) ) TIMOTHY MEHLENBACHER, ANGELA MEHLENBACHER, MYA MEHLENBACHER, a minor by her Litigation Guardian, Angela Mehlenbacher, v. EMMA MEHLENBACHER, a minor, 2017 ONSC 3434

CITATION : Mehlenbacher v. Cooper, 2017 ONSC 3434 CHATHAM COURT FILE NO.: 5814/14 DATE: 20170602 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) TIMOTHY MEHLENBACHER, ANGELA MEHLENBACHER, MYA MEHLENBACHER, a minor by her Litigation Guardian, Angela Mehlenbacher, and EMMA MEHLENBACHER, a minor by her Litigation Guardian, Angela Mehlenbacher Plaintiffs – and – KYLE COOPER, PAUL COOPER, ROBIN COOPER and AVIVA INSURANCE COMPANY OF CANADA Defendants ) ) ) ) ) ) ) ) ))))))))))))))) Jerry F. O’Brien , for the Plaintiffs Christopher J.

Prince , for the Defendants Kyle Cooper, Paul Cooper, and Robin Cooper No one appearing for the Defendant Aviva Insurance Company of Canada ) HEARD: October 3, 2016. REASONS FOR JUDGMENT HOWARD J. Overview [ 1 ] This is a motion for

summary judgment brought by the plaintiffs pursuant to rule 20.01(1) of the Rules of Civil Procedure [1] for

summary judgment in favour of the plaintiffs on issues of liability arising out of a motor vehicle accident that occurred on January 19, 2012, in respect of which the plaintiffs seek the following: a. a determination that the defendant Kyle Cooper was negligent in the operation of the defendant motor vehicle; b. a determination that the defendants Paul Cooper and Robin Cooper are vicariously liable for the negligence of Kyle Cooper under s. 192 of the Highway Traffic Act ; [2] and c. an order that the plaintiffs’ claim proceed as an assessment of damages. [ 2 ] The position of the plaintiffs is that the present case is appropriate for

summary judgment. They argue that there is no genuine issue for trial concerning the negligence of the defendant Kyle Cooper, who admitted that he was driving too fast for the conditions of the road at the time of the accident and that he lost control of the pickup truck that he was driving, which left his westbound lane of Highway 401, proceeded through the median, and then ran head-on into the plaintiffs’ vehicle, which was travelling eastbound on Highway 401. [ 3 ] The defendants Kyle Cooper, Paul Cooper, and Robin Cooper (collectively, the “Cooper Defendants”) contest the plaintiffs’ motion for

summary judgment on the issue of liability. The Cooper Defendants take the position that partial

summary judgment is inappropriate in the circumstances of the instant case and not in the interests of justice. [ 4 ] The defendant Aviva Insurance Company of Canada (“Aviva”) takes no position on the motion. [3] [ 5 ] For the reasons that follow, the plaintiffs’ motion for

summary judgment on the issue of the liability of the Cooper Defendants is granted

Factual Background [ 6 ] The plaintiff Timothy Mehlenbacher was the driver/operator of the plaintiffs’ motor vehicle (“Tim”). Tim’s wife, Angela Mehlenbacher, was seated in the front passenger seat of the plaintiffs’ vehicle at the time of the collision (“Angela”). Tim was driving Angela’s 2011 Chevrolet Traverse SUV. [ 7 ] The minor plaintiff Mya Mehlenbacher is the eldest daughter of Tim and Angela, and was five-years-old at the time of the collision (“Mya”). Mya was a rear seat passenger in the plaintiffs’ vehicle at the time of the collision.

The minor plaintiff Emma Mehlenbacher is the youngest daughter of Tim and Angela, and was three-years-old at the time of the collision (“Emma”). Emma was also a rear seat passenger in the plaintiffs’ vehicle. [ 8 ] The defendant Kyle Cooper was the driver/operator of the defendants’ motor vehicle (“Kyle”). Kyle was driving a 2002 Dodge Dakota pickup truck. [ 9 ] At the time of the collision, Kyle was a 20-year-old student attending St. Clair College in Windsor.

He regularly commuted between Windsor and his parents’ home in Markham, Ontario. [ 10 ] The defendant Paul Cooper, who is Kyle’s father, was the registered owner of the defendants’ motor vehicle. [ 11 ] The defendants have admitted that Kyle was operating the defendants’ motor vehicle with the consent of the defendant Paul Cooper. [ 12 ] The defendant Robin Cooper is Kyle’s mother. [ 13 ] The defendants’ motor vehicle was insured by the defendant Aviva and has third-party liability insurance limits of $2 million. [ 14 ] Aviva is also the plaintiffs’ automobile insurer for the purposes of unidentified, uninsured and OPCF 44R Family Protection coverage.

In particular, the Aviva policy provided coverage in the event that the plaintiffs sustained damages for personal injury as a result of the negligence of an unidentified motor vehicle, and uninsured motor vehicle, or damages in excess of the amount of coverage available to the driver responsible for an accident pursuant to an OPCF 44R Family Protection Endorsement. [ 15 ] The collision in question occurred on Thursday, January 19, 2012, at approximately 9:53 a.m. [ 16 ] The collision occurred in the eastbound lanes of Highway 401, near Iona Road, in the Municipality of Southwold, in the County of Elgin (between Chatham and London).

In that location, Highway 401 travels east/west with two lanes in each direction and a centre median ditch dividing the eastbound and westbound lanes. The maximum speed limit is 100 km/h. The roadway at the location of the collision was straight and flat. [ 17 ] However, at that time, and at that place, it was snowing and the road conditions were icy. [ 18 ] On the morning of the accident, the plaintiffs were travelling from Chatham to London. The plaintiffs’ motor vehicle was travelling eastbound on Highway 401 towards London.

The plaintiffs were all wearing seatbelts, and the two children were also in child restraints. [ 19 ] As the plaintiffs approached London, the weather deteriorated, and it started snowing quite heavily. Tim pulled their vehicle off the road and into the road-side service centre near West Lorne. The plaintiffs then pulled back onto the Highway and continued eastbound. The plaintiffs’ vehicle was travelling at 60 km/h or less.

Snow was starting to cover the roads. [ 20 ] The defendants’ motor vehicle was travelling westbound on Highway 401 at 110 km/h, when Kyle lost control of the defendants’ motor vehicle, drove through the median, and entered into the oncoming eastbound lanes, where he collided head-on with the plaintiffs’ motor vehicle. [ 21 ] It was a very violent collision. The plaintiffs’ motor vehicle spun around and came to rest facing the wrong way. There was smoke from the airbags. The engine was on Angela’s lap. She could not feel her legs. She heard Maya scream that Emma was dead. Eventually, Emma started to cry.

Tim was disoriented and out of sorts. Angela was frantic that Tim get the girls out of the vehicle, as she believed that they would get hit again by oncoming traffic. Angela could not get herself out of the car and thought she was going to die. She was eventually removed from the vehicle and carried to the side of the road by an attending police officer. [ 22 ] Tim described the immediate aftermath of the collision as follows: As a result of the collision I lost consciousness and have no recollection of the collision itself.

The next thing I recall is the OnStar system in our vehicle coming on after the collision. Then I heard my daughter Maja say “Emma’s dead”. I believe I lost consciousness again after that. I do not recall being outside of my vehicle at the accident scene. I remember sitting in the back of the ambulance with my daughters. I have no other recollections until waking up at the hospital. … When I awoke, I found a note on my chest from a nurse, which read: You were in a car accident on the 401. Your wife is in London Hospital. She has a broken arm & leg. Your daughters are OK. They are here in St. Thomas.

No one was killed. It was NOT your fault. You have a concussion. Today is Thursday, Jan. 19. You are in the St. Thomas Elgin General Hospital. This is NOT a dream. [4]

[ 23 ] The collision was investigated by the Ontario Provincial Police. In his statement to the OPP, Kyle stated that: I was driving my truck to Windsor on the 401, West I believe. There was a white truck in the centre median facing north/south that had wiped out. It was a little bit in the left lane. The westbound passing lane. I had just passed a car and went back into the driving lane, the right lane, to avoid the white truck. As I was changing lanes the rear end lost control and sent me into the opposite facing lanes, eastbound. I hit the brakes and wasn’t able to stop.

I went through the median, across the grass and ended up hitting the car head on. The accident happened. … Q. How fast are you driving? A.

About 110 km/h. [5] [ 24 ] As referenced in para. 41 of the factum of the plaintiffs, during his examination for discovery, Kyle made several admissions, including the admission that he was driving too fast for the conditions of the road, as well as the following: a. before Kyle left that morning, he was aware that he would be driving into bad weather conditions, but he did not know where he would encounter those conditions; [6] b. he was on his way to school at the time of the collision; [7] c. he was late for class and had already missed one class that morning; [8] d. he was trying to get to his next class on time, which would have begun around 11:00 a.m. or 12:00 noon; [9] e.

Kyle was driving at approximately 100 km/h and accelerated to approximately 110 km/h in order to pass a car ahead of him in the westbound driving lane; [10] f. when Kyle passed that car, he was driving in the westbound passing lane; [11] g. the car that Kyle passed was travelling at approximately 50 or 60 km/h, which is half of the speed at which he was travelling. Kyle passed that car because he believed it was going “considerably slow”; [12] h. Kyle had not noticed whether the roads were slippery at all; [13] i. Kyle could not recall whether it was windy at all; [14] j.

Kyle could not tell whether there was blowing snow or whether he was just driving past the snow because “[I] was driving 100 clicks.” He did not recall whether he saw snow blowing across the road; [15] k. when Kyle was beside the vehicle he was passing, he saw another vehicle that had spun out, which was about a half-kilometre to a kilometre ahead of him.

This spun-out vehicle, a white pickup truck, was in the centre median and was partially encroaching onto the westbound passing lane of Highway 401; [16] l. however, Kyle was unable to provide any evidence or estimate as to how much of the spun-out white truck was encroaching upon the westbound passing lane of Highway 401, although he said it was enough that he was “not feeling comfortable going around it”; [17] m. Kyle failed to see the spun-out white truck before he started passing the car in the westbound driving lane; [18] n.

Kyle does not have any explanation for not seeing this spun-out white truck earlier; [19] o. Kyle also did not see the police cruiser that was already in the area of the spun-out truck, which cruiser had its emergency lights activated; [20] p. Kyle was fully in the driving lane and just straightening out his wheels when he lost control of the defendants’ motor vehicle; [21] q.

Kyle lost control of his vehicle due to ice on the road [22] in the driving lane; [23] r. at the time Kyle lost control of his vehicle, he was travelling at approximately 110 km/h; [24] s. at the time Kyle lost control of his vehicle, he had already safely gone by the spun-out white truck, which was partially encroaching onto the westbound passing lane of Highway 401, and had got back into the driving lane; [25] t. at the time Kyle lost control of his vehicle, he was not applying the brakes; [26] u. as he lost control, the back end of Kyle’s truck slid out to the right, in a counter-clockwise motion; [27] v.

Kyle did not see the plaintiffs’ motor vehicle before the collision; [28] w. Kyle’s last memory is of losing control of the defendants’ motor vehicle; [29] x. the front of the defendants’ motor vehicle ran into the front end of the plaintiffs’ motor vehicle; [30] y. the defendants’ vehicle was proceeding westbound in the eastbound lanes of Highway 401 when the collision occurred; [31]

z. the reason that Kyle was in the eastbound lanes of Highway 401 is because he lost control of the vehicle he was driving in the westbound lanes, as he tried to avoid the other spun-out white truck; [32] aa. Kyle was driving too fast for the conditions of the road at that time; [33] bb. Kyle does not know – has “no idea” – how long it was from the time he entered the eastbound lanes of Highway 401 until the collision happened. [34] [ 25 ] As a result of the collision, Kyle was charged with careless driving pursuant to s. 130 of the Highway Traffic Act . He subsequently pled guilty to the lesser charge of failing to drive in his marked lane, contrary to s. 154(1) (

a) of the Highway Traffic Act , and paid a $500 fine. [ 26 ] This action was commenced by statement of claim issued January 16, 2014. The plaintiffs claim that each of Tim, Angela, Mya, and Emma suffered serious and permanent injuries, both physical and psychological. The plaintiffs’ claims exceed $3,000,000. [ 27 ] All of the parties filed jury notices. [ 28 ] On March 18, 2015, the plaintiffs served a request to admit. In response, the Cooper Defendants, as well as Aviva, admitted that Kyle had the consent of the registered owner, Paul Cooper, to drive the defendants’ motor vehicle on January 19, 2012. [ 29 ] As of the date of the hearing of the

summary judgment motion, the defendants had not admitted that the conduct of Kyle amounted to negligence. Issues [ 30 ] As reflected in para. 44 of the factum of the plaintiffs, the issues on this motion for

summary judgment are: a. whether there is a genuine issue requiring a trial with respect to the negligence of the defendant driver, Kyle Cooper; and b. whether there is a genuine issue requiring a trial with respect to the vicarious liability of the defendants Paul Cooper and Robin Cooper for the negligence of the defendant driver, Kyle Cooper, pursuant to s. 192 of the Highway Traffic Act ; and c. whether there is a genuine issue requiring a trial with respect to the alleged contributory negligence of the plaintiff driver, Timothy Mehlenbacher. Analysis

Summary judgment principles [ 31 ] Rule 20.04(2) of the Rules of Civil Procedure provides that: The court shall grant

summary judgment if, (

a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (

b) the parties agree to have all or part of the claim determined by a

summary judgment and the court is satisfied that it is appropriate to grant

summary judgment. [ 32 ] The principles governing

summary judgment motions as articulated by the Supreme Court of Canada in its “culture-shifting” decision in Hryniak v. Mauldin [35] are conveniently and correctly set out in paras. 45-53 of the factum of the plaintiffs and paras. 57-74 of the factum of the Cooper Defendants. [ 33 ] As the Supreme Court in Hryniak concluded, the

summary judgement rules must be interpreted broadly, favouring proportionality, and fair access to the affordable, timely, and just adjudication of claims. [36] On the standard of fairness, the Court held that: “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” [37] [ 34 ] Writing for the unanimous Court in Hryniak , Karakatsanis J. summarized the proper approach to a

summary judgment motion in the following roadmap: On a motion for

summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the

summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. [38]

[ 35 ] As the Cooper Defendants concede in para. 57 of their factum, and as our Court of Appeal has expressly held, “[i]t is trite law that both parties on a

summary judgment motion are required to put their best foot forward.

Summary judgment motions are decided by evidence of the facts and by inferences drawn from those facts. Not by speculation about the facts.” [39] [ 36 ] In that vein, I agree with para. 52 of the factum of the plaintiffs, that on a motion for

summary judgment, each side must put its best foot forward with respect to the existence or non-existence of material issues to be tried. A party is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial. The

summary judgment motion judge is entitled to assume that the evidence contained in the motion record is all the evidence the parties would rely on if the matter proceeded to trial. A responding party cannot rely on unsupported allegations in the pleadings or unfounded assertions that there is a genuine issue requiring a trial. As the courts have repeatedly said, a responding party must “lead trump or risk losing.” [40] [ 37 ] At the same time, as our Court of Appeal has said in Baywood Homes Partnership v. Haditaghi , the

summary judgment motion judge must “assess the advisability of the

summary judgment process in the context of the litigation as a whole.” [41] [ 38 ] On a final note, I agree with the submission of the plaintiffs that, as reflected in para. 54 of their factum, the right of a party to a jury trial is not a relevant factor in determining the availability of

summary judgment proceedings. Counsel for the Cooper Defendants argued that, to paraphrase, his clients should have the ability to have a jury decide whether the actions of Kyle in the critical moments leading up to when he lost control of his vehicle were reasonable in all of the circumstances. [ 39 ] I note that a similar argument was rejected in Broomfield v. Doidge [42] in the context of a cross-claim arising out of a fatal motor vehicle accident, in which the defendant driver of the vehicle in which the plaintiff was a passenger crossclaimed against the driver of a transport truck involved in the collision.

There was no evidence to support the allegation that the defendant by crossclaim was negligent or did anything wrong. Perell J. found there was no genuine issue requiring a trial as to the supposed negligence of the defendant by crossclaim.

However, counsel for the plaintiff by crossclaim submitted that “a jury might be persuaded that [the driver of the transport truck] was negligent if it heard the witness and had an opportunity to see [the transport driver] being cross-examined.” [43] [ 40 ] Justice Perell dismissed that argument, in effect, holding that the fact that a case is scheduled for trial by jury as opposed to judge-alone has no bearing on a

summary judgment motion. He held that: The problem, however, with this submission is that it does not address the test for a

summary judgment, which is whether there is an issue requiring a trial. The test is not whether the issue could be tried by a trial judge or trial jury. The test for granting a

summary judgment focuses on whether as a matter of procedural fairness and substantive justice, the action should be tried by a trial judge or jury. That an issue could be decided by a jury does not mean that it needs to be tried by a jury. Is there a genuine issue requiring a trial with respect to the negligence of the defendant driver, Kyle Cooper?

Kyle’s negligent operation of his vehicle [ 41 ] In this case it is clear, based largely on his own admissions at discovery, that Kyle lost control of the vehicle he was driving in the westbound lanes of Highway 401, proceeded through the median, and then ran head-on into the plaintiffs’ vehicle, which was travelling eastbound on Highway 401. [ 42 ] There is a prima facie presumption that when a driver crosses over into another’s driving lane, that driver is negligent. [44] [ 43 ] In such circumstances, the burden of proof shifts to the driver who crossed over into another’s lane, who then bears the onus of proving that the accident could not have been avoided by the exercise of reasonable care.

Otherwise, the driver will be found negligent and at least partially responsible for the accident. [45] [ 44 ] Kyle admitted that he lost control of his vehicle due to ice on the road in his driving lane. However, an explanation that the collision occurred from skidding or sliding upon an icy roadway is not a sufficient explanation to rebut the presumption of negligence. In El Dali v.

Panjalingam , our Court of Appeal held that: “[t]he mere slippery or icy condition of a road does not permit a trier of fact to infer that an accident was unavoidable and not caused by a driver’s negligence.” [46] [ 45 ] While our courts have recognized that skidding of a vehicle on the highway by itself is a “neutral fact,” equally consistent with negligence or no negligence, [47] I adopt the analysis of Dunphy J. in McDonald v.

John Doe , where the court held that: While a skid may be a neutral fact, losing of control of an automobile proceeding at highway speed on a 400 series highway resulting in a school bus literally spinning out of control to end up two lanes away on the shoulder is not. An explanation is called for where that incident bears an obvious and tangible causative link to the accident that followed. [48] [ 46 ] A driver must adjust his or her driving according to the prevailing conditions. “If roads are in such a condition that a motorcar cannot safely proceed at all, it is the duty of the driver to stop.

If the roads are in such a condition that it is not safe to go at more than a foot pace, his duty is to proceed at a foot pace.” [49] [ 47 ] In the instant case, the Cooper Defendants submit that the collision was caused or contributed to by the negligence of an unidentified vehicle, i.e., the white pickup truck, which had spun out in the centre median, causing Kyle to have to change lanes, where

he then encountered icy road conditions, causing him to lose control. [ 48 ] I do not accept that explanation. Kyle did not adjust his driving according to the prevailing conditions. By his own admission, Kyle was driving too fast for the road conditions at the time. He was driving at approximately 100 km/h and accelerated to approximately 110 km/h in order to pass the car ahead of him. That car was travelling approximately 50 to 60 km/h. The plaintiffs’ vehicle was travelling at 60 km/h or less.

Kyle was driving his truck at approximately twice the speed of these other two cars. [ 49 ] Further, in my view, the defendants have provided no actual evidence that the unidentified vehicle actually created a hazard for Kyle or impeded his safe travel in the left-hand passing lane. The police report says only that the unidentified pickup truck was in the “centre median ditch”; there is no mention of it encroaching into the westbound passing lane. [50] In his statement to the police, Kyle reported that the unidentified truck was “a little bit” in the left lane.

However, at discovery, Kyle was unable to provide any evidence or estimate as to how much of the unidentified truck was encroaching onto the westbound left passing lane. [ 50 ] Moreover, the unidentified truck was stopped, facing north/south in the centre median. It was not travelling towards Kyle’s vehicle, and it did not suddenly come into the lane he was driving in. Kyle’s evidence is that the unidentified truck was at least 500 metres to one kilometre ahead of him.

Significantly, Kyle admitted that he did not lose control of his vehicle until after he had safely passed the unidentified truck and had moved back into the driving lane. He was not in the process of changing lanes. His evidence is that he had travelled 100 metres passed the unidentified vehicle and that he was “in the driving lane” when he lost control of his vehicle. [ 51 ] In my view, there is no question but that Kyle was negligent in the operation of his vehicle. Again, he admitted at discovery that he was driving too fast for the conditions of the road at the time of the accident.

Further indicia of his negligence are set out in the circumstances described in para. [24] above, all of which I need not repeat here. Assessing the totality of the evidence before me, I find that it was Kyle’s negligence in driving too fast for the circumstances and conditions of the road at the time that caused him to lose control of his vehicle, cross the centre median ditch, and impact with the plaintiffs’ vehicle, causing the collision. Conviction under s. 154(1) of the Highway Traffic Act [ 52 ] The finding of negligence on the part of Kyle is further supported by his conviction under s. 154(1) (

a) of the Highway Traffic Act , which provides: Where a highway has been divided into clearly marked lanes for traffic, (

a) a vehicle shall not be driven from one lane to another lane or to the shoulder or from the shoulder to a lane unless the driver first ascertains that it can be done safely. [ 53 ] Kyle pled guilty to this offence of failing to drive in a marked lane. To secure a conviction for this offence, the Crown must prove both that the accused left his marked lane and that the manoeuvre was not made in safety. [51] [ 54 ] In Caithesan v. Amjad , this court held that a conviction for “unsafe move” contrary to s. 154(1) (

a) of the Highway Traffic Act “is evidence of [the driver’s] negligence.” [52] [ 55 ] Given that Kyle pled guilty to and was convicted of failing to drive in a marked lane – the essential elements of which are established where the accused fails to drive in a marked lane and the manoeuvre was not made in safety – it is now not open to Kyle to re-litigate those essential elements or lead evidence that he exercised reasonable care in the circumstances. [53] The one percent liability rule [ 56 ] As indicated above, Aviva is the plaintiffs’ automobile insurer for the purpose of unidentified, underinsured, and OPCF 44R Family Protection coverage. [ 57 ] I accept the submission of the plaintiffs, as set out in para. 76 of their factum, that it is well established that where a person is injured in a motor vehicle accident involving an unidentified motorist and another insured at-fault motorist, as long as the insured motorist is at least one percent responsible for the accident, then the unidentified/uninsured coverage does not apply, and the injured party can recover fully from the insured at-fault motorist, regardless of whether the unidentified/uninsured motorist substantially caused or contributed to the accident. [54] [ 58 ] This result arises from s. 265(1) of the Insurance Act , [55] which provides that every motor vehicle liability policy shall include unidentified and uninsured coverage, and s. 2(1)(

c) of the

Schedule established by s. 1 of the Uninsured Automobile Coverage Regulations , [56] which provides that: 2.

(1) The insurer shall not be liable to make any payment, … (

c) where the person insured under the contract is entitled to recover money under the third party liability

section of a motor vehicle liability policy; … [ 59 ] In the recent decision of Saldana v. Caruana , the plaintiff was a passenger in a motor vehicle operated by the defendant

Caruana that was involved in a collision with an unidentified automobile, which attempted to make a left turn in front of the Caruana vehicle. The injured passenger commenced an action against the driver Caruana and Intact Insurance Company, the plaintiff’s unidentified/uninsured motorist insurer. Both the defendant Caruana and Intact moved for

summary dismissal of the claims against them. This court noted that if the defendant Caruana were held liable to any degree, then Intact’s uninsured/unidentified coverage would not have to respond. [57] [ 60 ] Justice Faieta found that the defendant Caruana was at least one percent liable for the collision, in that: He failed to exercise reasonable care to avoid the collision.

Caruana was simply travelling too fast given the poor visibility and slippery, snow-covered road conditions even if his vehicle was travelling at a speed that was less than the posted speed limit. [58] [ 61 ] In this case, I have found that Kyle was negligent in the operation of his vehicle; he is at least one percent liable for the collision. [ 62 ] As such, among other things, there is no need to attempt to apportion Kyle’s negligence in relation to the negligence, if any, of the unidentified truck. [ 63 ] In sum, in my view, there is no genuine issue requiring a trial with respect to the negligence of the defendant driver, Kyle Cooper.

Is there a genuine issue requiring a trial with respect to the vicarious liability of the defendants Paul Cooper and Robin Cooper for the negligence of the defendant driver, Kyle Cooper? [ 64 ] The plaintiffs seek an order that both the defendant Paul Cooper and the defendant Robin Cooper are, as owners of the defendants’ motor vehicle, vicariously liable for the negligence of the defendant driver, Kyle, pursuant to s. 192 of the Highway Traffic Act . [ 65 ] In their factum, the Cooper Defendants do not contest or address the plaintiffs’ submission. [ 66 ] Subsection 192(2) of the Highway Traffic Act provides as follows: The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur. [ 67 ] The Highway Traffic Act does not define the term “owner.” I agree with the submission of the plaintiffs, as set out in paras. 81-83 of their factum, that a person does not have to be the registered owner to be an “owner” of a motor vehicle for the purposes of s. 192(2) .

In other words, it is possible to have more than one “owner” of a motor vehicle for the purposes of the legislation. [ 68 ] In Graham (Litigation guardian of) v. Lemay , our Court of Appeal observed that: The language of s. 192(2) of the Highway Traffic Act speaks of an owner and does not reflect any distinction between non-registered and registered owners. Nor does it impose any dominion and control requirement. Such an approach is also consistent with the public protection purpose of s. 192(2).

Dominion and control may result in a finding of ownership in the case of a non-registered owner but other factors may also lead to that conclusion. [59] [ 69 ] I agree with the submission of the plaintiffs that indicia of ownership can include, but is not limited to, having purchased the vehicle, having exclusive possession of the vehicle, having dominion and control over the vehicle, arranging for appropriate insurance, or disposing of the vehicle following an accident and accepting the proceeds. [60] [ 70 ] In the instant case, the defendant Paul Cooper was the registered owner of the defendants’ motor vehicle.

However, the evidence indicates that both Paul and his wife, Robin Cooper, contributed equally to the purchase of the defendants’ motor vehicle, and it was paid for with funds from their joint bank account. [61] [ 71 ] Moreover, following a request for plaintiffs’ counsel dated September 21, 2016, counsel for the Cooper Defendants produced a copy of the certificate of insurance for the 2012 Dodge Dakota pickup truck, which indicates that Robin Cooper was the named insured of that vehicle. That same certificate of insurance indicates that Kyle is the principal driver of the 2012 Dodge Dakota pickup truck.

The defendant Paul Cooper is not referenced at all in that certificate of insurance. [62] [ 72 ] Accordingly, in my view, both Paul and Robin were “owners” of the 2012 Dodge Dakota vehicle for the purposes of s. 192(2) of the Highway Traffic Act , and Robin was an “unregistered” owner or “beneficial owner” of the defendants’ motor vehicle, even though she was not the registered owner. [ 73 ] Consequently, I find that the defendants Paul Cooper and Robin Cooper were owners of the defendants’ vehicle and, as such, are vicariously liable for the negligence of Kyle, pursuant to s. 192 of the Highway Traffic Act .

Is there a genuine issue requiring a trial with respect to the alleged contributory negligence of the plaintiff driver, Timothy Mehlenbacher? [ 74 ] The factum of the Cooper Defendants does not argue for any conclusion that the plaintiff driver, Timothy Mehlenbacher, be found liable for contributory negligence with respect to the collision. However, the issue was raised in oral argument before me. Further, para. 6A of the statement of defence of the Cooper Defendants sets out allegations of negligence against the plaintiff driver. [ 75 ] It goes without saying that there must be some factual basis to support such an allegation, especially on a motion for

summary judgment. [ 76 ] In this regard, it is instructive to consider certain aspects of the history of the litigation.

It appears that at the examination for discovery of the Cooper Defendants held on July 23, 2014, counsel for those defendants indicated that there were no facts upon which they were relying in support of the allegations of contributory negligence against the plaintiff driver. [ 77 ] By letter dated October 29, 2014, counsel for the plaintiffs wrote to counsel for the Cooper Defendants to remind counsel that at the discoveries, counsel for the Cooper Defendants confirmed that there were no facts being relied upon in support of the allegations of contributory negligence.

Plaintiffs’ counsel asked counsel for the Cooper Defendants either to admit liability on behalf of the Cooper Defendants or, if liability was not to be admitted, whether defence counsel would withdraw the allegations of contributory negligence. Plaintiffs’ counsel asked if counsel for the Cooper Defendants could “please advise forthwith and well in advance of the upcoming discoveries of the plaintiffs as that may change the nature of who can represent Mr. Mehlenbacher.” [ 78 ] It appears there was no immediate response. [ 79 ] The plaintiffs’ motion for

summary judgment was served on June 17, 2016, and was originally returnable on June 28, 2016. [ 80 ] At the request of the Cooper Defendants, the hearing of the motion was adjourned to September 13, 2016. [ 81 ] At the further request of the Cooper Defendants, the motion was adjourned again to October 3, 2016, peremptory to those defendants. [ 82 ] By letter dated September 9, 2016, counsel for the plaintiffs wrote to counsel for the Cooper Defendants in order to confirm a conversation they had that same day.

In his letter, counsel for the plaintiffs made the following request: During our discussion, I asked you if your client would be suggesting at the hearing of the motion that Tim Mehlenbacher was negligent. You were not able to answer that, and said that you would need instructions. Please advise forthwith with if you will be suggesting that Tim Mehlenbacher was negligent at the hearing of the motion. As you know, you have not advanced any claim for contribution against him.

His liability is also insured by Aviva. [ 83 ] By follow-up letter dated September 16, 2016, counsel for the plaintiffs requested an answer to his letter of September 9, 2016, as soon as possible. [ 84 ] I am advised that as of the date of the hearing of the

summary judgment motion, the lawyers for the Cooper Defendants had not responded to plaintiffs’ counsel. [ 85 ] As such, I find that at no time in this action have the Cooper Defendants put forward any evidence or factual basis for a finding of negligence on the part of the plaintiff driver, Tim Mehlenbacher. [ 86 ] On the record before me, I find that there is clear evidence of the negligence of the defendant Kyle but no evidence that the plaintiff Tim did anything wrong, by act or omission, or could have avoided the collision. Conclusion [ 87 ] For all of these reasons, the motion for

summary judgment of the plaintiffs on the issue of liability of the Cooper Defendants is granted, with costs, and I find that: a. the defendant Kyle Cooper was negligent in the operation of the his motor vehicle, which caused or contributed to the cause of the collision that occurred with the plaintiffs’ motor vehicle on January 19, 2012; b. the defendants Paul Cooper and Robin Cooper are vicariously liable for the negligence of Kyle Cooper under s. 192 of the Highway Traffic Act ; and c. the plaintiffs’ action should proceed as a trial on the “threshold issue” of whether, as a result of the collision on January 19, 2012, one or more of the plaintiffs has sustained “permanent serious disfigurement or permanent serious impairment of an important physical, mental or psychological function” within the meaning of s. 267.5(5) of the Insurance Act and, if so, an assessment of the plaintiffs’ damages. [ 88 ] If the parties are unable to agree on the issue of costs of the plaintiffs’ motion for

summary judgment, they may file brief written submissions with the court, of no more than five (5) double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the following schedule:

a. the plaintiffs shall deliver their submissions within twenty (20) days following the release of these reasons; b. the Cooper Defendants shall deliver their responding submissions within twenty (20) days following service of the plaintiffs’ submissions; c. the plaintiffs shall deliver their reply submissions, if any, within five (5) days following service of the Cooper Defendants’ submissions; d. if any party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue. “original signed and released by Howard J.” J. Paul R.

Howard Justice Released: June 2, 2017 CITATION : Mehlenbacher v. Cooper, 2017 ONSC 3434 CHATHAM COURT FILE NO.: 5814/14 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: TIMOTHY MEHLENBACHER, ANGELA MEHLENBACHER, MYA MEHLENBACHER, a minor by her Litigation Guardian, Angela Mehlenbacher, and EMMA MEHLENBACHER, a minor by her Litigation Guardian, Angela Mehlenbacher Plaintiffs – and – KYLE COOPER, PAUL COOPER, ROBIN COOPER and AVIVA INSURANCE COMPANY OF CANADA Defendants REASONS FOR JUDGMENT Howard J. Released: June 2, 2017