COURT FILE NO.: C-2681-13
DATE: 20180828
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marcia Leigh
Plaintiff
– and –
Elaine Clement, Jason Clement and
Intact Insurance Company
Defendants
P. Peter Diavolitsis, for Elaine Clement, the moving party
Jonathan Sheehan, for Intact Insurance Company, the responding party
HEARD: July 4, 2018
RULING ON MOTION FOR SUMMARY JUDGMENT
cornell j.:
Introduction
[1] This is a motion for summary judgment by the defendant, Elaine Clement (“Elaine”), to have the plaintiff’s claim and the cross claim of Intact Insurance Company (“Intact”) against her be dismissed. In accordance with the reasons that follow, I grant the relief sought.
Background
[2] The facts are simple and not in dispute.
[3] On November 17, 2012, a Chevrolet Uplander van struck the plaintiff’s vehicle. The defendant, Elaine, is the owner of the Chevrolet Uplander van (the “vehicle”). At the time of the collision, the defendant, Jason Clement (“Jason”), was operating the vehicle. Jason is Elaine’s son.
[4] Jason began to live at his mother’s residence in or about August 2012. His driver’s licence was suspended in autumn of 2010. That suspension was still in effect at the time of the accident.
[5] In her affidavit filed in support of this motion, Elaine indicates that she did not permit Jason to have possession of her vehicle because his driver’s licence was suspended.
[6] Elaine admits that on several occasions, she granted possession of the vehicle to her son’s friend, Eric. Eric gave Jason rides. On these occasions, Elaine considered the vehicle to be in the possession of Eric and not her son.
The Issue
[7] The issue is whether there is sufficient evidence for Elaine to establish that at the time of the accident, the vehicle was not in Jason’s possession with her consent.
Position of the Parties
Position of Elaine Clement
[8] Elaine submits that at no point in time did she give express or implied consent to permit Jason to have possession of the vehicle.
Position of Intact
[9] It is the position of Intact that Elaine had given possession of the vehicle to Jason subject to a condition that only a licenced driver operate the vehicle.
Analysis
[10] The Highway Traffic Act, R.S.O. 1990, c. H.8, s. 192(2), provides that the owner of a vehicle is liable unless the vehicle was “without the owner’s consent in the possession of some person other than the owner…”
[11] As this is a motion for summary judgment, I must determine if there is a genuine issue requiring a trial. To do this, I am required to make the necessary findings of fact and apply the law to such facts. I must be satisfied that the rendering of a decision is a proportionate, expeditious and less expensive process that will achieve a just result.
[12] As earlier stated, the facts in this case are not in dispute. I am satisfied that the approach mandated by Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87, and the cases that follow can be applied to the facts of this case.
[13] The question for consideration in cases of this nature is not whether the owner had granted the operator permission to drive the vehicle. Rather, in keeping with the applicable legislation, the question is whether the owner granted possession of the vehicle to another person: see Fernandes v. Araujo, 2015 ONCA 571, 127 O.R. (3d) 115, at para. 56.
[14] The onus of proving that a vehicle was in another’s possession without the owner’s consent rests upon the owner: see Connors v. D’Angelo, 2017 ONSC 1104, at para. 56.
[15] G.R. Strathy J. considered this issue of consent in Seegmiller v. Langer, (2008) 2008 CanLII 53138 (ON SC), 301 D.L.R. (4th) 454 (Ont. S.C.). In that case, Linda Garrett (“Linda”) leased a Pontiac Sunbird (“the Sunbird”). Linda acquired this vehicle on a “lease to own” basis. After acquiring another vehicle, Linda agreed to sell the Sunbird to her daughter, Kelli, and Kelli’s boyfriend, Patrick. The purchasers were responsible for paying the $700 balance remaining on the lease. At the time of this transaction, neither Patrick nor Kelli were licenced to drive. Per the agreement, Patrick and Kelly would become the registered owners when they obtained their licence. Linda also told them that they could not drive the Sunbird until they were licenced. Even though Kelli and Patrick knew they were not to drive the Sunbird, they did so. They knew that it was wrong to take the vehicle. An accident took place. Patrick admitted he was responsible and pleaded guilty to several charges. However, Linda was still the registered owner of the Sunbird. As such, her responsibility was uncertain.
[16] The court needed to decide whether Linda had granted possession of the vehicle to Kelli and Patrick. If so, she would be responsible. In considering this question, the court observed the following at para. 34:
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 CanLII 22084 (ON CA), [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 and Newman v. Terdik, 1952 CanLII 97 (ON CA), [1953] O.R. 1 (C.A.) at 7.
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.
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).
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, (1990), 1990 CanLII 8082 (ON CA), 40 O.A.C. 149, [1990] O.J. No. 1583 (C.A.).
The owner’s vicarious liability under s. 192 is based on possession, as opposed to operation of the vehicle: see Thompson v. Bourchier, above; Finlayson v. GMAC Leaseco Ltd., above.
“[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.
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. (1987), 1987 CanLII 4199 (ON SC), 61 O.R. (2d) 257, [1987] O.J. No. 829 (Ont. H.C.).
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.
[17] In Seegmiller, the court had no difficulty in finding that Patrick and Kelli had possession and control of the Sunbird with Linda’s consent. The court came to this conclusion despite the driving prohibition imposed by Linda. In coming to this conclusion, the court observed that Linda had relinquished dominion and control over the Sunbird to Kelli and Patrick. As such, Kelli and Patrick could have sold the vehicle, sent it to a scrap yard or had it towed for repair.
[18] Intact relies upon Fernandes, where the court also considered this issue of consent to grant possession.
[19] In Fernandez, the owner of an ATV gave possession of the ATV to another party. The use of the ATV was explicitly restricted to the farm property. In violation of this condition, the operator left the farm property, rolled the ATV and injured the passenger.
[20] The owner of the ATV argued that he had not granted possession of the ATV to the operator because he had limited the use of the ATV to the farm property. Sharpe J.A. concluded otherwise. In finding that possession had been granted, the judge noted at para. 4 the following:
this court affirmed a long line of authority going back to 1933 holding that as the vicarious liability of an owner rests on possession rather than operation of the vehicle, the owner will be vicariously liable if the owner consented to possession, even if the driver operated the vehicle in a way prohibited by the owner.
[21] Intact also relies upon Donald v. Huntley Service Centre Ltd. et al. (1987), 1987 CanLII 4199 (ON SC), 61 O.R. (2d) 257 (S.C.). In that case, a mother permitted her son to use a company vehicle several times with his friends on the understanding that the son would not drive. There was an “express prohibition” against the son driving, something that the son and friend “could not have misunderstood” (at p. 18). Despite this condition, the court found, at p. 19, that the mother was liable because “the possession of the automobile herein was delivered by the owner through [the mother] to [her son]”.
[22] My attention was also drawn to the case of Myers-Gordon v. Martin, 2013 ONSC 5441, 117 O.R. (3d) 142. In that case, the question arose whether Karen Martin (“Karen”) gave her son, Randy Martin (“Randy”), permission to drive her vehicle at the time of a tragic accident.
[23] On September 26th, 2009, Randy was driving his mother’s 2005 Dodge Durango (“the Durango”). While driving, Randy was involved in an accident that killed two young persons and seriously injured two others.
[24] On the night in question, Randy went into his mother’s bedroom, found the keys to the Durango and drove off to a party.
[25] Early the next morning, Randy was impaired, driving over the speed limit and ran a stop sign. Shortly thereafter, he struck four young persons who were standing next to a parked vehicle.
[26] In that case, Karen did not give Randy express consent to use the vehicle. The court needed to determine whether Karen provided implied consent to possession.
[27] The court found that there had been a number of occasions prior to the accident when Randy had driven the Durango with Karen’s permission. Both Karen and Randy knew during these occasions that Randy could not legally drive. There were inconsistencies in the evidence regarding Randy’s use of the vehicle prior to the accident. Karen did not take precautions to prevent Randy from using the vehicle. She left the keys of the vehicle at home when she went away. Randy knew where the keys were. Finally, Karen never reported to the police that the vehicle was taken without her consent on the night of the accident.
[28] The court found that Karen could have done more to exert control over her vehicle. She could have taken safeguards with the keys and told Randy that he was not to use the vehicle while she was away.
[29] Despite this evidence, the court ruled that Karen satisfied the onus to prove that Randy did not have possession of the vehicle with her consent. The court came to this conclusion despite the evidence that Karen allowed Randy to use the vehicle on previous occasions and despite finding that she had not taken reasonable precautions to prevent Randy from having possession of the vehicle. This decision was upheld on appeal: see Myers-Gordon v. Martin, 2014 ONCA 767, 69 M.V.R. (6th) 1.
[30] The cases Intact relies upon to establish possession can be distinguished.
[31] In Seegmiller, it is clear that the owner had parted with possession of the Sunbird by selling the vehicle.
[32] In Fernandez, it is evident that the owner gave possession of the ATV to the operator and permitted the operator to possess and use the ATV on the farm property.
[33] Finally, in Donald, the court found that the owner granted possession of the company vehicle to the son, on the understanding that the son not drive.
[34] In this case, I find as a fact that Elaine did not give possession of the vehicle to her son. It is true that Jason admitted on discovery that on occasion, Elaine permitted him to start the vehicle and, on occasion, to make repairs to it. However, this falls far short of possession. This evidence does not establish that Elaine relinquished possession of the vehicle in favour of Jason.
[35] In her affidavit filed in support of this motion, Elaine deposes that she was well aware that Jason’s licence was suspended when he moved in with her. As a result, “he was not permitted to have possession of my vehicle.” She further states that on the day in question, “Jason had taken my vehicle without my knowledge or consent while I was sleeping.” She further states, “I am not aware of Jason previously having been in possession of my vehicle while he was living with me”.
[36] In his affidavit filed in support of this motion, Jason states, “I took my mother’s vehicle while she was sleeping, without her knowledge or consent. At the time, I knew that I was not permitted to take her vehicle, but I thought I would have it back before she realized that I had taken it”.
[37] This evidence is uncontradicted. Nothing suggests that Elaine had relinquished power, control or dominion of the vehicle to Jason.
[38] Intact attempts to challenge this evidence by pointing to the fact that on three or four previous occasions during the preceding months, Elaine had permitted Jason’s friend, Eric, to operate the vehicle. On these occasions, Eric provided Jason with a ride. Intact argues that Elaine had granted possession of the vehicle to Jason on the condition that only a licenced driver operate it. There is no evidence to support this proposition and accordingly, I reject it.
[39] I find that on those few occasions where Eric operated the vehicle, Elaine granted possession of the vehicle to Eric and not Jason.
[40] Although Elaine said on discovery that she usually kept her keys in her coat pocket or purse, she did acknowledge that there were times when they were on the kitchen table. Jason’s discovery evidence indicates that the keys to the vehicle were usually kept in his mother’s coat pocket or in her purse. The evidence indicates that Elaine kept control of the keys and possession of the vehicle.
[41] When all is said and done, I am left with Jason’s uncontradicted evidence that he took his “mother’s vehicle while she was sleeping, without her knowledge or consent” in the expectation that he would have the vehicle “back before she realized that I had taken it.”
Conclusion
[42] I am satisfied that Elaine Clement has met the requirements to determine the matter on a summary basis.
[43] I am further satisfied that Elaine Clement has established that, at the time of the accident, Jason Clement did not have her express or implied consent to have possession of the vehicle.
[44] In view of these findings, I grant summary judgment in favour of Elaine Clement dismissing both the plaintiff’s claim and the cross claim of Intact Insurance Company against her.
Costs
[45] If the parties are unable to agree upon costs, the moving party shall have 14 days to provide written submissions to me, such submissions not to exceed 2 pages together with supporting documentation.
[46] Intact shall have 14 days from the receipt of such documentation to deliver a response, such response not to exceed 2 pages together with supporting documentation.
[47] Any reply by the moving party shall be delivered within seven days.
[48] In the absence of such written submissions within this timeframe, it shall be conclusively determined that the issue of costs has been settled.
The Honourable Mr. Justice R. Dan Cornell
Released: August 28, 2018
COURT FILE NO.: C-2681-13
DATE: 20180828
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marcia Leigh
Plaintiff
– and –
Elaine Clement, Jason Clement and
Intact Insurance Company
Defendants
RULING ON MOTION FOR SUMMARY JUDGMENT
Cornell J.
Released: August 28, 2018