COURT FILE NO.: 07-CV-335088PD3

DATE: 20150703

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SOLOMON BROWN and GARY GRANT

Plaintiffs

– and –

BRIAN WILLIAMSON and BELAIR DIRECT INSURANCE COMPANY

Defendants

No one appearing for the Plaintiffs

Christie Ngan, for the Defendant/Responding Party, Belair Direct Insurance Company

No one appearing for Brian Williamson

David Tompkins, for the Moving Party/Third Party, Wawanesa Mutual Insurance Company

• and –

WAWANESA MUTUAL INSURANCE COMPANY

Third Party

HEARD: July 4, 2014 – reasons for decision released October 2, 2014. Further written submissions requested on March 13, 2015

REASONS FOR DECISION

firestone j.

[1] The moving third party, Wawanesa Mutual Insurance Company (“Wawanesa”) brings this motion pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, (“the Rules”) for summary judgment dismissing the third party claim of the defendant, Belair Direct Insurance Company (“Belair”) against them.

[2] This motion requires a determination of a dispute between Belair and Wawanesa concerning whether, on the facts of this case, Brian Williamson (“Brian”) was an insured under a policy of automobile insurance which had been issued to his father, Herbert Williamson (“Herbert”) by Wawanesa and whether Wawanesa has any obligation to indemnify Brian regarding his use and operation of the vehicle which was involved in a motor vehicle collision involving the plaintiffs. Wawanesa and Belair have jointly settled the plaintiffs’ claims. As a result, this is a coverage issue between insurers.

[3] In this action Belair was named by the plaintiffs as both the uninsured and underinsured insurer under Solomon Brown’s policy (“Brown”). Belair is Brown’s uninsured and underinsured insurer. Gary Grant (“Grant”), Brown’s passenger, did not have his own auto policy. As a result he claimed against Belair pursuant to the uninsured provisions of Brown’s policy. Belair, in their third party claim, pleads that at all material times Brian was insured under a policy of insurance issued to Brian’s father, Herbert Williamson (“Herbert”).

Procedural History

[4] Following the hearing of this summary judgment motion by way of my written reasons dated October 2, 2014, I determined that the viva voce evidence of Herbert was required in order to properly and justly determine the issues of ownership and consent. I directed that the parties were to contact my assistant so that a date could be scheduled to hear Herbert’s evidence by way of mini trial. Donna Williamson (“Donna”) is Herbert’s wife. She gave evidence by way of mini trial at the motion.

[5] On February 24, 2015, I was advised by counsel that the moving (third) party Wawanesa had been unable to locate Herbert so that his evidence could be given. Counsel requested direction from me on how to proceed. On March 13, 2015, I directed that the parties were to provide me with additional written submissions. Those submissions have now been received.

[6] For the sake of completeness I again set forth the background facts and applicable statutory framework.

Background Facts

[7] The main action arose following a motor vehicle collision which took place on August 16, 2006. At that time Brian was operating a Honda Accord (“the vehicle”) which collided with a car driven by plaintiff Brown, in which the plaintiff Grant was a passenger. At the time of the subject collision, the vehicle being driven by Brian was listed in Wawanesa automobile insurance policy #7833506, issued to Brian’s father, Herbert. Both Herbert and Donna were named insureds on the policy. At the time of the collision Donna was married to Herbert. Brian is Herbert’s son from a previous marriage.

[8] It is agreed between the parties that Herbert purchased the vehicle approximately one year before the subject collision. Brian’s evidence is that Herbert purchased the vehicle with the intention of transferring it to Brian once Brian had paid him approximately $9,000. On March 27, 2006, Herbert transferred the registered ownership of the vehicle to Brian. Brian claims he did not know of the transfer and was still approximately $2,000 short of the full agreed upon payment price.

[9] On the day of the collision, Brian alleges he had borrowed the vehicle from Herbert and Donna with Donna’s permission. This is specifically denied by Donna. There is no evidence from Herbert on the issue of consent. The day after the collision, Wawanesa removed the vehicle from their policy and listed Brian as an excluded driver.

[10] Wawanesa subsequently denied coverage to Brian on the basis that Brian was not an insured under the policy. Accordingly, Belair, as insurer of the plaintiff Brown, was added as a defendant pursuant to the uninsured and underinsured provisions of the Belair policy. Belair issued a third party claim against Wawanesa on the basis that Wawanesa insured the vehicle at the time of the accident.

Relevant Dates

[11] The significant dates relating to the insurance of the vehicle can be summarized as follows:

Nov. 27, 2005 to Effective dates of Wawanesa policy #7833506 issued to Herbert and

Nov. 27, 2006 Donna as named insureds, and listing the Honda Accord as an owned vehicle.

March 27, 2006 Date on which Herbert transferred ownership of the Honda Accord to Brian.

August 16, 2006 Date of the accident.

August 17, 2006 Effective date of Wawanesa’s amended declaration removing the vehicle from the policy and listing Brian as an excluded driver.

August 28, 2006 Date on which Wawanesa obtained an excluded driver endorsement with respect to Brian.

Applicable Statutory Framework

[12] As indicated in my reasons dated October 2, 2014 the following sections of the Insurance Act, R.S.O. 1990, c. I. 8 (“IA”) are relevant to the determination of this issue:

239. (1)

Subject to section 240 [excluded drivers], every contract evidenced by an owner’s policy insures the person named therein, and every other person who with the named person’s consent drives, or is an occupant of, an automobile owned by the insured named in the contract and within the description or definition thereof in the contract, against liability imposed by law upon the insured named in the contract or that other person for loss or damage,

(a) arising from the ownership or directly or indirectly from the use or operation of any such automobile; and

(b) resulting from bodily injury to or the death of any person and damage to property.

244. Any person insured by but not named in a contract to which section 239 or 241 [coverage of non-owner’s policy] applies may recover indemnity in the same manner and to the same extent as if named therein as the insured, and for that purpose shall be deemed to be a party to the contract and to have given consideration therefor.

245. (1) Any person who has a claim against an insured for which indemnity is provided by a contract evidenced by a motor vehicle liability policy, even if such person is not a party to the contract, may, upon recovering a judgment therefor in any province or territory of Canada against the insured, have the insurance money payable under the contract applied in or towards satisfaction of the person’s judgment and of any other judgments or claims against the insured covered by the contract and may, on the person’s own behalf and on behalf of all persons having such judgments or claims, maintain an action against the insurer to have the insurance money so applied.

(4) The right of a person who is entitled under subsection (1) to have insurance money applied upon the person’s judgment or claim is not prejudiced by,

(a) an assignment, waiver, surrender, cancellation or discharge of the contract, or of any interest therein or of the proceeds thereof, made by the insured after the happening of the event giving rise to a claim under the contract;

(b) any act or default of the insured before or after that event in contravention of this Part or of the terms of the contract; or

(c) any contravention of the Criminal Code (Canada) or a statute of any province or territory of Canada or of any state or the District of Columbia of the United States of America by the owner or driver of the automobile,

and nothing mentioned in clause (a), (b) or (c) is available to the insurer as a defence in an action brought under subsection (1).

(5) It is not a defence to an action under this section that an instrument issued as a motor vehicle liability policy by a person engaged in the business of an insurer and alleged by a party to the action to be such a policy is not a motor vehicle liability policy, and this section applies with necessary modifications to the instrument.

[13] The following provisions of the Ontario Automobile Policy, Owner’s Policy (OAP 1) are also relevant:

1.3 Throughout this policy the words you and your refer to the person or organization show on the Certificate of Automobile Insurance as the named insured.

Other people may also be covered under certain conditions. We call both them and you insured persons.

3.1 This Section of your policy provides coverage for amounts that the law holds you or other insured persons responsible for bodily injuries or losses others suffer in an automobile incident.

3.2 You are covered when you, or anyone else in possession of a described automobile with your consent, uses or operates it. We will consider these other people insured persons.

3.3 You or other insured persons may be legally responsible for the bodily injury to, or death of others, or for damage to the property of others as a result of owning, using or operating the automobile. In these cases, we will make any payment on your or other insured persons’ behalf that the law requires, up to the limits of the policy. …

Positions of the Parties at the Original Hearing

The Moving Party, Wawanesa

[14] Wawanesa argued that Brian was not covered by Herbert and Donna’s automobile policy. Herbert and Donna were not the owners or the drivers of the subject vehicle at the time of the accident, and therefore their automobile policy cannot be engaged. Therefore, Brian is not named on the policy, and was not driving a car owned by an insured named on the policy.

[15] Wawanesa highlighted that Brian in his statement of defense, dated July 12, 2007, admits that he was the owner of the subject vehicle. All parties agree that Brian was listed as registered owner on the Ministry of Transportation (“MTO”) registration for the vehicle. Because Herbert and Donna were not owners of the vehicle as of the date of the accident, they are not vicariously liable under s. 192(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8.

[16] Insurance, Wawanesa argued, is for a person, not a vehicle. Automobile liability insurance is by its nature indemnity insurance. Under a contract of insurance the insurer agrees to indemnify the insured for a third party claim. This is consistent with the basic indemnity principle of liability insurance, which is that indemnification is for a claim brought against an insured. Wawanesa submitted that here there has been no claim made against an insured person, and therefore no insured person has incurred liability. The OAP 1 is clear that it is a contract between “you” and “us,” with “you” defined as the person shown on the Certificate of Automobile Insurance as the named insured. The OAP 1, s. 3.1 provides for liability coverage “for amounts that the law holds you or other insured persons responsible for bodily injuries or losses others suffer in an automobile incident.”

[17] Wawanesa submitted that while there are situations in which parties to lawsuits may not be the named insured (for example, passengers or casual users with consent), the courts always recognize that automobile insurance follows the person, not the vehicle. As Finlayson J.A. stated in Pagliarella v. Di Biase Brothers Inc. (1989), 68 O.R. (2d) 597 (C.A.): “It appears to me that the scheme of the coverage is that the insurance follows the person and not the vehicle” (at pg. 604). (Wawanesa did not mention, but it is worth noting, that Finlayson J.A. was speaking specifically of the scheme of coverage provided by the S.E.F. 42 (now the OPCF 44R) Underinsured Motorist Endorsement).

[18] Wawanesa argued that the decision in Campanaro v. Kim (1998), 41 O.R. (3d) 545 (C.A.) does not apply to the facts of this case. In that case, the Court of Appeal held that the defence-limiting provisions of s. 258(5) apply when the misrepresentation in issue is a misrepresentation as to the ownership of the insured vehicle (at pg. 565). The distinction between Campanaro and this case is that in both the Campanaro appeal and the companion appeal heard at the same time, Truelove v. Thompson (motion decision unreported, May 9, 1996) the named insureds were named as defendants. The named insureds were sued as owners, and the issue was whether their insurer could avoid liability by showing that the named insured was not in fact the true owner of the vehicle and had misrepresented ownership. The language of s. 258(1) permits a direct cause of action by “any person who has a claim against an insured for which indemnity is provided by contract.” Here, in contrast, Wawanesa submits there is no indemnity provided by contract because no Wawanesa insured has been sued. Wawanesa is not seeking to defend a claim by relying on the misrepresentation of a named insured. There is no Wawanesa insured. Section 258 therefore is inapplicable.

The Responding Party, Belair

[19] Belair argued that Wawanesa is required to pay the claims of the plaintiffs up to the minimum limits of $200,000.

[20] Campanaro, Belair argued, applies to this case, and Wawanesa is therefore absolutely liable to the plaintiffs as per s. 258(5) of the Insurance Act. Belair submits that the Court of Appeal in Campanaro held that where an insurer issues an automobile liability policy in respect of a vehicle involved in an accident and the policy was in force at the time of the accident, the insurer cannot assert a material misrepresentation, including in respect of the identity of the vehicle’s owner, in order to avoid paying. At the time of Brian’s accident, Wawanesa had issued to Herbert an auto insurance policy listing the vehicle as a described vehicle. Wawanesa is therefore prevented by s. 258(5) from relying on a misrepresentation as to ownership in order to avoid responding to the plaintiffs’ claim.

[21] Belair submitted there is no precondition, as Wawanesa suggests, that the fictitious owner be sued in order for s. 258 to apply. Automobile insurance policies insure automobiles. The automobile involved in this accident was a described vehicle listed on Herbert’s policy of insurance, and therefore Wawanesa is prevented by s. 258(5) from arguing misrepresentation as to ownership in order avoid responding to the plaintiffs’ claims to the minimum amount.

[22] Belair argued that the OAP 1 demonstrates by its language that it covers automobiles, not people. Section 2.1, which defines “described automobiles,” states that the Certificate of Insurance “shows which coverages you have purchased for each describe automobile” (emphasis added). Section 2.2 then explains how coverage can be extended to other automobiles. Further, the coverage of vehicles provided by the OAP 1 is mandated by law, as per the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, which specifically states that automobile insurance contracts insure automobiles. Section 2(1) provides,

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.

[23] Belair submitted that case law supports the interpretation of automobile insurance as following vehicles, not people. It cites Wen v. Unifund Assurance Co., 2012 ONSC 5274, in which the insurer Unifund conceded absolute liability to the pedestrian hit by the vehicle, up to the minimum limits of $200,000. Unifund was liable under s. 258(5) because it had issued a back-dated policy that listed the automobile in question as covered on the date of the accident. It did this based on intentional misrepresentations of Wen (the real and registered owner of the vehicle, who had been driving it on the date of the accident without insurance) and Shen (the named insured, who added the vehicle to his existing policy on the day after the accident). Unifund paid out to the third party plaintiff (the pedestrian) up to the minimum limits, but was not obligated to provide protection above the minimum limits (Wen, at para. 51). Wen and Shen were not entitled to protection because Shen had no insurable interest in the vehicle at the time he added the vehicle to his policy (Wen, at para. 22).

[24] Belair argued that the holding in Wen illustrates, in two ways, that automobile insurance policies insure automobiles. First, Unifund conceded absolute liability up to the minimum limits because the vehicle involved in the accident was listed in its policy as insured at the time of the accident. Second, even though Wen was an insured under the policy because she was driving a described vehicle with permission of the owner, she did not have access to coverage above the minimum limits because of Shen’s lack of insurable interest in the vehicle.

[25] Belair’s second and alternative argument was that, even if this court found that Campanaro and IA s. 258 do not apply and that Wawanesa is therefore not absolutely liable, Brian was, at the time of the accident, an insured person under Herbert’s policy and as a result is entitled to coverage under that policy. Brian qualified as an insured person under the Wawanesa policy issued to Herbert because (a) Herbert was the owner, at common law, of the car at the time of the accident, and (b) Brian was driving with the implied consent of Herbert. IA s. 239(1) states that, subject to the s. 240 provisions on excluded drivers, every contract insures “the person named therein, and every other person who with the named person’s consent drives ... an automobile owned by the insured named in the contract.” Section 244 specifies that any person insured by but not named in a contract to which s. 239 applies “may recover indemnity in the same manner and to the same extent as if named therein as the insured.” Brian was driving Herbert’s car with Herbert’s permission, and therefore is insured by the Wawanesa policy, and entitled to the same coverage as Herbert would be, as named insured.

[26] Belair submitted that although Brian was the registered owner of the vehicle at the time of the accident, registered ownership is not determinative of ownership at common law. In Hayduk v. Pidoborozny, 1972 136 (SCC), [1972] S.C.R. 879, the Supreme Court held that registered ownership is to be treated as proof of ownership “unless and until the contrary be shown” (at pg. 884). If the registered owner does not retain sufficient other indicia of ownership, this will rebut the presumed ownership. Although Brian was the registered owner, Belair submitted that he had none of the indicia of ownership established in the case law.

[27] Belair argued that Herbert had possession and control of the vehicle. Herbert took out the insurance policy on the car and continued to pay the premiums after he had registered the car in Brian’s name. Belair alleges that Brian did not have keys to the car and did not use it regularly. When he did, it was only with permission. Brian had not paid the agreed price of $9,000 for the car, he had done nothing to arrange for the transfer of registered ownership, and he stated that he did not know he was the registered owner at the time of the accident.

[28] Brian, according to Belair, had the implied consent of Herbert as owner to use the car. On the day of the accident, Brian needed the car for an emergency situation. His daughter was at daycare and needed emergency medical attention. Herbert was not home and therefore did not provide express consent, but Brian believed Herbert would have given such consent had he been present.

Analysis - My Reasons dated October 2, 2014

[29] In my reasons dated October 2, 2014, I indicated that Belair’s position was premised on s. 258(1) of the Insurance Act. That section requires Belair to demonstrate “a claim against an insured for which indemnity is provided by contract.” Wawanesa states that there is no such Wawanesa insured. Belair argues (in part) that Brian is an insured under Herbert and Donna’s policy with Wawanesa.

[30] Section 239(1) of the Insurance Act, referred to above, defines the extent of coverage under a motor vehicle policy. In order for there to be coverage under this section Belair must establish: (a) a named insured, i.e. Herbert or Donna; (b) a vehicle owned by a named insured; and (c) a person driving with the named insured’s consent. At the time of the collision Herbert had transferred the registration of the vehicle into Brian’s name and was therefore no longer the “registered owner” of the vehicle, notwithstanding that he had failed to remove the vehicle from his insurance policy with Wawanesa.

[31] The OAP 1 s. 3, outlined above, deals with liability coverage. It makes no mention of an ownership requirement. The necessary elements for coverage under the OAP 1 are: (a) an “insured person,” i.e. either a named insured or someone driving with the named insured’s permission; and (b) a “described automobile.” Section 2.1 defines a described automobile as “any automobile or trailer specifically shown on your Certificate of Automobile Insurance.” It is a basic principle that the insured must have some insurable interest in the vehicle. Herbert therefore, cannot insure a vehicle in which he has no interest.

[32] Belair submitted that Herbert is the common law owner of the vehicle and therefore has an insurable interest in it. In Hayduk, the Supreme Court held that registration is to be treated as proof of ownership unless the contrary is shown. I found that the evidence in the record established that Herbert had some indicia of ownership. The vehicle was listed on Herbert’s policy; Herbert was paying the premiums; when the vehicle was removed from the policy the day after the collision, Herbert received and accepted a rebate of $473.80.

[33] Herbert and Wawanesa by their actions acknowledged that Herbert continued to have a monetary interest in the vehicle at the time of the subject collision. Wawanesa paid to Herbert the sum of $9,004 with respect to a property damage claim to the vehicle arising from the subject collision. Importantly, Brian also had some indicia of ownership. His name was on the MTO registration, and he alleges he contributed some money to the insurance of the vehicle and that he made payments to Herbert toward the vehicle’s purchase price.

[34] There are significant discrepancies between Donna’s oral evidence given at the hearing of this summary judgment motion and the evidence given by Brian at his examination for discovery. This creates uncertainty with respect to other indicia of ownership, particularly the key element of control of the vehicle. Brian alleges the car keys were kept at Herbert and Donna’s home. Donna, however, testified she denies ever having seen the car or its keys. She testified that the car did not, contrary to Brian’s evidence, stay at Herbert and Donna’s house. I indicated at that time that these contradictions in the evidence make the fact-specific determination of common law ownership difficult in the absence of any direct evidence from Herbert on this issue.

[35] Regarding the issue of consent, Brian alleges that Donna (whose consent would satisfy the requirement of s. 239(1) of the Insurance Act) provided express consent the morning that he took the vehicle and further that Herbert’s consent can be implied.

[36] Brian’s version of events on the day of the collision, and his testimony regarding the location and pattern of use of the subject vehicle, is directly contradicted by Donna’s viva voce evidence given at the hearing of this motion. Donna testified that she never gave anybody consent to drive the car. Based on her direct evidence, I found that Donna did not give express consent to Brian to drive the car. Further, based on this testimony her implied consent could not be inferred.

[37] In light of such conflicting evidence between Brian and Donna on the key issues of ownership and the possibility of Herbert’s implied consent I determined that Herbert’s evidence was necessary before a proper determination could be made by way of summary judgment. In the record before me there was no evidence from Herbert regarding the sort of use he allowed Brian to have of the vehicle, or that it was understood between them that the car would be available in the case of an emergency. A finding of the latter would support Belair’s position that because there was an emergency situation, Herbert would have allowed Brian to use the car, and as a result consent can be implied.

[38] The issue in this case, as previously indicated, is a coverage dispute which turns upon whether Brian, the alleged tortfeasor, was an “insured” under Wawanesa’s policy at the time of the collision. The answer to that question depends on whether Brian had the requisite consent (either express or implied) of the named insured to operate the vehicle on the day in question.

[39] As I stated in my reasons dated October 2, 2014, I do not accept Belair’s submission that Campanaro stands for the proposition that an insurer is absolutely liable under s. 258 of the Insurance Act when any automobile listed in its policy is involved in a collision. A third party’s action against an insurer under s. 258(1) must be “a claim against an insured for which indemnity is provided by a contract evidenced by a motor vehicle liability policy.”

[40] It is clear that not every person who operates a listed automobile is “an insured” for whom “indemnity is provided.” To fall into that category, one must not only be driving an automobile listed on the policy, but must also be either (a) a named insured or (b) driving with insured’s consent. The principle set forth in Campanaro is that once it is established that the operator of a motor vehicle was in fact an “insured,” such that a s. 258(1) claim by a third party is possible, then ss. 258(4) and (5) prevent the insurer from raising a misrepresentation or default by the insured in defense. It is this which is the key governing principle based on the factual matrix of this case.

Subsequent submissions received by the Parties

The moving party, Wawanesa

[41] Wawanesa submits that it was misled by Herbert who, by transferring vehicle on March 27, 2006 to Brian, no longer had any ownership interest in it. Wawanesa further submits that Brian was at all material times the true owner and operator of the vehicle. Given his driving record he would not have been an acceptable driver to Wawanesa. Brian was never the driver under the Wawanesa policy.

[42] It is Wawanesa’s position that they have been the subject of a misrepresentation in order to avoid a payment of a substantial insurance premium. Unbeknownst to them, the ownership interest in the vehicle that was purportedly owned and operated by Donna and Herbert had actually been transferred to Brian who did not live with Donna and Herbert.

[43] Wawanesa argues that the vehicle was never in the possession of Donna. She had never seen the car or its keys; the vehicle was never located or parked at their home and she never operated it.

[44] Finally, Wawanesa argues, the evidentiary record is clear that Herbert is not an owner and there is no basis to suggest that Brian was driving the vehicle with the consent, express or implied, of Herbert or Donna.

The Responding Party, Belair

[45] Belair submits that Herbert was the common law owner of the vehicle and Brian had Herbert’s implied consent to drive it.

[46] Regarding common law ownership, Belair argues that Herbert failed to remove plate number AWTN 693 when he transferred the registration to Brian. Belair refers to the Ontario search form which indicates that the plate number was registered to Herbert and attached to the vehicle on May 21, 2005. It remained on the vehicle almost two months following the collision. They argue that Herbert failed to notify Wawanesa that he was no longer the registered owner of the vehicle when he registered the vehicle Brian’s name on March 27, 2006.

[47] I note however that the plate history search report dated November 27, 2006 clearly confirms that as of March 27, 2006, almost five months prior to the subject collision, Brian and not Herbert was the owner of the plate. I accept that both the plate and vehicle issue became the property of Brian on March 27, 2006.

[48] Belair highlights that Herbert maintained insurance on the vehicle even after he transferred the registration to Brian. Herbert’s policy with Wawanesa was in force until one day after the collision. Prior to that the vehicle was listed on the policy and Herbert paid the premiums and accepted a rebate of $473.80 when the vehicle was removed from the policy the day following the collision.

[49] Following the collision, Herbert failed to notify Wawanesa or his broker that he was no longer the registered owner of the vehicle. The accident was reported on August 21, 2006 to the broker and he and Donna are listed as owners of the vehicle on the proof of loss form.

[50] A proof of loss was filed with Wawanesa on September 11, 2006. At that time, Belair submits, Herbert still held himself out as the owner of the vehicle. It was only sometime after November 5, 2007, following an investigation, that Wawanesa first discovered that Brian became the registered owner of the vehicle on March 27, 2006.

[51] Regarding the issue of implied consent, Belair submits that Brian’s discovery evidence indicates that he believed Herbert would have consented to him driving the vehicle on the day of the collision. Herbert did permit Brian to use the vehicle in or around January 1, 2006.

[52] Herbert was in a position to give consent, they state, given that he was the registered and common law owner of the vehicle at the time. They refer to Brian’s discovery evidence which indicates that Herbert permitted him to use the vehicle to go to a New Year’s Eve party.

[53] Brian’s discovery evidence is that that Herbert permitted him to drive the vehicle for specific purposes such as taking the vehicle to the mechanic’s shop for maintenance and repair. They submit that Brian’s use the vehicle was consistent with his prior use. It was reasonable, they submit, for Brian to conclude that he had Herbert’s implied consent to use the vehicle the day of the collision.

[54] In summary, Belair argues that Brian was an “insured” under Wawanesa’s policy at the time of the collision given, first, that Herbert was the common law owner of the vehicle and further that Brian had Herbert’s implied consent to drive it on the date of the collision.

[55] As a result, Belair argues that Wawanesa is obligated to both defend and indemnify Brian from the claims of the plaintiffs arising from the subject collision.

Analysis and Disposition

[56] Rule 20.04(2)(a) states that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial. Rule 20.04(2)(b) states the court shall grant summary judgment if the court is satisfied that it is appropriate.

[57] In Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 33-34, aff’d. 2014 ONCA 878 the court confirmed that the decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, does not alter the “best foot forward principle.” I am entitled to presume that the parties have now placed before me all of the documentary and oral evidence that would be before the trial judge. I also note that the traditional trial is not the measure of when a judge may obtain a full appreciation of the case. The test rather is whether court’s appreciation of the case is sufficient to rule on the merits fairly and justly without a traditional trial, rather than being a yardstick by which the requirements of fairness and justice are to be measured: Sweda ONSC, at para. 33.

[58] For the purpose of this motion I therefore assume that Herbert’s evidence is not and will not be available at trial. As a result, the record now before me does afford me with the necessary evidence to properly and justly determine the issues of ownership and consent by way of summary judgment as opposed to trial. This is especially so in light of the viva voce evidence given by Donna at the original hearing.

[59] The record confirms that Wawanesa policy #7833506 was originally issued to Herbert and Donna as named insureds. It is also uncontroverted as a matter of fact that Brian was never a listed driver under the Wawanesa policy.

[60] Pursuant to the Wawanesa policy, Herbert and Donna were the only named insureds. Donna was reported to be the only operator of the vehicle. There were no other disclosed persons in the household who would drive. The record confirms that the standard policy contained OAP coverage as well as a declaration that Donna was the sole operator of the vehicle. It was based on that representation that Wawanesa extended and offered an experienced driver multi-vehicle discount on the basis that Donna had not been involved in a collision for more than six years.

[61] Wawanesa was under the clear impression based on the application for insurance that Herbert and Donna were the registered and actual owners of the vehicle. It was unaware that ownership of the vehicle had in fact been transferred to Brian whom I accept based on all of the evidence did not, at all material times, live with Herbert or Donna.

[62] Donna’s evidence, which I accept over Brian’s, is that she had never seen the vehicle at their house, she had never been in possession of the vehicle or its keys and she never drove it. She never gave consent to Brian to drive the vehicle.

[63] Registration of the vehicle was transferred to Brian on March 27, 2006. As a result there is a the strong presumption, which is supported by the evidentiary record, that Herbert no longer owned the vehicle or had any ownership interest in it. The only one who drove the vehicle after the transfer of ownership was Brian.

[64] In addition, I also note that the statement of claim in this action pleads that Brian was the owner and operator of the vehicle. Further, both Brian and Belair in their respective statements of defense admit ownership of the vehicle. They do not allege that ownership rests with anyone else. At no time was the statement defense amended to address this issue.

[65] Belair argues that at all material times Herbert was the legal or common law owner of the vehicle and that Brian had his express consent to drive the vehicle at the time of the collision.

[66] I reject this argument for a number of reasons. The MTO searches confirm that the both the vehicle and the plate were registered to Brian effective March 27, 2006 which certainly creates a presumption of ownership. Further, following the collision it was Brian’s understanding that he was insured under a policy issued by another insurer. This is evidenced by the information in the police report which lists another insurer of the vehicle. This information would have come from Brian.

[67] The evidentiary record does not establish that Herbert was either the legal or common law owner of the vehicle. The vehicle was not located or kept at his house and there is no evidence that he had anything to do with it after it was transferred to Brian.

[68] I find that at the time of the subject collision Herbert was not the vehicle’s owner either legally or at common law. As a result he could not and did not give his consent, implied or otherwise, to Brian. At the time of the collision, Brian was the owner of the vehicle, and he was not Wawanesa’s insured.

[69] Even if it is assumed there was an ownership interest on the part of Herbert and/or Donna, which I reject, I find that there is insufficient evidence to support the proposition that Brian had their implied consent to operate the vehicle.

[70] As a result, Wawanesa’s summary judgment motion is granted and Belair’s third party claim is dismissed. I encourage parties to agree on the issue of costs this motion. If they cannot, I may be contacted in order to set a timetable for delivery of cost submissions.

[71] I wish to thank counsel for both their oral and written submissions which were of great assistance to the court.

Firestone J.

Released: July 3, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SOLOMON BROWN and GARY GRANT

Plaintiffs

– and –

BRIAN WILLIAMSON and BELAIR DIRECT INSURANCE COMPANY

Defendants

• and –

WAWANESA MUTUAL INSURANCE COMPANY

Third Party

REASONS FOR DECISION

Firestone J.

Released: July 3, 2015