R. v. Villasenor, 2022 ONCJ 578

CITATION: R. v. Villasenor, 2022 ONCJ 578 DATE: December 15, 2022 Information #999-21-5442 IN THE MATTER OF the Compulsory Automobile Insurance Act, R.S.O 1990, c. C.25 Between His Majesty the King prosecutor and Carlos GUTIERREZ VILLASENOR defendant Ontario Court of Justice Brampton, Ontario Quon J.P. Reasons for Judgment Trial held: July 26, 2022. Judgment released on: December 15, 2022. Charges: s. 2(1)(

a) C.A.I.A. – “owner operate motor vehicle on highway without insurance”

Counsel: Bauer, M., provincial prosecutor Tashos, J.T., legal representative for the defendant, Carlos GUTIERREZ VILLASENOR Cases Considered or Referred To: Hayduk (Next friend of) v. Pidoborozny, (SCC), [1972] S.C.R. 879 (S.C.C.). Honan v. Gerhold, (SCC), [1975] 2 S.C.R. 866, 50 D.L.R. (3d) 582 (S.C.C.). Keizer v. Hanna (1975), (ON CA), 10 O.R. (2d) 597, 64 D.L.R. (3d) 193 (Ont. C.A.), per Kelly, Arnup, and Howland,JJ.A. MacInnis v. Rayner, [2016] P.E.I.J. No. 55 (P.E.I. Supreme Ct.), Cheverie J.

Olympia & York Developments Ltd. and City of Toronto (1980), (ON SC), 29 O.R. (2d) 353, 113 D.L.R. (3d) 695(O.H.C.J. (Div. Ct.)), per Pennell, Robins, and Steele, JJ. Passero Estate v. Fitt, [2015] O.J. No. 5904 (Ont. S.C.J.), Ramsay J. Pyke v. Pyke, [1998] P.E.I.J. No. 78 (P.E.I. Supreme Court (Trial Div.)), Webber J. (In Chambers) R. v. Cordoba, 2016 ONCJ 13 , [2016] O.J. No. 75, 128 O.R. (3d) 594 (Ont. C.J.), Quon J.P. R. v. Zwicker, (ON CA), [1994] O.J. No. 197 (O.C.A.), per Lacourcière, Robins, and Finlayson JJ.A. Wynne v. Dalby (1913), (ON CA), 30 O.L.R. 67 (Supreme Ct. of Ont. (App.

Div.)), per Meredith C.J.O., Magee, andHodgins JJ.A. and Sutherland J. Statutes, Regulations and Rules cited: Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, ss. 1(1), 2(1), 2(1)(a), 2(1)(b), 2(3)(a), and 2(7).

Highway Traffic Act, R.S.O. 1990, C. H.8, s. 192. Insurance Act, R.S.O. 1990, c. I.8, ss. 251 and 265. Family Law Act, R.S.O. 1990, c. F.3, ss. 4(1), 4(2), 5(1), 5(3).

Exhibits entered: Exhibit "1" - certified Ministry of Transportation document dated March 8, 2022, indicating that the registered owner of a two-doorsilver-coloured 2007 Austin Cooper passenger motor vehicle, with V.I.N. number WMWMF73587TT84910, with attached license platenumber CLVV132, on February 16, 2021 is Myriam De Jesus URREGO BARRIENTOS with an address of [removed for privacy],Mississauga, Ontario, and which also indicates that the permit for the vehicle had been issued on March 20, 2020 and had also expiredon December 1, 2020 (2 pages). 1.

INTRODUCTION [1] For the purposes of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, the “owner” of a motor vehicle can eitherbe the registered legal owner or anyone else that has the indicia of being a “common law owner” for that motor vehicle: R. v. Zwicker, (ON CA), [1994] O.J. No. 197 (Ont. C.A.).

To be clear, a “common law owner” of a motor vehicle does not have tobe the person who is registered as the owner of the motor vehicle with the Ministry of Transportation and may be the person whoexclusively or predominately drives or uses the motor vehicle and who also arranges for, pays for, and cancels the insurance for themotor vehicle, or is the person who was the co-signer on the purchase agreement in the purchase of the motor vehicle.

Moreover, courtshave also adopted and recognized other indicia besides those specific ones that have been mentioned, which can also be relied on to findsomeone to be a “common law owner” of a motor vehicle. [2] In the present case, Carlos GUTIERREZ VILLASENOR, the defendant, has been charged with committing the offence of“owner operate motor vehicle on highway without insurance”, despite the fact that the vehicle he had been observed driving had beenregistered in the name of his wife.

On February 16, 2021, at approximately 8:36 p.m., Officer Gill of the Peel Regional Police, hadobserved the defendant driving a 2007 Silver-coloured Mini Cooper motor vehicle with a licence plate numbered CLVV132, on ahighway in Brampton. At trial, Officer Gill had testified that he had concluded that the defendant was the “common law owner” of theMini Cooper motor vehicle, which had been legally registered to the defendant’s wife, Myriam De Jesus URREGO BARRIENTOS.

Officer Gill also testified that he had stopped the defendant to investigate the insurance status for the Mini Cooper motor vehicle, asGill’s licence plate status check on the Mini Cooper vehicle had revealed that the insurance status for that vehicle had been unconfirmed. After completing his investigation into the insurance status for the Mini Cooper vehicle, Officer Gill had charged the defendant withcontravening s. 2(1)(

a) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, for the offence of “owner operate motorvehicle on highway without insurance”.

Furthermore, Officer Gill testified that he had formed reasonable and probable grounds tobelieve that the defendant was a “common law owner” of the Mini Cooper vehicle that had been based on particular indicia of commonlaw ownership, which had been voluntarily uttered and revealed by the defendant to Officer Gill. [3] That indicia of common law ownership, Officer Gill stated, included the following: (1) that the defendant had voluntarily utteredthat he had cancelled the insurance on the Mini Cooper motor vehicle because they were going on vacation and that he would switch itback to the vehicle that he was driving; (2) that the defendant was observed by Officer Gill driving alone; (3) that the defendant hadvoluntarily informed Officer Gill that he was the one who paid for the insurance which was in his wife’s name for the Mini Cooper; (4)that the defendant had informed Officer Gill that the defendant been driving at that particular time to pick up his wife from herworkplace; and (5) that the defendant had been married for 3 years.

However, when asked, Officer Gill did acknowledge that thedefendant did not actually state to Officer Gill that he was the owner or co-owner of the Mini Cooper motor vehicle. In addition, OfficerGill had testified that he did not lay any other charges against anyone else related to this particular event. In other words, the assumption

or inference from that testimony is that Officer Gill did not charge the registered owner of the Mini Cooper motor vehicle with the offence of “owner permit or caused motor vehicle to be driven on a highway without insurance”, contrary to s. 2(1) (

b) of the Compulsory Automobile Insurance Act . [ 4 ] However, on the issue of whether the defendant is an “owner” of the Mini Cooper motor vehicle, the defendant’s legal representative emphatically argues that there is no evidence that the defendant had ever admitted to Officer Gill that he was the owner of the Mini Cooper motor vehicle and that just because the defendant admitted to paying the insurance premiums for the Mini Cooper motor vehicle does not necessarily mean that the defendant is the owner of the Mini Cooper motor vehicle, and as the defendant is not the registered legal owner of the Mini Cooper motor vehicle then the defendant’s legal representative submits that the defendant should be acquitted of the charge. [ 5 ] In response to the defence submissions for an acquittal, the prosecution submits that the defendant should be found nevertheless to be a “common law owner” of the Mini Cooper motor vehicle, since it was the defendant who had been arranging for, paying for, and cancelling the insurance on the Mini Cooper, and also because the defendant cannot insure something that he does not own.

In addition, the prosecution contends further that under the Ontario Family Law Act , R.S.O. 1990, c. F.3 , the defendant would be the owner of half of the Mini Cooper motor vehicle, as part of the equal division of the matrimonial property of the defendant and his wife, which would also make the defendant a “common law owner” of the vehicle. [ 6 ] Ergo, the question that has to be decided in determining whether the defendant has committed the offence of “owner operate motor vehicle on highway without insurance” under s. 2(1) (

a) of the Compulsory Automobile Insurance Act , is whether the prosecution has proven beyond a reasonable doubt that the defendant is indeed a “common law owner” of the Mini Cooper motor vehicle that happens to be legally registered in his wife’s name.

If it is determined beyond a reasonable doubt that the defendant is a “common law owner” of the vehicle, then he would be guilty of committing the offence of “owner operate motor vehicle on a highway without insurance”, since there is no evidence that there had been a valid contract of automobile insurance on the Mini Cooper motor vehicle on February 16, 2021, when it was being driven on a highway by the defendant. [ 7 ] But more importantly, the defendant in not admitting or stating to Officer Gill that he is the owner or co-owner of the Mini Cooper motor vehicle does not automatically exclude the defendant from being found to be a “common law owner” of the vehicle.

In this case, the legal ownership of the Mini Cooper vehicle is in the name of the defendant’s wife, but the prosecution is contending that the defendant is ultimately the one who owns or controls an interest in that property, and is therefore, the beneficial owner or co-owner of the vehicle. Hence, if the defendant were to have admitted to Officer Gill to being the beneficial owner or co-owner of the Mini Cooper, then that would be one indicator that could ground a finding of common law ownership.

However, adducing such evidence would not be the only indicator of common law ownership, since there is other indicia that can be used to support a finding of common law ownership and which could also be used to prove that the defendant is indeed a “common law owner” of the Mini Cooper motor vehicle.

For instance, other indicia of common law ownership could include the defendant arranging for, paying the insurance premiums, and calling the insurance broker to cancel the insurance for the Mini Cooper vehicle; the defendant being the predominant driver of the Mini Cooper vehicle; and the defendant also being married to the registered owner of the Mini Cooper.

And, even though it has not been proven beyond a reasonable doubt that the defendant had the “exclusive” or “dominant” use of the Mini Cooper vehicle or that the registered owner of the Mini Cooper infrequently drives or uses the Mini Cooper vehicle, which when coupled with the evidence that the defendant arranged, paid for, and cancelled the insurance for the Mini Cooper and is married to the registered owner, would have been evidence that could have shown the defendant to be a “common law owner”.

Furthermore, evidence that the defendant is married to the registered owner of the Mini Cooper would be evidence that could be proffered to support a circumstance that would be an indicia of common law ownership, since one possible scenario would be that the defendant and his wife had purposely registered the Mini Cooper vehicle in the defendant’s wife’s name in order to obtain lower cost insurance premiums, but that the vehicle would still be exclusively used or predominantly used by the defendant.

However, to make that inference would require evidence that the Mini Cooper had been registered in the defendant’s wife’s name for obtaining a lower cost in insurance premiums and that the Mini Cooper was predominantly driven by the defendant. In this case, there is no evidence that has been adduced to prove the existence of this particular hypothetical scenario. [ 8 ] Furthermore, despite the defendant having a right to the equalization of matrimonial property upon dissolution of his marriage under the Family Law Act , R.S.O. 1990, c.

F.33 , it is still an unrealized and contingent claim and is only brought to fruition when the marriage is dissolved or when the defendant and his wife separate and agree to an equalization of the matrimonial property that had been obtained by the defendant and his wife after their marriage. The value of property bought and owned by the defendant or bought or owned by the defendant’s wife before the marriage may not necessarily count toward the calculation of the value of the matrimonial property to be equalized.

Consequently, certain property may be excluded from the matrimonial property for determining the equalization of property between the defendant and his wife upon the dissolution of their marriage. For example, if the Mini Cooper motor vehicle was purchased by the defendant’s wife or had been gifted to the defendant’s wife before their marriage, it may be excluded from the calculation of the value of the matrimonial property for equalization upon dissolution of the marriage.

On the other hand, even though evidence of the defendant’s marriage to the registered owner of the Mini Cooper motor vehicle may be some indicia of common law ownership, that evidence alone in this case is not sufficient to prove that the defendant is a “common law owner” of the Mini Cooper motor vehicle beyond a reasonable doubt.

[ 9 ] Accordingly, after a review of the jurisprudence on common law ownership of a motor vehicle, and despite there being some evidence that has been adduced by the prosecution that the defendant could be a “common law owner” of the Mini Cooper motor vehicle, that evidence is not sufficient to prove beyond a reasonable doubt that the defendant is indeed a “common law owner” of that motor vehicle.

And, as such, the prosecution has not met its legal burden of proving beyond a reasonable doubt that the defendant has committed the “owner operate motor vehicle on a highway without insurance” offence. [ 10 ] The trial of this Compulsory Automobile Insurance Act charge had been held on July 26, 2022. After final submissions were made by the prosecution and the defendant, judgment was reserved and adjourned for the judgment to be rendered. These, therefore, are the written reasons for judgment that are being released as of December 15, 2022: 2.

BACKGROUND [ 11 ] Only one witness testified in the trial and that had been Officer Gill, of the Peel Regional Police. Officer Gill had been the police officer who had charged the defendant with committing the Compulsory Automobile Insurance Act offence. [ 12 ] In his testimony, Officer Gill said that on Tuesday, February 16, 2021, at 8:36 p.m., he had been in uniform and operating a marked cruiser, and driving southbound on Kennedy Road North in lane number #1 in the City of Brampton.

Officer Gill also said that he had been approaching a red traffic light located at Queen Street and Kennedy Road North when he had observed a 2007 silver- coloured Mini Cooper motor vehicle in lane #2 with licence plate number CLVV132. Officer Gill then said he had conducted a status check on that licence plate and received information that the insurance status for the Mini Cooper vehicle was unconfirmed. [ 13 ] Officer Gill then said he had stopped the driver of that Mini Cooper motor vehicle, who had pulled into 230 Queen Street East in Brampton.

Gill then said that he had advised the driver of the Mini Cooper vehicle of the purpose for the traffic stop, which had been so that Officer Gill could check on the insurance status of that vehicle.

Gill then testified that the driver had immediately made an utterance to Officer Gill in reply to Officer Gill’s stated purpose for the traffic stop. [ 14 ] After a voir dire was conducted into the voluntariness of the driver’s utterances or statements to Officer Gill, it was determined that the utterances or statements made by the driver to Officer Gill had been made voluntarily and that Officer Gill had still been at the investigation stage and not at the offence-gathering stage. [ 15 ] In the trial proper, Officer Gill then testified that the driver of the Mini Cooper vehicle had provided Gill with an Ontario driver’s licence in the name of Carlos GUTIERREZ VILLASENOR.

Officer Gill also said that he was satisfied that the person in front of him was Carlos GUTIERREZ VILLASENOR with a date of birth of [removed for privacy reasons].

After having been told by Officer Gill of the purpose of the traffic stop had been to investigate the insurance status of the Mini Cooper vehicle, the defendant had voluntarily uttered to Officer Gill that he had cancelled it in December, since the defendant had been on scheduled vacation. [ 16 ] Moreover, Officer Gill said that the defendant had also provided him with proof of ownership for the Mini Cooper vehicle, but that the defendant was not the registered owner of the vehicle and that the defendant’s wife, Myriam De Jesus URREGO BARRIENTOS, was the registered owner of the Mini Cooper vehicle.

Officer Gill also said that the defendant had told him that the defendant had been married for approximately 3 years. [ 17 ] In addition. Officer Gill said that he had concluded that the defendant was a “common law owner” of the Mini Cooper motor vehicle. [ 18 ] Furthermore, Officer Gill said that the defendant had also provided him an expired insurance slip for the vehicle.

More importantly when asked in cross-examination if it had been correct that the defendant had never identified himself or had stated to Officer Gill that the defendant was the owner or part owner of the Mini Cooper motor vehicle, Officer Gill replied that the statement had been correct. [ 19 ] Officer Gill also said that he had never made a decision to lay other charges in respect to the same investigation on the insurance status of the Mini Cooper motor vehicle and had further said that he had never thought to charge anyone with the offence of “owner

permit or cause motor vehicle to be operated on a highway without insurance”, contrary to s. 2(1) (

b) of the Compulsory Automobile Insurance Act . In addition, Officer Gill testified that the defendant had informed Gill that the defendant had handled the insurance himself. Furthermore, Officer Gill had confirmed that the expired (or cancelled) insurance slip that the defendant had provided to Officer Gill had indicated that it was for the period from April 12, 2020 to April 12, 2021. [ 20 ] Moreover, Officer Gill testified that the defendant had told him that the defendant had been on route to pick up his wife.

Officer Gill also said that the defendant had told him that the insurance on the vehicle was in his wife’s name, but that the defendant pays for the insurance, and that the defendant was going to switch it back on later. 3. THE CHARGE [ 21 ] The defendant has been charged under a

Part III Information (#999-21-5442) that was sworn on March 16, 2021, for committing the following offence: Information #999-21-5442: Carlos GUTIERREZ VILLASENOR , of [residential address removed for privacy], York, Ontario, on or about 16 th day of February , 2021 at the City of Brampton in the said region did commit the offence of being the owner of a motor vehicle, licence number CLVV132, did unlawfully operate the said motor vehicle on a highway, to wit: Kennedy Road North at Queen Street East, at approximately 8:36 p.m., when it was not insured under a contract of automobile insurance contrary to the Compulsory Automobile Insurance Act section 2(1) (a) 4.

ISSUES [ 22 ] In order to determine if the defendant has committed the Compulsory Automobile Insurance Act offence beyond a reasonable doubt, the following issues need to be resolved in this trial:

(1) Even though the defendant is not the registered legal owner of the Mini Cooper motor vehicle, has the prosecution proven beyond a reasonable doubt that defendant is nevertheless a “common law owner” of that Mini Cooper motor vehicle on February 16, 2021?

(2) Because the registered legal owner of the Mini Cooper motor vehicle is the defendant’s spouse, then does the defendant’s unrealized and contingent rights under the Family Law Act , R.S.O. 1990, c. F.3 , for equalization of the matrimonial property, proof or evidence that the defendant is a “common law owner” of the Mini Cooper motor vehicle on February 16, 2021?

(3) Is evidence that the defendant had cancelled the insurance coverage on the Mini Cooper motor vehicle that had been under his

wife’s name, that the defendant had been paying the insurance premiums, and that the defendant said that he would switch the insurance back onto the Mini Cooper motor vehicle, proof or evidence that the defendant is a “common law owner” of the Mini Cooper motor vehicle on February 16, 2021?

(4) If the prosecution has proven beyond a reasonable doubt that the defendant is the “common law owner” of the Mini Cooper motor vehicle on February 16, 2021, then has the prosecution proven beyond a reasonable doubt that the defendant had been operating this motor vehicle on a highway without that motor vehicle being insured under a contract of automobile insurance ? 5. ANALYSIS AND DECISION [ 23 ] Subsection 2(1) of the Compulsory Automobile Insurance Act , R.S.O. 1990, c.

C.25 , provides that no owner or lessee of a motor vehicle shall operate or cause or permit a motor vehicle to be operated on a highway unless that motor vehicle is insured under a contract of automobile insurance [ emphasis is mine below ]: Compulsory automobile insurance 2

(1) Subject to the regulations, no owner or lessee of a motor vehicle shall , (

a) operate the motor vehicle ; or (

b) cause or permit the motor vehicle to be operated, on a highway unless the motor vehicle is insured under a contract of automobile insurance . Definition

(2) For the purposes of subsection (1), where a permit for a motor vehicle has been issued under subsection 7(7) of the Highway Traffic Act , "contract of automobile insurance", with respect to that motor vehicle, means a contract of automobile insurance made with an insurer. [ 24 ] Moreover, under s. 2(3) (

a) of the Compulsory Automobile Insurance Act , if the owner or lessee of a motor vehicle is convicted of contravening s. 2(1) (a), then they are subject to a minimum fine of $5,000 and up to a maximum fine of $25,000; a potential suspension of their driver's license for a period that does not exceed one year; or the possibility of having the motor vehicle that had been driven by the owner or lessee being impounded for a period of not more than three months under s. 2(7) : Offence 2

(3) Every owner or lessee of a motor vehicle who, (

a) contravenes subsection (1) of this

section or subsection 13(11); or

(

b) surrenders an insurance card for inspection to a police officer, when requested to do so, purporting to show that the motor vehicle is insured under a contract of automobile insurance when the motor vehicle is not so insured, is guilty of an offence and is liable on a first conviction to a fine of not less than $5,000 and not more than $25,000 and on a subsequent conviction to a fine of not less than $10,000 and not more than $50,000 and, in addition, his or her driver's licence may be suspended for a period of not more than one year. ... Impounding motor vehicle 2

(7) In the event of a conviction under subsection (3), the justice may order that the motor vehicle, (

a) that was operated in contravention of subsection (1); (

b) for which a false statement in respect of insurance was made in contravention of subsection 13 (11); or (

c) for which an insurance card was produced in contravention of clause (3) (b), shall be seized, impounded and taken into the custody of the law for a period of not more than three months. [ 25 ] "Automobile insurance" for a motor vehicle is also defined in s. 1(1) of the Compulsory Automobile Insurance Act , and has been defined as insurance against liability arising out of bodily injury to or the death of a person or loss of or damage to property caused by a motor vehicle or the use or operation thereof, and which insures at least to the limit required by s. 251 of the Insurance Act , R.S.O. 1990, c.

I.8 , and that also provides for the statutory accident benefits set out in the Statutory Accident Benefits

Schedule under the Insurance Act and the benefits prescribed under s. 265 of the Insurance Act : "automobile insurance" means insurance against liability arising out of bodily injury to or the death of a person or loss of or damage to property caused by a motor vehicle or the use or operation thereof, and which, (

a) insures at least to the limit required by

section 251 of the Insurance Act , (

b) provides the statutory accident benefits set out in the Statutory Accident Benefits

Schedule under the Insurance Act , and (

c) provides the benefits prescribed under

section 265 of the Insurance Act ; (" assurance-automobile ") (

A) Has the prosecution proven beyond a reasonable doubt that the Mini Cooper motor vehicle that the defendant was driving on February 16, 2021 had not been insured under a contract of automobile insurance? [ 26 ] Through the uncontradicted evidence of Officer Gill, the prosecution has proven beyond a reasonable doubt that the defendant had been driving a Mini Cooper motor vehicle on February 16, 2021 on Kennedy Road North, which is a highway in the City of Brampton, at 8:36 p.m. The prosecution has also proven beyond a reasonable doubt that the Mini Cooper motor vehicle was not insured under a

contract of automobile insurance at the time that Officer Gill had observed the Mini Cooper motor vehicle being driven by the defendanton that particular highway in Brampton. This proof came from Officer Gill’s testimony that the defendant had voluntarily uttered toOfficer Gill that the defendant had cancelled the insurance on the Mini Cooper motor vehicle in December because they were going onvacation and that he would switch it back to the vehicle that he was driving.

In addition, Officer Gill also testified that when he hadchecked the insurance status for the Mini Cooper vehicle using the Ministry of Transportation database, he had received informationback that the insurance status for that vehicle had been “unconfirmed”. Furthermore, no evidence has been adduced at trial that the MiniCooper motor vehicle had been insured under a contract of automobile insurance at the material time. [27] However, the defendant will not be guilty of committing the s. 2(1)(

a) offence unless the prosecution proves beyond a reasonablethat the defendant is indeed the “owner” of the Mini Cooper motor vehicle. (

B) Even Though The Defendant Is Not The Registered Legal Owner Of The Mini Cooper Motor Vehicle, Has TheProsecution Proven Beyond A Reasonable Doubt That Defendant Is Nevertheless A “Common Law Owner” Of The MiniCooper Motor Vehicle On February 16, 2021? [28] Unfortunately, the Compulsory Automobile Insurance Act does not provide for a definition of who is an “owner” of a motorvehicle for the purposes of the offence of “no owner … of a motor vehicle shall operate the motor vehicle … on a highway unless themotor vehicle is insured under a contract of automobile insurance” that is set out in s. 2(1)(

a) of the Act. The Highway Traffic Act,R.S.O. 1990, H.8. also does not provide a definition of “owner” in respect to the operation of a motor vehicle on a highway. [29] However, as held by the Court of Appeal for Ontario at paras. 9 to 11 in R. v. Zwicker, (ON CA), [1994] O.J.No. 197, registration is no longer the sole means of identifying the “owner” of a given vehicle.

The Court of Appeal further reasonedthat the term "owner" as it appears in s. 2(1) of the Compulsory Automobile Insurance Act cannot properly be limited solely to the"registered owner", since interpreting "owner" in that manner would permit the person with all the rights of “common law ownership” toavoid corresponding responsibilities of ownership.

In addition, the Court of Appeal also held that the "owner" in the context of theCompulsory Automobile Insurance Act includes the "common law owner" [emphasis is mine below}: The present statutory scheme governing automobile operation and insurance is significantly different than the scheme underconsideration in R. v. Sherman. The current Highway Traffic Act (s. 11(1)(a)) requires that the vendor of a motor vehicle detach from thevehicle his or her number plates at the time of conveyance.

Under the prior legislation, number plates were assigned and registered tothe motor vehicle and, upon a transfer of ownership, would remain on the vehicle. The purchaser is now obliged to register the vehicleand licence plates in his or her name and to affix his or her own plates to the motor vehicle. The number plates appearing on a newlypurchased vehicle must correspond to the new owner, regardless of whether the vehicle itself has been duly registered under theHighway Traffic Act. Registration is thus no longer the sole means of identifying the owner of a given vehicle.

The reasoning in R. v.Sherman is accordingly inapplicable to the present scheme. The Compulsory Automobile Insurance Act is intended to ensure that every car operated in the province is insured. The term "owner" asit appears in s. 2(1) of this Act, in our view, cannot properly be limited solely to the "registered owner". To interpret "owner" in thatmanner would permit the person with all the rights of common law ownership to avoid corresponding responsibilities of ownership.Under the present Highway Traffic Act the appellant was required to register her ownership within six days of purchase.

In directcontravention of this Act, she failed to do so. It would be anomalous indeed if a breach of the Highway Traffic Act could amount to ashield against liability under the Compulsory Automobile Insurance Act. In sum, responsibility for ensuring that a motor vehicle is insured under a contract of insurance rests on the "owner". The "owner" in thecontext of the Compulsory Automobile Insurance Act includes the "common law owner". For the indicia of common law ownershipreference may be made to cases such as Honan v. Gerhold, (SCC), [1975] 2 S.C.R. 866, 50 D.L.R. (3d) 582, and Keizerv.

Hanna (1975), (ON CA), 10 O.R. (2d) 597, 64 D.L.R. (3d) 193 (C.A.). The appellant was the owner of her motorvehicle within the meaning of the Compulsory Automobile Insurance Act and was clearly prohibited from operating the vehicle withoutinsurance on the day in question. [30] Moreover, in Wynne v. Dalby (1913), (ON CA), 30 O.L.R. 67 (Supreme Ct. of Ont. (App. Div.)), at paras. 15and 16, the Ontario Appeal Court held that the word "owner" is an elastic term, and the meaning which must be given to it in a statutoryenactment depends very much upon the object the enactment is designed to serve.

The Appeal Court also adopted the reasoning that“there may be two persons at the same time in different senses not improperly spoken of as the owner” of a property [emphasis is mine

below]: The word "owner" is an elastic term, and the meaning which must be given to it in a statutory enactment depends very much upon theobject the enactment is designed to serve. As was said by Lord Herschell in Baumwoll Manufactur von Carl Scheibler v. Furness, [1893] A.C. 8, 17: "There may be two persons atthe same time in different senses not improperly spoken of as the owner of a ship.

The person who has the absolute right to the ship, whois the registered owner, the owner (to borrow an expression from real property law) in fee simple, may be properly spoken of, no doubt,as the owner; but at the same time he may have so dealt with the vessel as to have given all the rights of ownership for a limited time tosome other person, who, during that time, may equally properly be spoken of as the owner." [31] Ergo, the “owner” of a motor vehicle for the purposes of s. 2(1) of the Compulsory Automobile Insurance Act can be the legallyregistered owner of the motor vehicle, as well as someone that has the indicia of being a “common law owner” of the motor vehicle. [32] The prosecution in the case at bar contends that the defendant is a “common law owner” of the Mini Cooper motor vehicle that hewas driving, even though the vehicle is legally registered with the Ministry of Transportation of Ontario as being owned by thedefendant’s wife, Myriam De Jesus URREGO BARRIENTOS (see Exhibit #1). [33] If the prosecution proves beyond a reasonable doubt that the defendant is a “common law owner” of the Mini Cooper motorvehicle, then the prosecution will meet its burden of proving beyond a reasonable doubt that the defendant has committed the offenceunder s. 2(1)(

a) of the Compulsory Automobile Insurance Act, as no evidence has been adduced that there had been a valid contract ofinsurance on the Mini Cooper vehicle on February 16, 2021, when it was being driven by the defendant on a highway.

(1) What are the indicia in which a court could find that an individual is a “common law owner” of a motor vehicle for thepurposes of s. 2(1) of the Compulsory Automobile Insurance Act? [34] The issue in respect to the common law ownership of a motor vehicle for an “owner operate motor vehicle on highway withoutinsurance” charge also arose before this court in R. v. Cordoba, 2016 ONCJ 13 , [2016] O.J. No. 75, 128 O.R. (3d) 594 (Ont.C.J.), where a corporation had been listed as the registered owner of the motor vehicle.

The prosecution in that case had argued that thedefendant was a “common law owner” of the motor vehicle because of the contention that the corporation was the defendant's alter ego,that the defendant was the owner of the corporation, that the defendant had personally been aware that the Dodge van was not insured,and on the basis that both the defendant and the corporation named "CM Corporate Maintenance Ltd." had the same municipal address. However, this court decided at paras. 23 to 50 in R. v.

Cordoba, that it was not appropriate to pierce the corporate veil in order to findthat the defendant is the true or common law owner of the Dodge van. In addition, in not finding Cordoba to be a “common law owner”of the van, this court could not conclude that the defendant Cordoba had the exclusive possession of the Dodge van or that the van hadbeen under the defendant's exclusive dominion and control, from the evidence that had been adduced by the prosecution to prove thatCordoba was an owner of the Dodge van in the common law sense.

Furthermore, this court noted that the Court of Appeal for Ontariohad held in R. v. Zwicker, (ON CA), [1994] O.J. No. 197, at para. 11, that indicia of common law ownership of amotor vehicle could be derived from the reasoning in Honan v. Gerhold, (SCC), [1975] 2 S.C.R. 866, 50 D.L.R. (3d)582 (S.C.C.) and from Keizer v. Hanna (1975), (ON CA), 10 O.R. (2d) 597, 64 D.L.R. (3d) 193 (Ont. C.A.). The Courtof Appeal for Ontario had decided in Keizer v.

Hanna that the basis for determining whether someone is the "common law owner" of amotor vehicle would have to be considered on the relevant circumstances particular to each case [emphasis is mine below]: (

A) FOR THE PURPOSES OF S. 2(1) OF THE C.A.I.A., WHO IS THE "OWNER" OF THE DODGE VAN THAT WAS BEING DRIVENBY THE DEFENDANT ON MAY 3, 2014?

Regarding whether the defendant is the "owner" of the Dodge van that he was observed driving on May 3, 2014, for the application of s.2(1) of the C.A.I.A., the prosecution contends that even though the defendant is not listed as the registered owner of the Dodge van withthe Ministry of Transportation, the defendant is nonetheless the "common law" owner of the Dodge van on the basis that he hadadmitted to being the owner of the company listed as the registered owner, which was the defendant's alter ego; on the basis that thedefendant had personally been aware that the Dodge van was not insured; and on the basis that both the defendant and the corporationnamed "CM Corporate Maintenance Ltd." had the same municipal address.

For the purposes of the C.A.I.A., the registered owner of the motor vehicle in question is generally considered to be the "owner" of that motor vehicle under s. 2(1)(a), unless there is evidence which establishes that someone else should be treated as the owner of that motor vehicle.

In the case at bar, the registered owner of the Dodge van at the time the defendant had been stopped by Officer Nicholson, as proven by Exhibit 1, is a corporation named, "CM Corporate Maintenance Ltd." However, during the traffic stop and conversation between the defendant and Officer Nicholson, the defendant had voluntarily admitted to Officer Nicholson that the defendant was the owner of that company and that the Dodge van was not insured . In addition, both "CM Corporate Maintenance Ltd." and the defendant have the same address of 2100 Sherobee Road, Apt. 302, Mississauga, Ontario.

This correlation, the prosecution contends, of the defendant being the owner of "CM Corporate Maintenance Ltd.", of the defendant knowing the Dodge van was not insured, and of the defendant and the corporation sharing the same address, is evidence that "CM Corporate Maintenance Ltd." is really the alter ego of the defendant and sufficient proof that the defendant is the "common law owner" of the Dodge van, which would then make the defendant the "owner" of the van within the meaning of s. 2(1) of the C.A.I.A.

On the surface, this evidence, as the prosecution would suggest, could possibly make the corporation, "CM Corporate Maintenance Ltd.", which is owned by the defendant, a private and small one-person corporation or a private and small closely-held corporation.

However, being mindful of the principle that the shareholder or shareholders of a corporation and the corporation itself are legally distinct and separate entities, then it will have to be determined whether the defendant's voluntary admission that he is the owner of "CM Corporate Maintenance Ltd.", as well as his knowledge that the Dodge van was not insured and that the defendant and the corporation share the same address, is proof beyond a reasonable doubt that the defendant is the common law owner of the Dodge van.

(1) Is the word "owner" defined in the C.A.I.A.? In considering whether the term "owner" in s. 2(1)(

a) of the C.A.I.A. , includes the defendant, as the owner of the corporation, which is listed as the registered owner of the Dodge van that was being driven by the defendant on May 3, 2014, the C.A.I.A. and its regulations are not of any assistance in deciding this issue, as the definition

section contained in s. 1 of that statute does not contain a definition for the term "owner", nor is the word "owner" defined in any other part of the C.A.I.A. or its regulations. As well, the term "owner" is not defined in s. 87 of the Legislation Act , 2006, S.O. 2006, c. 21, sched. F , which is a statute that applies to all statutes and regulations enacted by the Ontario Legislature, and which had been enacted as a statutory tool to assist in the

interpretation of Ontario statutes and regulations. Similarly, the term "owner" is also not defined in the Provincial Offences Act , R.S.O. 1990, c. P.33 , or in its regulations, which is the procedural legislation that governs this regulatory prosecution. As a result, dictionary

definitions and prior judicial consideration of the term "owner" will have to be relied upon in order to resolve the issue of whether the defendant, as the owner of "CM Corporate Maintenance Ltd.", is the "owner" of the Dodge van for the purposes of s. 2(1)(

a) of the C.A.I.A.

(2) Definition of "owner" in Black's Law Dictionary In Black's Law Dictionary, 4th ed. (St. Paul, Minn.: West Publishing, 1968), the word "owner", is defined as a general term in which "its meaning is to be gathered from the connection in which it is used and from the subject-matter to which it is applied", and to some extent means, the "proprietor" or the "person in whom is vested the ownership, dominion, or title of property": OWNER. The person in whom is vested the ownership, dominion, or title of property; proprietor. . . . . .

The term is, however, a nomen generalissimum, and its meaning is to be gathered from the connection in which it is used, and from the subject-matter to which it is applied. ... The primary meaning of the word as applied to land is one who owns the fee and who has the right to dispose of the property, but the term also includes one having a possessory right to land or the person occupying or cultivating it.

(3) Judicial consideration of the term "owner" In Olympia & York Developments Ltd. and City of Toronto (1980), (ON SC), 29 O.R. (2d) 353, 113 D.L.R. (3d) 695,the Divisional Court of Ontario in determining the meaning of the word "owner" used in a statutory provision where that word had notbeen specifically defined in that statute, had relied on the reasoning used in Wynne v. Dalby (1913), (ON CA), 30O.L.R. 67 (Supreme Ct. of Ont. (App.

Div.)), which had considered the possibility that two persons may at the same time be properlyviewed to be the owner of a thing, which included the registered owner of the thing and someone who had been given the rights ofownership to that thing for a limited time [emphasis is mine below]: The real issue in dispute is what is the meaning of the word "owner" in s. 35a of the Act? Does it exclude the owner in fee simple ofthe lands where such owner is not the person undertaking the development? The term "owner" has been considered judicially in manydifferent contexts and referred to by legal authors. In Wynne v.

Dalby (1913), (ON CA), 30 O.L.R. 67, 6 D.L.R. 710,reference was made at p. 72 O.L.R., p. 714 D.L.R., as follows: The word "owner" is an elastic term, and the meaning which must be given to it in a statutory enactment depends very much upon theobject the enactment is designed to serve. As was said by Lord Herschell in Baumwoll Manufactur von Carl Scheibler v. Furness, [1893] A.C. 8, 17: "There may be twopersons at the same time in different senses not improperly spoken of as the owner of a ship.

The person who has the absolute right to theship, who is the registered owner, the owner (to borrow an expression from real property law) in fee simple, may be properly spoken of,no doubt, as the owner; but at the same time he may have so dealt with the vessel as to have given all the rights of ownership for alimited time to some other person, who, during that time, may equally properly be spoken of as the owner." Moreover, the appeal court at para. 15 in Wynne v. Dalby, (ON CA), [1913] O.J.

No. 9, had emphasized that themeaning which must be given to the term "owner" in a statutory enactment would depend on the object the enactment is designed toserve: The word "owner" is an elastic term, and the meaning which must be given to it in a statutory enactment depends very much upon theobject the enactment is designed to serve. And, even though the term "owner" is not defined in the C.A.I.A., its meaning in respect to that statute had been considered by the Courtof Appeal for Ontario in R. v. Zwicker, (ON CA), [1994] O.J. No. 197.

In that case, the Court of Appeal had toconsider whether someone who had just bought a vehicle, but had not yet registered that vehicle in their own name with the Ministry ofTransportation, would in the context of s. 2(1) of the C.A.I.A. be the "owner" of that vehicle. Although the accused, Zwicker, in that casehad bought the motor vehicle from a friend three days earlier and had legally owned that motor vehicle when she was stopped by apolice officer, she had not yet registered herself with the Ministry as the owner of that vehicle until three days after she had been stoppedand charged.

At her trial, Zwicker had argued that since the vehicle had still been registered under the name of her friend who had soldthe vehicle to Zwicker, then she should not be convicted under s. 2 of the C.A.I.A. as that vehicle's owner because she had not been theregistered owner of the vehicle when she had been stopped. However, the Court of Appeal did not agree with Zwicker's argument and held at paras. 10 and 11 of their judgment that the applicationof s. 2(1) cannot be simply limited to only the registered owners of vehicles, since that

interpretation would allow the person with all therights of common law ownership the means and ability to avoid the corresponding responsibilities of ownership. The Court of Appealhad also reasoned that since the buyer of the vehicle, Zwicker, had been the legal owner of the vehicle when the offence had beencommitted, then Zwicker would be the owner under s. 2(1), since she would be the common law owner of the vehicle at the material time,even though the vehicle had been still registered in the name of the person who had just sold the vehicle to her.

Moreover, the Court ofAppeal indicated that under Ontario's Highway Traffic Act, Zwicker had been legally obligated and required to register her ownershipof that vehicle within 6 days of purchasing the vehicle and that the responsibility for ensuring that the motor vehicle is insured under acontract of insurance would rest on the "owner" of that motor vehicle, which would have been on Zwicker and not on the seller of thevehicle, so that the word "owner" in the context of the C.A.I.A. would also include the "common law owner" of the motor vehicle[emphasis is mine below]: The Compulsory Automobile Insurance Act is intended to ensure that every car operated in the province is insured.

The term "owner" asit appears in s. 2(1) of this Act, in our view, cannot properly be limited solely to the "registered owner". To interpret "owner" in that

manner would permit the person with all the rights of common law ownership to avoid corresponding responsibilities of ownership.Under the present Highway Traffic Act the appellant was required to register her ownership within six days of purchase. In directcontravention of this Act, she failed to do so. It would be anomalous indeed if a breach of the Highway Traffic Act could amount to ashield against liability under the Compulsory Automobile Insurance Act. In sum, responsibility for ensuring that a motor vehicle is insured under a contract of insurance rests on the "owner".

The "owner" in thecontext of the Compulsory Automobile Insurance Act includes the "common law owner". ... Accordingly, whether the defendant is the common law owner of the Dodge van at the material time would depend on the circumstancesparticular to the defendant.

(4) What is the object of the C.A.I.A.? The Court of Appeal held at para. 10 in R. v. Zwicker that the purpose of the C.A.I.A. is to ensure that every car operated in the provinceof Ontario is insured: The Compulsory Automobile Insurance Act is intended to ensure that every car operated in the province is insured. ...

(5) Has the prosecution proven beyond a reasonable doubt that the defendant is the "common law owner" of the Dodge van?

The prosecution contends that based on the C.A.I.A.'s object of ensuring that every car operated in Ontario is properly insured; theruling in Zwicker that someone who is not the registered owner of a motor vehicle could still be found to be its common law owner; thatthe defendant is the owner of the corporation that is the registered owner of the Dodge van; that a corporation can only act through ahuman person; that the defendant had knowledge of the Dodge van not being insured; and that the defendant and the corporation sharethe same municipal address, that the defendant should be found in the circumstances to be the common law owner of the Dodge van.Otherwise, the prosecution contends that every motorist in Ontario could registered their motors vehicles under the name of acorporation and then not arrange or obtain proper liability insurance for that vehicle, in order to potentially escape or disregard thelegal and financial obligations associated with obtaining or purchasing proper liability insurance for their motor vehicles under theC.A.I.A., as well as avoiding the penalties involved if the corporation, as the registered owner of the motor vehicle, is convicted ofoperating or permitting the vehicle to be operated on a highway in Ontario without insurance.

Ergo, the prosecution contends that in the circumstances of this case and in order that the defendant be held liable for the corporation'sacts or omissions in respect to operating or permitting the Dodge van to be operated on a highway without insurance, either thedefendant be found to be the common law owner of the Dodge van based on indicia of common law ownership or that the corporate veilshould be pierced in order to find that the defendant is the true or common law owner of the Dodge van; or that the defendant should befound to be a party to the offence under the C.A.I.A. based on the defendant being ultimately the human person responsible for theDodge van and who had failed to ensure that the Dodge van had been properly insured. (

a) What are the indicia of common law ownership of a motor vehicle? In deciding whether a particular person, who is not the registered owner of a motor vehicle, would be the owner of a motor vehicle in thecommon law sense, and be liable under s. 2(1) for the insurance obligations for that vehicle, the Court of Appeal had noted in R. v.Zwicker, at para. 11, that indicia of common law ownership of a motor vehicle could be derived from the reasoning in Honan v. Gerhold, (SCC), [1975] 2 S.C.R. 866, 50 D.L.R. (3d) 582 (S.C.C.) and from Keizer v.

Hanna (1975), (ON CA),10 O.R. (2d) 597, 64 D.L.R. (3d) 193 (O.C.A.): For the indicia of common law ownership reference may be made to cases such as Honan v. Gerhold, (SCC), [1975] 2S.C.R. 866, 50 D.L.R. (3d) 582, and Keizer v. Hanna (1975), (ON CA), 10 O.R. (2d) 597, 64 D.L.R. (3d) 193 (C.A.).The appellant was the owner of her motor vehicle within the meaning of the Compulsory Automobile Insurance Act and was clearlyprohibited from operating the vehicle with-out insurance on the day in question.

In Keizer v. Hanna (1975), (ON CA), 10 O.R. (2d) 597, 64 D.L.R. (3d) 193, at paras. 13 and 14, the Court of Appealdecided that the basis for determining whether someone is the "common law owner" of a motor vehicle would have to be considered onthe relevant circumstances particular to each case.

In order to decide the issue of common law ownership in that case, the Court ofAppeal had reviewed and considered a number of decisions that had dealt with the degree of interest in a motor vehicle or thecombination of circumstances in respect to its ownership and control that would be sufficient to render a person vicariously liable underthe Highway Traffic Act as an "owner" of that vehicle.

After their review, the Court of Appeal surmised that in each of those otherdecisions the circumstances had varied substantially from case to case, so that there had been no need to set out the precise criteria thathad been deduced in those decisions in order to decide the issue of common law ownership for that particular case: There have been a number of cases dealing with what degree of interest in a motor vehicle, or what combination of circumstances withrespect to its ownership and control, is sufficient to render a person vicariously liable under the Highway Traffic Act as an "owner".

Themost recent pronouncement is that of the Supreme Court of Canada in Honan et al. v. Gerhold et al., (SCC), 50 D.L.R.(3d) 582, 3 N.R. 81, pronounced on October 1, 1974, which reversed the judgment of this Court: (ON CA), [1973] 2O.R. 341, 33 D.L.R. (3d) 657. Other recent cases are Hawryluk et al. v. Hodgins, (ON CA), [1972] 3 O.R. 741, 29D.L.R. (3d) 403; Hayduk et al. v. Pidoborozny et al., (SCC), [1972] S.C.R. 879, 29 D.L.R. (3d) 8, [1972] 4 W.W.R.522; and May et al. v. Municipality of Metropolitan Toronto, (ON SC), [1969] 1 O.R. 419, 2 D.L.R. (3d) 659.

I do not think that the decision of this case requires us to attempt to set out in precise terms the ratio of the various cases to which I havereferred, the circumstances of which vary substantially from case to case. ... Moreover, in Honan v.

Gerhold, (SCC), [1975] 2 S.C.R. 866, 50 D.L.R. (3d) 582, the Supreme Court of Canada had todecide whether the registered owner of the automobile involved in an accident should be held liable for the actions of the driver of theautomobile, who had injured an infant, who had the exclusive possession and control of the automobile, and who had been the originalowner of the automobile who had the automobile registered in the name of his friend in order to prevent the automobile from beingseized in a judgment rendered against him. In the circumstances of the Honan v.

Gerhold case, Kathleen Honan, an infant, had been injured in an automobile accident in whichChester Doman had been the driver of the automobile that had held to be at fault for the accident. However, the automobile that Domanhad been driving had been registered in the name of a person named Raymond Gerhold. The trial judge had concluded that ChesterDoman was responsible for the accident and awarded damages to the infant Honan against the estate of Chester Doman, who had diedsometime later from the injuries he had received in the accident.

The infant Honan had also sued Raymond Gerhold as the registeredown-er of the automobile driven by Chester Doman, but the trial judge had dismissed the action against Gerhold. The matter waseventually appealed to the Supreme Court of Canada, where the Supreme Court did find that Raymond Gerhold did have common lawownership of the automobile that Chester Doman had been driving in the accident where the infant Kathleen Honan had been seriouslyinjured.

Gerhold, as the registered owner, had argued that he was not the real owner of the automobile despite the evidence that the automobilehad been registered in his name, but that Gerhold had only registered the automobile in his name so that his friend Chester Doman, thetrue owner of the automobile, would be able to keep the automobile from being seized in a judgment that had been awarded to Doman'swife. However, despite Raymond Gerhold's argument about not being the true owner, the Supreme Court concluded that Gerhold wasnonetheless the owner of the automobile in a common law sense.

And, although there had been evidence from Gerhold that ChesterDoman had only transferred the automobile to Gerhold to protect the automobile from being seized in execution of a judgment foralimony held by Doman's wife, that Chester Doman still continued to have the exclusive possession of the automobile, and that Domanhad the automobile under his dominion and control, the Supreme Court concluded that there had been a legal transfer of the vehiclefrom Doman to Gerhold, which gave Gerhold legal title to the automobile.

More importantly, the Supreme Court had also concludedthat Gerhold did manifest his ownership in the automobile through several important actions, namely that Gerhold had first placed thevehicle under his insurance policy and had certified to the insurance company that the automobile was Gerhold's vehicle, and thatsecond, Gerhold had applied for the registration of the automobile in the first place in 1966 and again in 1968 and 1969, and had takengreat objection to Chester Doman having done so in Gerhold's name in the year 1967.

In addition, the Supreme Court had putsignificant emphasis on the fact that Raymond Gerhold had also disposed of the wrecked automobile after the accident and had taken allthe proceeds for his own use without accounting to the estate of the late Chester Doman, and had also found that this particular actionby Gerhold in keeping the proceeds of the sale to be only consistent with an assertion of Raymond Gerhold's ownership of theautomobile.

Under those circumstances, the Supreme Court had concluded that Raymond Gerhold was the owner in common law of thatautomobile, which had been involved in the accident, so that Gerhold would be held jointly liable in the action brought by the Honaninfant [emphasis is mine below]: With every respect for the learned justice on appeal, I am not so persuaded. What had moved Chester Doman was to protect thevehicle from seizure in execution of the judgment held by his wife. That end could not be accomplished un-less he transferred theautomobile. He, therefore, did transfer the automobile.

The transfer gave Gerhold the legal title and it was intended to have that exacteffect. The form of application for register of the transfer does, in my view, contain words which show that there has been a conveyance.Such a form appears in Ex. 19 and it should be noted that the form is signed both by the transferor and the transferee and it contains thewords: "I hereby give notice of the change of ownership of the vehicle described hereon and make application for transfer of the permit".

Of course, under the circumstances, the late Chester Doman continued to have the exclusive possession of the automobile and have itunder his dominion and control. That was part of the transaction. In fact exclusive dominion and control was present in both Haberl v.Richardson and Hayduk v. Pidoborozny. Despite this, however, Gerhold did manifest his ownership in several important actions. Firstly,he placed the vehicle under his insurance policy, and so certified to the insurance company that the vehicle was his.

Secondly, he appliedfor the registration, in the first place in 1966 and again in 1968 and 1969, and he took great objection to Doman having done so inGerhold's name in the year 1967. Finally, and in my view most important, he disposed of the wrecked car and took the proceeds for hisown use with evidently no intention of accounting to the estate of the late Chester Doman. This latter action could only be consistent withan assertion of his ownership of the vehicle. Similarly, in Keizer v.

Hanna (1975), (ON CA), 10 O.R. (2d) 597, 64 D.L.R. (3d) 193, the Court of Appeal for Ontariohad to determine from the circumstances whether John Buch, who was the registered owner of a motor vehicle driven by Herbert Hannathat had been involved in an automobile accident with Marilyn Keizer, should be held jointly liable for Keizer's injuries. In that case,Buch, a car dealer, had sold the automobile involved in the accident to Herbert Hanna, the driver of the motor vehicle that had been heldresponsible for the accident.

However, Buch had decided not to transfer the title for the car to Hanna until such time as Hanna hadobtained insurance for the car or until Hanna had paid Buch fully for the car. At para. 14 of their judgment, the Court of Appeal hadconcluded that Buch intended that the automobile should remain in Buch's name until Hanna had either produced evidence that theautomobile was insured under Hanna's policy or had produced $25 so that the transfer could take place or be registered with no evidenceof insurance intended to be produced to the issuer of permits.

The Court of Appeal had also concluded that it was not an unreasonableinference from the evidence that Buch had not been prepared to transfer the automobile into Hanna's name until he got the balance of$200 owing on the purchase price.

Moreover, the Court of Appeal held that these facts, coupled with the certification by Buch that hewas the owner of the automobile and that the automobile had been insured under Buch's own policy, provided ample foundation for thetrial judge's finding that John Buch was the owner of the automobile for the purposes of the Highway Traffic Act, even though Buch hadsold the automobile to Hanna and Hanna had been driving the car exclusively [emphasis is mine below]: ...

In this case the conclusion is irresistible that Buch intended that the car should remain in his name at least until Hanna had eitherproduced evidence that the car was insured under Hanna's policy or produced $25 so that the transfer could take place with no evidenceof insurance produced to the issuer of permits. Indeed, it is not an unreasonable inference from the evidence that Buch was not preparedto transfer the car into Hanna's name until he got the balance of $200 owing on the purchase price.

These facts, coupled with thecertification by Buch that he was the owner and that the car was insured under his own policy, provided ample foundation for the findingby the trial Judge that Buch was the owner for the purposes of the Highway Traffic Act. Accordingly, I would dismiss the appeal againstthat finding. (

b) In the present proceeding, are there indicia that the defendant is the common law owner of the Dodge van? Undoubtedly, the evidence from Officer Nicholson that the defendant had admitted or acknowledged that he is the owner of the companynamed on the ownership permit, that he had been aware that the Dodge van had not been insured, and that the defendant and thecorporation had shared the same municipal address could infer that the defendant is either the sole shareholder of the corporation orjust one of the shareholders of the corporation. However, this is not necessarily mean that the defendant is the common law owner of theDodge van in respect to the application of s. 2(1)(

a) of the C.A.I.A. (

i) Is there evidence that the defendant had exclusive possession, dominion, and control of the Dodge van? On whether the defendant had exclusive possession, dominion, and control of the Dodge van to support a finding of common lawownership, there is no evidence that the defendant is the sole driver of the Dodge van or that he is the only person who drives the Dodgevan.

Therefore, it cannot be concluded that the defendant had the exclusive possession of the Dodge van or that the van had been under thedefendant's exclusive dominion and control, as evidence to prove the defendant is the owner of the Dodge van in the common law sense. (ii) Is there evidence that the defendant had registered the Dodge van under the name of the corporation for some ulterior purpose, butremained its true owner?

On this issue, there has been no evidence adduced by the prosecution that the defendant had the Dodge van registered in thecorporation's name for some ulterior purpose, so that the defendant could remain the true owner of the Dodge van.

Accordingly, up this stage of the analysis, the prosecution has not provided sufficient evidence to prove beyond a reasonable doubt that the defendant is the owner of the Dodge van in the common law sense.

As such, the prosecution's arguments that the corporate veil should be lifted in order to find that the defendant is the owner of the Dodge van within the meaning of s. 2(1)(a), or that the defendant has participated in or abetted the corporation in the commission of the offence, so as to be a party to the offence, will then have to be considered to determine whether the defendant should be held legally responsible for the corporation's unlawful act or omission pertaining to operating or permitting the Dodge van to be operated on a highway without insurance. [ 35 ] Furthermore, in Passero Estate v.

Fitt , [2015] O.J. No. 5904 (Ont. S.C.J.) , the issue had arisen in that case of whether the husband of the legally registered owner was a “common law owner” of a Dodge Charger motor vehicle he had been driving that had been involved in an accident, and which had killed and injured other people. Gordon Fitt was the driver of that Dodge Charger vehicle that had been involved in that accident and he had been married to Deanna Stafford, the registered legal owner of the vehicle, but they had legally separated in May of 2009.

While driving the Dodge Charger motor vehicle, Gordon Fitt had gotten into that accident on October 21, 2009, with a pickup truck driven by Andrew Passero. Passero was killed and a passenger in the pickup truck had been injured. In addition, a passenger in Gordon Fitt’s vehicle was also injured. The Andrew Passero Estate and the passengers in both vehicles had sued Gordon Fitt for the loss or damage resulting from the motor vehicle accident.

The evidence at trial revealed that at the time when Fitt and Stafford were legally separated, Gordon Fitt had also initially taken the 2006 Dodge Charger motor vehicle registered in Deanna Stafford’s name without the consent of Deanna Stafford. While Fitt and Stafford were together, both had used the vehicle during the summer and every winter Gordon Fitt made arrangements to suspend the insurance and every spring he made arrangements to reinstate it (not unlike the case at bar). Fitt had also insured the vehicle with Intact Insurance.

In May of 2009, Gordon Fitt separated from his wife and Fitt had left the matrimonial home with the family pickup truck, which was also registered to Deanna Stafford. However, Fitt left the Dodge Charger behind. In July of 2009, Fitt had asked Stafford for the use of the Dodge Charger one weekend, but Stafford had refused Fitt’s request. Gordon Fitt had also stopped paying instalments on the Dodge Charger. In early August of 2009, Deanna Stafford made a payment on the Dodge Charger herself and insured it with State Farm Insurance.

Stafford had also called Intact Insurance 's agent from the State Farm office to ask Intact Insurance to take the Dodge Charger off the Intact Insurance policy, but Intact Insurance refused to do so. On September 18, 2009, Gordon Fitt took the Dodge Charger without Stafford’s permission.

On September 30, 2009 the licence plate sticker expired and Gordon Fitt had renewed it. [ 36 ] Some of the issues that had to be decided at the civil trial included whether Gordon Fitt was a “common law owner” of the Dodge Charger vehicle that had been registered in Deanna Stafford’s name and whether Deanna Stafford was the sole owner of the vehicle.

In addition, since Gordon Fitt had taken the Dodge Charger without Deanna Stafford’s consent, Deanna Stafford had argued that she should not be liable for the accident, since s. 192 of the Highway Traffic Act , R.S.O. 1990, H.8, precludes the registered owner of the vehicle from liability for damages and injuries caused in the accident, if the driver of the motor vehicle had been operating the vehicle without the consent of the registered owner of the vehicle. [ 37 ] In deciding whether Gordon Fitt was a “common law owner” of the Dodge Charger, Ramsay J., at paras. 7 to 22 in Passero Estate v.

Fitt , confirmed that for the purposes of liability for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle on a highway , the registered owner of the motor vehicle is the “owner” of the vehicle under s. 192 of the Highway Traffic Act , R.S.O. 1990, c. H.8 , unless the contrary is proven. However, Ramsay J. also confirmed that another person could be an “owner” of the vehicle if indicia of ownership is so proved. In that specific case, Ramsay J. had held that Gordon Fitt was a “common law owner” of the motor vehicle and liable for damages.

Ramsay J. had based his conclusion on the following indicia of common law ownership: (1) before separation Gordon Fitt had participated in negotiating the purchase of the vehicle;

(2) Gordon Fitt had co-signed the agreement of purchase and sale;

(3) Gordon Fitt had co-signed the conditional sales agreement;

(4) Gordon Fitt had paid most of the monthly instalments on the Dodge Charger;

(5) Gordon Fitt had insured the Dodge Charger; and

(6) Gordon Fitt had used the Dodge Charger regularly. Ramsay J. also found further indicia of common law ownership in Gordon Fitt after his separation from his wife, specifically that

(7) Gordon Fitt had withheld payment on the conditional sales agreement in order to regain possession of the car;

(8) Gordon Fitt had taken the Dodge Charger;

(9) Gordon Fitt drove the Dodge Charger;

(10) Gordon Fitt had renewed the licence plate sticker for the Dodge Charger; and

(11) Gordon Fitt had received half the insurance proceeds for the loss of the Dodge Charger from the accident [ emphasis is mine below ]: Deanna Stafford was the registered owner of the Dodge Charger. She and Gordon Fitt went to the dealership and bought the car together. On the agreement of purchase and sale she is listed as the purchaser and he is listed as the co-signer. On the conditional sales agreement she is the buyer and he is the co-buyer. They both obliged themselves to Daimler Chrysler Financial Services to repay a loan in monthly instalments.

The payments were made from an account at Meridian Credit Union held by Fitt's business. Deanna and Gordon both had signing authority on the account. While the parties were together, both used the vehicle during the summer. Every winter Gordon made arrangements to suspend the insurance and every spring he made arrangements to reinstate it. He insured the vehicle with Novex ING (i.e. Intact). In May 2009 the Fitts separated. Gordon left the matrimonial home with the family pickup truck, which was also registered to Deanna. He left the Charger behind. In July he asked Deanna for the use of the Charger one weekend.

She refused.

In July 2009 Gordon began to play hardball. He stopped paying the mortgage on the matrimonial home in the hope that the credit unionwould foreclose. Deanna would be out and he could redeem the mortgage. This worked; at least, Deanna had to move out on September19, 2009. Gordon also stopped paying for the Charger with the same motivation. He thought that Daimler Chrysler would repossess it and hecould redeem it. In early August 2009 Deanna made a payment on the Charger herself and insured it with State Farm.

She calledIntact's agent from the State Farm office to ask Intact to take the Charger off the Intact policy. Intact refused. So State Farm and Intactknew about each other. Deanna stored the Charger at her uncle's residence. Gordon still had one of the two car keys and Deanna did not want him to take thecar. On September 18, 2009, the eve of her move, she moved the car to the garage of the matrimonial home. She was going to use it thenext day to move property. Also on September 18 Gordon came over and made a scene. After he left Deanna noticed that the Chargerwas missing from the garage. She called the police.

They were not willing to do anything but find out whether Gordon had the car. Hedid. Deanna asked for it back and Gordon refused. Deanna told her divorce lawyer. Deanna's and Gordon's lawyers wrote letters backand forth to address the Charger and the other property issues between the parties. Gordon missed a payment on his insurance. Intact's agent wrote to him to advise him that unless he made the payment, the insurancewould be cancelled as of October 29, 2009, which turned out to be eight days after the accident. On September 30, 2009 the licence plate sticker expired. Gordon renewed it.

On October 16, 2009 Deanna's lawyer found out that Dodie Barker had been seen driving the Charger. The lawyer wrote to Gordon'slawyer, "There is no consent to the vehicle being driven." By the eve of the accident, Gordon and Deanna had both asked Intact to delete the Charger from Intact's policy. Intact refused to takethe Charger off the Intact policy before the overdue premium was paid. Apparently, it preferred to keep the Charger on the policy untilOctober 29, 2009 when the policy would be cancelled. The accident took place on October 21, 2009.

After the accident State Farm paid Deanna for the loss of the Charger. She gave half ofthe proceeds to Gordon. Ownership of the Charger The Highway Traffic Act provides: 192.

(1) The driver of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in theoperation of the motor vehicle or street car on a highway.

(2) The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in theoperation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner's consent in thepossession of some person other than the owner or the owner's chauffeur. The registered owner is the owner of the vehicle for the purposes of this section, unless the contrary is proven. No one has tried to provethat Deanna Stafford was not the owner.

In addition, another person could be an owner of the vehicle if indicia of ownership so prove: Hayduk v. Pidoborozny, (SCC), [1972] SCR 879; Honan v. Doman Estate, (SCC), [1975] 2 S.C.R. 866.

The indicia of Gordon Fitt's ownership are many. a. Before separation he participated in negotiating the purchase of the vehicle; b. he co-signed the agreement of purchase and sale; c. he co-signed the conditional sales agreement; d. he paid most of the monthly instalments; e. he insured the car; and f. he used the car regularly. g. After separation he withheld payment on the conditional sales agreement in order to regain possession of the car; h. took the car; i. he drove it; j. he renewed the licence plate sticker; and k. he received half the insurance proceeds for its loss.

The indicia of ownership are ample to prove that Gordon was an owner of the vehicle for the purposes of s.192 of the Highway TrafficAct, whether I look at the period before separation, the period after separation or both periods together. I recognize that the Ontario legislation does not define owner as broadly as the Alberta legislation in question in Hayduk.

Nevertheless,application of the principles enunciated in that case and in the Ontario case law leads inevitably to the conclusion that Gordon Fitt wasan owner of the Dodge Charger within the meaning of s.192 of the Highway Traffic Act. [38] Additionally, in MacInnis v. Rayner, [2016] P.E.I.J. No. 55 (P.E.I. Supreme Ct.), at paras. 12 to 13, Cheverie J. held that inaddition to the statutory regime, ownership of a vehicle may also be established by looking at common law indicators. In that case, itwas determined that

(1) Raylink Ltd. had purchased the 2010 Ford Escape motor vehicle;

(2) Raylink Ltd.'s employees drove the Escapemotor vehicle;

(3) Raylink Ltd.'s ownership of the Escape motor vehicle was reflected in its corporate financial statements; and (4)Raylink Ltd.'s ownership of the Escape motor vehicle was reflected in its corporate tax return [emphasis is mine below]: In addition to the statutory regime, ownership of a vehicle may also be established by looking at common law indicators. The leadingcase is that of Honan v. Gerhold, (SCC), [1975] 2 S.C.R. 866. An accurate

summary of that case and its conclusionsmay be found at para. 66 of the defendants' factum as follows: 66. In Honan v. Gerhold, 1974 CarswellOnt 249 ["Honan"], the plaintiff was injured in a motor vehicle accident and commenced anaction, including against the defendant Doman (driver) and the defendant Gerhold (registered owner). Doman had previously purchasedthe vehicle but was concerned that his estranged spouse would execute on a judgment and as such Doman requested that the registrationof the vehicle be transferred to Gerhold's name. Doman continued to operate the vehicle and have sole control of it.

In this caseregistration did not raise a statutory presumption of ownership under the applicable legislation. Gerhold arranged insurance on thevehicle, signed applicable paper work, (including registration for the vehicle) and also attended to the annual renewal of the license. Thetrial judge had dismissed the action against Gerhold. However, the Supreme Court of Canada concluded that Gerhold was an owner in a"common law sense". The defendants also referred the court to a number of other decisions where common law indicators of ownership were established.

Ofinterest is the recent decision of the Ontario Superior Court of Justice in Passero Estate v. Fitt, 2015 ONSC 6723, where the court,relying on the Honan decision, produced a number of indicators sufficient to establish ownership, such as: participation in negotiatingthe purchase of the vehicle; co-signing the agreement of purchase and sale; co-signing the conditional sales agreement; making most ofthe monthly instalments; insuring the car; using it regularly; driving it; and renewing the license plate sticker.

Applying the rebuttable presumption of ownership as indicated by the contract of purchase and sale and the registration of the 2010

Ford Escape, one can only conclude Raylink Ltd. was the owner. The plaintiff has offered no evidence to rebut that presumption.However, Raylink Ltd. also meets the common law indicia of ownership in that:

(1) Raylink purchased the Escape;

(2) Raylink'semployees drove the Escape;

(3) Raylink's ownership of the Escape was reflected in its corporate financial statements; and

(4) Raylink'sownership of the 2010 Ford Escape was reflected in its corporate tax return. [39] Furthermore, in Hayduk (Next friend of) v. Pidoborozny, (SCC), [1972] S.C.R. 879, the Supreme Court ofCanada had to consider the issue of whether a father, who was the registered owner of a motor vehicle, and his son, who had exclusiveuse of the motor vehicle and who was paying the instalments of the vehicle, were respectively an “owner” of the motor vehicle that wasinvolved in an accident, and therefore liable for damages sustained by the appellants, Mike Hayduk and Alexandra Boyko.

Theregistered owner of the motor vehicle was Peter Pidoborozny, who was the father of Ronald Pidoborozny, the driver of the motor vehiclethat had been involved in an accident that had injured the appellants. Ronald Pidoborozny, the defendant-driver, had taken possession ofthe motor vehicle from his father, Peter Pidoborozny, with Peter Pidoborozny's express consent. In addition, Ronald Pidoborozny hadthe exclusive possession and control of the motor vehicle at all material times and had made all of the payments due and owing under theconditional sales contract and the promissory note for the motor vehicle.

Both Ronald and Peter had testified that they had arrangedbetween themselves that the payments would be made by Ronald, the defendant-driver, and, that the father, Peter, had only become thepurchaser of the vehicle for the purpose of guaranteeing payment of the purchase price, so that, if Ronald Pidoborozny, the defendant-driver had refused or failed to pay an instalment due under the conditional sales contract or promissory note, then Peter Pidoborozny, thefather, would be liable for the payments.

The issue in that case that had to be decided by the Supreme Court of Canada was whether ornot on the day of the accident, the defendant, Peter Pidoborozny, was the “owner” of the motor vehicle that had been driven by his co-defendant, Ronald Pidoborozny and whether Peter Pidoborozny, who was the registered owner, is of itself enough to make himvicariously liable under the provisions of the Alberta Highway Traffic Act. [40] Ritchie J. of the Supreme Court in Hayduk (Next friend of) v.

Pidoborozny held that there is a logical reason why the “registeredowner” should be treated as "owner" of the motor vehicle within the meaning of the Alberta Highway Traffic Act, since the very purposeof the registration is to give notice to all users of the highway of the identity of an individual to whom they may look to as “owner” of themotor vehicle in the event of an accident.

However, Ritchie J. also reasoned that in the present case, the contention that the father, PeterPidoborozny, was the “owner” of the motor vehicle within the meaning of s. 130 of the Alberta Highway Traffic Act does not rest uponregistration alone. Ritchie J. had also noted that the father, Peter Pidoborozny, was the purchaser of the motor vehicle in conformity withthe terms of a conditional sales contract which he had signed and th

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