In Leigh v Clement, 2018 ONSC 4508 [Leigh] Justice Cornell reviewed under what circumstances an owner of a vehicle can be vicariously liable for an accident involving their vehicle under s. 192(2) of the Highway Traffic Act. In this case the driver who struck the plaintiff’s vehicle had taken his mother’s vehicle without her knowledge or consent. The mother had never granted possession of her vehicle to her son and therefore she was not vicariously liable.

Leigh was a motion for summary judgment by the defendant, Elaine Clement, (“Elaine”) who sought to have the plaintiff’s claim and the cross claim of Intact Insurance Company (“Intact”), against her dismissed.

Facts

Elaine’s son, the defendant Jason Clement (“Jason”), was driving Elaine’s van when he struck the plaintiff’s vehicle on November 17, 2012. Elaine deposed that she did not allow Jason to have possession of her vehicle because Jason’s license had been suspended in 2010, and it was suspended at the time of the collision. Elaine admitted to granting possession of her vehicle to Jason’s friend Eric on several occasions when Eric gave Jason rides. Elaine considered the vehicle to be in the possession of Eric and not Jason on these occasions

Issue 

The issue was whether there was sufficient evidence for Elaine to establish that, at the time of the accident, the vehicle was not in Jason’s possession with her consent.

Analysis 

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…”. Justice Cornell clarified that the applicable question is not whether the owner had granted the driver permission to drive the vehicle. Rather, in keeping with the legislation, the question is whether the owner granted possession of the vehicle to another person. The onus of proving that a vehicle was in another’s possession without consent rests upon the owner.

Elaine’s position was that at no point in time did she give express or implied consent to permit Jason to have possession of the vehicle. Intact’s position was that Elaine had given possession to Jason subject to a condition that only a licenced driver would operate the vehicle.

Justice Cornell reviewed several considerations for a court determining whether a vehicle was in someone else’s possession without the owner’s consent (as set out in Seegmiller v Langer, (2008) 301 D.L.R. (4th) 454 (Ont. S.C.) at para. 34):

• This is a question of fact to be determined by the evidence in a particular case.
• The primary definition of possession contemplates power, control or dominion over property: see Black’s Law Dictionary, (8th ed. 2004).
• The owner’s vicarious liability under s. 192 is based on possession, as opposed to operation of the vehicle.
• “[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., 2006 ONSC, 83 OR (3d) 554 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.

Justice Cornell examined cases relied on by Intact where despite there being conditions to the operation of a vehicle, possession had still been granted as the owner had relinquished dominion and control over the vehicle (Seegmiller v Langer, (2008) 301 D.L.R. (4th) 454 (Ont. S.C.); and Fernandes v Araujo, 2015 ONCA 571). These cases were distinguishable. Elaine’s evidence was clear that she never relinquished control of her vehicle to Jason. Jason had taken her vehicle while she was sleeping, without her consent or knowledge. Elaine did not permit Jason to drive as his licence was revoked. It was also noted that Elaine generally kept the keys to her vehicle in her pocket or her purse. Intact argued that when Elaine allowed Eric to give Jason rides with her vehicle she had relinquished control of her vehicle to Jason, on the condition that someone else drove. Justice Cornell disagreed, and found that possession had only been granted to Eric in these instances and not to Jason.

Held

Justice Cornell was satisfied that Elaine had established that at the time of the accident, Jason did not have her express or implied consent to have possession of the vehicle. Summary judgment was granted in Elaine’s favour and the plaintiff’s claim and Intact’s cross claim against Elaine were dismissed.

Shawn O’Connor and Sasha Willms