MacKinnon v. MacKinnon et al., (2000) 197 Nfld. & P.E.I.R. 214 (PEITD)

• Judge: Jenkins, J.
• Case Date: December 15, 2000
• Jurisdiction: Prince Edward Island
• Citations: (2000), 197 Nfld. & P.E.I.R. 214 (PEITD);2000 PESCTD 97

MacKinnon (2000), 197 Nfld. & P.E.I.R. 214 (PEITD);

    591 A.P.R. 214

MLB headnote and full text

Temp. Cite: [2000] Nfld. & P.E.I.R. TBEd. DE.027

Brenda MacKinnon, Katelyn MacKinnon, Jackson MacKinnon and Brenda MacKinnon, Administratrix of the Estate of Kent MacKinnon and Litigation Guardian of Katelyn MacKinnon and Jackson MacKinnon, on behalf of the Estate and the dependants of Kent MacKinnon (plaintiffs) v. Irwin Guy MacKinnon and Mark Anthony MacPhail (defendants) and Unifund Assurance Company of Canada and Insurance Company of Prince Edward Island (third parties)

(GSC-16477)

Brenda MacKinnon, Katelyn MacKinnon, Jackson MacKinnon and Brenda MacKinnon, Litigation Guardian of Katelyn MacKinnon and Jackson MacKinnon, on behalf of the dependants of Kent MacKinnon (plaintiffs) v. Wawanesa Mutual Insurance Company, Economical Mutual Insurance Company and Facility Association (defendants) (GSC-16613)

(2000 PESCTD 97)

Indexed As: MacKinnon v. MacKinnon et al.

Prince Edward Island Supreme Court

Trial Division

Charlottetown

Jenkins, J.

December 15, 2000.

Summary:

A passenger died in a car accident. The passenger's family and estate sued, inter alia, the car's driver and owner. The owner denied that he had given the driver consent to operate the car.

The Prince Edward Island Supreme Court, Trial Division, held that the driver had the owner's consent, express or implied, to drive when the accident occurred.

Editor's note: for related cases see 158 Nfld. & P.E.I.R. 344, 177 Nfld. & P.E.I.R. 47, [2000] Nfld & .P.E.I.R. Uned. 92 and 197 Nfld. & P.E.I.R. 22; 591 A.P.R. 22.

Torts - Topic 309

Negligence - Motor vehicle - Liability of owner for negligence of driver of owner's vehicle - Meaning of "consent" - The issue in a tort action was whether a car's driver (Irwin) had the owner's (Mark) consent to drive it at the time of an accident - Irwin and Mark had been drinking the night before the accident - Irwin stayed up all night - Around six a.m., Irwin asked Mark, who had been sleeping, to go golfing - Mark declined - Irwin asked for Mark's car - Irwin alleged that Mark agreed and Irwin retrieved the car keys from Mark's pants pocket - Mark denied recollection of any conversation and alleged that he would not have given Irwin the car when he was drinking - The Prince Edward Island Supreme Court, Trial Division, held that Irwin had Mark's express, or alternatively, implied consent to drive when the accident occurred.

Torts - Topic 313

Negligence - Motor vehicle - Liability of owner for negligence of driver of owner's vehicle - Defences - [See Torts - Topic 309 ].

Cases Noticed:

Hosie v. Fawthrop, Madigan and Royal Insurance Co. (1978), 16 Nfld. & P.E.I.R. 181; 42 A.P.R. 181 (P.E.I.C.A.), refd to. [para. 8].

Vancouver Motors U-Drive Ltd. v. Terry, [1942] S.C.R. 391, refd to. [paras. 9, 13].

Ontario (Minister of Transport) v. Cana­dian General Insurance Co., [1972] S.C.R. 234, refd to. [para. 9].

Palsky v. Humphrey, [1964] S.C.R. 580, refd to. [para. 14].

Besse v. Simpson (1985), 67 B.C.L.R. 122 (C.A.), dist. [para. 72].

May v. Taylor and Baynham (1998), 174 Sask.R. 294; 40 M.V.R.(3d) 219 (Q.B.), refd to. [para. 72].

MacLean et al. v. Lunn et al. (1995), 164 N.B.R.(2d) 121; 421 A.P.R. 121 (T.D.), refd to. [para. 72].

Cooper v. Temos (1956), 3 D.L.R.(2d) 172 (Ont. C.A.), refd to. [para. 76].

Statutes Noticed:

Highway Traffic Act, R.S.P.E.I. 1988, c. H-5, sect. 287 [para. 3].

Counsel:

Kenneth L. Godfrey, for plaintiffs;

Tracey L. Clements, for Mark MacPhail and Unifund;

William F. Dow, for Irwin MacKinnon;

Gregory A. Cann, for Insurance Company of P.E.I.;

Patrick L. Aylward, for Wawanesa Mutual;

Benjamin B. Taylor, Q.C., for Economical Mutual;

Graham W. Stewart, Q.C., for Facility Association.

This matter was heard at Charlottetown, Prince Edward Island, on October 31, No­vember 1-3 and 7-8, 2000, before Jenkins, J., of the Prince Edward Island Supreme Court, Trial Division, who delivered the following judgment on December 15, 2000.