Higginbottom v. Humphries, 2011 ABQB 782

Court of Queen ’ s Bench of Alberta Citation: Higginbottom v. Humphries, 2011 ABQB 782 Date: 20111209 Docket: 1003 09226 Registry: Edmonton Between: Alice Carmen Higginbottom Plaintiff - and - Adam Scott Humphries, Leroy Rusinek, Carol Rusinek, John Doe, XYZ Corp., and the Administrator of the Motor Vehicle Claims Act Defendants _______________________________________________________ Memorandum of Decision of W. S. Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is an application for

summary judgment by Leroy Rusinek and Carol Rusinek. It is not necessary to consider the position of Carol Rusinek as the Plaintiff has offered voluntarily to discontinue against her. [ 2 ] The central issue is whether Leroy Rusinek is an owner of the motor vehicle that struck the Plaintiff and as such can be exposed to liability under the Traffic Safety Act. [ 3 ] A company called L & C Industries Inc. had been the registered owner of a 1968 T-Bird that was involved in this accident.

The registration expired in 2002. The vehicle had been sitting in Leroy Rusinek’s backyard. He and his wife, Carol, were the owners ofL & C Industries Inc. [4] Mr. Rusinek retired. Title to the vehicle was transferred to Mr. Rusinek in 2006. The company was struck from theCorporate Registry in January, 2007. [5] The T-Bird sat in Mr. Rusinek’s yard with the expired L & C Industries Inc.’s plate on it until it was purchased by theDefendant, Adam Scott Humphries. [6] Mr. Humphries purchased the vehicle in June, 2008. He put a down payment on it, but made no further payments. [7] Mr.

Rusinek insisted that Humphries put a plate on the vehicle before he took it. Humphries brought a plate when he came topick it up. He drove the T-Bird off the property and later put a stolen plate on it. The vehicle was never registered or insured by Mr.Humphries. Mr. Humphries hit the Plaintiff with the T-Bird in September of 2008, and fled the scene. [8] The police accident report showed the driver of the vehicle to be “unknown”. The police used the serial number to trace thevehicle back to L & C Industries Inc.

From there, a corporate search revealed that Leroy Rusinek and Carol Rusinek had been the ownersof the company. That is why they were joined as Defendants. The Law of Ownership [9] There is no doubt there can be more than one owner of a motor vehicle for the purposes of

section 187 of the Traffic SafetyAct: Ford Credit Canada Ltd. v. Solis, 2003 ABCA 137 and Gablehouse (below) at para. 21. [10] In Bois v. McDonald, (1975) (AB CA), 60 D.L.R. (3d) 184, Prowse, J.A. at p. 188, held that the startingpoint is that the registered owner is to be treated as the owner unless the contrary is shown. [11] In this case, Humphries did not register the T-Bird. Mr. Rusinek didn’t either. The last registered owner is a defunct company.Naming the company in the lawsuit is of no help to anyone. The choice, is Humphries, Rusinek, or both. [12] Martin J. (as he then was) in Westrop-MacKay v.

Barrett, 2001 ABQB 81 adopts a seven point test from an Ontario case,Budny v. Senechal (1990), 27 M.V.R. (2d) 103 for a registered owner to divest himself of ownership of a vehicle. The seven points areas follows:

(1) The negotiating for the sale.

(2) The agreement to buy and agreement to sell.

(3) The paying of the price and obtaining a receipt.

(4) The delivery of the keys, the owner’s permit and the vehicle itself.

(5) The Safety check.

(6) The insuring by the purchaser.

(7) The registration of the vehicle in the name of the purchaser.

[ 13 ] Even if that test applies when the prior owner was not a registered owner, the standard cannot be absolute. Some items, such as 5, 6, and 7, are beyond the control of the seller. [ 14 ] Moreover, policy considerations that might weigh in favour of a higher, or an absolute standard would seem to be neutral in a case in which a claim is below the minimum limits (as here) and the Administrator of the Motor Vehicle Accident Claims Act is involved. [ 15 ] In this case, an inspection would have been required (item 5)because the vehicle was older than 10 years.

The inspection would have been necessary to keep coverage in place. Insurance would have been necessary to obtain registration. In my view, Mr. Rusinek took reasonable steps to make sure these requirements had been satisfied. [ 16 ] Mr. Rusinek would have known that the vehicle had not been inspected (as he had not parted with possession of it and the purchaser had no opportunity to take it to a mechanic). However, he might reasonably have inferred from the existence of a plate that the T-Bird was registered and at least temporarily insured.

He did what any reasonable person would have done in the circumstances. [ 17 ] There is some evidence that Mr. Rusinek may have retained a set of keys to the vehicle, but this alone cannot be decisive, even if it were proved. [ 18 ] Mr. Rusinek ’ s counsel relies on s. 20(2) of the Sale of Goods Act which provides that unless a different intention can be ascertained, transfer of ownership will occur at the time of contracting even if the payment is postponed. [ 19 ] This was not a new car.

The intent was clearly to pass ownership on possession, with the seller retaining only the right to a claim for the outstanding payments. Mr. Rusinek signed over the previous registration and he used the Alberta Registry ’ s Bill of Sale. The conditions of sale refer to the payment terms but transfer was not expressed to be conditional. Both incidents of ownership; title and possession, were given over to Mr. Humphries. Mr. Rusinek wanted to be paid. He did not want the car back. It is plain that he intended ownership to pass to Mr. Humphries June 12, 2008.

It is immaterial that some of the payments were postponed. This is not like the Gablehouse v. Derrick Dodge

(1980) Ltd. , 2011 ABCA 102 in which ownership of a newer leased vehicle was expressly conditional upon payment. (para. 10). [ 20 ] In all of the circumstances, it is my view that ownership passed with possession. Accordingly, Mr. Rusinek cannot be made vicariously liable as an owner under the Traffic Safety Act. There is nothing to go to trial. The action against him should be dismissed. Heard on the 30 th day of November, 2011. Dated at the City of Edmonton, Alberta this 9 th day of December, 2011. W. S. Schlosser M.C.C.Q.B.A.

Appearances: Katherine Burt Braithwaite Boyle for the Plaintiff Murray Engelking Engelking Wood for the Defendants Rusinek Brendan Carr Carr Defir for the Administrator of the Motor Vehicle Claims Act