2013 ONSC 7597, 2013 ONSC 7597

CITATION : Searay v. Tripp, 2013 ONSC 7597 COURT FILE NO.: 09-10854 DATE: 2013/12/10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ) ) CHANDRA SEARAY and KATHERINE SEARAY ) ) ) Not represented or participating ) Plaintiffs ) ) - and - ) ) ) STEPHANIE L. TRIPP, ELAINE L. CRAWFORD and CUMIS GENERAL INSURANCE COMPANY ) ) ) S. Aird and J. Chae, for the Defendant, Elaine L. Crawford H. Sahian and A. Wilkinson for the Defendant, Cumis General Insurance Company ) Defendants ) ) ) ) HEARD: 12, 13, 14 November 2013 The Hon. Mr. Justice J.C.

Kent REASONS FOR JUDGMENT [ 1 ] The issue for the court to determine in this trial is whether the defendant Elaine L. Crawford gave her daughter Stephanie L. Tripp, also known as Stephanie Crawford, then age 19, permission to possess and drive a motor vehicle in the early hours of 27 May, 2007. Background: [ 2 ] Between 3 and 4 a.m. on 27 May 2007, Stephanie Crawford was driving a 1997 Saturn motor vehicle. The registered owner of the vehicle was her mother Elaine Crawford.

Elaine Crawford had obtained insurance coverage on the vehicle. [ 3 ] Keys to the vehicle in question were kept on a hook inside the door to the residence where Stephanie lived with her parents. [ 4 ] As a result of the accident in which she was involved, Stephanie was charged with careless driving and with being in breach of the conditions of her G1 driver’s licence . Initially Police Constables Mark Stringer and Kevin Boegel who were at the scene considered

charges of failing to remain at the scene of an accident and taking a vehicle without the owner’s consent, but those charges, apparently,did not proceed. [5] Although his notes were something less than full and complete, Constable Stringer indicated in cross-examination that it wasclear to him having spoken with Stephanie and one or both of her parents, that she had taken the vehicle without parental consent. [6] If the court, on the basis of evidence presented at trial, is satisfied on a balance of probabilities that Stephanie Crawford wasdriving the vehicle in question without the consent of Elaine Crawford, the action of the plaintiffs as against Elaine Crawford should bedismissed.

Stephanie Tripp did not defend against the plaintiffs’ claims and she has been noted in default. Ownership and Possession: [7] The defendant Cumis General Insurance Company did not plead that Stephanie was a beneficial owner of the Saturn vehicle atthe relevant time. It was, however, clear at the outset of this trial that that was an issue that would be raised by Cumis and relied upon. [8] Where there is more than one owner of a motor vehicle, it becomes unnecessary for one owner to have the consent of the otherowner before liability will attach to both pursuant to Sec. 192 of the Highway Traffic Act.

See: Mazur v. Elias (ONCA), [2005] O.J. No. 1407 (C.A.), see also: Cimino v. Doauber 2013 ONSC 1609. [9] The evidence at trial made it clear that the funds used to purchase the Saturn vehicle originated with Stephanie’s paternalgrandmother. Apparently, a bond was being held by her for Stephanie. The bond was cashed and the funds realized as a result wereprovided to Elaine Crawford to purchase the Saturn vehicle that Elaine had located. It was understood that at some point in the future thevehicle would be transferred to Stephanie.

In the interim, her mother, Elaine, registered the vehicle in Elaine’s name, insured the vehiclein Elaine’s name and maintained the vehicle. Before the date of the accident, with one possible exception, the vehicle when driven byStephanie was only driven in accordance with the conditions of her G1 driver’s licence. [10] The possible exception to the foregoing exists if the evidence of Chandra Searay is accepted by the court. Chandra told the courtthat in the afternoon preceding the date of the accident, she observed Stephanie to be driving the vehicle in contravention of the terms ofher licence.

That evidence is disputed by both Elaine Crawford and Stephanie. [11] Given the funding for the purchase of the vehicle and the intention as to the ultimate transfer of the vehicle, it may be, arguably,found that Stephanie had a contingent beneficial ownership interest. That is at most.

It may, however, have been an interest that nevercrystalized and cannot, therefore, be relied upon to find Stephanie to be a co-owner of the vehicle together with Elaine at the relevanttime. [12] In view of the above finding, it is necessary to consider whether Elaine consented to Stephanie’s possession and operation of theSaturn vehicle at the relevant time. [13] Consent to possess and drive a motor vehicle can be given by its owner either expressly or impliedly. There is no evidence in thiscase that express consent was given at the relevant time or any other time.

The court must consider whether Elaine Crawford hassatisfied the court on a balance of probabilities that her daughter Stephanie Crawford had possession of and was operating Elaine’svehicle at the time of the accident without Elaine’s implied consent. Indicia of Implied Consent: [14] Implied consent, or lack of implied consent, is not to be determined solely at the specific time of the accident. See: Mugford v.Weber 2004 ABCA 145 , [2004] A.J. 508 (C.A.). A negative answer to the hypothetical question of whether consent had beengiven, if made after the accident, may not relieve the owner of liability.

See: Mugford at para. 44. [15] It is therefore necessary to examine what other courts have found to be indicia of implied consent. [16] See: Cameron v. Halverson, [2004] A.J. No. 1786 (Q.B.) in which a daughter was found to have given her implied consent toher unlicensed father to drive her vehicle by leaving it in her parents’ driveway when she went away. She knew her father had driven hervehicle in the past and she had only given him a gentle admonishment. By giving him access to the vehicle and the keys, she had givenher implied consent to its use. [17] See also: Korencik v.

Hartwell, 2007 ABQB 459, where parents had left a vehicle with their son to conduct repairs. Instead, hedrove to a party and was involved in an accident. The Court determined that a son was given possession and had access to the keys andthe son did not believe that he required express permission to operate the vehicle that evening. The evidence did not support that theparents required specific consent to operate the vehicle. [18] In Traders General Insurance v. McCubbin, [2009] O.J.

No. 4478, Justice Belobaba determined that the son did not have explicitconsent to drive the vehicle but he did have implied consent. The evidence demonstrated that the respondent allowed the son to drive thetruck on private roads and when he learned the son had been occasionally driving on public roads, simply told the son to be careful. Onthe day of the accident, the son had another licensed driver with him, but not one with four years’ experience, as required by conditionsof the son’s licence. [19] In the 2008 decision of Seegmiller v. Langer et al., (ON SC), [2008] O.J.

No. 4060, the court found that therewas consent to possession despite the condition of non-operation. A registered owner’s daughter and the daughter’s boyfriend were notlicensed and were prohibited from driving the vehicle in question until they had their licences. The vehicle was parked in the driveway ofthe mother’s home where she lived with her daughter and the daughter’s boyfriend. The keys were left on a hook inside of the door of thehouse.

The keys were not specifically given by the mother to the daughter or her boyfriend and, while the mother was away from thehome, the daughter and her boyfriend took the vehicle, drove it on the highway and were involved in an accident. Justice Strathy foundthat the mother was liable as the owner of the vehicle as she had consented to her daughter and boyfriend having possession and control

of the vehicle even though they had been prohibited from operating it. Justice Strathy reviewed the case law and distilled from it thefollowing eight principles: 1. The question of whether a motor vehicle is in the possession of some person without the consent of the owner is a question of factto be determined by the evidence in a particular case. 2. The meaning of possession is a question of law but the application of that definition to any particular set of facts is not a questionof law alone. 3. Possession is a concept capable of different meanings and there are different types of possession.

The primary definition ofpossession contemplates power, control or dominion over property. 4. Once ownership of a vehicle is established, the onus passes to the owner to establish that the vehicle was, without the consent ofthe owner, in the possession of some person other than the owner. 5. The owner’s vicarious liability is based on possession, as opposed to operation of the vehicle. 6. Consent to possession of a vehicle is not synonymous with consent to operate it. 7.

If possession is given, the owner willbe liable even if there is a breach of a condition attached to that possession, including a condition that the person in possession will notoperate the vehicle. 8.

Breach of conditions placed by the owner on a person’s possession of the vehicle, including conditions as to who may operate thevehicle, do not alter the fact of possession. [20] Where an owner of a vehicle consents to a situation where she has no control over the physical use or possession of a vehicle, bynot requesting that keys be returned or expressly revoking prior consents, then the courts will follow the overriding goal of publicprotection and find implied consent. See: Ezzedine v. Dalgard 2006 ABQB 826 , [2006] A.J. No. 1431 para. 88 [21] The Supreme Court of Canada decision of Deakins v.

Aarsen, (SCC), 1970 CarswellOnt 209, involved thenegligent operation of a motor vehicle by the vehicle owner’s son’s girlfriend. The court explained that the intimacy of the son and thegirlfriend’s relationship, the son’s carefree attitude in leaving the keys in the ashtray of the unlocked vehicle, taken together with the factthat on a previous occasion he had instructed his girlfriend on how to drive the vehicle and that she had driven it on her own at least oneother time, “clearly justified” the learned trial judge’s finding that there was implied consent. [22] In Abstainers’ Insurance Co. v.

Vavaroutsos, 1993 CarswellOnt 2909, a girl was involved in an accident after driving anuninsured family vehicle. It was customary for the girl to ask permission if she wanted to drive the other family vehicles, but she wasspecifically told not to drive the uninsured vehicle. The daughter had driven the uninsured vehicle to and from work on approximately 5other occasions, which was claimed to be unbeknownst to the owner. On the day of the accident, she took a set of keys that were leftunsecured in a bowl near the front door of the home.

The court determined there to be a finding of implied consent. [23] Furthermore, in Korody v. Bell, [2009] O.J. No. 1716 (S.C.) [Korody], the owner’s testimony was held to contain numerousshortcomings and inconsistencies, especially with respect to the driver’s previous use of the vehicle at issue. On the totality of theevidence therefore, it was ultimately held that the driver assumed that he had the implied consent of the owner and was objectivelyjustified in making that assumption. The issue of implied consent was decided after a trial. [24] Lastly, the case of Emond v. Reid [1993] O.J.

No. 1349 (G.D.) [Edmond] was a case where, at trial, one of the issues waswhether the driver of the vehicle at issue was driving with the owner’s consent. Implied consent was found after the owner admitted thatshe was fully aware that the driver almost regularly took her car without her express permission by simply taking the keys from herpurse. Nonetheless, the owner did not change her habits, change the location of the keys or confront the driver as to his “non-authorized”possession of the vehicle.

Analysis of Implied Consent Issue: [25] In this case, the facts supporting a finding of implied consent are as follows: 1. Both the vehicle and the keys required to operate it were available at the home where Stephanie resided with her parents. 2. It was possible that one day the vehicle would be transferred to Stephanie’s ownership. 3. Stephanie may have told Chandra Searay and her mother Katherine that it was Stephanie’s vehicle. 4. Stephanie, according to Chandra Searay, may have been driving the vehicle in the afternoon before the accident in contraventionof the terms of her licence.

Stephanie may on more than one occasion have referred to the keys to the vehicle as her keys. [26] It is necessary to consider the issue of implied consent from Stephanie’s point of view. The law requires that. She was 19 yearsold at the relevant time. She went into her home and took the keys from their location while her parents were asleep. She told one of thepolice officers who attended at the accident scene that she had “taken” the vehicle.

While the court does not have the benefit of knowingwhat exact words were used, the officer clearly was of the view that Stephanie had taken the vehicle without her mother’s permission. [27] Elaine testified that she had no reason to believe that Stephanie would take the vehicle. Stephanie had never asked before that totake the vehicle. Stephanie had not been a discipline problem for Elaine and her husband. She explained that the keys were available inthe house to enable the movement of vehicles in the driveway of the family home. The Saturn was the fourth vehicle.

Elaine explainedthat she had discussed with Stephanie when Stephanie could and could not drive and had discussed that in a detailed fashion. She alsoexplained that she had endeavored to reinforce that with Stephanie. She was, therefore, angry at Stephanie’s demonstration of the

“stupidity of taking the vehicle”. Credibility and Finding: [ 28 ] Counsel for Cumis points to certain discrepancies in Stephanie’s evidence. He reminded the court that Stephanie maintained that she mis-spoke on more one occasion. But, on balance, Stephanie’s evidence should not be rejected. Even if she had on the afternoon before the accident driven the vehicle in contravention of the terms of her licence, Elaine certainly did not know about that. Elaine’s evidence is clear and unequivocal.

Stephanie satisfied the court that she knew the restrictions on her licence and she knew the restrictions that her mother had placed upon any potential use of the vehicle by Stephanie.

Stephanie’s evidence that she knew she would not get permission to operate the vehicle on her own and did not ask is clear, sensible and fits with that of Elaine. [ 29 ] In view of the foregoing, it is not surprising that Police Constable Stringer, a veteran of 38 years on the force, was clearly of the impression that Stephanie had taken the vehicle without Elaine’s consent. [ 30 ] If Chandra Searay is correct in her recollection of Stephanie having driven the vehicle contrary to the conditions of her licence on the afternoon before the accident, that is not fatal to the assertion put forward by Elaine Crawford.

This court finds it to be more probable than not that at the relevant time Stephanie Crawford was operating the Saturn vehicle without the consent of her mother Elaine Crawford. Accordingly, judgment should be granted dismissing the action as against Elaine Crawford. Costs: [ 31 ] If counsel are unable to agree on costs, submissions may be made in writing limited to 4 pages together with a costs outline. Submissions for Elaine Crawford to be made within 30 days of the release of this judgment.

Response on behalf of Cumis General Insurance Company within 15 days thereafter and reply if any within 10 days after the response. ___________________________ Kent, J. Released: 10 December, 2013 CITATION : Searay v. Tripp, 2013 ONSC 7597 COURT FILE NO.: 09-10854 DATE: 2013/12/10

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: CHANDRA SEARAY and KATHERINE SEARAY Plaintiffs - and - STEPHANIE L. TRIPP, ELAINE L. CRAWFORD and CUMIS GENERAL INSURANCE COMPANY Defendants REASONS FOR JUDGMENT KENT, J. Released: 10 December, 2013