Court File and Parties
Court File No.: CV-18-00002645-0000 Date: 2026-03-17
Ontario Superior Court of Justice
Between:
Christopher Eden Plaintiff
-- and --
Matthew Levasseaur, Patricia Diane Mason also known as Patricia Diane Levasseur and Heartland Farm Mutual Inc. and Goran Maljkovic carrying on business as Sneakers Sports Bar and Goran Maljkovic carrying on business under the unregistered name Sneakers Beach Tavern Defendant/Responding Party
Counsel:
Daniel Balena, for the Plaintiff
Jame Pedro, for the Defendant/Moving Party, Patricia Diane Mason also known as Patricia Diane Levasseur
Neil Searles and Tredegar Shea, for the Defendant/Respondent, Heartland Farm Mutual Inc.
Heard: February 13, 2026 via videoconference
Reasons on Motion for Summary Judgment
McCarthy J.
[1] The Defendant, Patricia Diane Mason also known as Patricia Diane Levasseur ("Patricia"), moves for summary judgment against Heartland Farm Mutual Inc ("Heartland").
[2] The Plaintiff's claim has resolved. Accordingly, the Plaintiff took no position on the motion.
Background
[3] The Defendant, Matthew Levasseur ("Matthew"), is the son of Patricia. On December 5, 2017, Matthew was the unlicensed operator of a 2001 Volkswagen Jetta owned by Patricia ("the vehicle") which was involved in a single vehicle accident on Thunder Bay Road at or near Fort Erie ("the accident"). The Plaintiff was a passenger in the vehicle at the time of the accident. He brought the present action seeking damages for personal injuries.
The Issue
[4] The issue for determination on this motion is which of Aviva Canada Inc. ("Aviva"), Patricia's automobile insurer, and Heartland, the Plaintiff's automobile insurer, is responsible for payment of the settlement.
[5] The inquiry centers on whether Patricia, as owner of the vehicle, is vicariously liable for Matthew's negligent operation of the vehicle.
[6] Simply put, if the court were to find that Matthew was operating the vehicle with the express or implied consent of Patricia, Aviva would be obligated to pay the claim of the Plaintiff under the third-party indemnity provisions of its policy. Conversely, if the court were to find that Matthew was operating the vehicle without the express or implied consent of Patricia, Aviva would be relieved of that obligation; in that case, Heartland would be obliged to pay the claim under the OCF44R coverage of the Plaintiff's policy.
Patricia's Position
[7] Patricia, through Aviva, denies any liability to the Plaintiff, claiming that at the time of the accident, Matthew was operating the vehicle without her express or implied consent. This non-consensual possession of the vehicle absolves Patricia of any vicarious liability as per s. 192(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("the HTA").
Heartland's Position
[8] For its part, Heartland submits that Patricia had knowledge that the vehicle was in Matthew's possession at the time of the accident. Patricia gave either express or implied consent for Matthew to have such possession. In the alternative, Heartland submits that Patricia failed to exercise any control or dominion over both the vehicle and the keys to the vehicle. Patricia is therefore vicariously liable for the negligence of Matthew, and Aviva must respond to indemnify her and pay the claim.
The Evidence
[9] The following evidence was derived from the examination for discovery of Patricia.
Patricia purchased the vehicle from Matthew's friend Darin Griem ("Darin") in September 2017. Matthew furnished Patricia with the funds to purchase the vehicle. At the time of purchase, Patricia understood that the vehicle was not roadworthy.
Patricia purchased the vehicle to give Matthew something to work on with Darin. Matthew's father had recently drowned, and Matthew was suffering from post-traumatic stress disorder.
Patricia consented to the vehicle being stored at Darin's residence where it could be restored and put into a roadworthy condition.
Patricia never saw the vehicle or possessed the key.
Patricia understood that Matthew did not have a driver's license at the time the vehicle was purchased.
Patricia told Matthew not to drive the vehicle but understood that Matthew would have access to the vehicle while it was being worked on at Darin's residence.
Patricia intended to transfer the vehicle to Matthew once his license was reinstated and he was able to obtain auto insurance.
Patricia was not aware that the vehicle was roadworthy at the time of the accident. Patricia never checked on the status of the vehicle or the repairs and never attended Darin's residence. She did not know Darin's address.
Patricia was not aware that Matthew had driven the vehicle prior to the accident. Patricia never followed up with Matthew to inquire about his use of the vehicle. It never occurred to her that Matthew could have driven the vehicle.
Patricia placed insurance on the vehicle when she purchased it because she thought she had to. She did not tell the insurance company that Matthew would be driving because her understanding was that he would not be driving the vehicle.
Patricia had forgotten that she owned the vehicle by the time of the accident.
[10] Matthew provided the following evidence at his examination for discovery.
Matthew was living with Patricia when she acquired the vehicle. He was under house arrest. The vehicle was registered in Patricia's name because Matthew understood that he would not be able to obtain insurance on it.
The plan was for Matthew to work with Darin to get the vehicle roadworthy. Once that was accomplished and Matthew's license was reinstated, the vehicle would be sold or gifted to him.
After its purchase, Darin transported the vehicle to his residence using the only key. The vehicle was stored there while it was being worked on. The vehicle was never parked or stored on Patricia's property. Patricia never occupied or operated the vehicle.
Matthew understood that he was not permitted to operate the vehicle. Operating the vehicle was a violation of his house arrest.
Matthew concealed the fact that he was operating the vehicle from Patricia. Matthew parked the vehicle at a hotel-restaurant near his residence so that she would not see it when she drove past.
At the time of the accident, Matthew possessed the only set of keys to the vehicle.
The vehicle was kept at Darin's for a couple of weeks.
Matthew had been driving the vehicle for at least one month prior to the accident.
[11] Following the accident, Matthew had provided a statement to Aviva in which he stated:
a. Darin's residence was not an autobody shop or auto garage. There were no charges for rent or repair..
b. Matthew possessed the keys to the vehicle.
c. The keys were left with the vehicle so that Darin could work on the vehicle if Matthew was not around.
d. On the day of the accident, Matthew had unfettered access to the vehicle and the keys.
[12] The Plaintiff provided evidence that Matthew had been using the vehicle for as many as six months prior to the accident.
Summary Judgment
[13] The test for summary judgment is whether there is a genuine issue requiring a trial.
[14] Both sides agree that, based on the evidence proffered in the motion, I am in an adequate position to fairly determine the issue without the need for a trial or a more fulsome evidentiary record.
[15] In short, they both agree that the issue should be summarily determined by this court's exercise of summary judgment and the expanded powers under rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
The Law of Vicarious Liability
[16] The owner of a vehicle is statutorily liable for damages resulting from the vehicle's negligent operation under s. 192 of the HTA, except in cases where subsection (2) applies:
The owner of a motor vehicle or streetcar is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner's consent in the possession of some person other than the owner or the owner's chauffeur. (Emphasis added.)
[17] An owner's vicarious liability under s. 192 of the HTA is based on possession, not operation of the vehicle. An owner may be vicariously liable if she consents to another individual possessing the vehicle, regardless of whether she consents to that person operating the vehicle: Fernandes v. Araujo, 2015 ONCA 571, 127 O.R. (3d) 115, at para. 4.
Analysis: Possession
[18] The decision of the court in Seegmiller v. Langer (2008), 2008 CanLII 53138 (ON SC), 301 D.L.R. (4th) 454 (Ont. S.C.), deals squarely with the meaning and import of "possession" and its purpose in s. 192. The court cited the seminal Court of Appeal for Ontario decision in Thompson v. Bourchier (1933), 1933 CanLII 106 (ON CA), [1933] O.R. 525 (C.A.), at para. 27, where the court considered the purpose of the predecessor to s. 192:
[T]o 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 the duty the owner [...] would be responsible for all loss and damage sustained in the operation thereof.
[19] In Seegmiller, a vehicle owner was found to be vicariously liable for a collision caused by her daughter, even though the vehicle owner had expressly forbidden the daughter from operating the vehicle and the daughter admitted that it was wrong for her to do so. The court found that the owner had effectively given up her right to treat the vehicle as her own when she granted possession of the vehicle to her daughter and her boyfriend. The mother knew that her daughter, who resided in the household, was unlicensed.
[20] In Finlayson v. GMAC Leasco Limited, 2007 ONCA 557, 86 O.R. (3d) 481, at para. 28, the Court of Appeal made it clear that when an owner gives possession of a vehicle to another person, the owner will be liable for the damages caused by the negligent operation of the vehicle by that person, notwithstanding any conditions imposed, including a condition that the person in possession will not operate the vehicle.
[21] Consent to possession can be either express or implied. Implied consent requires consideration of all the circumstances using a hybrid subjective/objective test: see Crangle v. Kelsey (2003), 41 M.V.R. (4th) 232 (Ont. S.C.), at para. 19.
[22] The indicia of implied consent to possession of the vehicle by Matthew are glaringly present here: Patricia and Matthew were mother and son; they resided in the same household; Matthew had furnished Patricia with the funds to purchase the vehicle; Patricia purchased the vehicle for Matthew and took ownership only as a temporary and expedient measure; Patricia never took possession of the vehicle or of the keys; Patricia abdicated all responsibility for the vehicle, including its storage and improvement; Patricia did not have any access to the vehicle or any information as to where or with whom it was stored; Matthew determined where the vehicle was housed; and by the time of the accident, Patricia had forgotten that she even owned the vehicle.
[23] The inescapable conclusion is that Patricia, from the outset, entrusted Matthew with possession of the vehicle that had been purchased for him. In doing so, Patricia eschewed any responsibility for the vehicle, leaving possession and control in the hands of Matthew, and only nominally in the hands of Darin, of whom she knew effectively nothing.
[24] I agree with the assertion of Heartland that the balance of logic could conclude that Patricia entrusted Matthew exclusively to possess and control the vehicle.
[25] Considering these overwhelming indicia of care, control, and possession of the vehicle from the time of its purchase to the time of the accident, it rings quite hollow for Matthew and Patricia to state after the fact that permission to operate the vehicle had been withheld or even denied. That assertion strains credibility and runs contrary to the logic flowing from the circumstances in which the vehicle was purchased and controlled from the outset.
[26] Viewed objectively or subjectively, it was reasonably foreseeable (even inevitable) that Matthew would operate the vehicle on the roadway at the first opportunity. After all, what is the purpose of seeking to make a vehicle roadworthy other than to operate it on a roadway? And how would one know a vehicle is roadworthy without operating it on a road?
[27] I find it incredible that Patricia would have believed that any prohibition on Matthew operating the vehicle would have been observed by him. Matthew's attempts to hide the vehicle's location from Patricia coupled with her failure to make any inquiry about the vehicle's whereabouts or the status of its "roadworthiness" at any time, point to a total domination of possession by Matthew without the slightest element of control or concern by the legal owner. "De facto" control was with Matthew. The fact that Matthew operated the vehicle on the road for perhaps six months prior to the accident simply reinforces the objective and realistic belief that any prohibition against him operating the vehicle was singularly ineffective and wholly unenforced. I can fairly infer that it was never seriously intended to be observed.
[28] With Matthew exercising this complete and exclusive possession, power, and control over the vehicle, I find that it was both objectively and subjectively foreseeable that Matthew was going to assess the roadworthiness of the vehicle by doing exactly what he did on multiple occasions: operate the vehicle on the highway.
[29] In these circumstances, any driving prohibition, bereft as it was of a mechanism for monitoring, control or enforcement, was not only worthless but invalid.
[30] As a result, there was in this case both express consent to possess the vehicle and implied consent to operate it.
[31] I find that the issue of whether Matthew possessed and operated the vehicle without the consent of Patricia is not a genuine one requiring a trial. Rather, the evidence establishes that Matthew exercised near to exclusive possession of the vehicle from the time of its purchase to the time of the accident. He did so in circumstances where subjectively or objectively, it was reasonable to foresee that he would disobey any prohibition and operate the vehicle. There was both express and implied consent from Patricia for Matthew to possess, harbor, and control both the keys and the vehicle. In these circumstances, there was implied consent from Patricia for Matthew to operate the vehicle on the highway once Matthew considered the vehicle roadworthy or sought to test its roadworthiness. It amounts to much the same thing.
Conclusion and Disposition
[32] For the foregoing reasons, I find the Defendant, Patricia Diane Mason aka Patricia Diane Levasseur, vicariously liable for the negligent action of Matthew Levasseur for the purposes of s. 192 of the HTA. Aviva shall pay the settlement amount to the Plaintiff.
Costs
[33] The parties have agreed that the successful party should be entitled to costs of $4,500 all-inclusive and payable within 30 days. In the result, the Defendant, Patricia, shall pay the Defendant, Heartland, that agreed upon amount within 30 days of the release of these reasons.
[34] There shall be an order to go in accordance with the foregoing.
J.R. McCarthy J.
Released: March 17, 2026