COURT FILE NO.: 15-808
DATE: 2020 10 28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Andrew Debartolo
Plaintiff
– and –
Dave Sanderson, Dan’s Taxi, Donald Vanzeyl, Marianne Vanzeyl and Aviva Insurance Company of Canada
Defendants
Zev Bergman, for the Plaintiff (Did not attend on this Motion)
Peter Duda, for the Defendants, Dave Sanderson, Dan’s Taxi and Aviva Insurance Company of Canada
R.D. Rollo and Symone Marlowe for the Defendant Marianne Vanzeyl
HEARD: September 28, 2020, Zoom Conference
Justice Mossip
Decision
[1] The defendant Aviva Insurance Company of Canada (“Aviva”), brought a motion for summary judgment dismissing all claims and crossclaims against Aviva brought by the plaintiff. The plaintiff Andrew Debartolo (“Andrew”) was the passenger in the taxi at the time of the accident. He claims uninsured coverage pursuant to the Aviva policy issued to Dan’s Taxi.
[2] The defendant, Marianne Vanzeyl (“Marianne”), the owner of the motor vehicle involved in the accident with the taxi, brought a cross motion for summary judgment, dismissing the plaintiff’s action against her.
[3] The defendants, Dave Sanderson and Dan’s Taxi are not involved in the litigation.
[4] The defendant, Donald Vanzeyl (“Donald”), the driver of the motor vehicle involved in the accident with the taxi, was noted in default.
[5] The plaintiff did not participate in these motions.
[6] The parties agreed that the hearing of this long motion could be done by way of Zoom videoconference.
[7] Counsel also agreed that the motions were an appropriate case for rule 20 summary judgment motions. Counsel agreed there are no substantial facts in dispute between the parties. In fact, the parties rely on essentially the same facts to ask me to come to different conclusions.
[8] Counsel request that based on what they say I should find on the undisputed facts, that the action should be dismissed against their respective clients.
Sole Issue to be Determined
[9] The plaintiff, a passenger in Dan’s Taxi, was involved in a motor vehicle accident on March 17, 2014. He alleges he was injured in that accident and claims damages for his injuries.
[10] The defendant, Donald was the driver of the other motor vehicle (“Malibu”) involved in the accident.
[11] Donald is the son of the defendant Marianne, the registered owner of the Malibu.
[12] The sole issue for my determination is: did Donald have the express or implied consent of Marianne to possess and operate the Malibu when it was involved in the accident?
[13] The parties agree that pursuant to s. 192(2) of the Highway Traffic Act (“HTA”), in order to escape the vicarious liability provisions of this section, the onus in on Marianne, to prove on a balance of probabilities that the Malibu was in possession of, and being operated by, Donald, without her consent.
[14] It is not disputed that there is no evidence that Donald was driving the Malibu with Marianne’s express consent.
[15] The question to resolve is whether, in all of the circumstances, Marianne can satisfy the court that Donald had possession of the Malibu without her implied consent.
Undisputed Facts
[16] At all material times Marianne was the owner of a 2011 Malibu LTZ with licence plate number BPKF 975, referred to as the Malibu in this decision.
[17] On March 17, 2014, the Malibu was involved in a motor vehicle accident while being operated by Marianne’s son, Donald.
[18] At the time of the accident, Donald was severely intoxicated. He was convicted of a criminal offence with respect to driving the vehicle while intoxicated.
[19] In and around the time of the accident, Marianne and Donald resided at the same house in Fergus, Ontario, owned by Marianne.
[20] Prior to the accident, Marianne had never given Donald express consent to operate her vehicle.
[21] After she had purchased the Malibu, in 2011, Marianne kept the primary set of keys to the vehicle on her person, or on top of a desk inside the front door of her home. The spare set of keys were kept in a drawer in the same desk.
[22] In 2006, Donald was convicted of, among other offences, driving while impaired. As a result of this conviction, Donald’s licence was suspended and never reinstated.
[23] At the time of this licence suspension, Marianne explicitly told Donald he could not operate her vehicle.
[24] In August, 2012, Donald was charged with one count of driving while under suspension and failing to surrender an insurance card. Marianne stated she was not aware of these charges until August 31, 2020. There is no evidence to the contrary. Donald was not driving Marianne’s car when these charges arose.
[25] Donald commenced a romantic relationship with Amanda DeWilde (“Amanda”) sometime in 2013. Amanda often stayed at the Fergus residence and had her own set of keys to the residence. Amanda had her own vehicle, a 2002 Pontiac Grand Prix. (“the Pontiac”).
[26] Amanda knew Donald did not have a valid driver’s licence. She would let Donald drive the Pontiac on occasion.
[27] Donald and Amanda knew the keys to the Malibu were kept in the front desk drawer at the Fergus residence.
[28] Marianne went on a holiday to Mexico in March, 2014. The night before flying to Mexico, Marianne, along with her partner at the time, as well as Donald and Amanda, went in the Malibu to a hotel near Pearson airport. Marianne instructed Amanda to drive the Malibu back to her home in Fergus and park it in the driveway. She told Amanda to “toss” the keys in the drawer. Marianne arranged for Amanda to pick her up from the airport upon her return from Mexico on March 19, 2014.
[29] Aside from March 11, 2014 when Amanda drove the Malibu back from the airport, neither Amanda, nor anyone else ever operated the Malibu but Marianne.
[30] At the time of the accident on March 17, 2014, Amanda was with a friend in Guelph. At the time of the accident Donald was operating the Malibu northbound on Wellington Road 7, leading directly from Guelph.
[31] Marianne was told about the accident by a friend who sent her a text in Mexico. Marianne returned to Canada on March 19, 2014 and was picked up by a friend. On March 24, 2014, she gave a statement to her insurance company. On March 25, Marianne gave a statement to the police and reported that the Malibu had been stolen.
[32] Donald and Amanda’s relationship ended in November, 2017.
[33] Marianne and Amanda were cross-examined on their affidavits in support of these motions. Despite various attempts to locate Donald, he has not been cross-examined. Marianne has not disclosed the particulars of Donald’s whereabouts.
[34] Marianne did not explicitly tell Amanda or Donald not to drive the Malibu while she was on vacation in Mexico.
[35] No formal steps were taken by Marianne to ensure Donald could not drive the Malibu while she was on vacation.
[36] On March 11, 2014, Amanda drove the Malibu back from the airport to the Fergus residence and parked the vehicle in the driveway. Amanda believes that Donald observed her putting the spare keys in the desk drawer in the hallway.
[37] When Amanda left the Fergus residence after dropping off the car, she “casually” told Donald, “don’t fucking drive the car”. Amanda did not return to the Fergus residence or see Donald before the accident on March 17, 2014.
[38] Marianne and Donald both knew the spare keys to the Malibu were kept in the desk drawer in the front hallway of the Fergus residence.
[39] Prior to the accident Marianne did not think that Donald would ever operate the Malibu because he did not have a driver’s licence and because in 2006, Donald told Marianne that he would not operate her vehicle.
[40] Marianne was told by her insurer that Donald would be excluded from coverage if he ever operated her vehicle. Donald was never on her insurance policy and he was aware that he was not permitted to operate her vehicle because she told him he could not. Since 2006, Donald never asked her if he could drive her vehicle. She did not repeat to Donald her prohibition of him driving her vehicle that she gave him in 2006.
[41] Marianne did not give Amanda permission to operate the Malibu while she was in Mexico. Amanda had her own car. Marianne did not give permission to Donald to drive the Malibu.
[42] Amanda testified that she was not concerned that Donald would drive the Malibu, but she warned him in a casual way not to drive the Malibu.
[43] Amanda had no knowledge of Donald ever operating the Malibu with or without Marianne’s consent.
The Law
[44] Counsel agree that the starting point on the issue of vicarious liability of a car owner that is set out in s. 192 of the HTA, is explained in the decision of Thompson v. Bourchier, 1933 CanLII 106 (ON CA). The policy reasons for what was then s. 41 and 41(a) of the HTA is set out as follows:
I think it must be conceded that the object of the Legislature in enacting secs. 41 and 41(a) of the Highway Traffic Act was to protect the public by imposing upon the owner of a motor vehicle the responsibility of the careful management thereof and of assuming the risk of those to whom he entrusted possession that they would observe the law, and that if they failed in the discharge of that duty the owner – using the words of the statute – would be responsible “for all loss and damage sustained in the operation thereof.
[45] As set out at the outset of this decision above, the issue in this case is whether Donald drove the Malibu with the implied consent of Marianne at the time of the accident.
[46] In the SCC decision of Palsky et al v. Humphrey et al, 1964 CanLII 96 (SCC), [1964] S.C.R. 580, the test for determining whether implied consent existed is set out. In restoring the decision of the trial judge, who found the driver of the motor vehicle was driving with the implied consent of the owner, Spence, J. for the court wrote at para. 3:
What the learned trial judge was doing was putting to himself the question whether all the circumstances were such as would show that the person who was driving had the implied consent of the owner and therefore, of course, whether he would have been justified in deeming that he had such consent. In fact, the learned trial judge did examine with very considerable detail all of the circumstances which go to show whether the driver Harvie had the implied consent of the owner Humphrey to drive the vehicle in question….
[47] So, the law is reasonably clear; the test set out many decades ago. It is the application of the law to the facts before me that drives the result.
[48] There were numerous decisions, several the same, referred to me by counsel.
[49] In Myers-Gordon (Litigation Guardian of) v. Martin, 2013 ONSC 5441, [2013] O.J. No. 3935, Justice Kent set out a useful summary of the jurisprudence dealing with implied consent. His decision was affirmed at the Court of Appeal, 2014 ONCA 767.
[50] I set out his helpful summary of this jurisprudence at paras. 15-20 of that decision:
15 Implied consent, or lack of implied consent, is not to be determined solely at the specific time of the accident. See: Mugford v. Weber, 2004 ABCA 145, [2004] A.J. No. 508 (Alta. C.A.). A negative answer to the hypothetical question of whether consent had been given, if made after the accident, may not relieve the owner of liability. See: Mugford at para. 44.
16 It is therefore necessary to examine what other courts have found to be indicia of implied consent.
17 See: Cameron v. Halverson, [2004] A.J. No. 1786 (Alta. Q.B.) in which a daughter was found to have given her implied consent to her unlicensed father to drive her vehicle by leaving it in her parents' driveway when she went away. She knew her father had driven her vehicle in the past and she had only given him a gentle admonishment. By giving him access to the vehicle and the keys, she had given her implied consent to its use.
18 See also: Korencik v. Hartwell, 2007 ABQB 459 (Alta. Q.B.), where parents had left a vehicle with their son to conduct repairs. Instead, he drove to a party and was involved in an accident. The Court determined that a son was given possession and had access to the keys and the son did not believe that he required express permission to operate the vehicle that evening. The evidence did not support that the parents required specific consent to operate the vehicle.
19 In Traders General Insurance Co. v. McCubbin, 2009 CanLII 58592 (ON SC), [2009] O.J. No. 4478 (Ont. S.C.J.), Justice Belobaba determined that the son did not have explicit consent to drive the vehicle but he did have implied consent. The evidence demonstrated that the respondent allowed the son to drive the truck on private roads and when he learned the son had been occasionally driving on public roads, simply told the son to be careful. On the day of the accident, the son had another licensed driver with him, but not one with four years' experience, as required by conditions of the son's licence.
20 In the 2008 decision of Seegmiller v. Langer, 2008 CanLII 53138 (ON SC), [2008] O.J. No. 4060 (Ont. S.C.J.), the court found that there was consent to possession despite the condition of non-operation. A registered owner's daughter and the daughter's boyfriend were not licensed and were prohibited from driving the vehicle in question until they had their licences. The vehicle was parked in the driveway of the mother's home where she lived with her daughter and the daughter's boyfriend. The keys were left on a hook inside of the door of the house. The keys were not specifically given by the mother to the daughter or her boyfriend and, while the mother was away from the home, the daughter and her boyfriend took the vehicle, drove it on the highway and were involved in an accident. Justice Strathy found that the mother was liable as the owner of the vehicle as she had consented to her daughter and boyfriend having possession and control of the vehicle even though they had been prohibited from operating it. Justice Strathy reviewed the case law and distilled from it the following eight principles:
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.
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.
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.
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.
The owner's vicarious liability is based on possession, as opposed to operation of the vehicle.
Consent to possession of a vehicle is not synonymous with consent to operate it.
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.
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.
[51] In a more recent decision, which followed Thompson, the Ontario Court of Appeal in Finlayson v. GMAC Leaseco Ltd., 2007 ONCA 557, held that vicarious liability under s. 192(1) of the HTA is based on possession, not operation of the vehicle.
[52] Applying the above rational, in Henwood v. Coburn, 2007 ONCA 882, the court held that for vicarious liability, the question that must be answered is whether there was consent to possession by the driver of a vehicle involved in an accident, that can be attributed to the owner of the motor vehicle.
Analysis and Decision
[53] Although this rule 20 motion proceeded on consent of both counsel, I begin this analysis by stating that there in no doubt the case before me is an appropriate one to be determined by way of a summary judgment motion.
[54] Counsel do not have any serious dispute over the relevant facts. Further, there are not a great deal of facts to assess.
[55] Counsel also agrees on the applicable law.
[56] In assessing all of the facts that were before me, I am satisfied on a balance of probabilities that Marianne has met her onus. Donald was driving the Malibu at the time of the accident without her consent, explicit or implied.
[57] I found the facts and analysis of Perell, J. in Conners v. D’Angelo, [2017] O.J. No. 805, instructive in my analysis. For similar reasoning as I have made, he did not find the owner of the vehicle in the case before him vicariously liable, pursuant to s. 192 of the HTA. In that case the owner’s unlicensed nephew drove her car and was involved in an accident. The owner had left her car at her sisters, while she was on vacation.
[58] At its highest, Aviva sets out in para. 86 of its’ Factum, the facts it relies on, to submit that I should find Donald was driving his mother’s car with her implied consent:
• Marianne could not possibly have believed that, in the circumstances, her son, Donald was fully aware that he did not have her permission to take the Malibu;
• Donald clearly did interpret access to the keys as giving him permission to take the Malibu;
• Marianne had every reason to suspect that her son, Donald, was capable of taking her car prior to, or on March 17, 2014; and, she was or should have been further aware of him taking the Malibu prior to – especially in the week she was gone away to Mexico – or in particular on the date of the accident, March 17, 2014.
[59] Counsel for Aviva suggests I could speculate as to what Donald might have said if he had been cross-examined. Counsel invites me to draw an adverse inference against Marianne based on that speculation. I decline to do so.
[60] Further, at its highest for Aviva, even if Donald testified that he believed he could drive his mother’s car, the subjective thoughts of Donald are relevant, but not determinative, of whether he had the implied consent of Marianne to possess the Malibu at the time of the accident.
[61] Counsel for Aviva consented to this matter proceeding by way of a rule 20 motion based on the material that was before me.
[62] There were legal and investigative steps counsel for Aviva could have taken to compel Donald to testify if they wanted his testimony on this issue.
[63] I have decided this case on the evidence before me, not speculation about what Donald might have said if questioned.
[64] As Perell, J. wrote, it is helpful to consider the circumstances in the cases where vicarious liability has been assigned to an owner in deciding the case before him.
[65] I have also done so and find that, except for the fact that the keys to the Malibu were not hidden, there are no facts in this case that support the inference that Donald had the implied consent of Marianne to possess her Malibu at the time of the accident.
[66] Since 2006, Donald had been prohibited from driving Marianne’s motor vehicle. He had never asked in 8 years to drive her vehicle. Marianne had no reasonable expectation that he would take her vehicle. She had a significant history of good behaviour with respect to Donald and her car that she should have been reasonably able to rely on that good behaviour.
[67] The keys to the vehicle were in the same place they always were. Donald had never taken them, and the Malibu before, or even indicated he would do so.
[68] Marianne gave temporary and limited possession of her Malibu to Amanda for a limited purpose. There is no evidence that Amanda passed that possession onto Donald. In fact the opposite is true. When Amanda left the keys at Marianne’s home she expressly told Donald not to drive the Malibu.
[69] There is no evidence that Marianne had any reason to anticipate that Donald would take her vehicle. She did everything reasonable in the circumstances to ensure he would not drive her vehicle. As Marianne’s counsel submitted, there is no case that suggests Marianne had to keep repeating her prohibition to drive her car to her son, who at this time, was an adult.
[70] Further, as Justice Perell found in Conners, the fact that Marianne was late in reporting her vehicle stolen, and did not immediately tell the police her son stole her vehicle, is not determinative of the issue I had to decide. As Perell, J. wrote at para 65 and 66:
[65] In the immediate case, the circumstances that Mr. D’Angelo was charged with taking a motor vehicle without consent and that he admitted his wrongdoing establishes only that, for the purposes of the Criminal Code, he took a motor vehicle without consent, which just begs the question of whether he had possession of the motor vehicle without the consent of the owner for the purposes of the Highway Traffic Act, which, as the above discussion reveals, has its own special interpretation.
[66] In some cases, but not the immediate one, the driver’s conviction for theft or taking a vehicle without consent under the Criminal Code would negate the owner’s vicarious liability under the Highway Traffic Act. In the immediate case, in my opinion, vicarious liability was negated regardless of the outcome of the criminal proceedings.
[71] I find the circumstances in the case before me are akin to what was before Justice Perell and adopt his reasoning.
Decision
[72] For the above reasons, I find that Marianne’s vicarious liability has been negated in these circumstances.
[73] The summary judgment motion of Aviva is dismissed.
[74] The summary judgment motion of Marianne is granted, and the action is dismissed against Marianne.
[75] If the parties cannot agree on the issue of costs, they may make submissions in writing. Marianne shall serve and file costs’ submissions (10 pages) within 20 days of today’s date. Aviva shall have 20 days from receipt to serve and file reply submission (10 pages). Marianne shall serve and file brief (5 pages) reply submissions within 10 days of receipt of Aviva’s submissions.
Justice N.M. Mossip
Released: October 28, 2020
COURT FILE NO.: 15-808
DATE: 2020 10 28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Andrew Debartolo
Plaintiff
– and –
Dave Sanderson, Dan’s Taxi, Donald Vanzeyl, Marianne Vanzeyl and Aviva Insurance Company of Canada
Decision
Justice Mossip
Released: October 28, 2020