CITATION: Wagner v. Fellows, 2017 ONSC 7309
COURT FILE NO.: CV-12-0108188
DATE: 20171207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tyler Wagner by his Litigation Guardian, Angela Wagner
Plaintiff
– and –
Madison Fellows, Melissa Ley and The Dominion of Canada General Insurance Company
Defendants
Raymond A.D. Watt And Melissa J. Miles, for the Plaintiff
Stan J. Sokol, for the Defendant, Madison Fellows
Robert L. Love and Jeremy Ablaza, for the Defendants, Melissa Ley and The Dominion of Canada General Insurance Company
HEARD: November 22-24 and 27, 2017
REASONS FOR DECISION
MULLINS J.:
[1] This action advances a claim for damages alleged to have been caused to Tyler Wagner in a motor vehicle crash that occurred on April 2, 2011. Dominion of Canada General Insurance Company (DOC) served a jury notice. At the outset of trial counsel for all parties advised the court that they wished to have a number of issues decided by a judge sitting without a jury. It was agreed that only damages need be determined by a jury. As the Courts of Justice Act provision governing jury notices allows for such a division of issues, the court was content to proceed, leaving a trial of the assessment of damages to take place before a jury at another time.
Findings of Fact
[2] The vehicle involved in the crash was a Dodge Caravan owned by the defendant Melissa Ley. Ms. Ley is the mother of the defendant Madison Fellows. She has two other children. At the material time, she was thirty two years old and raising three children, Madison aged sixteen, his twelve year old brother and six year old sister. Ms. Ley was and is employed as a school bus driver. She worked split shifts, Monday through Friday of the week and the occasional charter. The Dodge Caravan had been a gift from her parents in 2003. She depended upon it to travel to work a few kilometers and to take the youngest to daycare from the apartment where she and the children lived. She frequently shuttled two of the children to ‘rep’ hockey practice and games. It was her practice to fill the car with gas on payday. She would reset the trip odometer when she filled up, but, notwithstanding, did not pay particular attention to her gas consumption or mileage. It was her long standing habit to keep the keys to her vehicle in her purse and her purse with her, even when she retired for the evening. Not surprisingly, Ms. Ley dropped into bed exhausted each night and, as she put it: slept ‘like the dead’.
[3] Madison Fellows was probably still attending school, when, within a month of his sixteenth birthday he obtained his G1 driver’s licence in February of 2011. The licence required that he have a fully licensed driver with him when driving. He and his mother recall there having been one occasion before the crash, when she accompanied him while he drove her vehicle, though their respective recollections differ as to the circumstances.
[4] Mr. Fellows was impatient about learning to drive. Time did not permit his mother to take him driving as soon or as frequently as he preferred.
[5] Mr. Fellows met Mr. Wagner while the two were in grade school. They were, each in their own way, challenged students. Mr. Wagner’s father had died. The psychological burden of this stayed with him. He was also troubled with an attention deficit disorder. He attended a number of schools and specialized programs, without meeting much success. He left school, demoralized, without completing grade 10. He was unable to get work because of his young age and limited education. At age fifteen in April of 2011, he was slightly younger than Mr. Fellows, but also looking forward to obtaining a licence to drive.
[6] Mr. Fellows completed grade 10, but not grade eleven. He was suspended from school from time to time for behavioural reasons and, like Mr. Wagner, directed to specialized learning programs, though for different reasons. Despite attending the same schools from time to time the two did not see much of one another in the year or so before the crash of April 2, 2011.
[7] His mother described Mr. Fellows as having been a typical adolescent, in that he would, sometimes listen to her and at times storm off in a state of angry defiance. All of her children were well aware of her standard of discipline. They knew she would ‘break their arms and legs.’
[8] Impatient with his lack of opportunity to learn to drive, Madison Fellows took his mother’s vehicle out on his own. He would do this between the hours of about midnight and 6:00 a.m. After his mother fell asleep at night he would search for her car keys. Invariably, the keys were in her purse. Her purse was always in close proximity to his sleeping mother, either beside her bed on the floor, under her pillow or under the comforter on her bed. He would make use of a flashlight if necessary. He was successful in all of his attempts but one. He had sneaked out eight or ten times before the night of the crash. He didn’t pay much attention to the lapse of time while driving in the wee hours, but he was sure to get the vehicle back before his mother awoke. On one occasion she was momentarily somewhat roused by his presence in her bedroom, but he placated her and she immediately returned to sleep.
[9] I do not accept Ms. Ley’s evidence that she routinely locked her bedroom door at night after she retired. Her son said nothing of this when giving his evidence. Even allowing for the variable credibility of his evidence, he gave no account of having to pop the lock on the door in giving the details of his retrieval of the keys on those eight to ten occasions.
[10] Mr. Fellows travelled alone on most of these ventures with his mother’s vehicle. Mostly through ignorance, he did not at first adjust the mirrors in the vehicle. When he progressed to doing so, he would try to return them to their original position when he returned home. He took care to park the vehicle in the same orientation as he had found it. He was by age sixteen some inches taller than his mother, but he did not adjust the driver’s seat, only the incline of the back of the seat, which he restored to its original position at the end of his joyrides. On one or two occasions before April 2, 2011, he took friends along for the ride. On one of those, as he recalls, though Mr. Wagner does not, Mr. Wagner came along.
[11] Mr. Fellows stole coins or other items from unlocked cars to provide for gas. He claims to have stolen a scented bear and his old childhood watch from his mother’s bedroom to sell for a few bucks for gas. He had no idea there was a trip odometer on the vehicle. Ms. Ley never noticed anything missing from her room.
[12] Ms. Ley and her son Madison both described one occasion giving rise to suspicion.
[13] Late in the evening of the day of the crash Ms. Ley made a statement to police. She spoke of her son’s disobedience and his prior unauthorized use of her vehicle. She told of the moved booster seat and spoke of the gas gauge being down, mirrors having been moved and that something else was out of sort. She recounted to police that she had confronted her son and told him he could not be taking the van.
[14] By contrast to his mother’s recollection, Mr. Fellows has no memory of any such remonstration, though he does remember being confronted about the moved booster seat at which time he dissembled. In any event, Mr. Fellows was confident that, whatever her suspicions, his mother did not know he was taking her vehicle. I find that neither, with certainty, did his mother.
[15] During the evening of April 1, 2011 Mr. Fellows and Mr. Wagner encountered one another at a party. Mr. Fellows drank beer. The two decided to go for a ride in Ms. Ley’s vehicle. Although Mr. Fellows tried to attribute the idea to Mr. Wagner, I find that it was, in keeping with Mr. Fellow’s previous routine, entirely at his own initiative that he took his mother’s vehicle. The two adolescents went to the home of fourteen year old ‘NH’, where ‘MF’, also aged fourteen, was staying the night. The girls joined the boys and off they went from their home town of Keswick to Newmarket and back. NH was dropped home, before Messrs. Fellows and Wagner, still accompanied by MF travelled to Sutton. Time estimates vary, but, based on the evidence of Ms. Ley as to what time she returned home from the movies on that Friday night, and the variable accounts of the four adolescents, I find that they did not depart from Keswick any earlier than 1:00 a.m. on April 2, 2011.
[16] Mr. Wagner testified that there was no discussion of the circumstances under which Mr. Fellows was in possession of his mother’s vehicle during the venture forth on April 2, 2011. One of the two young women said much the same. The other recalls being made aware when she first got in the vehicle that his mother didn’t know. Mr. Fellows says there was no discussion about it. I find, based on the whole of the evidence that there was no explicit discussion about whether Mr. Fellows had the vehicle with or without his mother’s knowledge or consent.
[17] The evidence is not precise as to what time police were notified of the crash. It can be surmised that it happened shortly before 6:00 a.m. on April 2, 2011. Mr. Fellows was driving at the time. Other than speeding, there is no evidence of any hazardousness in his driving over the course of those early morning hours.
[18] Mr. Wagner had become tired and had laid down on the bench seat in the back row of the van, and gone to sleep. He was not wearing a seat belt. ‘MF’ had taken Mr. Wagner’s place in the front, bucket style, passenger seat. She was wearing a seat belt.
[19] As the travellers were returning home to Keswick from Sutton, southbound on Woodbine Avenue, Mr. Fellows fell asleep. The van travelled on to the soft shoulder next to the pavement. Startled, Mr. Fellows was unable to correct the vehicle’s trajectory and lost control. The vehicle left the roadway and rolled. It sustained damage to both sides and the roof. It came to rest in the ditch next to the roadway. Mr. Fellows, and ‘MF’ though injured, were able to get out. They realized that Mr. Wagner was injured. He was no longer in the back on the bench seat, rather, he was in the middle row when they extracted him.
The Issues
[20] The issues that the facts and pleadings give rise to are as follows:
- Was Madison Fellows negligent in his operation of the Dodge Caravan on April 2, 2011?
[21] This issue was not contested at the conclusion of the trial. To his credit, Mr. Fellows abandoned a story about a deer jumping out in front of the vehicle which he had been counselled to give to police by an eager tow truck driver at the crash site. He told this court he had fallen asleep and lost control. I accept this latter evidence and find that he was negligent by failing to maintain control of his vehicle and operating a vehicle while having become drowsy. These circumstances caused the crash.
- Is Melissa Ley liable for the negligence of Madison Fellows in the operation of her vehicle by reason of the vehicle being in the possession of her son with her consent, express or implied, pursuant to the provisions of the Highway Traffic Act. R.S.O. 1990, c. H-8 section 192(2)?
[22] There is no evidence that Madison Fellows was in possession of his mother’s vehicle with her express consent. I find that he was not. The livelier issue is whether he may be taken to have had her implied consent to possession, given all of the circumstances.
[23] The decision given in Seegmiller v. Langer, 2008 CarswellOnt 6029, provides a summary of the principles by which the question of whether a vehicle is in the possession of another with consent is to be analyzed. Some are:
Consent (to possession) is a question of fact and independent of consent to or conditions restricting operation
The meaning of possession is a question of law to be applied to the facts as determined
The onus rests on the owner to establish that the vehicle was not in possession with consent
[24] In the circumstances of the case at bar, no distinction need be made on the facts as to consent to possession as distinct from consent to operation.
[25] Implied consent is to be determined on a case by case basis, taking into account all of the circumstances, not just those peculiar to the one occasion under consideration. There are all kinds of variables in the facts of cases that have considered this issue, none exactly comparable to this case.
[26] I accept the evidence of Madison Fellows that his mother did not give him consent to possession or operation of her vehicle, except for one time when he drove with her beside him in the passenger seat. I find that she secured the keys in her personal possession at all times, including through the night while she was asleep. Clearly, Mr. Fellows was surreptitious when obtaining the keys to the vehicle. He took the vehicle only while his mother was asleep. He was disappointed in his expectation she would teach him to drive as soon as he had his licence. Impatiently, he helped himself to the keys and the vehicle. He knew it was contrary to the terms of his G1 licence to drive the vehicle without another fully licensed driver with him and between the hours of 12:00 and 5:00 a.m.
[27] Ms. Ley confronted her son over her suspicions when her daughter’s booster seat was not where she expected. He lied to his mother on this occasion, I find. He lied to his mother when he awakened her one night while trying to find the keys. She reported his taking of her vehicle on April 2, 2011 as a theft to police and caused her son to be prosecuted for the criminal offence of taking a vehicle without permission. Her concern for insurance coverage for her loss does not, I consider, detract from what I find to be her truthful account that he had taken her vehicle without her knowledge or consent.
[28] I find that Ms. Ley has met the onus to prove that her son did not have possession of her vehicle with her consent, express or implied. He knew he did not have her permission. I do not consider that, whatever her suspicions, the circumstances under which her son gained access to the keys and the vehicle gave rise to implied consent. It follows that she is not liable for his negligence pursuant to the provisions of section 192(2) of the HTA.
- Is Melissa Ley liable for the injuries to Mr. Wagner because she owed him a duty of care, which she breached by failing to adequately secure her car keys from access by her son Madison Fellows?
[29] As of April 2, 2011 Melissa Ley was a busy, single parent of three children. She had, I accept, standards of discipline for her children which she enforced. Her son Madison did not always listen to her. In her experience he behaved as did a typical adolescent, not particularly better or worse. She tried to keep the peace for the sake of the other two children. Mr. Fellows was no angel. He may have pinched a few items from home and sold them, but his mother did not notice. He was rather cheerfully candid about stealing money from unlocked cars to be able to afford gas for the vehicle, but there is no evidence his mother knew about this either nor had he given her reason to know. He got kicked out of school, for attention seeking behavior by all accounts. Though an allusion was made in the evidence that Mr. Fellows was ‘known to police’, such is not probative, only prejudicial, and not, frankly, evidence. Ms. Ley kept the keys to her vehicle in her purse, on or next to her person, even at night while asleep. Her son knew he was not permitted to be in possession of, much less drive her vehicle. He was confronted with her suspicions on the one occasion he slipped up when restoring the vehicle to its usual condition. The parking spot for the vehicle was out of sight of the apartment where the family lived.
[30] I do not find, in all of the circumstances that Ms. Ley was negligent in the manner and extent to which she secured her car keys. A reasonable parent acting reasonably is to be expected to take a graduated approach to discipline and security. The risk adolescents pose is not readily predictable. As it was, Ms. Ley probably exceeded the standards of most by invariably keeping her car keys in her purse and under her nose.
- Was Mr. Wagner contributory negligent for his failure to wear a seatbelt and if so, in what percentage?
[31] The exact nature of Mr. Wagner’s injuries was not disclosed in the evidence at this trial. The admissions of fact as to his injuries was confined to the motion heard at the outset of the trial. The evidence was to what happened to him during the event of the vehicle crash was not rich in detail. One of the others in the crash was injured, one was not. Both were wearing seatbelts. There was no expert opinion evidence given as to the relationship of the crash event to the specifics or severity of Mr. Wagner’s injuries and his failure to wear a seat belt. Though expert opinion evidence may not be required to assess contributory negligence for the failure to wear a seat belt, there must be some evidentiary basis to do so. I do not find there is.
- Was Mr. Wagner contributory negligent by reason of choosing to get in the vehicle and stay with the venture as the hours wore on?
[32] I infer that Mr. Wagner knew that Mr. Fellows was about the same age as he. Mr. Wagner had no driving experience. They had been at a party until late in the evening of April 1. He recalled that Mr. Fellows had consumed some alcohol, but there is no evidence this had any effect on his driving or alertness. Though Mr. Fellows was speeding when he drove, there was nothing otherwise untoward in his driving. Mr. Wagner went to sleep. Mr. Fellows lost control suddenly according to the evidence of MF. In all of the circumstances, I would not attribute fault to Mr. Fellows for his injuries in this crash.
- Did Mr. Wagner know or ought he reasonably to have known that Madison Fellows had the vehicle without his mother’s consent, wherefore he is excluded from such coverage as would otherwise be available to him under the uninsured coverage afforded by the defendant, Dominion of Canada General Insurance Company, and must therefore look to the Motor Vehicle Accident Claims Fund for indemnity for his damages?
[33] Tyler Fellows was almost sixteen when the crash happened. He was looking forward to getting his driver’s licence. He had known Madison Fellows for several years, but had not seen him much in the year preceding the night of the crash. He had already gone home for the night when he agreed to get dressed and join Mr. Fellows in the vehicle. They went to pick up two fourteen year old girls.
[34] On one previous occasion, I find, Mr. Wagner had accompanied Mr. Fellows while they travelled in the vehicle belonging to Ms. Ley. On both occasions it was late in the night and early into the morning hours. Though I have accepted that he may not have consciously applied his mind to the subject on April 1 or2, 2011, I consider that Mr. Wagner reasonably ought to have known Mr. Fellows did not have his mother’s consent to possession of her vehicle. He knew Mr. Fellows had consumed alcohol. He had to have known that Mr. Fellows had little experience driving and could not yet have acquired an unrestricted licence. Mr. Wagner could not reasonably have assumed nor reasonably inferred that Mr. Fellows could or would have had his mother’s permission to have her vehicle, late at night, for aimless travel from Keswick to Newmarket, or Keswick to Sutton, into the early morning hours. It follows that he is excluded from coverage under the policy with DOC.
Justice A.M. Mullins
Released: December 7, 2017
CITATION: Wagner v. Fellows, 2017 ONSC 7309
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tyler Wagner by his Litigation Guardian, Angela Wagner
Plaintiff
– and –
Madison Fellows, Melissa Ley and The Dominion of Canada General Insurance Company
Defendants
REASONS FOR DECISION
Justice A.M. Mullins
Released: December 7, 2017