Mangat v. Lau, 2024 BCSC 200

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Mangat v. Lau, 2024 BCSC 200 Date: 20240209 Docket: M130805 Registry: Vancouver Between: Yadwinder Singh Mangat Plaintiff And Lau Shiu Ming, GE Vel Company coba GE Vehicle and Equipment Leasing, and Xerox Canada Inc. Defendants Before: The Honourable Justice J. Hughes Reasons for Judgment Counsel for the Plaintiff: M.S. Randhawa Counsel for the Defendants: D.W. Barber N.M. Krige Place and Dates of Trial: Vancouver, B.C. June 26-29, October 27, 2023 Place and Date of Judgment: Vancouver, B.C.

February 9, 2024 Table of Contents Overview ... 3 Facts .. 4 Xerox Inc. and Xerox Ltd. 4 The Caravan and Related Documents . 5 Mr. Lau’s Employment 6 WCAT Determinations . 6 Liability of Mr. Lau .. 7 Vicarious Liability of Xerox Inc. 7 Was Xerox Inc. an “Owner” or “Lessee” of the Caravan for the Purpose of s. 86 of the Act ? 10 Was Xerox Inc. an “Owner” Under s. 86(1) of the Act ? . 10 (

a) Common Law Indicia of Ownership . 10 (b) Section 86(3) –

Definitions of “Owner” and “Lessee” 17 Was Xerox Inc. a “Lessee” of the Caravan Under s. 86(1.1) of the Act ? . 18

Did Xerox Inc. Have Possession of the Caravan? . 20 Did Mr. Lau Acquire Possession of the Caravan with Xerox Inc.’s Consent? . 21 Conclusion .. 22 Overview [ 1 ] This action arises out of a motor vehicle accident that occurred on November 27, 2012 at the intersection of Main Street and East 25th Avenue in Vancouver, British Columbia. The plaintiff was stopped at the intersection when his vehicle was struck from behind by a Dodge Caravan (the “Caravan”) driven by the defendant, Lau Shiu Ming .

The plaintiff claims that he sustained injuries as a result of the accident that have disabled him from working as a taxi driver and realtor. [ 2 ] Mr. Lau admits that his negligence caused the accident. The central issue to be determined in this action is whether the defendant Xerox Canada Inc. (“Xerox Inc.”) is vicariously liable for Mr. Lau’s negligence under s. 86(1) or (1.1) of the Motor Vehicle Act , R.S.B.C. 1996, c. 318 [ Act ]. This turns on whether Xerox Inc. was an “owner” or “lessee” of the Caravan being driven by Mr. Lau at the time of the accident. [ 3 ] Mr.

Lau was employed as a service technician by Xerox Canada Ltd. (“Xerox Ltd.”) and was on duty when the accident occurred. Mr. Lau’s employer, Xerox Ltd., is not a party to this proceeding. The plaintiff was also on duty, working as a taxi driver, when the accident occurred. [ 4 ] The Workers' Compensation Appeal Tribunal ("WCAT") determined that the plaintiff and Mr. Lau were both "workers", and that Xerox Ltd. and the defendant GE Vel Company coba GE Vehicle and Equipment Leasing (“GE VEL”) were both employers under the Workers Compensation Act , R.S.B.C. 1996, c. 492 [ WCA ]. WCAT also determined that Mr.

Lau’s negligence arose out of and in the course of his employment within the scope of

Part 1 of the WCA . It is thus undisputed that the plaintiff’s claim is barred from proceeding against Mr. Lau and GE VEL by virtue of s. 10 of the WCA . A finding that Xerox Inc. is not vicarious liable under ss. 86(1) or (1.1) of the Act will therefore have the effect of bringing this proceeding to an end. Facts Xerox Inc. and Xerox Ltd. [ 5 ] Xerox Inc. is an Ontario company and Xerox Ltd. is a federal company. Xerox Inc. and Xerox Ltd. are both subsidiaries of Xerox Corporation. [ 6 ] In the 1980s, Xerox Inc. was the Canadian operating company for Xerox Corporation’s business.

In 1989, Xerox Corporation effected a major reorganization pursuant to which its Canadian operating business was transferred from Xerox Inc. to Xerox Ltd., which entity was incorporated for this purpose. [ 7 ] Both Xerox Inc. and Xerox Ltd. were registered in British Columbia as extra-provincial companies on June 19, 1990. Xerox Inc.’s registration was by way of amalgamation. At all material times, Xerox Ltd. has been directly or indirectly owned by Xerox Inc. [ 8 ] At present, Xerox Inc.’s operations are centered in Ontario.

Xerox Inc. owns a supplies development centre in Mississauga that produces components for toner products. Xerox Inc. also owns the land on which the supplies development centre and the Xerox Research Centre of Canada are located. Between 2007 and 2012, Xerox Inc.’s operations were essentially the same as at present, though it also owned a toner supplies business that was sold in 2010, a paper supplies business that was sold in 2013, and a colour toner plant in Oakville, Ontario, that was sold in 2018. [ 9 ] Xerox Inc. does not have business operations in British Columbia.

Accordingly, it uses Xerox Ltd.’s business address when necessary. This address—Xerox Ltd.’s address in British Columbia—is the address shown in certain Insurance Corporation of British Columbia (“ICBC”) documentation pertaining to the Caravan. [ 10 ] Xerox Ltd. is and has at all material times been the Canadian operating company of Xerox Corporation. In this capacity, it is responsible for the marketing, sale and financing of Xerox equipment, consumables, parts and supplies. It also provides maintenance services for Xerox equipment.

Xerox Ltd. is thus the entity that employs service technicians and has an operational need for fleet vehicles to provide to those technicians to perform their job duties, including travelling to customer sites to service Xerox products. [ 11 ] Xerox Ltd. leases vehicles to provide to its service technicians. Effective June 30, 2006, Xerox Ltd. entered into a Master Lease Agreement with the defendant GE VEL, pursuant to which GE VEL agreed to lease fleet vehicles to Xerox Ltd. for use in its business (the “Master Lease Agreement”).

In June 2013, the Master Lease Agreement was assigned by GE VEL to Element Financial Corporation. [ 12 ] Xerox Inc. is not, and has never been, a party to the Master Lease Agreement. The Caravan and Related Documents [ 13 ] The Caravan was purchased from a dealership in 2007. Upon the initial sale of a vehicle, the dealer is required to complete a new

vehicle information statement. The new vehicle information statement for the Caravan names GE VEL as purchaser and Xerox Inc. as lessee. [ 14 ] Subsequent documentation associated with the Caravan lists its owners as GE VEL as lessor and Xerox Inc. as lessee. By way of example:

a) the ICBC transfer tax form for the Caravan lists the purchaser as “GE VEL COMPANY dba GE VEHICLE AND EQUIPT LSG LSR, XEROX CANADA INC. LSE”;

b) the initial owner’s certificate of insurance and vehicle registration, provided that the owner and registered owner, respectively, of the Caravan were: “GE VEL COMPANY DBA GE VEHICLE AND EQUIPT LSG LSR XEROX CANADA INC. (LESSEE)”; and

c) the vehicle registration and licencing inquiry effective at the time of the accident occurred shows GE VEL as lessor and Xerox Inc. as lessee, as the registered owners of record of the Caravan. (I refer to these documents collectively as the “Registration Documents”.) [ 15 ] Finally, in 1975, ICBC assigned fleet plan number 525436 to Xerox of Canada Ltd.; that entity is not Xerox Ltd., which had not yet been incorporated. Various amalgamations and name changes have apparently occurred since then.

Notably, in 1979, the name of the amalgamated company was changed to Xerox Canada Inc., and in 1980, the name registered to fleet plan 525436 was changed to Xerox Inc. Mr. Lau’s Employment [ 16 ] Prior to his retirement in November 2020, Mr. Lau was employed by Xerox Ltd. for approximately 30 years in the role of service technician. Mr. Lau was never employed by Xerox Inc. [ 17 ] Mr. Lau’s duties involved performing maintenance and repairs to Xerox products for Xerox Ltd.’s customers. This required him to travel to customers’ business premises. As such, Xerox Ltd. provided the Caravan to Mr.

Lau, along with a GE VEL fuel card, for payment of his fuel expenses. WCAT Determinations [ 18 ] On March 10, 2016, the WCAT made a determination pursuant to s. 257 of the WCA that Mr. Lau was a "worker" and was employed by Xerox Ltd., and that Mr. Lau’s actions or conduct that caused the alleged breach of duty of care arose out of and in the course of his employment with Xerox Ltd. More specifically, WCAT determined that at the time of the accident, Mr.

Lau was employed by Xerox Ltd. as a copier service technician and was responding to a service call for Xerox Ltd. when the accident occurred. [ 19 ] On June 19, 2017, WCAT issued a supplemental certificate determining that at the time of the accident, the plaintiff was a "worker" within the meaning of

Part 1 of the WCA , and any injury suffered by the plaintiff in the accident arose out of and in the course of his employment. [ 20 ] On May 29, 2018, WCAT issued a further supplemental certificate determining that at the time of the accident, GE VEL was an "employer" engaged in an industry within the meaning of

Part 1 of the WCA . [ 21 ] WCAT decisions are final and conclusive and are not open to question or review in any court: WCA, s. 255 . Once filed with this Court, a WCAT decision has the same force and effect as if it were a judgment of this Court: WCA, ss. 255(5) and 257 . The Court is bound by determinations made by WCAT made under s. 257 of the WCA : Hommel v. Cook , 2005 BCSC 658 at para. 29 . Liability of Mr. Lau [ 22 ] Liability is not admitted, but Mr. Lau does admit that he was at fault for the accident.

His admission is consistent with his evidence that he saw the plaintiff’s vehicle stopped in front of him as he approached the intersection, but when he tried to apply his brakes, his foot slipped and he hit the gas pedal instead of the brake. The Caravan then collided with the rear of the plaintiff’s taxicab. [ 23 ] The law with respect to rear-end collisions is well-settled. A rear-end collision is itself prima facie evidence that the rear driver failed to keep a safe distance or drive with due care and attention: Chauhan v. Welock , 2020 BCSC 1125 at para. 65 , aff’d 2021 BCCA 216 .

The driver of a rear-ending vehicle is generally at fault and the onus shifts to that driver to prove otherwise: see e.g. Dubitz v. Knoebel , 2019 BCSC 1706 at para. 242 . [ 24 ] Given Mr. Lau’s evidence about what transpired immediately prior to his vehicle colliding with the plaintiff’s, I find that his negligence caused the accident. Vicarious Liability of Xerox Inc. [ 25 ] The plaintiff asserts that Xerox Inc. is vicariously liable for Mr. Lau’s negligence as the owner or lessee of the Caravan pursuant to s. 86 of the Act .

If the plaintiff is successful in this respect, then this action may proceed to an assessment of his damages. If he is unsuccessful, then it is common ground that the plaintiff’s claim is barred from proceeding against Mr. Lau and GE VEL by virtue of s. 10 of the WCA .

[ 26 ]

Section 86 of the Act imposes vicarious liability on “owners” and “lessees” of motor vehicles, providing in material part as follows:

(1) In the case of a motor vehicle that is in the possession of its owner, in an action to recover for loss or damage to persons or property arising out of the use or operation of the motor vehicle on a highway, a person driving or operating the motor vehicle who (

a) is living with, and as a member of the family of, the owner, or (

b) acquired possession of the motor vehicle with the consent, express or implied, of the owner, is deemed to be the agent or servant of, and employed as such by, that owner and to be driving or operating the motor vehicle in the course of his or her employment with that owner.

(1.1) In the case of a motor vehicle that is in the possession of its lessee, in an action to recover for loss or damage to persons or property arising out of the use or operation of the motor vehicle on a highway, a person driving or operating the motor vehicle who (

a) is living with, and as a member of the family of, the lessee, or (

b) acquired possession of the motor vehicle with the consent, express or implied, of the lessee, is deemed to be the agent or servant of, and employed as such by, that lessee and to be driving or operating the motor vehicle in the course of his or her employment with that lessee. [ 27 ] “Lessee”, “lessor” and “owner” are defined in s. 86(3) of the Act as follows: "lessee" means a person who leases or rents a motor vehicle from a lessor for any period of time; “lessor” means the following: (

a) subject to paragraph (b), a person who, under an agreement in writing and in the ordinary course of the person’s business, leases or rents a motor vehicle to another person for any period of time; (

b) if the lessor referred to in paragraph (

a) has assigned the agreement, the assignee; "owner" (

a) includes a purchaser of a motor vehicle who is in possession of the motor vehicle under a contract of conditional sale by which title to the motor vehicle remains in the seller, or the seller's assignee, until the purchaser takes title on full compliance with the contract, (

b) if a purchaser of a motor vehicle is in possession of the motor vehicle, does not include the seller of that motor vehicle under a contract of conditional sale described in paragraph (

a) or the assignee of that seller, and (

c) does not include a lessee of a motor vehicle who is in possession of the motor vehicle under an agreement in writing with the owner, whether or not the lessee may become its owner in compliance with the agreement. … [ 28 ] The purpose of s. 86 is remedial. It is intended to broaden the circumstances in which liability will be imposed on a driver who has given possession of their vehicle to another: Harris Victoria Chrysler Dodge Jeep Ram Ltd. v. Ward (Litigation guardian of) , 2023 BCCA 478 , at para. 85 [ Harris ] . The policy rationale behind the imposition of vicarious liability under s. 86(1) (

b) is to shift the burden of responsibility to those who have within their power to control access to motor vehicles they own: Bowe v. Bowe , 2022 BCCA 35 at para. 23 , leave to appeal to SCC ref’d, 40181 (30 March 2023). Liability under s. 86(1) (b), is thus imposed where the tortfeasor acquired possession of the vehicle with the express or implied consent of the owner: Bowe at paras. 22 and 119 . [ 29 ] The plaintiff relies on s. 86(1)(b), or alternatively s. 86(1.1)(b), in support of its assertion that Xerox Inc. is vicariously liable for Mr. Lau’s negligence.

In order for Xerox Inc. to be vicariously liable for Mr. Lau’s negligence under s. 86(1) or (1.1) of the Act , the plaintiff must establish that, at the time of the accident:

a) Xerox Inc. was an owner or lessee of the Caravan, as defined in the Act ;

b) Xerox Inc. had possession of the Caravan; and

c) Mr. Lau acquired possession of the Caravan with Xerox Inc.’s express or implied consent. Was Xerox Inc. an “Owner” or “Lessee” of the Caravan for the Purpose of s. 86 of the Act ? [ 30 ] The plaintiff’s primary position is that Xerox Inc. is vicariously liable for Mr. Lau’s negligence as an “owner” of the Caravan under s. 86(1) of the Act . Alternatively, he asserts that Xerox Inc. is a lessee of the Caravan under s. 86(1.1) of the Act . In both respects, the plaintiff relies on Xerox Inc. having been listed as the lessee of the Caravan in the ownership sections of the Registration Documents. Was Xerox Inc. an “Owner” Under s. 86(1) of the Act?

[31] I find that Xerox Inc. was not an owner of the Caravan under s. 86(1) of the Act on two grounds. First, the common law indicia ofownership militate against Xerox Inc. being the owner of the Caravan. Second, finding that Xerox Inc. was the owner of the Caravanwould require the Court to ignore s. 86(3) of the Act and the prescribed

definitions of “owner” and “lessee” contained therein. (

a) Common Law Indicia of Ownership [32] I begin my analysis in this respect by noting that the definition of “owner” in s. 86(3) uses the term “includes”, which denotes anon-exhaustive definition. Non-exhaustive

definitions do not purport to displace the meaning that the term would have in ordinary usage;they simply add to, subtract from or exemplify that meaning: Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto: LexisNexisCanada Inc., 2022) at 69–70, quoted with approval in R. v. McColman, 2023 SCC 8 at para. 38. The definition of “owner” thuscontemplates the court looking at the reality of ownership of the vehicle. As this Court noted in Bua (Guardian ad litem of) v. Clegg,2006 BCSC 259: [34] The

section refers to the "owner" of the vehicle, not to the "registered owner". Indeed "owner" is only inclusively defined in s. 1 ofthe Act as including "a person in possession of a motor vehicle under a contract by which he or she may become an owner on fullcompliance with the contract".

This definition suggests that one can look to the reality of ownership of the vehicle in question when oneis looking at s. 86 of the Act. [Emphasis added.] [33] The “owner” referred to in s. 86 is not necessarily the registered owner of a vehicle; rather, the owner is the owner at commonlaw: the person beneficially entitled in fact: Singh v. Brar (1998), 55 B.C.L.R. (3d) 82 at para. 15, 34 M.V.R. (3d) 80 (S.C.), citingHartley v. Saunders (1962), (BC SC), 33 D.L.R. (2d) 638, 39 W.W.R. 467 (B.C.S.C.). For the purpose of s. 86, therecan be multiple owners of a vehicle: Singh at para. 16, citing Larocque v.

Lutz (1981), (BC CA), 27 B.C.L.R. 357,[1981] W.W.R. 504 (C.A.). Being listed as the registered owner of a vehicle does not conclusively decide the question of ownership forthe purpose of s. 86, but provides strong proof of ownership in the absence of evidence to the contrary: Singh at para. 17, citing Jaroszukv.

Quewezance (1992), (BC CA), 66 B.C.L.R. (2d) 171, 12 B.C.A.C. 219 (B.C.C.A.). [34] Accordingly, the plaintiff must establish that in addition to being listed as a registered owner in the Registration Documents,Xerox Inc. was also the owner of the Caravan at common law: Singh at para. 16. [35] The primary indicia of actual ownership at common law was formerly who had “dominion and control” of the vehicle.

Thisremains a significant factor, but is considered in conjunction with other factors including: who was the registered owner, what was thepurpose of transferring the vehicle into the name of the registered owner, who applied for registration and insurance, who kept theinsurance proceeds if the vehicle was a total loss, how the vehicle was paid for, who had the keys, who drove the vehicle, and where thevehicle could ordinarily be found: Singh at para. 18. [36] Applying the common law indicia of ownership as set out in Singh to the evidence leads me to conclude that Xerox Inc. was notan owner of the Caravan for the purpose of s. 86(1) of the Act.

In particular:

a) Xerox Inc. did not conduct any business operations in British Columbia at the time of the accident and had no operationalrequirement for the Caravan; rather, Xerox Ltd. required GE VEL’s services pursuant to the Master Lease Agreement to provide vehiclesto its service technicians as part of its business operations;

b) while no witness had firsthand knowledge of the circumstances surrounding the acquisition of the Caravan specifically, PatriciaTeeter, Senior Law Clerk for Xerox Inc. and Maria Diaz, Director, Global Risk Management for Xerox Corporation, both testified thatthey understood Xerox Ltd. to have leased the Caravan from GE VEL pursuant to the Master Lease Agreement;

c) Xerox Inc. was not a party to the Master Lease Agreement, and there is no evidence of it having entered into any other purchase orlease agreements in respect of the Caravan, or any other vehicle;

d) there is no evidence that Xerox Inc. paid for the Caravan; the new vehicle information statement lists only GE VEL as the purchaser;

e) there is no evidence that Xerox Inc. signed any of the Registration Documents; rather, GE VEL authorized its insurance agent, DonWotherspoon & Associates Ltd., to sign documentation to register, license and insure vehicles in British Columbia on its behalf;

f) there is no evidence that Xerox Inc. ever had possession of the keys for the Caravan or that any of its employees drove that vehicle;rather, the uncontested evidence is that Mr. Lau obtained the Caravan from his employer, Xerox Ltd., and had possession of it at allmaterial times thereafter; and

g) there is no evidence that Xerox Inc. received the insurance payout for the Caravan. [37] In my view, the combined effect of these factors constitutes “strong evidence to the contrary”, as contemplated in Singh, thatdespite being named as owner in the capacity of lessee in the Registration Documents, Xerox Inc. was not the owner of the Caravan atcommon law. [38] In so concluding, I am cognizant that Ms. Teeter acknowledged that the Caravan was insured under a fleet plan number assignedby ICBC to Xerox Inc. However, I find this factor alone insufficient in the context of the evidence as a whole. This is particularly thecase given:

a) the lack of clarity in the evidence regarding whether the Xerox Inc. entity that was assigned the ICBC fleet number back in 1980 isthe same Xerox Inc. entity that is the defendant in this proceeding;

b) the lack of any evidence suggesting that Xerox Inc. was involved in insuring the Caravan; and

c) the fact that insurance matters pertaining to the Caravan were dealt with by GE VEL’s insurance agent, pursuant to an authorizationprovided by GE VEL, not Xerox Inc. [39] This conclusion is also consistent with the evidence of Tony Carpenetti, ICBC Senior Vehicle Registration and LicensingAnalyst, who testified that British Columbia is not a vehicle titling jurisdiction and that the registered and legal owners of vehicles inBritish Columbia can differ. Mr.

Carpenetti also testified that ICBC does not independently verify information submitted by insuranceagents; once an agent applies their validation stamp on documents submitted, ICBC accepts the information as entered. [40] The plaintiff’s position that the common law indicia of ownership militate in favour of a finding that Xerox Inc. was an owner ofthe Caravan rests in large part on his assertion that the Court ought to draw a series of adverse inferences arising from Xerox Inc.’sfailure to produce documents which, and call witnesses who, he asserts would have confirmed that it owned the Caravan. [41] The adverse inference principle as applied in civil cases was summarized in Singh v.

Reddy, 2019 BCCA 79 [Reddy]: [8] The principle is described by authors S.N. Lederman, A.W. Bryant and M.K. Fuerst in The Law of Evidence in Canada (2018, 5thed.) as follows: §6.471 In civil cases, an unfavorable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, orfails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would beassumed to be willing to assist that party.

In the same vein, an adverse inference may be drawn against a party who does not call amaterial witness over whom he or she has exclusive control and does not explain it away. The inference should only be drawn incircumstances where the evidence of the person who was not called would have been superior to other similar evidence. The failure tocall a material witness amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, orat least would not support it. In Thomasson v.

Moeller 2016 BCCA 14, this court summarized the principle in similar terms: An adverse inference may be drawn against a party, if without sufficient explanation, that party fails to call a witness who might beexpected to provide important supporting evidence if their case was sound: Jones v. Trudel, 2000 BCCA 298 at para. 32. The inferenceis not to be drawn if the witness is equally available to both parties and unless a prima facie case is established: Cranewood Financial v. Norisawa, 2001 BCSC 1126 at para. 127; Lambert v. Quinn (1994) (ON CA), 110 D.L.R. (4th) 284 (Ont.

C.A.) at287. [At para. 35] (See also Rohl v. British Columbia (Superintendent of Motor Vehicles) 2018 BCCA 316 at paras. 1-5.) [All emphasis in original.] [42] The plaintiff says that the following inferences should be drawn against Xerox Inc. as a result of its failure to producedocuments:

a) that Xerox Inc. owned the Caravan—an inference the plaintiff says arises from Xerox Inc.’s failure to produce its balance sheets orother financial statements which would have listed its assets;

b) that Xerox Inc. paid the expenses associated with the Caravan—an inference the plaintiff says arises from Xerox Inc.’s failure toproduce invoices issued by GE VEL under the Master Lease Agreement; and

c) that Xerox Inc. received the insurance payout for the Caravan after it was declared a total loss—an inference the plaintiff says arisesfrom Xerox Inc.’s failure to produce documentation showing who in fact received those funds. [43] I decline to draw any of the adverse inferences sought by the plaintiff. In my view, the inferences sought are speculative andinconsistent with the preponderance of the evidence before the Court. [44] The plaintiff has not established that the financial documents in issue were in Xerox Inc.’s possession or control.

Indeed, theevidence suggests that the financial documentation sought—if it exists—would have been issued by GE VEL to Xerox Ltd. pursuant tothe terms of the Master Lease Agreement, and thus would presumably be in Xerox Ltd.’s possession or control. The plaintiff adduced noevidence to the contrary. Xerox Ltd. is not a party to this action and is not obliged to produce documents absent an order being madeunder Rule 7-1(18) of the Supreme Court Civil Rules, B.C.

Reg. 168/2009 [Rules]. [45] The plaintiff also urges the Court to draw adverse inferences against Xerox Inc. because it failed to call two witnesses who hesays would have had relevant information about the ownership of the Caravan: Doug Fleming, Program Manager and Bill Bennet,Purchasing Manager. These individuals were identified by Ms. Teeter as potentially being knowledgeable about vehicles leased or usedby Xerox Ltd., including the Caravan, during the material time frame. The evidence before me suggests that Messrs.

Fleming and Bennetwere both employees of the non-party, Xerox Ltd.; the plaintiff does not contend otherwise. [46] On November 26, 2019, Ms. Teeter was cross-examined on an affidavit she made in this proceeding. Following the cross-examination, the plaintiff made a request for Messrs. Fleming and Bennet’s contact information. Xerox Inc. objected to providing theircontact information on the basis that it was beyond the scope of Ms. Teeter’s affidavit.

It is unclear what steps, if any, the plaintiff tookin response to Xerox Inc.’s objection, including whether it sought to obtain a determination as to whether the objection was well-founded. [47] The Court is not required as a matter of law to draw an adverse inference where a party fails to call a witness. Whether to drawthe adverse inference is a discretionary decision that requires consideration of the following factors, namely whether: (

a) there is alegitimate explanation for failing to call the witness; (

b) the witness is within the exclusive control of the party or is equally available toboth parties; and (

c) whether the witness has key evidence to provide or is the best person to provide the evidence in question: Reddy at

para. 10 ; see also British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd., 2023 BCCA 70 at para. 183 . [ 48 ] I am not persuaded that either Mr. Fleming or Mr. Bennet would have provided the type of “key” evidence contemplated in Singh . The plaintiff has not identified what evidence these witnesses could have provided regarding ownership of the Caravan. There is nothing to suggest that their evidence would have been different than the evidence already before the Court regarding the purchase of the Caravan and its provision to Mr. Lau.

Put differently, there is no basis to infer that their evidence would—contrary to the preponderance of the evidence before the Court—confirm that Xerox Inc. was the owner of the Caravan. [ 49 ] Xerox Inc. conceded in oral submissions that given its objection to providing Messrs. Fleming and Bennet’s contact information, those witnesses were not equally available to the plaintiff. This concession is apt. Nonetheless, Xerox Inc. maintains that its objection was well-founded as Ms.

Teeter was being cross-examined on her affidavit, not examined for discovery, and the plaintiff failed to take steps available to him under the Rules to put himself on equal footing. I find this submission compelling in the present circumstances. [ 50 ] It is also material in this respect that neither of Messrs. Fleming or Bennet were listed in Xerox Inc.’s trial brief such that the plaintiff had notice that Xerox Inc. would not be calling them as witnesses.

Despite this, the plaintiff does not appear to have raised this as an issue, taken steps to revive his demand for contact information, or include them on his own witness list. [ 51 ] There appear to have been various means available to the plaintiff under the Rules —but not utilized—to obtain not only Messrs. Fleming and Bennet’s contact information, but also many of the documents that he says Xerox Inc. has failed to produce.

In my view, a party ought not to be permitted to not take steps available to it in the discovery process to compel production of documents or obtain information necessary to subpoena witnesses, then ask for adverse inferences to be drawn against the opposing party for failing to call those witnesses. In such circumstances, it would not be in the interests of justice to draw adverse inferences as a means to compensate for the plaintiff’s failure to take the necessary steps through the discovery and trial preparation process to put himself in a position to prove his case at trial. (b) Section 86(3) –

Definitions of “Owner” and “Lessee” [ 52 ] The plaintiff’s submission that Xerox Inc. was an “owner” of the Caravan by virtue of having been named as such in the capacity of lessee in the Registration Documents overlooks s. 86(3) of the Act , which defines who constitutes an “owner” or “lessee” of a vehicle for the purpose of s. 86 . Of relevance here is that the definition of “owner” in s. 86(3) (

c) expressly “ does not include a lessee of a motor vehicle who is in possession of the motor vehicle under an agreement in writing with the owner…” (emphasis added). The combined effect of these

definitions is to specifically exclude lessees from the definition of “owner” for the purpose of s. 86. [ 53 ] Thus, and as the Court of Appeal noted, albeit in obiter , in Ocean Park Ford Sales Ltd. v. Insurance Corporation of British Columbia, 2016 BCCA 337 [ Ocean Park ] , owners and lessees are treated as distinct for the purpose of s. 86 by way of the prescribed

definitions in s. 86(3): [26] However, other provisions in the Motor Vehicle Act draw a distinction between "owners" and "lessees". For example, ss. 83- 86 deal expressly with lessees. These sections concern the liability of "owners" for contraventions of the Act ( s. 83 ), speeding and traffic light violations ( s. 83.1 ), and the vicarious liability of owners ( s. 86 ).

In s. 83(1) and s. 83.1(1), "owner" is defined to include "a person who rents or leases a motor vehicle." In s. 86(3), a lessee is specifically excluded from the definition of owner , but a purchaser of a vehicle under a conditional sale contract is included in the definition. [Emphasis added.] [ 54 ] Xerox Inc. cannot therefore be both an owner and lessee of the Caravan in light of s. 86(3), and is only listed as owner in its capacity as lessee. The plaintiff accepts this, and indeed relies on Xerox Inc. being named as lessee in support of his alternative position that it is vicariously liable under s. 86(1.1) .

Applying the clear and unambiguous

definitions of “owner” contained in s. 86(3), I find that Xerox Inc. being named as lessee in the Registration Documents provides further support for the conclusion that Xerox Inc. was not the “owner” of the Caravan for the purpose of imposing vicarious liability under s. 86(1) of the Act . [ 55 ] The plaintiff has not established on a balance of probabilities that Xerox Inc. was an owner of the Caravan as contemplated in s. 86 of the Act . Accordingly, Xerox Inc. is not liable for Mr. Lau’s negligence under s. 86(1) of the Act .

Was Xerox Inc. a “Lessee” of the Caravan Under s. 86(1.1) of the Act? [ 56 ] The plaintiff asserts that Xerox Inc.’s evidence falls short of establishing that Xerox Inc. was not the lessee of the vehicle, and that he is thus entitled to rely on the Registration Documents as prima facie proof that Xerox Inc. was the lessee of the vehicle. I do not find this submission persuasive.

For the reasons set out below, the fact that Xerox Inc. is named as lessee of the Caravan in the Registration Documents is insufficient on its own to establish that it meets the statutory definition of a “lessee” for the purpose of s. 86(1.1) of the Act . [ 57 ] Section 86(1.1) extends vicarious liability to a lessee of a motor vehicle, mirroring s. 86(1) in respect of owners. Section 86(3) provides specific and

definitions of the terms “lessee” and “lessor”. The Legislature’s use of the term “means” in the prescribed

definitions of “lessee” and “lessor” denotes an exhaustive definition which declares “the complete meaning of the defined term and completely displace[s] whatever meanings the defined term might otherwise bear in ordinary or technical usage”: Ruth Sullivan, The Construction of Statutes , 7th ed (Toronto: LexisNexis Canada Inc., 2022) at 69–70, quoted with approval in R. v. McColman , 2023 SCC 8 at para. 38 . [ 58 ] “Lessor” is defined as meaning a person who leases or rents motor vehicles “ under an agreement in writing and in the ordinary course of the person’s business” (emphasis added).

A “lessee” is in turn defined to mean “a person who leases or rents a motor vehicle from a lessor …” (emphasis added). The prescribed definition of “lessee” thus requires that the motor vehicle be leased from a “lessor”,

who is in turn required to leases vehicles under a written agreement. [59] Given the prescribed

definitions of “lessor” and “lessee” contained in s. 86(3), I conclude that the Legislature clearly intendedthat there be a written agreement in place for the lease of a vehicle in order for an individual or party to be deemed a “lessor”. While thedefinition of “lessee” does not expressly reference an agreement in writing, that requirement is nonetheless incorporated into thedefinition of “lessee” through the requirement that a vehicle be leased from a “lessor”.

By consequence, I find that properly construed, s.86(3) requires that both the “lessor” and “lessee” be party to a written lease agreement. [60] The plaintiff has not established that any such written lease agreement exists as between Xerox Inc. and GE VEL, or any otherlessor. The plaintiff’s submissions that such an agreement may exist but Xerox Inc. has failed to produce it are speculative, at best.

Theonly written lease agreement established on the evidence before me is the Master Lease Agreement between Xerox Ltd. and GE VEL.The fact that Xerox Inc. was assigned an ICBC fleet number does not warrant a contrary inference. [61] Thus, despite the Registration Documents naming Xerox Inc. as lessee of the Caravan, the preponderance of the evidence weighsagainst a finding that it was in fact the lessee of the Caravan.

The evidence suggests that Xerox Ltd. was the entity that leased theCaravan from GE VEL pursuant to the terms of the Master Lease Agreement, had possession of the Caravan, and in turn provided theCaravan to Mr. Lau to use in fulfilling his duties as a service technician for Xerox Ltd. [62] In the result, I conclude that Xerox Inc. does not meet the definition of “lessee” prescribed by s. 86(3) of the Act and is thus not alessee under s .86(1.1) of the Act. Xerox Inc. cannot, therefore, be held vicariously liable for Mr.

Lau’s negligence under s. 86(1.1) of theAct. [63] I also note that a contrary finding, namely that Xerox Inc. was either an owner or lessee of the Caravan, would have the effect ofdeeming Mr. Lau to be employed by Xerox Inc., as both ss. 86(1) and (1.1) provide that the person operating the motor vehicle “isdeemed to be the agent or servant of, and employed as such by, that [owner/lessee]” (emphasis added). This would be inconsistent withthe undisputed evidence that Mr. Lau was employed by Xerox Ltd. and WCAT’s determination that Mr. Lau was a worker and that anyalleged breach of the duty of care by Mr.

Lau arose out of and in the course of his employment. Did Xerox Inc. Have Possession of the Caravan? [64] In the event that I am incorrect in concluding that Xerox Inc. was not an owner or lessee of the Caravan, I nonetheless find thatthe plaintiff has not established that Xerox Inc. was in possession of the Caravan. [65] Possession includes not only physical possession but the notion of control: Ward (Litigation guardian of) v. Thomas, 2022 BCSC1147 at paras. 191-192, aff’d Harris at paras. 30, 62-63.

Possession of an automobile is acquired with the transfer of the means or powerof control; the transfer of the means of possession—the keys to open and operate the vehicle—convey the required exclusivity of control:Morrison v. Cormier Vegetation Control Ltd. (1996), 28 B.C.L.R. (3d) 280, (C.A.); see also Barreiro v. Arana, 2003BCCA 58. [66] There is a paucity of evidence as to which Xerox entity had the means or power of control over the Caravan prior to it beingprovided to Mr. Lau. Mr.

Lau’s uncontradicted evidence was that he was employed by Xerox Ltd., his employer provided the Caravan tohim, and he received the keys for the Caravan from his manager. [67] Neither Ms. Teeter nor Ms. Diaz had firsthand knowledge of the circumstances surrounding the transfer of possession of theCaravan specifically. Regardless, Ms. Diaz also testified to the process by which Xerox Ltd. acquired vehicles from GE VEL pursuant tothe Master Lease Agreement, namely that Xerox Ltd. would place an order for vehicles with GE VEL and GE VEL would then arrangefor delivery of the vehicles to Xerox Ltd.

There is no evidence of any similar process being engaged in by Xerox Inc., nor did it have anyoperational need for vehicles in British Columbia. [68] Considering the evidence as a whole, I agree with Xerox Inc. that it would be inconsistent with the reality of Mr. Lau’semployment relationship with Xerox Ltd. and the contractual arrangements between GE VEL and Xerox Ltd. to find that Xerox Inc. hadpossession of the Caravan. It would similarly be inconsistent with the evidence before me to find that Mr. Lau in turn obtainedpossession of the Caravan from Xerox Inc.

Put differently, the preponderance of the evidence suggests that Xerox Ltd. obtainedpossession of the Caravan from GE VEL and had it in its possession before it was provided to Mr. Lau. The evidence simply does notestablish on a balance of probabilities that Xerox Inc. ever had possession of the Caravan. [69] Accordingly, I find that that the plaintiff has not established that Xerox Inc. had possession of the Caravan as owner or lessee, asrequired by ss. 86(1) and (1.1) of the Act, respectively. Did Mr.

Lau Acquire Possession of the Caravan with Xerox Inc.’s Consent? [70] Finally, even if the plaintiff had established that Xerox Inc. was an owner or lessee in possession of the Caravan, he has notestablished that Mr. Lau acquired possession of the Caravan from Xerox Inc. within the meaning of ss. 86(1)(

b) and 86(1.1)(

b) of theAct. [71] Express consent is given “when possession was acquired as a result of the free exercise of the owner’s will”: Gibbs v. Carpenter,2013 BCSC 763 at para. 82, citing Barreiro at para. 16. Implied consent may be inferred from the surrounding circumstances where thecourt is satisfied on the evidence that the owner had an expectation and willingness that a third party would drive the vehicle: Harris atpara. 85. [72] There is no evidence of any relationship between Xerox Inc. and Mr. Lau, or more specifically, of any conduct on the part ofXerox Inc. that would support a finding that Mr. Lau acquired possession of the Caravan with Xerox Inc.’s express or implied consent.

Once again, a finding that Mr. Lau operated the Caravan with Xerox Inc.’s consent would be inconsistent with the employment relationship between Mr. Lau and Xerox Ltd. and the fleet leasing relationship between Xerox Ltd. and GE VEL. [ 73 ] Rather, the preponderance of the evidence suggests that Mr. Lau had possession of, and operated the Caravan with, the express consent of Xerox Ltd. I accept Ms. Teeter’s evidence that Xerox Ltd. was the only Xerox entity that employed service technicians and had an operational need to provide those technicians with service vehicles. It is also undisputed that Mr.

Lau was employed as a service technician by Xerox Ltd., and that Xerox Ltd. issued him a vehicle every four or five years. [ 74 ] Accordingly, I find that the plaintiff has not met his burden of establishing that Mr. Lau acquired possession of the Caravan with the express or implied consent of Xerox Inc. as owner or lessee under as required by ss. 86(1) (

b) or 86(1.1) (

b) of the Act , respectively. Conclusion [ 75 ] Mr. Lau’s negligence caused the accident. However, Xerox Inc. was neither an owner or lessee of the Caravan under ss. 86(1) or (1.1) of the Act . [ 76 ] Alternatively, even if Xerox Inc. was an owner or lessee of the Caravan, it did not have possession of the Caravan and Mr. Lau was not operating it with Xerox Inc.’s consent when the accident occurred. [ 77 ] Accordingly, Xerox Inc. is not vicariously liable for Mr. Lau’s negligence. The plaintiff’s claim against Xerox Inc. is dismissed. [ 78 ] As the successful party, Xerox Inc. is entitled to its costs at Scale B.

If either party seeks an alternative costs order, they have leave to request a further hearing before me on the issue of costs within 30 days of the date of this judgment. “Hughes J.”