ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-15-529632
DATE: 2019-06-04
BETWEEN: )
) J.A. Michael Wolfe for the Plaintiffs
CHO-LAM IP and LAI-KUEN IP )
Plaintiffs )
-and- ) )
OLALEKAN KARIMU OLOKUN, ) Rovena Hajderi for the Defendant
SASHAWA ANISHKA SMITH and ) Sashawa Anishka Smith
TD HOME AND AUTO INSURANCE COMPANY ) Akari Sano for the Defendant
) TD Home and Auto Insurance
) Company
Defendants )
HEARD: APRIL 29, 2019 and JUNE 3, 2019
LEIPER, J.
ENDORSEMENT
(Motion for Summary Judgment Brought by the Defendant Sashawa Anishka Smith)
INTRODUCTION
[1] These are reasons on a motion for summary judgment brought by the defendant Sashawa Anishka Smith (“Smith”) arising from a motor vehicle accident that took place at Midland Avenue and Lockie Avenue in Toronto on June 9, 2013. The defendant, Mr. Olokun (Olokun) was driving a car owned by the defendant Ms. Smith (“Smith”) when the car he was driving collided with the car being driven by the plaintiffs.
[2] The plaintiffs claim injuries and damages arising from the collision and pleaded that Smith is liable for any negligence on the part of Olokun as a result of the vicarious liability provisions of section 192(2) of the Highway Traffic Act.
[3] The defendant TD Home and Auto Insurance (“TD”) is the plaintiffs’ insurer and extends uninsured motorist coverage to them. The defendant driver, Olokun, was uninsured. TD brings a cross-claim against the Smith under section 192 of the Highway Traffic Act.
[4] Smith seeks dismissal of the plaintiff’s action and TD’s cross-claim on the basis that she did not consent to Olokun possessing her car. If that is the case, the Highway Traffic Act vicarious liability provisions would not apply to her. TD states that there was implied consent to Olokun’s use of the vehicle on the day of the accident, given that he had used the vehicle in the past and the fact that Smith and Olokun were cohabiting at the relevant time. The plaintiffs take no position on the motion. Olokun did not participate, having been noted in default in the action.
[5] The parties made submissions on two preliminary issues prior to arguing the merits of the motion. The first was whether or not this is an appropriate issue to be addressed by way of partial summary judgment. The second issue is whether or not certain records in the hands of Smith’s insurance company, and summoned to court by TD were relevant and admissible on the motion. A third preliminary issue raised by Smith on the second day of the motion concerning the propriety of the summonses served by TD on Smith’s insurer. This issue was dismissed without oral argument as it was based on a misconception from the first motions day.
THE PRELIMINARY ISSUES
Is this an Appropriate Matter to be addressed by way of Partial Summary Judgment?
[6] Smith and TD agree that the determination of consent to possess Smith’s vehicle was an appropriate question to be determined under the summary judgment process described in Rule 20 and consistent with the principles outlined in Hyrniak v. Mauldin.[^1]
[7] The parties jointly submitted that whether Olokun had Smith’s consent to possess the car is an issue that can be readily bifurcated without risking untimely adjudication of the trial, duplicative proceedings or inconsistent findings.
[8] Motions for partial summary judgments which do not dispose of the whole action, are expected to be rare and limited to circumstances where the issue can be readily bifurcated.[^2]
[9] It is important to consider the potential for frustrating the objectives of summary judgments: to deliver “proportionate, timely and affordable justice.”[^3]
[10] I agree with the position taken by the parties to the motion that this is one of those circumstances where the issue can appropriately be decided prior to trial because:
The record is sufficient and will not improve with delay: the examinations for discovery, the documents supplied to the insurance adjustor, the affidavit of the defendant Smith, Olokun’s statement and the policy materials all assist with a determination of whether Smith consented to Olokun’s possession of the car;
The issue is discrete from the remaining issues at trial: consent to drive relates only to the Highway Traffic Act vicarious liability provisions. This reduces, if not eliminates the risk of inconsistent findings or duplicative and inefficient proceedings;
The main action will not be delayed because a ruling and reasons on this discrete issue can be made expeditiously;
A finding on this issue now will narrow the issues, and the parties at trial. There will be no need to re-argue this point at trial once it is decided;
The moving party and responding party agree that this is an appropriate use of the summary judgment provisions: the plaintiff takes no position and the third defendant is not involved in the action.
[11] I conclude it is appropriate to use the summary judgment procedure to determine whether or not Smith gave consent for Olokun to possess her vehicle and the issue of whether Smith is vicariously liable under the Highway Traffic Act for any driver negligence that gave rise to the accident.
The Document Production Issues
[12] On the first day of the motion (April 29, 2019), TD raised the issue of its request for certain documents from Smith’s insurer. One such document was the full transcript of a statement given by Olokun to Smith’s insurer. Counsel for Smith had provided a summary of Olokun’s statement to TD and TD asked for the entire statement. Counsel for Smith refused to produce more than the summary.
[13] TD had requested these documents prior to the return date of the motion and resorted to using a summons after Smith refused to produce them or to produce the insurance adjustor for examination. TD summoned Smith’s insurer to bring the underwriting file with information related to Smith’s insurance policy and the adjustor’s file, including the complete statement given by Olokun, and any other adjustor notes relevant to the issue of consent for Olokun to possess the car on the day of the accident.
[14] Both parties agreed that on a motion for summary judgment, the parties are required to bring their best evidence forward with the onus on the moving party to show there is no genuine issue for trial and the responding party needing to present its best case in response or risk a ruling contrary to its favour. (See: Dawson v. Rexcraft Storage and Warehouse Inc.[^4]) TD requested the summonsed records in advance of the motion, and in the case of the statement of the driver, Olokun, it had communicated this request in writing to counsel for Smith. On the return date for the return of the summons, counsel for Smith argued that the statement provided by Olokun to Smith’s insurer should not be ordered produced as it was the subject of litigation privilege. This was the first issue that had to be determined before hearing the merits of the motion.
Was the Statement Made by the Defendant Olokun to Smith’s Insurance Adjustor Subject to Litigation Privilege?
[15] TD submitted that the summary of Olokun’s statement established that he admitted to using Smith’s car prior to the day of the accident. TD argued that this meant the statement was relevant to the issue of consent, the single issue to be determined on the motion for summary judgment. Smith responded that the statement was taken following the issuance of the claim, that it was done so in contemplation of litigation and was protected from disclosure by litigation privilege.
[16] TD submitted that the statement was given by Olokun to Smith’s insurance adjustor and accordingly, is a statement by an adverse party and is not protected by litigation privilege at the instance of Smith. TD provided case law relating to a trend toward fuller production at discovery, and argued that this situation is analogous to the decision of De Sousa, J. in Hart v. Canada (A.G.)[^5] where litigation privilege did not extend to keeping the statements of an opposing party from that party where the statements were given to counsel for the opposite party. See also Mancao v. Casino[^6] for this proposition.
[17] TD referred to the decision of the Supreme Court of Canada in Blank v. Canada for the proposition that litigation privilege exists to protect communications between the solicitor and third parties, to ensure the “efficacy of the litigation process.” Parties must be able to prepare their positions in “private, without adversarial interference and without fear of premature disclosure.”[^7] Unlike solicitor-client privilege, litigation privilege is neither absolute in scope nor permanent in duration.[^8]
[18] TD also submitted that by providing a summary of Olokun’s statement to TD, Smith waived any claim of privilege over the statement.
[19] I agreed with the submissions by TD and ordered production of Olokun’s statement to Smith’s insurer. Counsel were invited to attempt to resolve disclosure of the outstanding document productions pending return of the motion, with any further claims of litigation privilege to be addressed via a listing of the documents being withheld.
[20] My reasons for ordering that Olokun’s statement to Smith’s insurer should be produced are as follows:
The statement was relevant and material to the issue on the motion for summary judgment: this was established by Smith’s summary of the statement to TD in which she wrote that “he [Mr. Olokun] used the car every now and then;”
The statement was taken from another party in the litigation who is no longer part of the action, cannot be found and who provided relevant information directly relevant to the motion brought by Smith and disputed by TD. The statement is not per se, lawyer work product, but a statement of a third party defendant. TD did not seek counsel’s comments or writings related to the statement, but only the statement. In that sense, it is analogous to the adverse party statements that were disclosable in Hart and in Mancao. I concluded it was not subject to litigation privilege.
However, if I am incorrect about the application of litigation privilege to the statement, I conclude that Smith waived privilege by choosing to provide a summary of the content of the statement to TD. There was no suggestion in the record that this was inadvertent disclosure: counsel provided the summary in response to a direct request for a copy of Olokun’s statement.
The Underwriting File
[21] The materials under summons from the underwriting file included the insurance policy, which was provided by Smith. No claim of privilege was made over these records and after some brief submissions on relevance, these documents were provided to the court and to TD. In Robichaud v. McAulay[^9] the court ordered production of insurance policy documents in the context of determining whether the driver had consent to possess the vehicle.
The Other Adjustor File Records
[22] Counsel provided some redacted copies of records from the adjustor’s file, and claimed litigation privilege over the redacted portions. Counsel for TD requested an adjournment to obtain a list of the remaining adjustor notes over which litigation privilege was claimed and in order to review the other documents pending the return of the summary judgment motion.
[23] The motion was adjourned for counsel to complete the record and to resolve or argue the admissibility of the final set of adjustor records.
[24] On the return of the matter on June 3, 2019, I reviewed all of the documents produced. I determined that the statement from the driver, the insurance application, the policy and the adjustor entries had completed the record. TD made additional submissions on the remaining documents over which a summary claim of litigation privilege had been made by Smith. Based on the records produced, the speculative nature of the submissions that there might be more relevant material, the fact that the insurance company witnesses had no direct knowledge related to possession or control of the car and the lack of further foundation for material in any of the correspondence, I concluded that the matter should proceed on the record as filed as of June 3, 2019.
BACKGROUND FACTS TO DETERMINING THE ISSUE OF OLOKUN’S CONSENT TO POSSESS THE VEHICLE
[25] The background facts are taken from the examination for discovery transcript of the defendant, Ms. Smith on September 22, 2016, the affidavits sworn in support of the motion, the documents attached to those affidavits, the transcript of the statement from Olokun and the underwriting file documents as to the insurance policy between Smith and her insurer.
Ownership and Use of the Defendant Smith’s Vehicle
[26] At the time of the accident, Smith was the registered owner of a 2008 Honda Civic (the “vehicle”). Smith was the sole insured and responsible for the maintenance of the vehicle. Smith was employed as a registered nurse, and worked shifts at the Runnymede Health Centre in Toronto.
[27] Prior to the accident, Olokun and Smith had been dating. In early 2013, they signed a one year lease together in an apartment building. Olokun did not live “consecutively” in the apartment. He would “come and go” and did not always pay his share of the rent. This was an issue in their relationship. In his statement, Olokun described their relationship as “friends” and then “not common law, we were just staying together.”
[28] Smith kept the vehicle in the underground parking area at the building. She used the Honda to drive to work. Olokun did not own a car. He was employed as a labourer and either took transit to work, or Smith drove him to work. When Olokun was not staying at the apartment with Smith, she believed he stayed at his parents’ house.
[29] Smith swore in her affidavit that to her knowledge Olokun had not taken the vehicle on any day before the accident. When they went out together, she drove and he was the passenger. She swore that she had explicitly told him that he was not to use the vehicle because she was the only person named in the policy and the person who paid the premium. In her examination for discovery, Smith said that they came to the agreement about the vehicle around the time they moved in together. Ms. Smith was not cross-examined on the affidavit sworn in support of this motion.
[30] Smith also testified at discovery that she did not have any reason to believe that Olokun would take the vehicle without permission. She was unaware of any criminal record or other negative driving record on the part of Olokun. She knew Olokun had a driver’s license. She had not previously caught him using the vehicle without permission. In her examination for discovery, Smith testified that she could not remember having noticed gas being used in the past or being suspicious that Olokun had been using the vehicle.
[31] Smith had one car key, which was on a chain with her apartment key. Smith generally kept her keys in her jacket pocket and locked the vehicle when it was not in use. During her examination for discovery, Smith was asked about using a jacket in June: she described it as “light jacket.”
[32] On July 28, 2015, Olokun gave a taped statement to Smith’s adjustor that described his use of the vehicle on the day of the accident and prior to that. He confirmed that Smith was the registered owner of the car, he was not listed as a driver on her insurance policy and he did not have a set of keys to the vehicle. He said that on the day of the accident he “stepped out with the car” when Smith was asleep.
[33] Olokun then gave a series of inconsistent answers on the issue of his use of the vehicle prior to the day of the accident and Smith’s knowledge. The first exchange about use took place beginning at line 32 of the transcript:
32 Q. Okay. Did you borrow her vehicle on more than that occasion?
A. Uh-huh.
33 Q. How often would you say you were using her vehicle when you guys were living together?
A. Every now and then.
34 Q. Okay. Um, on the date of this accident that happened, did you ask her for the permission to use the vehicle or, you mentioned that she was sleeping, right?
A. Yeah.
35 Q. Did she know beforehand that you were taking the vehicle?
A. Uh, no.
36 Q. Okay. Uh, on other occasions when you used her vehicle, was it asked or you just take the vehicle.
A. Uh, it wasn’t asked, just took the vehicle.
37 Q. And she was okay with that?
A. Uh, without her consent she wouldn’t have known, so she wasn’t really aware, put it that way.
38 Q. On the other occasions as well?
A. On the other occasions she was aware.
39 Q. Okay.
A. Uh, but it wasn’t uh, a far distance, you know I was driving with G1.
40 Q. Okay.
A. That’s the whole problem, however, you know it wasn’t it wasn’t actually, because right now I have the G1 uh, it was just maybe the licence was already suspended, I had a G2, I didn’t go for the G uh, yeah, but I think I had the licence but it was expired.
[34] The adjustor returned to the question of Smith’s knowledge at the end of the statement and this exchange reads:
97 Q. …Prior to this accident date, do you remember how long it was you borrowed her vehicle?
A. How long it was?
98 Q. Yeah
A. On that day.
99 Q. No, you borrowed her vehicle on that day?
A. Right.
100 Q. How many days before did you borrow the vehicle again not after, but beforehand?
A. Uh, I mean um, most times, would be in the evening uh, so just the three.
101 Q. Okay.
A. Three days, I mean three times.
102 Q. Okay.
A. Before.
103 Q. And she was aware when you took her vehicle before?
A. Um, no.
104 Q. Did you assume that you had permission to take her vehicle or, or you took it when she wasn’t aware because you knowingly knew she wasn’t aware?
A. Uh, so to not to, not to uh, stress her.
105 Q. Okay.
A. Yeah.
At the end of the statement, Olokun, confirmed that the information he had provided was “true and correct to the best of his knowledge.”
The Day of the Accident
[35] On the day of the accident, Smith was scheduled to work at 3:00 p.m. She woke up at one point for about an hour and a half, then went back to sleep. Olokun had stayed over the night before. On awakening to get ready for work, she noticed that there had been some attempted calls to her phone from a number she did not recognize. When she called the number, Olokun told her he had taken the vehicle and been in an accident. He told her his reason for taking the vehicle was to get his cell phone repaired. He returned to the apartment building with the tow truck driver and from there Smith and Olokun went to the tow yard.
[36] Smith observed the damage to the vehicle. She returned home by bus with Olokun. In the aftermath of the accident, Ms. Smith testified she was upset and angry with Mr. Olokun. Ms. Smith reported to her insurance company that the vehicle had been stolen, although she did not report it stolen to the police.
[37] In July of 2013, Smith terminated the lease on the apartment.
[38] Olokun was noted in default in these proceedings. Smith testified that she had not had contact with him since a telephone call in June of 2016 and that she had erased his telephone number. TD attempted to locate Mr. Olokun in advance of the motion, but was unsuccessful.
[39] Olokun’s account of the day of the accident was that he took Smith’s car keys from the table while she was asleep and “stepped out with the car” without her prior knowledge. He said he was in a rush and he had an appointment for a job application. He confirmed that his drivers’ licence was expired and that as a result of the accident, he was charged in relation to his licence. Olokun said that Smith did not know his licence was expired.
The Issue for Summary Judgment: Did Olokun Have Permission Express or Implied, to Possess Smith’s Car?
[40] The Highway Traffic Act establishes the vicarious liability of a car owner for the negligence of another driver using the vehicle. This puts the onus onto the owner for he careful management of their vehicle. Where an accident takes place, it falls to the owner to establish whether their vehicle was in the possession of another person without the owner’s consent. This requires consideration of not only the subjective perspective of the owner, but also of all of the evidence related to use, consent to drive and whether or not the driver had “power, control or dominion” over the vehicle. See s. 192(2) of the Highway Traffic Act, [^10] Fernandes v. Araujo,[^11] and Seegmiller v. Langer.[^12]
[41] Here, TD argues that Smith did not give express consent for Olokun to take the vehicle on the day of the accident, he had prior implied consent to use the vehicle. This stems from two aspects of the evidence on the motion. The first aspect is that their relationship and the sharing of an apartment should lead the court to infer that they were also sharing the vehicle owned by Smith. Second, TD argued that Olokun’s statement that he had used the vehicle before and Smith was aware, is inconsistent with Smith’s evidence on discovery and her affidavit.
[42] Smith owned a car, the vehicle that was involved in the accident that has given rise to this litigation. The evidence establishes that she was the sole insured of the vehicle which was parked in an underground parking area attached to the apartment building. She had one set of car keys which she kept with her apartment key. She used the vehicle to go to work. Smith did not share the vehicle with Olokun and had specifically told him that he could not use it. On the day of the accident, he took it without permission, while Ms. Smith was asleep.
[43] The relationship evidence was that this was not a committed relationship on the part of Olokun: he did not always stay at the apartment and his financial contribution was an issue. He did not have his own set of car keys, and Smith’s insurance policy did not include him as a driver. Further, according to his evidence at the time of his statement, he kept a number of important facts from her: the fact that his licence was expired, his use of the vehicle on the day of the accident. His rationale for doing so was not to “stress her.” When she learned about the accident, Smith became angry with Olokun and by the following month, their lease was terminated. Olokun said they were “friends” who were “staying together” and not “common law.” It would be speculating to infer from this evidence given by both of them about their relationship that they were in such a close and committed relationship that they shared all significant possessions, including the vehicle.
[44] TD also argues that Olokun’s answer at Question 38 of his statement that Smith was aware on other occasions of Olokun’s use of the vehicle is evidence that Smith impliedly consented to his use and possession of the vehicle. Taken in isolation, this could be some evidence of knowledge: however it is contradicted not only by Smith’s detailed evidence as to her rule about the use of the car from her discovery evidence, and in her affidavit on which she was not cross-examined, but also by the inconsistent answers on her knowledge in the balance of Olokun’s statement and excerpted above.
[45] The preponderance of the evidence is that Smith, a registered nurse who had purchased her first vehicle and paid for its care and maintenance had made it clear to Olokun that he was not to use the vehicle. She had one set of keys that she kept in her jacket, and included her apartment keys. When they went out together, she drove. Olokun said he used it on a small number of occasions, either three times, or “now and then” for short distances, either at night, or on the day of the accident, while she was asleep. In two places in his statement, Olokun said he did so without Smith’s knowledge. I infer from reading his statement as a whole, that he kept these uses short and a secret from Smith. She would not have noticed missing fuel if they were short uses. There is nothing to suggest that she was reckless or had information that should have caused her to take more extraordinary measures to keep the keys away from Olokun. He was caught out on the day of the accident and Smith was angry with him for his deception.
[46] TD argued that Smith did not report her vehicle stolen to police: she gave an explanation that she was upset and confused. She did report the matter to her insurance company however, and terminated her relationship with Olokun. I decline to draw an adverse inference from her lack of police report or to conclude that this equates with prior permission for Olokun to possess her vehicle.
[47] I conclude that Smith has rebutted the presumption in section 192(2) of the Highway Traffic Act and established on a balance of probabilities that she had not given implied permission to Olokun to possess her car prior to or on the day of the accident. To the contrary, she had told him he was not to drive her car, and he did not abide by her rule.
Conclusion
[48] As a result of the findings made on this motion, I grant an order for summary judgment in favour of the defendant Sashawa Anishka Smith.
Costs
[49] The plaintiff has requested a “Sanderson” order in relation to the matters at issue as between the defendants. TD and Smith take no issue with such an order and accordingly I order that the defendant Smith’s costs in defending the action be paid by the defendant TD.
[50] Smith and TD have exchanged costs outlines. If they are unable to agree as to costs, brief written submissions may be made on or before June 17, 2019.
Leiper, J.
[^1]: 2014 SCC 7, [2014] S.C.J. No. 7; 366 D.L.R. (4th) 641.
[^2]: Butera v. Chown, Cairns LLP 2017 ONCA 783 at para. 34.
[^3]: Service Mold + Aerospace Inc., v. Khalaf, 2019 ONCA 369 at para 14.
[^4]: 1998 4831 (ON CA), [1998] O.J. No. 3240 (C.A.)
[^5]: [2012] O.J. No. 5200 (S.C.J.)
[^6]: 1977 1327 (ON SC), 17 O.R. (2d) 458 (Ont. H.C.J)
[^7]: [2006] S.C.R. 319 at para. 27.
[^8]: Supra at para 37.
[^9]: 2018 ONSC 3636 at para 11.
[^10]: R.S.O. 1990, c. H-8
[^11]: 2015 ONCA 571 at para 20; 25-28.
[^12]: 2008 53138 (ON SC), [2008] O.J. No. 4060 at para 34.