Court File and Parties

COURT FILE NO.: CV-11-3783-00 DATE: 2017 06 09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SERAFIM PRENTZAS, Plaintiff v. VICTOR EDGARDO SORTO RIVERA, JEFFREY EDGARDO SORTO TORRES, THE WAWANESA MUTUAL INSURANCE COMPANY, Defendants

And

CAA INSURANCE COMPANY (ONTARIO), Third Party

BEFORE: EMERY J.

COUNSEL: R. Levitsky, for the Plaintiff Serafim Prentzas Victor Edgardo Sorto Rivera, Self-represented Jeffrey Edgardo Sorto Torres, Self-represented D. Abreu, for the Defendant Wawanesa Mutual Insurance J. Schwartzman, Counsel for the third party CAA Insurance Company (Ontario)

HEARD: September 2, 2015, January 22, April 4 and October 3, 4, 5, 2016

REASONS FOR DECISION

[1] This motion for summary judgment is a fight between two insurance companies who are named as parties in these proceedings.

[2] In the statement of claim that commenced this action, Seraphim Prentzas alleges that he was injured in a motor vehicle accident on November 4, 2009. According to the statement of claim, the motor vehicle in which he was riding as a passenger was struck by a motor vehicle owned by defendant Victor Rivera (the “Rivera vehicle”). The Rivera vehicle was operated at the time by Victor’s son, Jeffrey Sorto Torres.

[3] The motion for summary judgment before the court is a mirror image of the motion for summary judgment brought in another action commenced by Nicholas Prentzas in court file number CV-11-3784. Nicholas Prentzas was the driver of the motor vehicle (the “Prentzas vehicle”) in which Serafim Prentzas was riding as his passenger when it was struck by the Rivera vehicle.

[4] The third party CAA Insurance Company (Ontario) is a statutory third party joined under section 258 of the Insurance Act. CAA brings this motion for summary judgment to determine if Jeffrey was in possession of the Rivera vehicle owned by Victor with or without Victor’s express or implied consent. The determination by the court of this question will determine whether Victor is vicariously liable under section 192 of the Highway Traffic Act for any negligence on Jeffrey’s part when the Rivera vehicle made contact with the Prentzas vehicle on November 4, 2009.

[5] The Wawanesa Insurance Company is named as a defendant in the statement of claim because it was the insurer of the Prentzas vehicle. The Wawanesa policy provides uninsured motors coverage to the plaintiff in the event the court finds that Jeffrey was in the possession of the Rivera vehicle without his father’s express or implied consent.

[6] CAA was made a statutory third party to this action under section 258 of the Insurance Act because CAA gave notice to Victor on December 3, 2009 that it had voided the policy for his failure to advise them there had been a change in material risk under the policy. Victor was required to inform CAA as his insurer that Jeffrey had become an additional driver in the household as required by those statutory conditions forming part of his policy. CAA voided Victor’s policy effective July 15, 2009, on the day Jeffrey had obtained his G2 drivers licence.

[7] Victor has taken the position that Jeffrey was driving the Rivera vehicle without consent in an attempt to avoid vicarious liability under section 192(2) of the Highway Traffic Act in any event. If the court finds that Jeffrey was in possession of the Rivera vehicle at the time of contact with the Prentzas vehicle without Victor’s consent, CAA asks this court to dismiss the action as against Victor.

[8] Nicholas Prentzas died on July 13, 2015. The motion for summary judgment brought by Serafim Prentzas in this action therefore proceeded as the motion to be decided. By agreement, any decision on the motion in this action shall apply to the motion for summary judgment in the action commenced by Nicholas Prentzas.

Background, Evidence and Positions Taken

[9] This motion was argued on the evidentiary record before the court on September 2, 2015, January 22, 2016 and April 4, 2016.

[10] On January 22, 2016, I granted leave for CAA and Wawanesa to call Victor and Jeffrey as witnesses to testify and be cross-examined under Rule 39.03(4) of the Rules of Civil Procedure. I further ordered that any party would have the right at that time to argue or request that evidence be given in court, or a further examination in court be conducted for the purposes of Rule 20.04(2.2) of the Rules of Civil Procedure.

[11] On April 4, 2016, the motion was adjourned to October 3, 2016 to be heard with viva voce evidence over three consecutive days. This adjournment was granted to provide Victor with an opportunity to seek independent legal advice, and to bring a motion for coverage under his motor vehicle insurance policy with CAA.

[12] When the hearing of the motion for summary judgment reconvened before the court on October 3, 2016, I was informed that Victor had not obtained independent legal advice and that no application to determine coverage with respect to CAA had been brought. The hearing therefore continued as a mini-trial where Victor and Jeffrey testified.

[13] Wawanesa called Ryan Truax, who had given evidence in an affidavit filed in response to the motion, to testify at the mini-trial. Mr. Truax testified that Jeffrey had admitted to him during a break at examinations for discovery that Victor had lied under oath when he said that he had not given Jeffrey consent to drive the family car.

[14] No other witnesses were called by either party, including Jeffrey’s mother, Antonia Rivera, or his female friend, Enderlyn, to whom Jeffrey referred when he testified.

Victor

[15] Daniel Fiorita, a partner at Zuber & Company LLP, lawyers for CAA, filed an affidavit in support of the motion for summary judgment. Mr. Fiorita provided a summary of the evidence from his review of the transcripts of Victor’s examination for discovery and Jeffrey’s first and continued examination for discovery in that affidavit.

[16] The statements given by Victor and Jeffrey to CAA in November 2009 are attached as exhibits to Mr. Fiorita’s affidavit. When Victor and Jeffrey gave their respective statements to CAA, Jeffrey reported that it was understood that he was not to use the car while his parents were away on a trip to Egypt. He stated that, prior to the accident, he had never asked them for permission to drive the car without either of them present.

[17] In his statement, Victor told CAA that he would not permit Jeffrey to operate the Rivera vehicle without himself or his wife present in the car. Victor further reported that Jeffrey did not ask for his parents’ permission prior to taking the car on the day of the accident. Both Victor and his wife were out of the country at the time of the accident.

[18] Victor and Jeffrey confirmed at their respective examinations for discovery that Jeffrey was operating the Rivera vehicle on the day in question without Victor’s consent.

[19] According to his review, Mr. Fiorita deposes that the evidence of each Victor and Jeffrey was consistent: Jeffrey was not allowed to drive the car alone without one of his parents in the car. The evidence at discovery of both Victor and Jeffrey was that Jeffrey had never driven the car alone before the accident. Victor and Jeffrey further gave evidence at their examinations for discovery that it was understood that Jeffrey was not to use the car while Victor and Antonia were out of the country.

[20] Mr. Fiorita also states that, by his review of Victor’s evidence given at his examination for discovery, the car keys for the Rivera vehicle were left on the key hook in the kitchen in the family home. Victor had no reason to hide them and did not lock them up. According to Mr. Fiorita, Victor trusted Jeffrey and felt there was no reason not to trust him.

[21] Adrian Serpa, an associate with Bell Temple LLP, lawyers for Wawanesa, filed an affidavit in response to the motion for summary judgment. Mr. Serpa’s affidavit contains the following conclusions he drew from reviewing the evidence given by Victor at his examination for discovery:

a. Victor was in Egypt at the time of the accident (page 17, question 79) b. One of his four sons, Matthew, has severe autism (page 19, question 96) c. Jeffrey was to some extent in charge of his younger brothers, Gabriel and David (page 20, question 105) d. Victor kept his keys on a key rack in the kitchen, where he kept them all the time (page 24, question 140) e. The keys were not locked up and while Victor and his wife were in Egypt, the keys were left on the same key rack (page 25, question 141-2) f. Victor does not believe that Jeffrey stole the vehicle (page 31, question 188) g. Besides telling Jeffrey he could not take the vehicle, Victor did not take any precautions to ensure he would not take it (page 47, questions 293-294)

[22] At trial, Victor gave evidence that was consistent with the evidence he had given at his examination for discovery. He admitted that he owned the Rivera vehicle on the day of the accident. His wife could use the vehicle without asking his permission, although he drove the Rivera vehicle more than she did. When he and his wife were planning to take their trip to Egypt, they spoke with their children about behaving properly while they were gone. Victor states that he spoke with Jeffrey prior to leaving for the trip, but not about the car.

[23] Victor testified that the Rivera vehicle was left parked in the street. He testified that he did not speak with Jeffrey about driving his parents to the airport, and that he did not drive them to the airport. Victor states that they took a cab to the airport, but he cannot remember the name of the cab company. He cannot recall if he and Antonia took a bus or a cab home from the airport upon their return. He testified that Jeffrey did not pick them up.

[24] Victor acknowledged at the mini-trial that the car keys to the Rivera vehicle were not locked away at the family home. There were two sets of car keys. The one set of keys belonged to Victor, and the other set was kept by his wife. He admitted that his set of keys was accessible on the key hook in the kitchen where he kept them.

[25] Victor stated that Jeffrey was not allowed to drive the car alone. While they were away, Jeffrey had taken the car without his permission.

[26] In cross-examination, Victor then gave the following evidence:

Q. Well, I know, ‘cause what I’ve noticed in this case is that there have been a lot of discussions about Jeffrey and whether he stole the vehicle, and if I can understand your position, you don’t agree with that, do you? A. I never though of that. Q. Yeah. You don’t agree that he stole the vehicle, do you? A. I never thought of it. Q. Yeah, you didn’t tell the police that he stole the vehicle? A. That’s correct. Q. You haven’t told the police up to today that he stole the vehicle? Page 65. A. That’s correct. Q. You’ve never had a discussion with him where you’ve accused him of stealing the vehicle? A. That’s correct. Q. So, you’re, you’re upset with Jeffrey after this accident because he drove on his own, correct? A. I was upset. Q. That’s right. And you weren’t upset with him because he stole the vehicle. You don’t believe he stole the vehicle. Is that fair? A. He didn’t.

Jeffrey

[27] A summary of Jeffrey’s evidence is also given in the affidavit of Daniel Fiorita. The transcripts of Jeffrey’s examinations for discovery on July 11, 2013 and June 13, 2014 were attached as exhibits to his affidavit to form part of the evidentiary record. Mr. Fiorita states that from his review Jeffrey’s examination for discovery, Jeffrey gave evidence that:

a. Shortly before he was in the accident that day, he returned home on foot from school during the lunch break to retrieve a homework assignment he had forgotten; b. At home he then decided to take his father’s car to drive back to school as he was running late; c. He was not allowed to drive the car alone d. He had not driven the car alone or without one of his parents with him before.

[28] Jeffrey gave the following evidence at his second examination for discovery on June 13, 2014, with specific reference to his brother Matthew:

a. His 14 year old (at the time of the June 2014 discovery) brother, Matthew has autism and he has a role in his care, helping out as much as he can (pages 35, 39, 40, questions 139, 141, 179, 180) b. Matthew had appointments outside the home, roughly once or twice per week, and the family would drive him to those appointments (pages 41-2, questions 192-4) c. They did not have caregivers come into the home to help with Matthew at the time of the accident (page 42, question 195)

[29] The following evidence from Jeffrey’s examination for discovery on June 13, 2014 was also read in at the mini-trial:

446. Q: You were in charge of the house when they went to Egypt? A: Yes. By that I mean like taking care of my brother, making sure my brother and sister woke in time for school.

447. Q: Did anybody come and stay with you when they were gone? A: My aunt would check in from time to time.

448. Q: How often? A: She would just come and help out my younger brother. I would say maybe once or twice during the week.

449. Q: Is it fair to say that you were your siblings’ caretaker when your parents were gone? A: Yes.

[30] Finally, Jeffrey gave this evidence at the mini-trial:

Q: Okay. Okay, after this accident occurred the police attended at the scene A: Yes, they were there. Q: Did you ever tell the police that you, that you had stolen the car? A: I did not, no. Q: Did you ever tell the police that you took the vehicle without permission? A: I didn’t. Q: Did you – and that was – and not just on the date of the accident but on any date since the accident, have you ever told the police that you had stolen the car? A: I did not, no. Q: and have you ever told the police that you’ve taken the vehicle without permission? A: No, I didn’t. Q: Okay. And why didn’t you tell them that you stole the car? A: Well, because to be honest I didn’t feel like I did at the time. Q: Okay. And that’s something that I think, even your father’s agreed with, that you – that I think both he and you, neither of you think that you stole the car.
A: Yeah. Q: Is that your understanding? A: Yes. Q: Okay. In order to take the car, you didn’t have to break a window to, to enter the vehicle, did you? A: No, I didn’t. Q: So, in order to take the car what did you have to do? A: I had to take the keys from the hook. Q: Okay, the hook was the one by the kitchen… A: That’s right. Q: …the key rack by the kitchen? A: Yeah, that’s right. Q: Okay, so they were accessible? A: They were there, yes. Q: And so you simply took the keys and then – and where was the vehicle, was it outside the house or… A: it was parked… Q: …was it down the street? A: … it was parked in front of the house, yeah. Q: Okay. A: On the street. Q: And you were able to enter the vehicle with the keys? A: Yeah. Q: And you inserted the key and started the car. A: That’s right. Q: Okay. After this accident you drove the vehicle home? A: Yes, I did.

Ryan Truax

[31] Wawanesa called Ryan Truax to testify at the mini-trial on October 5, 2016. Wawanesa had previously served an affidavit sworn by Mr. Truax sworn on August 20, 2015 in response to the motion for summary judgment.

[32] In his affidavit, Mr. Truax had deposed that he attended at Network Reporting and Mediation on July 11, 2013 to participate in Victor and Jeffrey’s examinations for discovery as counsel for Wawanesa. At a break between those examinations for discovery, he held the following conversation with Jeffrey:

7. A few minutes later, Mr. Torres came back in the room and closed the door. He pointed to the recording devices in the room and asked me if they were on. I told him that they were not. Mr. Torres then asked me if he would be charged if he stole his father’s car. I told him that his father would be the one to decide that. Mr. Torres then asked me what would happen to him as far as this action does if it was found that he had stolen his father’s car. I told him that he may be found liable to pay for the plaintiff’s damages. Mr. Torres then asked again whether the recording devices were on. I told him that they were not. Mr. Torres then told me that his dad lied during his discovery, that he had consent to drive his father’s car on the day of the accident, and that he even drove his parents to the airport. I told Mr. Torres that he was going to be examined next and reminded him that he would be under oath and should tell the truth. He then told me that he would lie and give the same story that his father did. I replied that he should tell the truth and go speak to his father. Mr. Torres then left the room.

8. When Mr. Torres came back in the room he again told me that he was going to say the same thing his father said during his father’s examination. I told Mr. Torres that it is his decision and that he should tell the truth. I then left the room.

[33] When Jeffrey was asked about this exchange with Mr. Truax at his examination for discovery a few minutes later, Jeffrey claimed that he could not recall that conversation. Jeffrey’s examination for discovery was then adjourned to a later date.

[34] When Jeffrey’s examination for discovery resumed on June 13, 2014, he gave the following evidence:

a. He was “usually” only allowed to drive when his parents were in the vehicle with him; b. He had no comment with respect to the particulars of his conversation with Mr. Truax on July 11, 2013, though he acknowledged the conversation took place; c. He changed his answer from his July 11, 2013 discovery regarding his conversation with Mr. Truax from not recalling the conversation to having no comment about it.

[35] In his evidence at the mini-trial, Mr. Truax presents a clear recollection of what occurred between himself and Mr. Torres during the break between examinations for discover on July 11, 2013. He gave the following evidence of that exchange with Jeffrey:

Q: Okay. What happened after that? A: He then asked me again if the recording devices were on, and I said no. And then almost immediately after I said no, he stated my dad lied at his discovery. I had permission to drive the vehicle, and in fact, I drove my parents to the airport that day. Q: Okay, when – I’m going to take you through each of those issue that you just, you just spoke about. When he said that his father lied during the discovery, what were his exact words? A: His exact words was a statement, my father lied during his discovery. Q: Okay, did he ever preface that with a “what “scenario, what if I told you that my father lied during the discovery? A: No, absolutely not, it was a statement. Q: Okay, and then with respect to, he had permission to drive the vehicle what were his exact words? A: Again, he stated I had my father’s permission to drive the vehicle. Along those lines or I had permission to drive the vehicle that day. Q: Okay, and again did he preface that, that statement with a, “what if” I told you that I had permission to drive the vehicle? A: No, again, absolutely not. Q: Okay. A: He gave me a statement. Q: okay, and then with respect to the last issue raised about driving his parents to the airport, what were his exact words that he used? A: So, when he gave the – or when he said I drove – in fact I drove my parents to the airport, it was in conjunction with I, I had permission to drive the vehicle and, in fact, I even drove my parents to the airport that day. Q: Oh, I see. A: Yeah. Q: Okay, and did he preface that with a “what if” I told you I drove my parents to the airport? A: No, again he gave it as a statement. Q: Okay, do you still have a clear recollection of, of, of that statement being provided by Jeffrey to you at the examination for discovery? A: I have a very clear recollection of the day. Q: Okay and why is that? A: Well, first of all… Q: It’s been a few years now. A: …First of all – this was an unusual situation, so it stand out in my mind, and also when I went – returned to the office I made a statement of my recollection, which was prepared I, I would say, within 45 to an hour after the conversation with Jeffrey.

[36] Mr. Truax agreed in cross-examination that he attended that examination for discovery to seek evidence about whether Jeffrey had consent, be it direct or implied, to drive the vehicle. Mr. Truax agreed that he was there as an advocate to advance a position for his client. He agreed that this was the basis on which he was conducting the examinations that day. However, he testified that he was dispassionate about achieving the end result, and that he was there to seek the truth whatever it may be:

Q. Okay, and to secure admissions that will assist your client’s position in the lawsuit, correct? A. Hopefully, if they assist, but if they don’t, they don’t.

Analysis

[37] I have been asked on this motion to determine whether I am able to adjudicate the question of whether Jeffrey was in possession of the Rivera motor vehicle on November 4, 2009 without Victor’s consent. I am called upon to make this determination on the evidence with respect to CAA’s motion for summary judgment, and the further evidence I received at the mini-trial under Rule 20.04(2.1) of the Rules of Civil Procedure.

[38] Victor and, by extension, CAA has the onus to prove on the balance of probabilities that Jeffrey had possession of the vehicle without Victor’s consent on the day the collision with the Prentzas vehicle occurred. I must determine if Victor and CAA have satisfied that onus for this court to make a just determination of that issue on the merits, or if I find there to be a genuine issue requiring a trial.

General Principles

[39] Section 192(1) of the Highway Traffic Act affixes liability on the owner of a motor vehicle for the negligence of any person operating the motor vehicle on a street or highway. Section 192(1) reads 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 high way. 2005, c. 31 , Sched. 10, s. 2.

[40] Section 192(2) of the Highway Traffic Act then provides as follows:

(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.

[41] In an early case, the Court of Appeal in Thompson v. Bourchier, [1933] O.R. 525 held that an owner would be liable under section 192(2) of the Highway Traffic Act where the person to whom the vehicle owner entrusted possession of the vehicle was in possession of the vehicle at the time of the accident, even if the person was not actually driving the vehicle at the time.

[42] Thompson v. Bourchier was relied upon by the court in Henwood v. Coburn, 2007 ONCA 882, 88 O.R. (3d) 81. In Henwood, the Court of Appeal confirmed that the owner has the onus to establish that a person other than the owner was in possession of the vehicle at the time of the accident without the owner’s consent.

[43] Justice Rosenberg, writing for the court in Henwood, referred expressly to Finlayson v. GMAC Leaseco Ltd., 2007 ONCA 557, 86 O.R. (3d) 481, decided earlier the same year. Justice Rosenberg articulated the following principle at paragraph 15 from his review of Finlayson v. GMAC Leaseco:

[15]…This court reiterated the point that the issue under section 192 is possession, not operation. Provided that the vehicle is in the possession with the owner’s consent, the owner is liable regardless of whether the person actually operating the vehicle has the owner’s consent and even if that person is operating the vehicle contrary to the owners express wishes.

[44] Later at paragraph 19 in Henwood, Justice Rosenberg stated that:

[19] To summarize, the mere fact that someone, here Coburn, is operating the vehicle without the owner's consent is not determinative of the owner's liability under s. 192. If someone, such as Henwood in this case, is found to be in possession, and that person has the owner's consent, the owner will be liable even if the person in possession is only a passenger. Accordingly, the appellant was not entitled to summary judgment in its favour.

[45] In Finlayson v. GMAC Leaseco, Justice Gillese explained that the possession and operation of a motor vehicle are separate and distinct concepts. Possession is a question of law. The operation of a motor vehicle is a question of fact. It is conceivable that an owner or lessee may have possession of a vehicle, but another person may be the operator of the vehicle. This was the conceptual framework for the analysis undertaken by the court in Henwood.

[46] Justice Gillese further explained the policy reason behind section 192(2) of the Highway Traffic Act in Finlayson v. GMAC Leaseco that makes a vehicle owner vicariously liable for the management of the vehicle by another to whom possession of that vehicle is entrusted:

[21] As the above-quoted passage makes clear, s. 192(1) is intended to protect the public by imposing, on the owner of a motor vehicle, responsibility for the careful management of the vehicle. Possession is one of the rights of ownership. An owner has the right to give possession of the vehicle to another. But, s. 192(1) encourages owners to be careful when exercising that right by placing legal responsibility on them for loss to others caused by the negligent operation of the vehicle on a highway.

[47] The court in Finlayson v. GMAC Leaseco also examined the concept of consent. The court must determine if possession of a vehicle has been entrusted to another person despite any admonishment that the other person is not to operate that vehicle. In this way, it is possible for the owner to give consent to the possession of the vehicle to another person, but withhold consent for that person to operate the vehicle. That is was what happened in Finlayson v. GMAC Leaseco. In the final analysis, the court found that Gmac Leaseco had consented to Mr. Simon’s possession of the subject vehicle, and was accordingly liable to the plaintiff.

[48] Justice Strathy (as he then was) reviewed the state of the law at the time in Seegmiller v. Langer, 2008 ONSC 53138. At paragraph 34 of Seegmiller, Justice Strathy summarized the law as follows:

[34] The following propositions are well-settled:

1. 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: Henwood v. Coburn et al., above, at para. 25; Thorne v. Prets, 2003 ONCA 22084, [2003] O.J. No. 5241, 45 M.V.R. (4th) 69 (C.A.); Barham v. Marsden, [1960] O.J. No. 60, [1960] O.W.N. 153 at 154 (C.A.); Newman v. Terdik, [1953] O.R. 1 (C.A.) at 7.

2. The meaning of possession is a question of law but the application of that definition to any particular set of facts is not a question of law alone: Henwood v. Coburn et al. above.

3. Possession is a concept capable of different meanings and there are different types of possession. The primary definition of possession contemplates power, control or dominion over property: see Black’s Law Dictionary, (8th ed., 2004).

4. Once ownership of a vehicle is established, the onus passes to the owner to establish that the vehicle was, without the consent of the owner, in the possession of some person other than the owner: see Ross v. Vayda, 40 O.A.C. 149, [1990] O.J. No. 1583 (C.A.).

5. The owner’s vicarious liability under s. 192 of the Highway Traffic Act is based on possession, as opposed to operation of the vehicle: see Thompson v. Bourchier, above; Finlayson v. GMAC Leaseco Ltd., above.

6. “[C]onsent to possession of a vehicle is not synonymous with consent to operate it. Public policy considerations reinforce the importance of maintaining that distinction.”: Finlayson v. GMAC Leaseco Ltd., at para. 3.

7. If possession is given, the owner will be liable even if there is a breach of a condition attached to that possession, including a condition that the person in possession will not operate the vehicle: Finlayson v. GMAC Leaseco Ltd.; Donald v. Huntley Service Centre Ltd., 61 O.R. (2d) 257, [1987] O.J. No. 829 (Ont. H.C.).

8. Breach of conditions placed by the owner on a person’s possession of the vehicle, including conditions as to who may operate the vehicle, do not alter the fact of possession: Thompson v. Bourchier, above; Finlayson v. GMAC Leaseco Ltd., above.

[49] Consent can be express or implied. Here, there is no evidence that Victor ever gave Jeffrey his express consent to have the Rivera vehicle in his possession. The issue on this motion is therefore if Victor can satisfy the court on all of the evidence that it cannot be said that Victor had given implied consent to Jeffrey’s possession of the Rivera vehicle on the day of the accident.

[50] The cases generally deal with implied consent on the question of whether a person was operating a motor vehicle with the consent of the owner. However, I see no reason why the test for implied consent cannot be adopted to determine whether a person was in possession of a vehicle with the implied consent of its owner to determine vicarious liability under section 192(2) of the Highway Traffic Act.

[51] Justice J.W. Quinn of this court set out the following summary on the law of implied consent in Korody v. Bell, [2009] O.J. 1716 (SCJ), which I have found most helpful:

[10] In this trial, there is no evidence of express consent. However, consent under s. 192(2) may be express or implied. A leading case on the issue of implied consent is Palsky v. Humphrey, [1964] S.C.R. 580 wherein the court was of the view that the majority of the Appellate Division of the Supreme Court of Alberta had placed too narrow an interpretation on the trial judge’s test of implied consent. The court, at p. 587, approved of the approach in the dissenting judgment of Porter J.A. who had concluded:

It seems clear to me that the course of conduct between these two men was such that there was an implied consent by Humphrey to the use by Harvie of his car. This implied consent, of course, could be terminated or denied in specific instances . . . It seems to me that consent can be implied because it is clear that had it been sought it would have been granted as a matter of course. In my opinion the facts and circumstances surrounding the use by Harvie of Humphrey’s car on this and other occasions imply consent by Humphrey.

[52] Justice Quinn continued with the test to determine whether a driver was in possession of a vehicle with the implied consent of its owner at paragraph 12:

[12] The test in Palsky was described in Canada (Attorney General) v. Mason, 104 N.B.R. (2d) 130 at para. 16 (emphasis added):

16. The test to be applied by a trial judge to decide the question is whether all the circumstances were such as would show that the driver would have been justified in deeming that he had the implied consent of the owner . . . The test is not subjective as to whether the driver believed he had consent. The test is objective as to whether it was reasonable in the circumstances that the driver would have been justified in deeming he had consent.

[53] Finally, at paragraph 14 the court held that:

[14] The unexplained failure of an owner to report his or her vehicle stolen in a timely fashion is another circumstance to consider when determining the issue of implied consent.

[54] The decision of Argante v. Munro, 2014 ONSC 3626 reviewed the evidentiary requirements under section 192(2) of the Highway Traffic Act that are relevant to the current dscussion:

[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 ONSC 53138 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 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.

[55] According to the Argante case, there is a presumption that the driver was in possession of the motor vehicle with the consent of the owner, and that the onus is on the owner to disprove that presumption. Therefore, the onus is on Victor, and by extension CAA, to prove that Jeffrey had possession of the Rivera vehicle at the time of the accident without Victor’s implied consent.

Car and Key Cases

Oliveria v. Mullings

[56] In Oliveria v. Mullings, 2007 ONSC 19621, [2007] O.J. No. 2119, the owner of a motor vehicle that was involved in an accident was the mother of the driver. The defendant brought a motion for summary judgment to seek a finding by the court that her son had taken the motor vehicle on the date in question without her express or implied consent.

[57] In Oliveria, the defendant son had found the keys to the car in his mother’s bedroom drawer when she was at work one day. He had a G1 driver’s license and had previously driven the vehicle when his mother was in the car to practice driving. However, the evidence showed that the defendant mother had told the defendant son that he could not take the car without permission.

[58] After the accident, the defendant son had informed the police officer that he had taken the vehicle without consent. On all of the evidence, Justice Lederer held that it was clear that the defendant son did not have consent to drive the motor vehicle. Accordingly, Justice Lederer found there was no genuine issue for trial and granted the motion for summary judgment dismissing the action against the mother.

Seegmiller v. Langer

[59] Seegmiller v. Langer, 2008 ONSC 53138 et al., was a case where the keys to a motor vehicle were taken from a hook where they were kept inside the house by the door. Although the court in Seegmiller had found that the mother who owned the vehicle had prohibited her daughter and her boyfriend from operating the vehicle, Justice Strathy concluded that the mother was liable as the owner of the vehicle because she had consented to the daughter and her boyfriend having possession and control of it.

[60] Justice Strathy found that the owner had relinquished dominion and control over the car. He also found on the facts that the driver would have a complete defence to a charge of theft. He was entitled to possession of the vehicle; he was simply prohibited from driving it. Accordingly, there was a finding of liability on the part of the mother as the vehicle’s owner under section 192(2) of the Highway Traffic Act.

Myers-Gordon v. Martin

[61] In Myers-Gordon v. Martin, 2013 ONSC 5441, [2013] O.J. No. 3935, aff'd 2014 ONCA 767, [2014] O.J. No. 5243, Justice Kent heard a motion for summary judgment to dismiss the action against the owner of a 2005 Dodge Durango. The vehicle had been taken by the owner’s son and involved in a motor vehicle accident resulting in the tragic death of two young persons and causing the serious injury of two others.

[62] On the facts of Myers-Gordon, the motions judge found that despite the son’s access to the car keys, there was no evidence on the part of the son to challenge the credibility of his evidence that his mother had never given him any basis to believe he had her consent to drive the car.

[63] On the application of the principles set out in Seegmiller and on the evidence before him in Myers-Gordon, Justice Kent concluded that Ms. Martin could have done more to exert control over her vehicle; could have taken safeguards with the keys, and could have said “don’t drive the Durango while I’m away.” However, Justice Kent found that a trial was unnecessary to determine that Ms. Martin had not given implied consent to her son to drive the motor vehicle at the time of the accident to make her liable.

Argante v. Munro

[64] In Argante v. Munro, 2014 ONSC 3626, Lori Anne Munro was the owner of a motor vehicle. Ms. Munro was estranged from one Glen Munro but living with him under the same roof. Ms. Munro did not trust Mr. Munro. She suspected he was capable of taking her van and driving it without her consent. She therefore adopted a common practice of taking her car keys with her to bed and placing them under her mattress. When she got up in the morning, she would take her keys downstairs and place them on a hook by the door while she got ready for work and sent the children off to school.

[65] On the morning of the accident, Ms. Munro had brought the car keys down from her bedroom to the main floor and had put them on the hook by the front door, as was her practice each morning. However, both she and her daughter felt ill that day and had returned to bed. The keys remained on the hook by the front door.

[66] At some point during the day, Glen Munro took the liberty of taking the keys from the key hook by the front door without Ms. Munro’s consent. Glen Munro was involved in a motor vehicle accident later that day when he was driving Ms. Munro’s vehicle.

[67] There was no evidence that Ms. Munro had ever granted permission for Glen Munro to operate or to have possession of the vehicle. There was no evidence that Glen Munro had operated or had possession of that vehicle before or after the date of the accident. Ms. Munro had taken measures to protect her keys from coming into his possession. As a result, the court found that Ms. Munro had discharged the onus to prove on a balance of probabilities that she had not given implied consent for Glen Munro to have possession of, or to operate her motor vehicle on the day in question.

[68] The cases indicate that important factors to consider are the relationship between the insured owner and the driver, steps taken to protect the keys to the vehicle, and all of the circumstances given in evidence. In Argante, Ms. Munro was estranged and living separate and apart from Mr. Munro in the same house. The evidence showed that Ms. Munro “carefully and prudently maintained control and possession of her car keys.” In Oliveria, the steps taken by the mother to protect the keys by keeping them in her bedroom supported the finding by the motions judge the son did not have his mother’s permission to take the car. In Seegmiller, the proximity of the car keys to the car and driver in the context of all of the evidence was indicative of the owner’s implied consent to her son-in-law’s possession of the vehicle. In Myers-Gordon, the evidence given by the son of the trust his mother invested in him, and the conclusion by the motion judge that the case did not involve significant contentious facts illustrate how each case turns on its own facts.

Principles Applied

[69] My consideration of the issues on this motion has focused on three areas of evidence:

a. whether Victor considered that Jeffrey had stolen the Rivera vehicle on the day of the accident; b. his stewardship of the car keys for the vehicle; and c. the sufficiency or lack of evidence to satisfy the onus on Victor to establish on the balance of probabilities that Jeffrey was in possession of the Rivera vehicle that day without his father’s consent.

a) Did Victor Consider that Jeffrey had Stolen the Rivera vehicle

[70] Victor stated at his examination for discovery that he does not believe that Jeffrey stole the vehicle on the day of the accident. He reaffirmed this evidence at cross-examination at the mini-trial arising from this motion on October 4, 2016, when asked if it was fair that he did not believe that Jeffrey stole the vehicle that day by answering “he didn’t”.

[71] Victor’s testimony is supported by evidence of how Jeffrey was left in charge of the Rivera house when Victor and his wife left for their trip to Egypt. While Victor states that a family friend had been asked to look in on the family from time to time while they were away, Jeffrey states that his aunt would check in with them from time to time, perhaps once or twice during the week.

[72] Jeffrey also agreed at his examination for discovery that he was his siblings’ caretaker when their parents were away. From this I infer as a fact that Victor and his wife had left Jeffrey in charge of the family and the family home.

[73] Victor corresponded with CAA after the accident and the subsequent cancellation of his policy. In a letter dated January 18, 2010 to the insurance ombudsman for the Insurance Commission, Victor stated:

“Currently I have no insurance in effect, my car has not been fixed and I have a child with special needs (autistic child who is afraid to go and wouldn’t go in any body else’s car, bus or taxi) that I have not been able to drive to his therapies and programs due to this situation.”

[74] This evidence relates to Jeffrey’s access to the Rivera vehicle while his parents were in Egypt. In the course of looking after his family, Jeffrey was also looking after his younger brother Matthew. There is no dispute on the record that Matthew is autistic and requires therapy from time to time. There was no evidence given on how Matthew would have been transported to that therapy during his parents’ absence.

[75] Jeffrey testified at the mini-trial that generally “we would drive him” in reference to Matthew’s appointments outside the home once or twice a week (question 192 and 193 of his discovery). Victor’s own letter to the insurance ombudsman on January 18, 2010 is evidence that he required insurance for his vehicle because his autistic child would not go to therapy in anyone else’s car, or in a bus or taxi.

[76] The evidence of Jeffrey and Victor leads me to find as a fact there is a reasonable prospect that Victor not only knew, but expected Jeffrey to use the Rivera vehicle to take Matthew to therapy appointments and programs while Victor and Antonia were away. Jeffrey was left in charge of the house and his siblings. Victor has not discharged the burden of showing that he had not given his consent for Jeffrey to take possession of the car in his absence to meet the needs of the family in his absence.

[77] In Fernandes v. Araugo, 2015 ONCA 571, the Court of Appeal explained that an owner’s consent to possession of a vehicle by another person is not vitiated just because the other person has violated a condition imposed for that possession, including that he not drive the vehicle at all. It is therefore immaterial if Victor placed a condition on Jeffrey’s possession of the Rivera vehicle that he was to drive it only for family purposes while in charge of his siblings.

[78] I therefore conclude on the evidence that Jeffrey did not steal the Rivera vehicle on November 4, 2009. This finding is consistent with the findings of the court on similar evidence in Seegmiller (at para. 38), and with respect to the finding of the owner’s implied consent to another person’s possession of the vehicle in Korody v. Bell (at para. 14).

b) Availability of Car Keys

[79] The decisions in which the stewardship of car keys is a factor are relevant to the facts of this case. I note the following evidence given by Victor relating to the availability of car keys to the Rivera vehicle when he was away:

a. The car keys were left on the key hook, located in the kitchen of the family home; b. Victor never hid the car keys while he was home; c. Victor never hid the car keys when he was away; d. Victor did not take the car keys with him when he and his wife went on their trip to Egypt.

[80] There is also the evidence that the Rivera vehicle was parked outside the house at all times, including the day of the accident when Jeffrey decided to take the car back to school.

[81] I have Jeffrey’s evidence from the mini-trial that the police investigated the accident scene where the Rivera vehicle had come into contact with the Prentzas vehicle. According to Jeffrey’s evidence, the police allowed Jeffrey to drive the vehicle home. From this evidence I infer as a fact that Jeffrey not only had access to the keys for the Rivera vehicle, but also the vehicle ownership and insurance slip. The police would have asked Jeffrey to produce that documentation in the course of their investigation at the scene of the accident.

[82] In Palsky v. Humphrey, [1964] S.C.R. 580, the Supreme Court of Canada restored the decision of the trial judge and his characterization of when implied consent has been given:

… that is to say, whether in all of the circumstances the person who is driving, would have been justified in deeming that he had implied consent to drive.

[83] I therefore find there is a reasonable evidentiary basis to conclude that Jeffrey had access to the car keys, the vehicle ownership and insurance documentation. These articles are incidental to possession of the vehicle to which they relate. Victor had not secured the car keys or the vehicle ownership and insurance papers elsewhere in the house, or taken those articles on his trip. By leaving them available to Jeffrey, I further conclude that Victor is deemed to have given consent for Jeffrey to maintain possession of the Rivera vehicles while his parents were away.

c) Lack of Evidence to meet Victor’s Onus

[84] There is no dispute that Victor was the owner of the Rivera vehicle at all material times. According to Ross v. Vayda, 40 O.A.C. 149, once ownership of a vehicle is established, the onus passes to the owner to satisfy the court that the vehicle was in the possession of some person other than the owner without the owner’s consent.

[85] CAA only called Victor and Jeffrey to give viva voce evidence at the mini-trial conducted in connection with the motion for summary judgment. It is telling that Victor and Jeffrey focused their evidence generally on the question of whether Jeffrey could drive the Rivera vehicle without one of his parents in the car, and in particular if he had Victor’s consent to drive the Rivera vehicle when his parents were away.

[86] I consider that little evidence, if any, was given to disprove that Jeffrey was in possession of the Rivera vehicle on the day of the accident with Victor’s consent. Consent to drive a vehicle, and consent to possession of a vehicle are two different things. CAA has conflated the question of whether Jeffrey had his father’s permission to drive the Rivera vehicle with the real issue of whether he was in possession of the Rivera vehicle without Victor’s consent.

[87] I am confident I can decide the central issue on this motion for summary judgment on the evidence given to date. There is no need for the parties to incur further expense or delay for the court to find the necessary facts as part of the trial in the main action. It is my view I am able to make a determination of the issue of Victor’s consent to Jeffrey’s possession of the Rivera vehicle on November 4, 2009 on the evidence now before the court as a fair and just way to adjudicate the issue on its merits.

[88] I do not accept the evidence of either Victor or Jeffrey that Jeffrey did not have Victor’s permission to drive the vehicle that day, when all of the other circumstances in evidence are considered. Their evidence cannot be relied on for two reasons.

[89] First, the evidence of Ryan Truax gives this court pause to accept the evidence given by either Victor or Jeffrey at their respective examinations for discovery. There was no reason given in evidence or in argument to doubt the veracity of the evidence given by Mr. Truax in his affidavit on the motion, or at the mini-trial. I accept his evidence as an officer of the court, and as a member of the Law Society of Upper Canada.

[90] I am troubled by the fact that Jeffrey told Mr. Truax at the break on July 11, 2013 that Victor had lied at his examination for discovery, and that he had asked Mr. Truax what it would mean if he lied as well. I do not accept Jeffrey’s statement to Mr. Truax to be an admission against Victor, or evidence of the truth of his statement that Victor had lied. However, Jeffrey’s statement is certainly enough to alert this court that the evidence given by Victor and Jeffrey at their examinations for discovery and at the mini-trial should be treated with suspicion.

[91] The second reason is this: once Victor and Jeffrey gave their statement to CAA that Jeffrey did not have Victor’s permission to drive the Rivera vehicle, they were locked into that position. Their evidence reaffirmed that position when they were examined for discovery and later questioned at the mini-trial. The evidence given by Victor and Jeffrey was therefore predetermined because of the statements or evidence they had given previously.

[92] This court did not hear any evidence that contradicted the evidence of Victor or Jeffrey because they were the only witnesses called by CAA at the mini-trial. However, Victor’s wife Antonia was referred to many times as one of the people in the Rivera home who could operate the Rivera vehicle without Victor’s express consent. Ms. Rivera had her own set of keys and often asked Jeffrey to drive her to the grocery store and on other errands. Ms. Rivera could have given evidence on what arrangement Victor had made with Jeffrey for the possession or use of the Rivera vehicle while the Rivera parents were away on their trip.

[93] I also heard evidence that Jeffrey and his female friend, Enderly, would drive in her car. In fact, it was Enderly that Jeffrey was speaking with on the telephone prior to Jeffrey’s exchange with Mr. Truax on the day of the examinations for discovery. CAA could have called Enderly to give evidence to corroborate the evidence given by Jeffrey in each respect.

[94] I draw inferences from the evidence Victor gave when reporting to CAA, at discovery and on the mini-trial to find as a fact that although he did not permit Jeffrey to drive the car alone, the arrangements for Jeffrey’s care of the Rivera home and family support a finding of Victor’s implied consent for Jeffrey to exercise possession of the car while he was away.

[95] I conclude as a matter of law that Jeffrey had possession of the Rivera vehicle on November 4, 2009 with the implied consent of his father, Victor. This conclusion was reached on Victor’s own evidence. Since I do not believe Jeffrey’s evidence because of its internal inconsistencies and his exchange with Ryan Truax, I am not considering it as part of the fact pattern. Consequently, I have sufficient evidence to decide the consent issue.

[96] The motion of CAA for summary judgment to dismiss this action as against Victor Rivera is therefore dismissed.

Costs

[97] If either party seeks costs on this motion, they may file written submissions consisting of no more than three pages, not including a Bill of Costs, by June 23, 2017. The other party shall then have until June 30, 2017 to file responding materials limited to the same extent. No reply submissions are permitted without leave. All written materials may be sent by fax to my judicial assistant, Ms. Kim Williams, at 905-456-4834 in Brampton.

Emery J

DATE: June 9, 2017