Nemeth v. Yasin, 2015 ONSC 558
COURT FILE NO.: CV-11-433739
DATE: 20150126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARY NEMETH
Plaintiff
– and –
WAIS YASIN, MOHAMMED YASIN and STATE FARM AUTOMOBILE INSURANCE COMPANY
Adrian Lomaga for the Defendant Mohammed Yasin
Brendan Haynes for the Defendant State Farm Mutual Automobile Insurance Company
HEARD: January 13, 2015
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] On September 10, 2009, the Plaintiff, Mary Nemeth, whose Lexus was insured by the Defendant State Farm Automobile Insurance Company (“State Farm”), was injured in a motor vehicle accident involving a vehicle driven by the Defendant Wais Yasin (“Wais”), who was an uninsured driver. Wais was driving a Honda Accord owned by his father, the Defendant Mohammed Yasin (“Mohammed”), and insured by Coseco Insurance Company.
[2] Mohammed seeks a summary judgment dismissing Ms. Nemeth’s claim and State Farm’s crossclaim against him, on the basis that there is no genuine issue requiring a trial that his son Wais took the Honda without his knowledge and consent, and, therefore, he is not vicariously liable for any alleged damages sustained by Ms. Nemeth as a result of the accident nor does Ms. Nemeth’s insurer have any basis for a crossclaim.
[3] Ms. Nemeth takes no position with respect to Mohammed’s summary judgment motion. The motion is opposed by the Defendant State Farm.
[4] For the reasons that follow, I dismiss the summary judgment motion and make a binding finding of fact that Mohammed is vicariously liable for the negligence of Wais, if any, which remains to be determined at the trial of Ms. Nemeth’s claim.
B. FACTUAL BACKGROUND
[5] Mohammed Yasin is married and he has two sons, Suleman and Wais. Mohammed owns two vehicles including the Honda. There are three vehicles that are kept at the family home in Mississauga.
[6] On July 17, 2009, Coseco, Mohammed’s automobile insurer, contacted him and told him that it would no longer insure Wais because of his poor driving record. Mohammed immediately spoke to Wais and told him that he could not drive any of his cars under any circumstance until Wais arranged for his own insurance coverage. Up until them, Wais had been using the Honda to commute to work.
[7] After his conversation with his son, Mohammed did not hide the keys to the Honda, which were kept with other keys on a hanger near the mailbox at the home. Mohammed did not give any specific instructions about the keys. The Honda remained parked at the family’s home in the driveway. Mohammed did not think he needed to hide the keys, and access to the keys was necessary in order to move the cars to gain access to the garage.
[8] Around this time Wais was living with his family but spending approximately 60% of his time residing with a friend in Hamilton, where Wais could visit his infant son. After the conversation with his father, Wais relied on friends and public transit to commute to work and to visit Hamilton.
[9] On July 23, 2009, Wais and Mohammed signed an OPCF-28 Excluded Driver Form that had been mailed to Mohammed, and Mohammed again told Wais that he was not to drive any of his cars under any circumstance until he arranged for his own insurance coverage.
[10] On September 10, 2009, Wais was at home when his mother called and asked him to pick her up from a mall because she was not feeling well.
[11] Wais knew that Mohammed would not have permitted him to drive the car without insurance; nevertheless, he went to get his mother, who did not know that Wais had been forbidden to drive the Honda until he obtained insurance. On the way to the mall, Wais did not smoke because he did not want his father to know that he had driven the vehicle.
[12] Upon arriving at the mall, the Honda was in a collision with a Lexus driven by Ms. Nemeth. The damage to the Honda was modest, and Wais said nothing about the accident to his mother and father. About a week after the accident, Wais drove the vehicle to the Collision Reporting Centre without telling Mohammed.
[13] Almost two years passed until June 2, 2011, when Mohammed received a letter stating that Ms. Nemeth was making a motor vehicle accident claim. This was Mohammed’s first knowledge that Wais had driven the Honda and had been involved in an accident.
[14] Sometime during the two year period, Mohammed transferred the registration of the Honda to Wais.
[15] In 2001, Ms. Nemeth brought an action against Wais, Mohammed, and her own insurer, State Farm, for uninsured driver coverage. State Farm has made a crossclaim against Mohammed.
[16] As noted above, Mohammed brings a summary judgment motion to have Ms. Nemeth’s action and the crossclaim dismissed.
C. DISCUSSION AND ANALYSIS
1. The Court’s Jurisdiction to Grant Summary Judgment
[17] As a matter of procedure, rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.”
[18] With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04(2.1) states:
20.04 (2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[19] In Hryniak v. Mauldin, 2014 SCC No. 7, the Supreme Court of Canada held that on a motion for summary judgment, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers enacted when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.
[20] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[21] Hryniak v. Mauldin encourages the use of a summary judgment motion to resolve cases in an expeditious manner provided that the motion can achieve a fair and just adjudication. Speaking for the Supreme Court of Canada, Justice Karakatsanis opened her judgment by stating:
Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. … Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.
[22] At paragraph 22 of her judgment, Justice Karakatsanis summarized the approach to determining when a summary judgment may or may not be granted; she stated:
- Summary judgment may not be granted under Rule 20 where there is a genuine issue requiring a trial. As outlined in the companion Mauldin appeal, the motion judge should ask whether the matter can be resolved in a fair and just manner on a summary judgment motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. If there appears to be a genuine issue requiring a trial, based only on the record before her, the judge should then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice.
[23] Justice Corbett provided a useful summary of the Hryniak v. Mauldin approach in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, where he stated at paras. 33 and 34:
- As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:
(1) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
(2) On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
(3) If the court cannot grant judgment on the motion, the court should:
(a) Decide those issues that can be decided in accordance with the principles described in (2), above;
(b) Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;
(c) In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.
- The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a "full appreciation" of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court's appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.
[24] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will respectively present at trial: Dawson v. Rexcraft Storage & Warehouse Inc., 1998 4831 (ON CA), [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 814 (ON CA), 18 O.R (3d) 481 (Ont. C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 255 (Gen. Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), aff’d [1997] O.J. No. 3754 (C.A.).
[25] For the reasons expressed below, based on the evidence presented by both parties - and with or without - the use of the powers provided by rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure to weigh the evidence and make findings of fact, I am satisfied that there is no genuine issue requiring a trial about whether Mohammed is potentially vicariously liable for the negligence, if any, of Wais.
[26] In my opinion, Mohammed is potentially vicariously liable because he has not discharged the onus on him of showing that Wais (who physically possessed the vehicle at the time of the accident), was not in legal possession of the vehicle.
[27] Therefore, notwithstanding that neither Ms. Nemeth nor State Farm, both of whom did not oppose Mohammed’s motion, did not bring a cross-motion for a summary judgment, I find that Mohammed may be vicariously liable for Wais’s negligence, if any.
[28] The court does not require a cross-motion for summary judgment when it can decide the issue that is the subject matter of the motion for summary judgment: King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, affirming 2013 ONSC 6113.
2. Driving on the Highway without the Owner’s Consent
[29] Pursuant to ss. 192 (1) and (2) of the Highway Traffic Act, R.S.O. 1990, c. H.8, the driver of a motor vehicle is liable and the owner of the vehicle is vicariously liable for negligence in the operation of the vehicle on highway. The owner, however, is not vicariously liable if the vehicle is, without the owner’s consent, in the possession of some other person. Sections 192 (1) and (2) state:
Liability for loss or damage
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.
[30] The onus of proving that a vehicle on a highway was in another’s possession without the consent of the vehicle’s owner is on the owner: Watts v. Dunham, 2013 ONSC 6848. The question of whether a motor 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: Newman v. Terdik, 1952 97 (ON CA), [1953] O.R. 1 (C.A.); Barham v. Marsden, [1960] O.J. No. 60 (C.A.); Thorne v. Prets, 2003 22084 (ON CA), [2003] O.J. No. 5241 (C.A.); Henwood v. Coburn, 2007 ONCA 882, at para. 25.
[31] In Finlayson v. GMAC Leaseco Ltd., 2007 ONCA 557, following an old line of authority that begins with Thompson v. Bourchier, 1933 106 (ON CA), [1933] O.R. 525 (C.A.), the Court of Appeal held that vicarious liability under s. 192 (1) of the Highway Traffic Act is based on possession, not operation, of the vehicle. The owner does not escape vicarious liability simply because the person with possession breaches some condition of having possession. At paragraph 16 of her judgment for the Court, Justice Gillese stated that if an owner gives a person (in that case, a lessee) possession of a vehicle that may be driven on a highway, even if the person is expressly prohibited from operating the vehicle, the owner remains vicariously liable for any damages that are suffered as a result of the negligent operation of the vehicle.
[32] In Finlayson v. GMAC Leaseco Ltd., GMAC, the owner of a vehicle, leased it to John Simon. The lease expressly prohibited Mr. Simon from operating the vehicle, but he disobeyed and the vehicle was involved in a collision. The Court held that GMAC was vicariously liable for Mr. Simon’s negligence. Justice Gillese stated at paragraph 28 of her judgment for the Court:
- GMAC entered into the Lease with Mr. Simon. It was the Lease that gave Mr. Simon possession of the vehicle. Therefore, GMAC consented to his possession of the vehicle. It is true that GMAC did not consent to Mr. Simon's operation of the truck and that by the terms of the Lease, Mr. Simon was expressly prohibited from operating the truck. However, as already discussed, possession and operation are not the same thing, in law. GMAC consented to Mr. Simon's possession of the vehicle; it did not consent to his operation of it. Breach of conditions placed by the owner on another person's possession of the vehicle, including those relating to who may operate the vehicle, do not alter the fact of the second person's possession.
[33] In Finlayson v. GMAC Leaseco Ltd., Justice Gillese identified the legislative policy behind the vicarious liability provisions of the Highway Traffic Act by referring to what Justice Fisher stated in Thompson v. Bourchier, supra at pp. 527-28; that is:
… the object of the Legislature in enacting sections 41 and 41(a) of the Highway Traffic Act [now s. 192] was to protect the public by imposing upon the owner of a motor vehicle the responsibility of careful management thereof and of assuming the risk of those to whom he entrusted possession that they would observe the law, and that if they failed in the discharge of that duty, the owner - using the words of the statute - would be responsible "for all losses and damage sustained in the operation thereof".
[34] In Henwood v. Coburn, supra, the Court of Appeal followed Finlayson v. GMAC Leaseco Ltd., supra and held that the fact that the driver may be operating the vehicle without the consent of the owner, or even contrary to the express wishes of the owner is irrelevant if the vehicle is in the possession of a person with the owner’s consent. For vicarious liability, the determinative question is whether there was consent to possession that can be attributed to the owner.
[35] The decision in Henwood v. Coburn reveals that vicarious liability under s. 192 of the Highway Traffic Act is an extensive long-arm policy and that if an owner expressly or impliedly; for example, by making available the keys to the vehicle, entrusts the physical possession of the vehicle to another person, then the vehicle owner will be vicariously liable for the operation of that vehicle on a highway by the person entrusted with the vehicle.
[36] Applying the above law to the circumstances of the immediate case, I conclude Wais had physical and legal possession of the Honda with his father’s consent.
[37] The vehicle had been acquired for Wais’s use, and until July 2009, Wais, who was a licensed driver and insured under his father’s policy, obviously possessed the vehicle with his father’s consent to operate it to commute to work and for other purposes. Then, in July 2009, Mohammed imposed a condition on the operation - but not the possession of the vehicle – which did not change before or after Wais signed the OPCF-28 Excluded Driver Form. The vehicle was still there for the taking (and eventually for ownership) by Wais subject to a condition on its operation. After Wais signed the OPCF-28, he was not to operate or use the vehicle until he obtained insurance for the vehicle, but the Honda remained entrusted and available to him to use and eventually own.
[38] Wais, to do a service for his mother, violated his father’s trust and operated the vehicle without having obtained insurance. Wais breached his promise to his father a second time when he drove the vehicle to the Collision Reporting Centre, but his legal possession of the vehicle never changed after he signed OPCF-28. The case at bar is another example of the policy of the Insurance Act of imposing upon the owner of a motor vehicle the responsibility of careful management and of assuming the risk of those to whom the owner entrusts possession.
[39] In the argument, State Farm stated that there needed to be a trial because there was a genuine issue for trial about what Wais believed, but Wais’s subjective belief is not determinative because the case at bar is not a matter of determining whether there was implied consent to possession of the vehicle. Wais’s possession of the Honda and his access to the keys for it never changed; all that changed was that he was prohibited to operate or use the vehicle that he legally possessed. Wais was entrusted with legal possession of the vehicle, and the evidence establishes that on the day of the accident he had both physical and legal possession of the Honda.
[40] The case at bar falls within the Finlayson v. GMAC Leaseco Ltd. and Henwood v. Coburn line of cases.
[41] Assuming that Mohammed has put his best evidentiary foot forward, he has not met the onus on him to show that the vehicle involved in the accident was in Wais’s possession without his consent. There is no reason to have a trial about this issue although Wais’s negligence and any consequent damages remains to be determined.
D. CONCLUSION
[42] Order accordingly.
[43] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with State Farm’s submissions within 20 days of the release of these Reasons for Decision, followed by Mohammed’s submissions within a further 20 days.
Perell, J.
Released: January 26, 2015
CITATION: Nemeth v. Yasin, 2015 ONSC 558
COURT FILE NO.: CV-11-433739
DATE: 20150126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARY NEMETH
Plaintiff
– and –
WAIS YASIN, MOHAMMED YASIN and STATE FARM AUTOMOBILE INSURANCE COMPANY
Defendants
REASONS FOR DECISION
PERELL J.
Released: January 26, 2015