DiFede v. McCarthy and McCarthy, (1984) 3 O.A.C. 133 (DC)

• Judge: Craig, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 16, 1984
• Jurisdiction: Ontario
• Citations: (1984), 3 O.A.C. 133 (DC)

DiFede v. McCarthy (1984), 3 O.A.C. 133 (DC)

MLB headnote and full text

DiFede v. McCarthy and McCarthy

Indexed As: DiFede v. McCarthy and McCarthy

Ontario Divisional Court

Craig, J.

April 16, 1984.

Summary:

DiFede's motor vehicle was involved in a collision with a motor vehicle owned by the defendant wife and driven by the defendant husband. The wife alleged that she was not liable as owner of the car because she did not consent to possession by the husband. The Scarborough Small Claims Court dismissed the action against the wife. DiFede appealed.

The Ontario Divisional Court dismissed the appeal.

Torts - Topic 309

Negligence - Motor vehicles - Liability of owner for negligence of driver of owner's vehicle - Meaning of "consent" - Highway Traffic Act, s. 166(1) - A wife tried to get her husband to leave a party - The wife put her car keys on a table and the husband took them - She followed the husband into the car to try to stop him from driving - The husband drove and hit DiFede's car - The Ontario Divisional Court held that the wife was not liable, as the owner, to DiFede because the wife did not consent to the husband's possession of the car.

Words and Phrases

Possession - The Ontario Divisional Court discussed the meaning of the word "possession" as found in s. 166(1) of the Ontario Highway Traffic Act, R.S.O. 1980, c. 198.

Cases Noticed:

Thompson v. Bourchier, [1933] O.R. 525 (C.A.), dist. [para. 7].

Lajeunesse v. Janssens et al. (1984), 44 O.R.(2d) 94, refd to. [para. 7].

Statutes Noticed:

Highway Traffic Act, R.S.O. 1980, c. 198, sect. 166(1) [para. 3].

Authors and Works Noticed:

Jowitt's Dictionary of English Law (2nd Ed.), vol. 2, page 1387 [para. 6].

Counsel:

J. McNeil, for the appellant DiFede;

T. Clemenhagen, for the respondent, Barbara McCarthy.

This appeal was heard by Craig, J., of the Ontario Divisional Court. The decision of Craig, J., was delivered orally and was released on April 16, 1984.