undisputed evidence of the handling of the car keys by Lori Anne Munro considered as a whole does not result in a finding of negligence on her part on April 25, 2008. I find that Lori Anne Munro consistently guarded and took measures to supervise, safeguard and control the possession of her car keys.

[41] After considering all the measures Lori Anne Munro took to safeguard her keys, the nature of her relationship with her estranged spouse, the fact that she did not trust him and she maintained a heightened vigilance relating to possession and control of her car keys leads me to the finding that Lori Anne Munro acted as a reasonable and prudent person in the handling of her car keys Her actions, in all the circumstances, were reasonable and consistent with what might be expected of a reasonably prudent person.

[42] In the result I find that the defendant Waterloo has not proven on a balance of probabilities that Lori Anne Munro was negligent in the care of her car keys.

Relief Granted

[43] In response to the Notice of Motion and the relief sought it follows that summary judgment is granted in favour of the defendant Lori Anne Munro as against the plaintiff and the co-defendant Waterloo Insurance Company and a dismissal of this action as against the moving defendant.

[44] If necessary, counsel may contact the trial coordinator at Oshawa and arrange an appointment to speak to the issue of costs.

The Honourable Mr. Justice J. Bryan Shaughnessy

DATE RELEASED: June 13, 2014