Tran v. Iceton, 2023 NSSC 353

SUPREME COURT OF Nova Scotia Citation: Tran v. Iceton , 2023 NSSC 353 Date: 20231109 Docket: 474990 Registry: Halifax Between: Huong Thi Tran Plaintiff v. Matthew Roland Iceton, Tammy Lee Keigan and Aviva General Insurance Company Defendants D E C I S I O N Judge: The Honourable Justice C.

Richard Coughlan Heard: October 23, 2023 in Halifax, Nova Scotia Written Decision: November 9, 2023 Counsel: Mark Raftus, for the Plaintiff (watching brief only) Sarah-Jo Briand, for the Defendant Tammy Lee Keigan Nicholas Grant and Dennise Mack, for the Defendant Aviva General Insurance Company By the Court: Introduction [ 1 ] Huong Tri Tran commenced an action against Matthew Roland Iceton, Tammy Lee Keigan and Aviva General Insurance Company (Aviva) for damages arising from a motor vehicle collision which occurred on April 11, 2016. Ms. Tran was the owner and driver of a 2001 Acura CL motor vehicle. Mr.

Iceton was the driver of a 2006 Ford Escape motor vehicle owned by Ms. Keigan. Aviva provided a policy of insurance on the 2001 Acura CL owned by Ms. Tran. The defendants Keigan and Aviva filed Notices of Defence. Aviva moves for an order for

summary judgment on evidence dismissing the plaintiff’s claim against it. Ms. Keigan opposes the motion. Background [ 2 ] The background of this motion is as follows. Ms. Tran owned a 2001 Acura CL motor vehicle on which she had a policy of automobile insurance which included uninsured and unidentified automobile coverage insurance protection pursuant to

section D of the SPF No 1 Standard Automobile Policy.

[ 3 ] On April 11, 2016, there was a collision between Ms. Tran’s automobile and the 2006 Ford Escape motor vehicle owned by Ms. Keigan and driven by Mr. Iceton. [ 4 ] As set out above, Ms. Tran commenced action against the defendants. Ms. Keigan and Aviva filed Notices of Defences and cross-claimed against Mr. Iceton. The plaintiff and defendants Keigan and Aviva obtained default judgments against Mr. Iceton. [ 5 ] Ms. Keigan and Mr. Iceton were living together from October or November 2015 until they broke up a year or less after the collision of April 11, 2016. During that period Ms.

Keigan’s daughter viewed Mr. Iceton as a stepfather. Ms. Keigan agrees Mr. Iceton was living with and was a member of her family at the time of the collision. [ 6 ] Ms. Keigan received her licence to drive in October 2015. She had held a beginner’s licence for nine years. She was the only person named on her policy of automobile insurance. She testified she told Mr. Iceton not to drive her car. She had seen an old driver’s licence of Mr. Iceton but had not seen him drive a car between 2009 and 2016. Ms.

Keigan testified there were two sets of keys to her motor vehicle; one she kept in her purse and a second set that was broken in two was kept in a bowl in her kitchen, which she assumed did not work. [ 7 ] In a statement concerning the collision he faxed to Ms. Keigan’s insurance company on May 16, 2016, Mr. Iceton stated: Dear Elaine Blanchard I Matthew Iceton am writing a statement which will state exactly the incident which has occurred on 2016-04-11 Time 8:16. I woke up around 7:30 am.

My boss called me and said, I have a job for you to start, so get your shit together and get up here, before I give it to someone else. I took what he says seriously, because he has done it before in the passed. See my leg was broken, so I have been without money and work for 16 week, and barely getting by. So when I got the call for work, I was Relief, but also in a panick at the same time. At this time tammy wasn’t around, and she didn’t’ answer he phone. Next thing I did was get my tools together put them by the front door. Then I tryed tammy phone again, no answer.

I called my buddy, but he was already gone to another job. After I couldn’t find a drive, I started to panick. I went into the kitchen and seen a broken set of keys. I thought to myself, the job is only around the corner, I’ll take the car drop of my tools hurry back, walk back to work. I called one more time, tammy phone, no answer, so I packed up my gear and jumped in the Ford Exscape and Proceeded to work. It was only 5 min walk to the job, but at had my tools, so I made a bad decision I new if tammy fond out I took the Ford Exscape she would kick me out. (And that what is happening now).

In driving up to the job, which is on Patton of Radclif. As I approached to turn of Patton Street I looked from a distance, I didn’t see anyone, so then I put my Blinker on to turn left, made the turn, and out of no where there was a car. I seen the car, so I amedeatly put the breaks on. I was about ¼ length of a car in the other lane at a Complete Stop. the women in th othe Car Seen me turning into her lane then panick and instead of avoiding the Ford, turning away, she turned into me. I couldn’t avoid the acceiedent, because I was t in her lane, and at a complete stop.

After the Collison, my air bag went off, Smashing my phone. and making me Breathless. I got out of the car, and immediately chek on the other driver, then called 911. I didn’t call tammy, cause I was scared of the outcome was going to be, So when the polce officer arrived on th Scence, I let them Call her for me. I gave them all the information he asked for For the the Record Tammy has never Gave me premission to drive the Ford Escape (never Ever). It was the First time I have drove the Ford Escape I am very Sorry for the bad decession that I have Made.

I wish I could take my stupid decission, just glab no one was hurt from outcome. [ 8 ] Ms. Keigan testified on discovery she was notified of the collision involving Mr. Iceton and her car by a police officer. The officer asked her if Mr. Iceton had permission to drive her car and she said “no”. Ms. Keigan does not recall if the officer asked if her car was stolen. She does not think the officer asked if she wanted to report her car was stolen. However, Ms. Keigan’s insurance company asked if she was reporting her car as stolen. She testified Mr.

Iceton took it without her permission but as they were in a relationship at the time she did not wish to add to his misery. [ 9 ] Mr. Iceton was charged with offences pursuant to ss. 287(2) and 122(4) of the Motor Vehicle Act, R.S.N.S. 1989, c. 293 . Position of the Parties [ 10 ] Aviva submits there is no genuine issue of material fact in this proceeding. The testimony given by Ms. Keigan at discovery that (

a) Mr. Iceton was living with and as a member of her family at the time of the accident; and (

b) Mr. Iceton took Ms. Keigan’s vehicle on the morning of the accident without her permission, are not in dispute. However, it is Aviva’s position Ms. Keigan’s vehicle was not “stolen” at the time of the collision. [ 11 ] Aviva goes on to submit there is an issue of law to be determined whether Ms. Tran is entitled to recover personal injury damages from Ms. Keigan’s automobile insurance coverage. To answer this issue the Court must decide whether s. 148D(2) or

section 148F of the Insurance Act , RSNS 1989, c. 231 governs this case. It is Aviva’s position that s. 148D (2) creates a non-rebuttable presumption of agency for all persons living with and as a member of the family of the insured. [ 12 ] Ms. Keigan submits that Mr. Iceton was living with and as a member of Ms. Keigan’s family at the time of the collision. That

Mr. Iceton stole Ms. Keigan’s vehicle taking it without right or leave with the intent to make use of it wrongfully. [ 13 ] Ms. Keigan says that s. 148D of the Insurance Act must be read in tandem with s. 148F . In doing so, s. 148F can apply to someone who falls under s. 148D(2) .

Section 148F can override s. 148D when the Act is considered as a whole.

Section 148F was drafted to respond to the circumstances at issue in this motion. There is no coverage under Ms. Keigan’s policy for the actions of Mr. Iceton. Analysis [ 14 ]

Summary judgment on evidence is governed by Civil Procedure Rule 13.04 which provides: 13.04

(1) A judge who is satisfied on both of the following must grant

summary judgment on a claim or a defence in an action: (

a) there is no genuine issue of material fact, whether on its own or mixed with a question of law, for trial of the claim or defence; (

b) the claim or defence does not require determination of a question of law, whether on its own or mixed with a question of fact, or the claim or defence requires determination only of a question of law and the judge exercises the discretion provided in this Rule 13.04 to determine the question.

(2) When the absence of a genuine issue of material fact for trial and the absence of a question of law requiring determination are established,

summary judgment must be granted without distinction between a claim and a defence and without further inquiry into chances of success.

(3) The judge may grant judgment, dismiss the proceeding, allow a claim, dismiss a claim, or dismiss a defence.

(4) On a motion for

summary judgment on evidence, the pleadings serve only to indicate the issues, and the subjects of a genuine issue of material fact and a question of law depend on the evidence presented.

(5) A party who wishes to contest the motion must provide evidence in favour of the party's claim or defence by affidavit filed by the contesting party, affidavit filed by another party, cross-examination, or other means permitted by a judge. [ 15 ] The manner in which a judge is to deal with a motion for

summary judgment on the evidence was set out in detail by Fichaud, J.A. in giving the Court's judgment in Shannex Inc. v. Dora Construction Ltd. , 2016 NSCA 89 where he identified five sequential questions to be answered. First Question: Does the challenged pleading disclose a "genuine issue of material fact" either pure or mixed with a question of law? Second Question: If the answer to #1 is No, then: Does the challenged pleading require the determination of a question of law, either pure, or mixed with a question of fact? Third Question: If the answer to #1 and #2 are no and yes respectively, leaving only an issue of law, then the judge “may” grant or deny

summary judgment: Rule 13.04(3). Governing that discretion is the principle in Burton’s second test: Does the challenged pleading have a real chance of success? Fourth Question: Should the judge exercise the "discretion" to finally determine the issue of law?

Fifth Question: If the motion under Rule 13.04 is dismissed, should the action be converted to an application and, if not, what directions should govern the conduct of the action? [ 16 ] In the same judgment Fichaud J.A. stated at para. 36 each party is expected to put its best foot forward: " Best foot forward ": Under the amended Rule, as with the former Rule, the judge's assessment of issues of fact or mixed fact and law depends on evidence, not just pleaded allegations or speculation from the counsel table.

Each party is expected to "put his best foot forward" with evidence and legal submissions on all these questions, including the "genuine issue of material fact", issue of law, and "real chance of success". Rule 13.04(4) and (5); Burton , para. 87. [ 17 ] The relevant sections of the Insurance Act provide: Owner’s policy 114

(1) Every contract evidenced by an owner’s policy insures the person named therein, and every other person who with his consent personally drives an automobile owned by the insured named in the contract and within the description or definition thereof in the contract, against liability imposed by law upon the insured named in the contract or that other person for loss or damage (

a) arising from the ownership, use or operation of any such automobile; and (

b) resulting from bodily injury to or the death of any person, and damage to property.

(2) Where the contract evidenced by an owner’s policy also provides insurance against liability with respect to an automobile not owned by the insured named in the contract, an insurer may stipulate in the contract that the insurance is restricted to such persons as may be specified in the contract. … Recovery of loss or damage

… 148D

(2) In an action for the recovery of loss or damage sustained by a person by reason of a motor vehicle on a highway, where a person who, at the time that the loss or damage occurred, (

a) was driving the motor vehicle; and (

b) was living with and as a member of the family of the owner of the motor vehicle, the person is deemed, with respect to that loss or damage, (

c) to be the agent or employee of the owner of the motor vehicle; (

d) to be employed as the agent or employee of the owner of the motor vehicle; and (

e) to be driving the motor vehicle in the course of that person’s employment. … Owner not responsible for damage caused by stolen car 148F The owner or person in charge of a motor vehicle is not responsible for any damage caused by the fault of the driver of the vehicle if the owner or person in charge of the motor vehicle proves that the vehicle was operated by or in the charge of a person who had stolen the motor vehicle. [ 18 ] Is there a genuine issue of material fact, whether on its own or mixed with a question of law? [ 19 ] The parties agree that Mr.

Iceton, the driver at the time of the collision, was living with and as a member of Ms. Keigan’s family. However, Aviva and Ms. Keigan disagree as to whether Ms. Keigan’s motor vehicle was stolen at the time the collision occurred. [ 20 ] Aviva submits that as Mr. Iceton was not charged with theft of Ms. Keigan’s motor vehicle, Ms. Keigan did not tell her insurer that she was reporting her vehicle stolen and Ms. Keigan continued in a relationship with Mr. Iceton for up to a year following the collision; all these facts point to the idea that the vehicle was not stolen.

It is Aviva’s position the motor vehicle was not stolen at the time of the collision. [ 21 ] Ms. Keigan submits Mr. Iceton had “stolen” her motor vehicle as he had taken it without her permission. At discovery Ms. Keigan testified she was the only person named on her policy of automobile insurance. She testified she told Mr. Iceton he was not allowed to drive her Ford Escape. Ms. Keigan told the police officer Mr. Iceton did not have her permission to drive her vehicle. She did not recall if the officer asked her if her vehicle was stolen. Her insurance company asked Ms.

Keigan if she was reporting her vehicle was stolen. At discovery Ms. Keigan testified she told her insurance company: Q. And what did you tell them? A. That the police said they were – something along – I don’t – I’m not going to quote it because I don’t know exactly. I just remember saying something to the fact that if the police charge him with that, then I guess that’s – I said he’s already in a bad situation anyway, why would I make it worse. He didn’t have my permission. End of story. Why does he need to pick up charges or something along those lines. Q.

And this is what you told the insurer, just to clarify. Correct? Yes? A. Yes. Q. So, do you believe the car was stolen? A. Well, he took it without permission. I wasn’t going to add to his misery. Q. Because you were in a relationship with him? A. At the time, yes. Q. Did him taking the car as is your evidence, without your permission, did that – is that the straw that broke the camel’s back and ended your relationship? A. Yes. [ 22 ] It is for the trier of fact, in considering all of the evidence. to determine whether Ms.

Keigan’s car was stolen at the time of the collision. [ 23 ] If the motor vehicle was not stolen there is no need to consider s. 148F of the Insurance Act as it would be irrelevant to this proceeding. Whether the motor vehicle was “stolen” at the time of the collision in issue is a genuine issue of material fact. Conclusion [ 24 ] I find there is a genuine issue of material fact to be determined. [ 25 ] I dismiss the motion for

summary judgment.

[ 26 ] If the parties are unable to agree I will hear them on the issue of costs and I will

schedule a hearing pursuant to Civil Procedure Rule 13.08. Coughlan, J.