COURT FILE NO.: CV-17-1711
DATE: 20230125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BIJAN NAGHASH
Plaintiff
– and –
VAHID PASHAHZAHIRI, 2121414 ONTARIO INC., 2424039 ONTARIO INC., MOHAMMAD GANJIKHANY, AZITA MOOCHEH, and AVIVA GENERAL INSURANCE COMPANY
Defendants
Brian Cameron and Jordan Kofman, for the Plaintiff
Raymond Watt and H. Kate O’Malley for the Defendant, Aviva General Insurance Company
Michael Chadwick and Trevor Hume, for the Defendants, Mohammed Ganjikhany and Azita Moocheh
HEARD: November 23, 2022 (Submissions received in writing)
REASONS FOR JUDGMENT
McCarthy J.
Introduction
[1] On or about Monday, July 3, 2017, the Defendant Mohammad Ganjikhany (MG) rented a Chevrolet Cruze motor vehicle (“the vehicle”) from Sky Car and Truck Rental (2424039 Ontario Inc.). MG became a lessee of that vehicle.
[2] MG was in possession of the vehicle on the evening of Wednesday, July 5, 2017, while working alone at his automobile repair shop located at 51 Toro Road in North York (“the shop”).
[3] That same evening, MG received a visit from his friend Ali Mehraein (AM) who was in the company of Defendant Vahid Pashahzahiri (VP). The three individuals chatted for about a half hour before AM and VP left the shop.
[4] On the afternoon of July 6, 2017, MG received a call from AM advising him of an accident involving the vehicle while it was being operated by VP (“the accident”). The accident caused injury to the Plaintiff and gave rise to the current action.
The Issue
[5] The sole issue for determination is whether AM had MG’s express or implied consent to possess the vehicle at the time of the accident. If consent is found, then MG would be vicariously liable at law for any loss or damage caused by VP.
Evidence at Trial
[6] MG was the only witness to testify. He stated that he brought the vehicle to his shop on July 5, 2017 and parked it in the adjacent parking lot. He placed the keys to the vehicle on a hook on a board where both employees and customers’ keys were kept. AM and VP came by the shop between 8:30 p.m. and 9 p.m. MG had known AM for about 2 years; he had never met VP. After their brief discussion, AM and VP advised MG that they were going for cigarettes. The pair asked MG if they could make use of the vehicle. MG replied “no”. AM and VP then left the shop but did not return. At approximately 11:30pm, MG was planning to leave for home when he noticed that both the keys and the vehicle were missing. After several attempts, he reached AM on his cell phone; AM advised that he and VP had taken the vehicle to Woodbine casino. As a result, MG decided to spend the night at the shop; the next morning he took a taxi to and a bus from the Brampton courthouse where he was scheduled to attend. He learned from AM early that afternoon that the vehicle had been involved in the accident.
The Law
[7] At law there is a rebuttable presumption that a vehicle is in the possession of somebody other than the lessee with his consent; if that presumption is not rebutted, then the lessee stands vicariously liable for any loss of damage caused by the negligent operation of the vehicle: s. 192(3) of the Highway Traffic Act, R.S.O. 1990, c. H.8 [HTA].
[8] Whether or not a vehicle is in the possession of some other person with the consent, or the implied consent, of the lessee is a question of fact to be determined by the evidence in the case: see Argante v. Munro, 2014 ONSC 3626, at para. 27. A consideration of implied consent requires a determination of whether the circumstances were such as would show that the operator of the vehicle was, at the time of the accident, in possession of it with the owner’s implied consent: see Sparks v. Cushnie, 2021 ONSC 213, at para. 10.
[9] It is well-established law that, if a vehicle is in the possession of a person with the owner’s consent, then the owner is liable regardless of whether the person actually operating the vehicle has the owner’s consent, even if that person is operating the vehicle contrary to the owner’s express wishes: see Henwood v. Coburn, 2007 ONCA 882, 88 O.R. (3d) 81, at para. 14.
[10] The purpose of s. 192 of the HTA is the protection of the public. The owner of a vehicle is required to exercise careful management of it; and she must bear liability for all loss or damage caused by any person to whom she entrusts possession of that vehicle: see Cummings v. Budget car rentals Toronto Ltd., 1996 CanLII 1629 (ON CA), 29 O.R. (3d) 1 (ONCA), at para. 34.
[11] The accessibility of keys and the lack of steps taken by a vehicle owner to safeguard keys may be considered in determining the existence of implied consent. For example, in Deakins v. Aarsen et al., 1970 CanLII 27 (SCC), [1971] S.C.R. 609,at p. 612, the court relied on the fact that the owner’s son had left keys to the vehicle in the ashtray in finding that the driver had implied consent to access and drive the vehicle.
[12] The law is clear that an owner cannot avoid vicarious liability simply because the operator breached conditions or restrictions placed upon him: see Parkinson v. MacDonnell, 1995 CarswellOnt 1402, at para. 52.
Discussion
[13] MG’s position was that he provided neither express nor implied consent to AM and/or VP to make use of the vehicle. Indeed, MG told the court that he denied their request to use the vehicle.
[14] This assertion and accompanying position cannot survive a hard look at the totality of MG’s own evidence and at the circumstances in which AM obtained possession of the vehicle.
[15] Rather, that hard look supports a finding that there was either express or implied consent for AM and VP to make use of the vehicle. AM was no stranger to MG; they had been friends for several years; AM was a frequent enough visitor to the shop; MG had furnished AM with money in the past; AM had even been employed at the shop at one time; MG knew of AM’s criminal history which included stealing cars; the keys to the vehicle were kept in a conspicuous enough location (on a hook on a board by a door to the entrance to the office) – their location would have been well known to somebody with familiarity with the shop.
[16] I found MG’s evidence to be highly problematic; he conceded that AM would have known about the existence, make and model of the vehicle and the location of the keys; yet he provided no explanation as to why AM would have learned these specific details about a leased vehicle that MG had in his possession for a mere couple of days. This is not a subject matter one would expect to randomly arise during a half hour chat between friends. MG provided no basis or context to understand how the minute details of a Chevrolet Cruze rental would have become the topic of discussion. The only reasonable inference to draw is that MG provided a specific enough description of the vehicle sufficient to identify it in the parking lot next door because he had acceded to his friend’s request to make use of it.
[17] When MG noticed the vehicle was missing, he assumed that AM had taken it. That assumption was confirmed when, after several attempts to reach AM, MG finally spoke with him and asked that the vehicle be returned. When asked why he did not call the police, MG replied that the vehicle had not been stolen; he had spoken to his friend and understood that the vehicle would soon be returned. This is consistent with his evidence that he did not consider there to have been a robbery. Even after learning about the accident, MG did not notify the police that the leased vehicle had been taken and operated without his consent. MG added that he did not call his spouse when he first noticed the vehicle missing because he did not want to upset her; nor did he mention the incident to her when they spoke the next day.
[18] I find this pattern of reaction and conduct on the part of MG to be inconsistent with what one would reasonably expect on the part of an individual who had flatly refused to lend his vehicle to a friend a short time before. On the contrary, I find MG’s reaction and behavior to be far more consistent with a person who understood and accepted that his vehicle was in AM’s possession with his consent. It is equally consistent with a person who had knowingly acceded in actions, conduct or words to the use of his vehicle by his friend. Had MG greeted the request from AM and VP for the use of his vehicle with a flat no, then his subsequent discovery that the pair had taken the vehicle against his wishes, not just to purchase cigarettes, but for a jaunt to the casino, would have prompted and even compelled MG to contact the police. The circumstances in which the vehicle was taken would have allowed for no other reasonable course of action.
[19] I reject MG’s evidence that he flatly refused the request made by AM and VP to use the vehicle. MG failed to provide the court with any reason for this refusal. In and of itself, lending a vehicle to a friend to fetch cigarettes would be routine and commonplace; refusing the request would have been out of keeping with MG’s friendship with AM and his pattern of assisting him. There would have been no reason for MG to suspect that the pair intended to travel to the casino or that VP would be driving. As well, when MG found the vehicle to be missing later that evening, he immediately concluded that AM had taken it and attempted to reach him. This reaction is consistent with a concern that the vehicle, the possession of which he had entrusted to his friend, had simply not been returned to him within an anticipated time frame.
[20] MG’s evidence that he declined to contact his wife because he did not wish to upset her is not plausible. She was not called as a witness; however, I would think that most spouses would be more upset by a family member unexpectedly failing to return home than with learning that a spouse was spending the night at his shop because his vehicle had gone missing. I find that MG would have had no reason to contact either the police or his spouse that evening because his friend was in possession of the vehicle either with his express or implied consent. That AM made use of the vehicle for a purpose other than the purchase of cigarettes may have surprised MG; it may have even been the source of some annoyance or embarrassment for him. But it would not change the fact that AM was in possession of the vehicle with the consent of MG. Nor would it serve to eclipse any potential vicarious liability.
[21] As well, had MG truly rejected his friend’s request to make use of the vehicle, I find that he would have taken steps to safeguard the keys to ensure that his wishes were not disregarded. After all, he must have known of his friend’s criminal past and would have appreciated AM’s familiarity with where keys were kept. No such precautions were taken.
[22] MG’s evidence was riddled with other problems: hesitations, inconsistencies, and refusals to directly answer questions. The following portions from his evidence served to convince the court that MG was not forthcoming with the truth:
i. Why he would choose to stay at the shop rather than return home via taxi or other means when he had a court appearance the next day is perplexing. He had no change of clothes; there were no shower facilities at the shop. The only sense that can be made of this conduct is that having entrusted the vehicle to AM, MG fully expected him to return with the vehicle so that MG could make use of it the next morning. This supports a conclusion that there had been an understanding all along that AM could use the vehicle if he returned it.
ii. MG was noticeably reluctant to concede that it was common for AM to come by the shop every day, as if he was keenly aware that such an admission would not support his position. Even when taken to his evidence given at discoveries that it was very common for AM to come to see him every day, MG attempted to avoid the subject.
iii. When MG discovered the vehicle was missing, he allegedly tried to contact AM several times. MG failed to produce his cell phone records to support this evidence although he undertook to do so. The failure to produce those records leads me to draw the inference that they would not support this assertion. I would infer that MG had no need to phone AM because he was content that AM was in possession of the vehicle and would return it to him in accordance with their understanding.
iv. When asked whether he would have been okay had AM simply returned the vehicle to him, MG hesitated, no doubt sensing that his answer might upend his position. He first replied that everybody has their own attitude or reaction to such things; then, he meekly added that it was not okay for him but, “what could I do?” MG was referred to a different answer he had provided at discoveries, to which he replied that he could not remember the question from that many years ago.
v. When asked whether it made sense that AM would steal his vehicle, MG provided a vague and unconvincing answer that it was “destiny” that things would turn out this way. This was a strange, almost absurd answer in the circumstances. When asked why he believed that AM had not come to court to support his version of events, MG attempted to avoid the question before weakly suggesting that he did not think that he was able to request support from AM.
[23] Finally, although there is no property in a witness, the burden did rest with MG to prove that he had not provided his express or implied consent to AM for the possession of the vehicle. Without the evidence of AM on critical points of his testimony, the evidence of MG was implausible, uncorroborated, and frankly untenable. Standing on its own, that evidence was simply inadequate to discharge the onus to prove on a balance of probabilities that express or implied consent was not given.
Disposition
[24] The presumption of consent has not been rebutted. In fact, the evidence draws me to the conclusion that MG did provide his express consent or implied consent to AM to use the vehicle on the evening in question. He is therefore vicariously liable for any loss or damage caused by the negligent operation of the vehicle by VP.
[25] The parties have agreed that the successful party should be entitled to costs fixed in the amount of $10,000.00. The court agrees that this represents a fair and reasonable amount. Accordingly, the Defendant MG shall pay costs of the action to the Defendant Aviva in the amount of $10,000.00 inclusive.
[26] There shall be judgment in accordance with the foregoing.
[27] I thank both counsel for a cooperative and focused approach to this issue; for their candor and professionalism before the court; and for their very erudite, concise, and able submissions.
McCarthy J.
Released: January 25, 2023