



COURT OF APPEAL FOR ONTARIO

CITATION: McKay v. Park, 2019 ONCA 659

DATE: 20190819

DOCKET: C66400

Paciocco, Harvison Young and Zarnett JJ.A.

BETWEEN

Krista McKay, Wendy McKay and Jack McKay

Plaintiffs

and

Sarah Elizabeth Park
, Giancarlo Hnatiuk
    and
TD Home and Auto Insurance Company

Defendants

(Appellant)

(Respondent)

Sheldon A. Gilbert, for Sarah Elizabeth Park

Irina Sfranciog and Rachel Pano, for TD Home and Auto Insurance

Heard: August 12, 2019

On appeal from the judgment of Justice H. McArthur of the
    Superior Court of Justice, dated December 7, 2018.

REASONS FOR DECISION

OVERVIEW

[1]

During an argument with Sarah Elizabeth Park, Giancarlo Hnatiuk reached
    over from the passengers seat, grabbed, and pulled the wheel of Ms. Parks
    automobile, which Ms. Park was operating. Almost instantaneously, the
    automobile collided with a vehicle carrying Krista McKay. Ms. McKay was
    seriously injured. Ms. McKay and her family members sued both Mr. Hnatiuk and
    Ms. Park. Against Ms. Park, the McKays alleged that she was negligent and that
    she was responsible for the negligence of Mr. Hnatiuk under the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8, s. 192. Section 192(2) provides
    vicarious liability for owners due to negligence in the operation of their
    motor vehicles unless the motor vehicle  was without the owners consent in
    the possession of some person other than the owner.

[2]

Ms. Park sought summary judgment under the
Rules of Civil Procedure
,
    R.R.O. 1990. Reg. 194, r. 20, dismissing the McKays action against her. Ms.
    Park also moved under a r. 21 motion for a determination before trial that Mr.
    Hnatiuk is not entitled to indemnity under Ms. Parks motor vehicle policy
    issued by State Farm Mutual Automobile Insurance Company [State Farm]. The
    insurer of Ms. McKays vehicle, TD Home and Auto Insurance Company [TD Home],
    defended against both motions, but both were granted.

[3]

TD Home now appeals both decisions, raising several grounds of appeal. For
    the following reasons, we dismiss the r. 20 appeal, but allow the r. 21 appeal.
    We also deny leave to TD Home to appeal the costs order below and dismiss that
    appeal. However, because of the mixed success in the r. 20 and r. 21 motions in
    light of this decision, we adjust the costs order as described below.

THE RULE 20 APPEAL AGAINST SUMMARY JUDGMENT

[4]

TD Home argues that the motion judge erred by placing the onus on Ms.
    McKay to show there
was
a genuine issue requiring trial, when the onus
    should have been on Ms. Park, who brought the summary judgment motion, to show
    there was
not
a genuine issue requiring trial. This submission is
    based on the facts that: (1) the motion judge did not expressly identify who
    bore the burden; and (2) she structured her decision by addressing only the McKays
    arguments as to why there was a genuine issue requiring trial.

[5]

We would not give effect to this ground of appeal. The motion judge is
    presumed to know the law. It is not necessary for a judge to rehearse in every
    case who bears the burden. Nor is there any indication that the motion judge
    got the onus wrong. Her decision to focus only on the areas of contention when
    explaining her conclusion that there is no genuine issue requiring trial is
    understandable and appropriate.

[6]

TD Home also argues that the motion judge erred by not applying the law
    of possession properly. In effect, it is TD Homes position that despite Mr. Hnatiuks
    act of seizing the steering wheel, Ms. Park remained in possession of the
    automobile and is therefore vicariously liable under s. 192 of the
Insurance
    Act
. They claim that the motion judge erred by not recognizing her
    possession or joint possession.

[7]

We would not give effect to this ground of appeal. As Strathy J. (as he
    then was) observed in
Seegmiller v. Langer
, 301 D.L.R. (4th) 454 (Ont.
    S.C.J.), at para. 34, [t]he primary definition of possession contemplates
    power, control or dominion over property (citation omitted). In addressing TD
    Homes argument that Ms. Park had possession of the vehicle, the motion judge disagreed,
    finding that by seizing the wheel, Mr. Hnatiuk took control of the car away
    from her. We see no palpable and overriding error in this finding of fact or in
    the motion judges failure to use the word possession when expressing her
    ruling. It is obvious this is what she meant.

[8]

Moreover, under the terms of s. 192(2) of the
Highway Traffic Act
,
    vicarious liability arises unless the motor vehicle  was without the owners
    consent in the possession of some person other than the owner. TD Home does
    not contest that Mr. Hnatiuk, who is not the owner, was at least in joint possession
    of the motor vehicle, and the motion judge found on uncontested evidence that
    Mr. Hnatiuks act of taking control of the motor vehicle (which gave him
    possession) was without Ms. Parks consent. The exemption from vicarious
    liability under s. 192(2) therefore applies. This outcome makes sense since the
    purpose of vicarious liability is to have owners assume the risk of those they
    have entrusted with their motor vehicle:
Thompson v. Bourchier
, [1933]
    O.R. 525 (C.A.). At no time did Ms. Park entrust Mr. Hnatiuk with her motor
    vehicle. She should not bear vicarious liability.

[9]

TD Home also claims that the motion judge erred in finding that Ms.
    Parks negligence was a not a genuine issue requiring trial. In essence, TD
    Home offers three theories of negligence: (1) Ms. Park was negligent in
    operating a motor vehicle while Mr. Hnatiuk was agitated in the front passengers
    seat, knowing his volatile and impulsive character; (2) Ms. Park was negligent
    in driving while distracted by the emotion of the argument; and (3) Ms. Park
    was negligent in her manner of operation.

[10]

The motion judge was entitled on the evidence before her to find that
    there was no genuine issue requiring trial on each of these alleged negligence
    theories. She was entitled on the evidence to find that it was not foreseeable
    that Mr. Hnatiuk would grab the wheel. She was also entitled to find that any
    agitation Ms. Park may have had did not contribute to the accident; the only
    evidence was that Ms. Park had been driving without incident until Mr. Hnatiuk
    grabbed the wheel. And the motion judge was entitled to find that Mr. Hnatiuk
    took control of the car. This finding, which was inevitable on the evidence, coupled
    with her finding that Mr. Hnatiuks act was not foreseeable, puts an end to any
    realistic negligence claims against Ms. Park.

[11]

TD Home also urges that the motion judge erred by not addressing Ms.
    Park's argument that she was bound by the factual findings underlying Mr.
    Hnatiuks prior related criminal convictions for operating the motor vehicle,
    and leaving the scene of the accident having had care, charge or control of
    the motor vehicle. Since it was Ms. Park who stood to benefit from reliance on
    these findings, the theory of this ground of appeal must be that the motion
    judge may have, without saying so, accepted that she was constrained by them.
    We do not accept this. There is no indication that the motion judge absolved
    Ms. Park of liability because Mr. Hnatiuk had been found in a prior criminal proceeding
    to have operated or had care, charge or control of the motor vehicle. Indeed,
    it is evident from her reasons for decision that she decided the motion based
    on her own evaluation of the evidence.

[12]

We also disagree with TD Homes contention that the motion judge did not
    give adequate reasons relating to the r. 20 decision. The motion judge was not
    obliged to refer to all the evidence that she considered in order to show her
    path to the decision. Her r. 20 decision was explained adequately to enable
    appellate review.

[13]

The r. 20 appeal is therefore dismissed.

THE RULE 21 APPEAL AGAINST STATE FARMS INDEMNITY OBLIGATION

[14]

The motion judge allowed the r. 21 motion although there is continuing
    controversy about what she ordered. The request was for a determination that
    Mr. Hnatiuk is not entitled to indemnity under Ms. Parks State Farm policy.
    The judgment stated that the purpose of the motion was for a determination that
    Mr. Hnatiuk is not an insured, but her actual determination in both the judgment
    and Endorsement is that Mr. Hnatiuk is not covered. We need not resolve what
    the motion judge ordered or whether her deviation from the technical language
    of the
Insurance Act
constitutes error

because the motion
    judges r. 21 determination must be set aside, for two reasons.

[15]

First, the motion judge gave no meaningful explanation for the reasoning
    path she took in coming to her decision. The respondents counsel made complex
    and layered submissions as to why s. 239(1) of the
Insurance Act
would
    not provide insurance to Mr. Hnatiuk as an occupant of the motor vehicle. He focused
    on whether Mr. Hnatiuk lost his status as an occupant as the result of his act
    of grabbing the steering wheel, as well as the impact that s. 1.8.2 of the Ontario
    Automobile Policy-Owners Policy would have on the application of s. 239(1). In
    her r. 21 decision, the motion judge refers to no statutory or Policy provisions
    and does not identify the law or any provisions of the applicable Policy that she
    relies upon. The heart of the motion judges brief reasons is that her finding
    that Mr. Hnatiuk grabbed the steering wheel without Ms. Parks consent leads
    to the inevitable conclusion that Mr. Hnatiuk would not be covered by Ms.
    Parks insurance. With respect, this explanation does not provide a path to
    the motion judges reasoning sufficient to enable appellate review. The motion
    judge therefore erred in law.

[16]

Second, we are not persuaded that this was a proper r. 21.01(1)(a)
    motion. Such motions are to resolve questions of law raised by pleadings, and without
    leave, no evidence is admissible on such a motion. As the motion judges
    decision reflects, she did not make her decision based on a question of law
    raised by the pleadings, but rather on evidence from the r. 20 motion. And it
    is not clear that the applicable Policy terms were put into evidence.

[17]

We therefore allow the r. 21 appeal and set aside that decision. Our
    conclusion is not a disposition of the merits of the issue raised by the r. 21
    motion. The parties are at liberty to bring such further proceedings as appropriate
    to have that issue determined.

COSTS

[18]

TD Home seeks leave to appeal the motion judges costs award, which
    ordered it to pay costs of the motions and action in the sum of $50,000 all
    inclusive.

[19]

We would not grant leave to appeal. The award is not tainted by any
    error in principle nor is it plainly wrong so as to warrant appellate
    intervention:
Johnson
v.
Marzouca
, (2016) 130 O.R. (3d) 795
    (C.A.), at para. 13. Costs of the action were appropriately included in the
    disposition of costs, since success on the r. 20 motion involved dismissal of
    the action. TD Home participated in steps of the action and it was not
    inappropriate for it to bear those costs as well as the costs of the motions it
    was resisting. We note that the costs awarded were less than what was requested
    by the successful party, and the amount is not so high in light of the nature of
    the case as to suggest any failure to appreciate the relevant principles on the
    part of the motion judge.

[20]

Although we do not grant leave to appeal, by reason of our disposition
    of the appeal concerning the r. 21 appeal, the order below has been the subject
    of a variation. Since the r. 21 motion should not have been granted, the
    respondent should not have received costs for that motion. We therefore reduce
    the motion judges order for costs to the all-inclusive sum of $40,000 to
    reflect her lack of success on that motion.

[21]

Success has been divided on the appeal, but the respondent has enjoyed
    the greater measure of success. We award costs of the appeal to the respondent
    in the sum of $20,000 inclusive of disbursements and applicable taxes.

David
    M. Paciocco J.A.
Harvison Young J.A.
B. Zarnett J.A.


