



COURT OF APPEAL FOR ONTARIO

CITATION: Myers-Gordon v. Martin, 2014 ONCA 767

DATE: 20141104

DOCKET:  C57734

MacFarland, LaForme and Lauwers JJ.A.

BETWEEN

Kelly Myers-Gordon, a mentally incapable person
    by her Litigation Guardian, Cynthia Gordon, Cynthia Gordon, personally, Amy
    Gordon, Christy Gordon, Stephen Myers-Gordon and Stephen Gregory Myers

Plaintiffs

(Respondents)

and

Randy
    Martin, Karen Martin, Christina Beauregard, Cody Van Every and State Farm
    Mutual Automobile Insurance Company

Defendants

(Appellant, State Farm)

Chris G. Paliare and Andrew K. Lokan, for the appellant,
    State Farm

C. Kirk Boggs, for the respondent, Karen Martin

Heard:  October 9, 2014

On appeal from the order of Justice James C. Kent of the
    Superior Court of Justice, dated August 29, 2013.

ENDORSEMENT

[1]

This is an appeal from the order of Kent J. dismissing this action as against
    the respondent Karen Martin.

[2]

In the early hours of September 26, 2009, Randy Martin, while impaired
    by alcohol and driving a 2005 Dodge Durango motor vehicle owned by his mother,
    Karen Martin, struck and killed two young persons and seriously injured two
    others.

[3]

Randy Martin entered a plea of guilty to the following charges:

two counts
    of impaired driving causing death

two counts
    of impaired driving causing bodily harm

one count of
    leaving the scene of an accident causing bodily harm.

[4]

As part of the plea process, Randy Martin agreed to and admitted certain
    facts. The principal admission relevant to this appeal is that he did not have
    his mothers consent to operate the vehicle at the time of the accident. Karen
    Martins evidence was to the same effect and there was no evidence before the
    motion judge to contradict their evidence in this respect.

[5]

The respondent Karen Martin moved for summary judgment dismissing the
    action against her and the motion judge granted her motion.

[6]

The appellant, State Farm, argues two grounds of appeal.  First, it says
    the motion judge applied the wrong test and second, the motion judge ought to
    have ordered the trial of an issue.

[7]

After carefully reviewing all of the evidence including the evidence
    which the appellant argues is indicative of implied consent, the motion judge
    said at paragraph 33 of his reasons:

Nevertheless it is Randys credibility that is more the issue.
    Counsel for the responding parties argue that Randys credibility should be
    assessed by the jury in the context of a trial. They point out that discovery
    transcripts are not a full record.  Randy was, however, examined (and
    cross-examined) at discovery by five experienced counsel and his evidence
    appears consistent.  The test is subjective.  It is what Randy believed at the
    time that is determinative.

[8]

The appellant submits that in describing the test as a purely subjective
    one, the motion judge erred.  The test, it argues, is not a purely subjective
    one but there is an objective element to it as well.

[9]

The appellant refers to the seminal case in this area
Palsky (Next
    friend of) v. Humphrey
, [1964] S.C.R. 580 a decision of the Supreme Court
    of Canada. The driver had been killed in the accident giving rise to the
    action. The trial judge found that the driver had the implied consent of the
    owner to have the vehicle.  The Alberta Court of Appeal allowed the appeal and
    criticized the test the trial judge used in coming to that finding.  The
    Supreme Court of Canada allowed the appeal and restored the decision of the
    trial judge.  At page 3 of the Quicklaw version of the case the court quoted
    the trial judges reasons:

It is my conception of the meaning of that statute that in
    dealing with the implied consent it means that one must approach the problem in
    a somewhat subjective fashion from the point of view of the person who was
    driving.  That is to say whether in all of the circumstances the person, who
    was driving, would have been justified in deeming that he had implied consent
    to drive.

and said in relation to those reasons:

What the learned trial judge was doing was putting to himself
    the question whether all the circumstances were such as would show that the
    person who was driving had the implied consent of the owner and therefore, of
    course, whether he would have been justified in deeming that he had that
    consent.

[10]

And
    as the court noted, the trial judges finding should not be reversed unless the
    inferences which he drew were clearly wrong or he acted on some incorrect
    principle of law.  The court concluded the trial judge had done neither.

[11]

The
    appellant emphasizes the words somewhat subjective fashion and under all the
    circumstances and submits that those words import an objective component into
    the test; accordingly the motion judge erred in law when he described the test
    as subjective.

[12]

We
    do not accept this submission. A review of the motion judges reasons
    demonstrate that he gave careful consideration to all of the evidence before
    him. At paragraph 26 of his reasons he considered what he described as the strongest
    facts supporting a finding of implied consent.  He concluded, however, that in
    the particular circumstances of this case, where both Randy, the driver and his
    mother, the owner, state that Randy did not have her consent to have the
    vehicle on the night of the accident, that Randys credibility was more the
    issue.  There was no evidence before the motion judge that challenged the
    credibility of either Randy or his mother on this point.

[13]

In
    our view, it was open to the motion judge to accept their evidence and find
    that the respondent, Karen Martin had met the onus and satisfied the court that,
    on the evening of the accident, Randy Martin did not have her consent to have
    her automobile.  We would not give effect to this ground of appeal.

[14]

The
    appellant submits, as its second ground of appeal, that the trial judge ought
    to have directed a trial of the issue.  When this motion was heard the Supreme
    Court of Canada had not yet released its judgment in
Hryniak v. Mauldin et
    al
., [2014] S.C.C. 7.  The motion judge relied on this courts judgment in
Combined Air Mechanical Services Inc. v. Flesch
, [2011] ONCA 764  a
    more restrictive test.

[15]

As
    the Supreme Court noted in
Hryniak
at para. 50:

It bears reiterating 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.

[16]

The
    motion judge noted that the case did not involve significant contentious
    facts, and that the moving party relied on the evidence of three parties, all
    of whom had been examined for discovery.  He noted that none of the responding
    parties, of which only State Farm appeals to this court, had added any
    evidence.  In the circumstances, he was satisfied that he could decide the
    issue of implied consent on the motion for summary judgment.

[17]

We
    are not persuaded he made any error in doing so and we would not give effect to
    this ground of appeal.

[18]

As
    a result, the appeal is dismissed.  Costs to the respondent, Karen Martin fixed
    in the sum of $15,000.00 inclusive of disbursements and H.S.T., the figure to
    which counsel have agreed.

J.
    MacFarland J.A.

H.S.
    LaForme J.A.

P.
    Lauwers J.A.


