Henwood v. Coburn et al., (2007) 232 O.A.C. 31 (CA)

• Judge: Rosenberg, Armstrong and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 14, 2007
• Jurisdiction: Ontario
• Citations: (2007), 232 O.A.C. 31 (CA);2007 ONCA 882

Henwood v. Coburn (2007), 232 O.A.C. 31 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. DE.075

Peter Henwood (plaintiff/respondent) v. Frederick John Coburn, Ontario Car and Truck Rentals Ltd . and Pembridge Insurance Company (defendants/appellant)

(C45931; 2007 ONCA 882)

Indexed As: Henwood v. Coburn et al.

Ontario Court of Appeal

Rosenberg, Armstrong and Juriansz, JJ.A.

December 14, 2007.

Summary:

A car rental agency leased a car and listed Henwood as the driver. Henwood drove the car to a tavern with Coburn. According to Henwood, Coburn became belligerent and, when he refused to drive Coburn elsewhere, Coburn punched him, took the keys to the car and got in the car. As Coburn started to drive away, Henwood got into the passenger side. Henwood told Coburn to stop and to slow down, but Coburn continued. Twenty minutes into the drive, the vehicle left the road and crashed into a field. Henwood sued his insurer, Coburn and the rental agency for damages for injuries suffered. The rental agency moved for summary judgment on the basis that Coburn was operating the vehicle without Henwood's consent (Highway Traffic Act, s. 192(2)).

The Ontario Superior Court, in a decision reported at [2006] O.T.C. 734, concluded that Henwood was in possession of the vehicle with the owner's consent and, therefore the agency was liable under s. 192. The rental agency appealed.

The Ontario Court of Appeal allowed the appeal and set aside the order holding that Henwood was in possession within the meaning of s. 192 and that the rental agency was liable as owner of the vehicle. The court dismissed the rental agency's motion for summary judgment and remitted the matter for trial.

Torts - Topic 302

Negligence - Motor vehicle - Liability of owner for negligence of driver of owner's vehicle - Scope or application of principle - A car rental agency leased a car and listed Henwood as the driver - Henwood drove the car to a tavern with Coburn - According to Henwood, Coburn became belligerent and, when he refused to drive Coburn elsewhere, Coburn punched him, took the keys to the vehicle and got in the vehicle - As Coburn began to drive away, Henwood got into the passenger side - Henwood told Coburn to stop and to slow down, but Coburn continued - Twenty minutes into the drive, the vehicle left the road - Henwood sued his insurer, Coburn and the rental agency for damages for injuries suffered - The rental agency moved for summary judgment on the basis that Coburn was driving without Henwood's consent (Highway Traffic Act, s. 192(2)) - A motions judge denied the motion and held that Henwood had possession of the vehicle at the time of the accident and therefore the rental agency was liable under s. 192 - The rental agency appealed, asserting that the fact that Coburn was driving without the agency's consent was determinative of its liability under s. 192 - The Ontario Court of Appeal rejected the assertion - If someone, such as Henwood, was found to be in possession, and that person had the rental agency's consent, the agency was liable even if the person in possession was only a passenger - See paragraphs 11 to 19.

Torts - Topic 308

Negligence - Motor vehicle - Liability of owner for negligence of driver of owner's vehicle - Meaning of "possession" - A car rental agency leased a car and listed Henwood as the driver - Henwood drove the car to a tavern with Coburn - According to Henwood, Coburn became belligerent and, when he refused to drive Coburn elsewhere, Coburn punched him, took the keys to the vehicle and got in the vehicle - As Coburn began to drive away, Henwood got into the passenger side - Henwood told Coburn to stop and to slow down, but Coburn continued - Twenty minutes into the drive, the vehicle left the road - Henwood sued his insurer, Coburn and the rental agency for damages for injuries suffered - The rental agency moved for summary judgment on the basis that Coburn was driving without Henwood's consent (Highway Traffic Act, s. 192(2)) - A motions judge denied the motion and concluded that Henwood had possession of the vehicle at the time of the accident and therefore the rental agency was liable under s. 192 - The Ontario Court of Appeal allowed an appeal - The fact that Henwood was in the car did not determine that he was in possession - Henwood might have been asserting his right to possession, but that did not mean he was necessarily in possession - The question of Henwood's possession was a genuine issue for trial - See paragraphs 20 to 27.

Cases Noticed:

Thompson v. Bourchier, [1933] O.R. 525 (C.A.), refd to. [para. 12].

Lajeunesse v. Janssens et al. (1983), 44 O.R.(2d) 94 (H.C.), refd to. [para. 14].

Berge v. Langlois et al. (1982), 138 D.L.R.(3d) 119 (Ont. H.C.), affd. (1984), 6 D.L.R.(4th) 766 (Ont. C.A.), refd to. [para. 14].

Gunn et al. v. Birch et al. (1986), 47 M.V.R. 212 (Ont. Dist. Ct.), affd. [1987] O.J. No. 645 (Div. Ct.), refd to. [para. 14].

McKay et al. v. McEwen et al. (1999), 100 O.T.C. 45; 43 O.R.(3d) 306 (Gen. Div.), refd to. [para. 14].

Finlayson et al. v. GMAC Leaseco Ltd. (2007), 228 O.A.C. 17 (C.A.), refd to. [para. 15].

Thorne et al. v. Prets et al. (2003), 180 O.A.C. 41; 45 M.V.R.(4th) 69 (C.A.), refd to. [para. 17].

LeBar v. Barber and Clarke (1922), 52 O.L.R. 299 (C.A.), refd to. [para. 17, footnote 1].

Newman v. Terdik, [1953] O.R. 1 (C.A.), refd to. [para. 17, footnote 1].

DiFede v. McCarthy and McCarthy (1984), 3 O.A.C. 133; 27 M.V.R. 170 (Div. Ct.), refd to. [para. 21].

Kuhmo and Laakso v. Helberg, [1931] O.R. 630 (C.A.), refd to. [para. 22, footnote 2].

Marsh v. Kulchar, [1952] 1 S.C.R. 330, refd to. [para. 24].

Statutes Noticed:

Highway Traffic Act, R.S.O. 1990, c. H-8, sect. 192(2) [para. 11].

Counsel:

Rodney D. Dale and Nawaz A. Tahir, for the appellant Ontario Car and Truck Rentals;

Sandi J. Smith, for the respondent Pembridge Insurance Company;

Harold W. Sterling, for the respondent Minister of Finance in name of Frederick John Coburn;

M. Steven Rastin and Anita Wong, for the respondent Peter Henwood.

This appeal was heard before Rosenberg, Armstrong and Juriansz, JJ.A., of the Ontario Court of Appeal. Rosenberg, J.A., delivered the following decision on December 14, 2007.