Taking of automobile's control was done without consent

Motor Vehicles - Civil Liability of Owner - Effect of Action of Passenger

Plaintiff brought action for damages for serious personal injuries sustained in motor vehicle accident against driver of other vehicle, against driver's boyfriend who had caused driver to lose control of vehicle by grabbing steering wheel without her consent during argument, and against her own insurer under policy that provided uninsured and underinsured motorist coverage. Plaintiff's insurer defended and brought cross-claim against driver. Driver's boyfriend pleaded guilty to dangerous driving causing bodily harm, did not defend and was noted in default. Driver's insurer brought motion for summary judgment dismissing action and cross-claim against driver on basis she was not liable. Driver's insurer also brought motion for declaration driver's boyfriend was not covered by her policy. Motions granted. Trial judge found that since determination of liability would allow litigation to focus on damages alone, this was appropriate case for partial summary judgment. Trial judge found that there was, on facts, no genuine issue for trial as to whether accident had been result of driver's negligence or contributory negligence. Trial judge found that accident had clearly been caused by driver's boyfriend grabbing steering wheel without consent. Trial judge found that driver's boyfriend was not covered by driver's insurance. Defendants appealed. Appeal allowed in part. Trial judge did not reverse onus of proof. Trial judge properly applied law of possession. It was not contested that there was at least joint possession of automobile and that taking of its control was done without consent. Exemption from vicarious liability under s. 192(2) of Insurance Act was applicable. Trial judge was entitled to find that there was no genuine issue requiring trial on each negligence theory. Trial judge did not absolve liability due to prior criminal proceedings where defendant was found to have operated or had “care, charge or control” of motor vehicle. Trial judge gave adequate reasons. Question of law determination regarding indemnity and its nature was set aside. Trial judge did not provide path to conclusions, and was based on evidence rather than law.

McKay v. Park (2019), 2019 CarswellOnt 13229, 2019 ONCA 659, David M. Paciocco J.A., Harvison Young J.A., and B. Zarnett J.A. (Ont. C.A.); reversed (2018), 2018 CarswellOnt 20883, 2018 ONSC 7346, H. McArthur J. (Ont. S.C.J.).

Case Law is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please visit store.thomsonreuters.ca

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

LSO Convocation approves license proposal for non-lawyer family legal services providers

Recent ruling a 'cautionary tale' for start-ups, says IP lawyer

OCA refuses to extend intrusion upon seclusion liability to hacked commercial database holders

Law Society of Ontario extends virtual verification until January 2024

Ontario Court of Appeal upholds summary judgment in seller's favour after buyer fails to close

Heather Johnston joins Law Foundation of Ontario's board of trustees

Most Read Articles

Seven new judges join Ontario Court of Justice

LSO and federation push Metrolinx to find alternative to new subway station on Osgoode Hall property

LSO Convocation approves license proposal for non-lawyer family legal services providers

OCA refuses to extend intrusion upon seclusion liability to hacked commercial database holders