[1]          On the night of September 10, 2009 in Petawawa, Ontario, the 2007 Ford Escape motor vehicle owned by the Defendant, William Dunham and driven by the Defendant, Patricia Boyce was involved in a motor vehicle accident with the motor vehicle driven by 17 year old Emily Watts.  As a result of the accident, Emily Watts passed away.

[2]          The Plaintiffs had a policy of insurance with the Defendant, The Co-operators General Insurance Company (“The Co-operators”) which had uninsured and underinsured coverage if the Plaintiffs were injured as a result of the negligence of an uninsured or underinsured driver.

[3]          Patricia Boyce did not file a Statement of Defence.  It is admitted that Patricia Boyce caused the motor vehicle accident, and she has been noted in default.

[4]          William Dunham and The Co-operators have agreed that the Plaintiffs are entitled to receive an agreed-upon amount.  The dispute is whether this amount should be paid by William Dunham or by The Co-operators. The Plaintiffs and their Counsel were not present at the trial.

[5]          Patricia Boyce and William Dunham met in about November 2008 when William Dunham was in Trenton on a course through his employment.  William Dunham is a Master Corporal in the Canadian Armed Forces.

[6]          William Dunham and Patricia Boyce continued to date on a long distance basis until August 15, 2009 when they moved into accommodation together in Petawawa, Ontario.

[7]          Patricia Boyce had owned a vehicle earlier in their relationship but at the time that they moved in together she did not own a vehicle.  Her vehicle had been severely damaged in a single car accident in June, 2009.  She sold it as she could not afford to repair it.

[8]          William Dunham agreed to loan Patricia Boyce the vehicle owned by him on one occasion in August, 2009 to attend an appointment in Deep River concerning Patricia Boyce’s attempt to regain custody of her son who was in the care of her parents in a different location.

[9]          William Dunham agreed again to loan Patricia Boyce his vehicle on September 10, 2009 to attend an alcohol assessment in Deep River regarding her plan to regain custody of her son. 

[10]      William Dunham left home for work at approximately 5:00 a.m. on the morning of September 10, 2009 to be away in the field on a 24 hour training exercise.

[11]      Patricia Boyce drove to the appointment in Deep River on the morning of September 10, 2009.  She subsequently had lunch in Deep River with William Dunham’s mother and some of the mother’s friends. On the way back home, Patricia Boyce stopped at the liquor store to purchase a bottle of vodka.

[12]      Patricia Boyce texted William Dunham that she had arrived home after 1:00 p.m.  They exchanged a few inconsequential texts during the afternoon and evening.  Patricia Boyce did not tell William Dunham that she had been drinking.  Around 9:20 p.m. William Dunham texted Patricia Boyce and she texted back that she was going to bed soon.  She subsequently drove William Dunham’s vehicle and caused an accident with the vehicle driven by Emily Watts, resulting in Emily Watts’ death.

[13]      The position of the Defendant, William Dunham in his Statement of Defence is that he acknowledged that he was the owner of the vehicle which caused the death of Emily Watts, but he denied that he permitted Patricia Boyce to operate his vehicle while in a state of impairment.  He denied that Patricia Boyce had his consent, either express or implied, to operate his vehicle other than to go to her appointment in Deep River and to return to their home in Petawawa. 

[14]      William Dunham submits that his consent to Patricia Boyce’s possession of the vehicle earlier in the day was limited for a specific time and purpose, and that his consent to Patricia Boyce’s possession of the vehicle ended when Patricia Boyce returned home from her appointment and texted him that she was home, as he had told  her to do.  He argues that Patricia Boyce’s use of his vehicle many hours later than the consented use was without his consent.

[15]      William Dunham’s position regarding negligent care of keys is that The Co-operators has failed to prove the two elements necessary to prove negligence, that is, that Patricia Boyce taking the vehicle was reasonably foreseeable, and that it was reasonably foreseeable that Patricia Boyce would be negligent and cause injury, loss or damage to other persons. 

[16]      The position of the Defendant, The Co-operators, is that William Dunham is vicariously liable as the owner of the vehicle, for the negligence of Patricia Boyce as she had possession of William Dunham’s vehicle with the consent of William Dunham.  Even if William Dunham had restricted Patricia Boyce’s operation of the vehicle, Patricia Boyce continued to have possession of the vehicle with William Dunham’s consent.  There is a difference between consent to operate a vehicle and consent to possession of the vehicle.  It is consent to possession of the vehicle which brings into play the vicarious liability of an owner of a motor vehicle pursuant to Section 192(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8.  The Co-operators submit that even if limits to operate are disobeyed, this does not affect the permitted driver’s possession of the vehicle.  The Co-operators allege that even if William Dunham in his own mind believed that he had placed limits on Patricia Boyce’s permission to drive his vehicle, which The Co-operators submits is far from clear, there is no evidence that William Dunham actually placed any limits on Patricia Boyce having possession of his vehicle throughout the day on which the accident occurred.

[17]      With respect to negligent care of keys, the Co-operators’ position is that based on William Dunham’s knowledge of Patricia Boyce’s alcohol problem, and his lack of trust regarding the circumstances of her prior motor vehicle accident in June, 2009, it was reasonably foreseeable to him that she would drive his vehicle, and it was reasonably foreseeable to him that she would cause injury, loss or damage to other persons.  Nevertheless, William Dunham left the keys in Patricia Boyce’s possession and took no steps to remove the keys from her once she had returned from her appointment.

[18]      For the reasons that follow, I find that Patricia Boyce was in possession of William Dunham’s motor vehicle with the consent of William Dunham at the time Patricia Boyce had the accident involving Emily Watts.  In accordance with Section 192(2) of the Highway Traffic Act, I find that William Dunham is liable for the loss and damage sustained by the Plaintiffs as a result of Patricia Boyce’s negligence in driving the motor vehicle owned by William Dunham.

[19]      The evidence of William Dunham is that he was the owner of the vehicle driven by the Defendant, Patricia Boyce at the time of the accident but that Patricia Boyce was operating the vehicle at the time of the accident without his express or implied consent. 

[20]      Although Patricia Boyce had her own vehicle prior to cohabitation with William Dunham, she had no vehicle at the time that the parties commenced cohabitation in August, 2009.  William Dunham testified that he had made it quite clear to Patricia Boyce and her parents, prior to the cohabitation of William Dunham and Patricia Boyce, that Patricia Boyce was not to use his vehicle without his permission.  He stated that he took this stance as he did not trust Patricia Boyce because of the June, 2009 vehicle accident involving Patricia Boyce where there were conflicting accounts of whether alcohol consumption by Patricia Boyce had been involved in the vehicle accident or not.  Patricia Boyce’s sister told William Dunham that alcohol was involved, but when William Dunham questioned Patricia Boyce about this, Patricia Boyce denied that alcohol had been involved in that accident.  William Dunham’s evidence was that he was lacked trust in Patricia Boyce regarding drinking, due to the conflicting stories.

[21]      William Dunham also testified that his mother, Nancy Dunham was aware that Patricia Boyce was not to drive his vehicle without his consent.  He testified that he and his mother had a mutual understanding of why he was taking this position as his mother was aware that he had trust issues regarding Patricia Boyce and alcohol.  However, William Dunham acknowledged that he never actually told his mother why Patricia Boyce was not allowed to drive his vehicle without his consent.

[22]      William Dunn’s evidence is that there were only two instances where he gave permission to Patricia Boyce to use his vehicle. 

[23]      The first such occasion was in August, 2009 to allow Patricia Boyce to attend an appointment in Deep River regarding her plan to regain custody of her six year old son who was in the custody of her parents in another location.

[24]      On that occasion, William Dunham says that he told Patricia Boyce that she could borrow his vehicle to go to the appointment and then she was to return home and text him as soon as she got home. William Dunham testified that Patricia Boyce followed his instructions on that occasion.

[25]      The second occasion William Dunham agreed to loan his vehicle to Patricia Boyce was on September 10, 2009 to allow her to attend an alcohol assessment appointment in Deep River, Ontario to further her plans to regain custody of her son.  William Dunham testified that Patricia Boyce made the request to borrow his vehicle to go to the appointment a night or two before the appointment. 

[26]      At his discovery, William Dunham said he told Patricia Boyce she could drive his vehicle to her appointment, and that she should return home and “that’s it”.  There is conflicting evidence as to whether William Dunham was aware that Patricia Boyce was also planning on meeting William Dunham’s mother for lunch in Deep River after Patricia Boyce’s appointment.  At his discovery, William Dunham’s evidence was that he didn’t remember whether he had a conversation with Patricia Boyce as to whether she was having lunch with his mother.  However, he stated that while he didn’t give Patricia Boyce permission to drive the vehicle to have lunch with his mother, he was fine with it when he found out about the lunch with his mother via Patricia Boyce’s text to him when she returned home.  William Dunham testified that he did not complain to Patricia Boyce about stopping for lunch with his mother rather than returning directly home after her appointment.

[27]      At the trial, William Dunham’s evidence differed from the evidence given at his discovery.   William Dunham stated at trial that he told Patricia Boyce that she could borrow his vehicle to go to her appointment, and then she should return home and text him when she got home.  He further testified at trial that he believed that he knew that Patricia Boyce was having lunch with his mother that day after the appointment and that he was fine with that.  He stated, however, it would not have been fine with him for Patricia Boyce to go shopping after the appointment.  When asked how Patricia Boyce was to know what was fine or not, William Dunham responded that he was not a dictator and that he had not laid out every step of Patricia Boyce’s day that day.  William Dunham acknowledged that Patricia Boyce had some leeway in her use of the vehicle.  

[28]      William Dunham left home at approximately 5:00 a.m. on September 10, 2009 as he was leaving on a twenty-four training exercise in the field for his employment with the Canadian Armed Forces.  He left the keys to his motor vehicle in the home in a place where Patricia Boyce knew where they were.

[29]      William Dunham testified that Patricia Boyce did text him on September 10, 2009 at about 1:00 p.m. to say that she had arrived home.  She told him that she had had lunch with his mother.  They had several insignificant texts thereafter during the afternoon and evening.  William Dunham’s evidence is that when he texted Patricia Boyce at about 9:20 p.m. she texted back to him she was going to bed soon.  William Dunham testified that there was nothing in the texts to lead him to believe that Patricia Boyce was drunk, drinking or intoxicated.  William Dunham states that he chose to keep an alcohol-free home as he knew Patricia Boyce had an alcohol problem and that she was trying to deal with that problem.  The only alcohol in the home was a bottle of rum kept there for his father’s use when his father came to visit.

[30]      William Dunham testified that his consent to Patricia Boyce’s use of his vehicle ended when she texted to him at 1:00 p.m. that she was back home.  He had no reason to believe that Patricia Boyce would take his vehicle out after that without his permission as she had never done so before.  William Dunham took no precautions to have the keys to his motor vehicle removed from Patricia Boyce’s possession once she was home from the appointment.

[31]      William Dunham’s evidence is that he was called at work the next morning about Patricia Boyce having been in an accident the night before with his vehicle.  William Dunham provided a statement to the police.  In his statement to the police, William Dunham stated that he only allowed Patricia Boyce to drive his vehicle for appointments and not at any other time because of her issues with alcohol.  William Dunham acknowledged that he did not ask the police to charge Patricia Boyce with having possession of his vehicle without his consent, nor was Patricia Boyce ever charged with having possession of his vehicle without his consent.

[32]      Other portions of William Dunham’s evidence at trial on May 6, 2013 were different from the evidence given by William Dunham on his discovery on September 12, 2011.  In particular, at discovery William Dunham testified that he would not let Patricia Boyce use his vehicle without his consent because he had trust issues about Patricia Boyce drinking and driving.  However, at trial William Dunham’s evidence was that he would not let Patricia Boyce use his vehicle without his consent as he had trust issues only about Patricia Boyce drinking. 

[33]      Nancy Dunham is the mother of the Defendant, William Dunham.  Nancy Dunham testified that Patricia Boyce did not have a vehicle and that Nancy Dunham was aware that Patricia Boyce was not to use William Dunham’s vehicle without his consent.  Nancy Dunham stated that William Dunham never told her why that was the case, but Nancy Dunham herself formed the belief that it was because William Dunham never let anyone use his vehicle because it was “his vehicle”.  She went on to state that after William Dunham’s divorce, he was left with nothing so when he got something, he was very possessive of it.  Nancy Dunham stated that she sometimes picked up Patricia Boyce in Nancy Dunham’s vehicle to take her shopping.

[34]      Nancy Dunham testified that she and Patricia Boyce and some of Nancy Dunham’s friends had lunch on September 10, 2009 after Patricia Boyce’s appointment.  Patricia Boyce indicated to Nancy Dunham that she was going home to unpack some boxes, having just moved into the joint accommodation with William Dunham only three weeks prior.  Nancy Dunham testified that she and Patricia Boyce made plans to have Nancy Dunham pick up Patricia Boyce to go shopping the next day.

[35]      Patricia Boyce testified that she did not own a vehicle when she started cohabiting with William Dunham in August, 2009 as she had sold her car.  She stated that she had damaged her vehicle prior to that time and couldn’t afford to fix it.  She admitted that she was charged with dangerous driving as a result of that accident prior to her cohabitation with William Dunham.  Patricia Boyce believed that William Dunham knew that she had a promise to appear in Court regarding that accident but she didn’t know if he knew that she had been charged with dangerous driving.  She thought that he might have known.

[36]      Patricia Boyce testified that she only borrowed William Dunham’s car on one occasion to go to an appointment and that was on the day of the fatal accident on September 10, 2009 to go to an addictions assessment in Deep River.  She had no memory of borrowing William Dunham’s vehicle for an appointment in August, 2009 and said that the person for that appointment had come to the house for the appointment that day.   She recalled driving William Dunham’s vehicle on one occasion prior to cohabitation when William Dunham was in the vehicle but was feeling ill.

[37]      Patricia Boyce testified that after her alcohol assessment appointment, she met Nancy Dunham and Nancy Dunham’s friends for lunch which was on the way from the appointment.  Patricia Boyce left lunch at around noon.  On the way home to Petawawa she stopped at a liquor store and purchased a bottle of vodka.  She arrived home before 1:00 p.m.  She stated that she probably texted William Dunham when she got home but was not sure if it was right away.

[38]      Patricia Boyce acknowledged that except for a partial bottle of rum at their home which belonged to William Dunham’s father, she and William Dunham did not keep alcohol in the house as she was an alcoholic working on that problem.  They had an alcohol-free house so that she would not be tempted.  Patricia Boyce recalls cleaning, unpacking and watching television after she returned home.  She had her first drink of vodka between 1:00 p.m. and 3:00 p.m.  She doesn’t know if she finished the bottle.  She doesn’t recall texting William Dunham at around 9:20 and saying she was going to bed.  She has no memory of leaving home that night and has no memory of the accident.  Her first memory is of waking up in the hospital. 

[39]      Patricia Boyce testified that William Dunham loaned her his car for September 10, 2009 but that he placed no conditions on her use of his vehicle that day.  Patricia Boyce testified that William Dunham knew that she planned to meet William Dunham’s mother for lunch if she finished her appointment in time.   She stated that she did not steal William Dunham’s vehicle.  She testified that the keys to William Dunham’s vehicle were always in her possession during the course of the day with William Dunham’s knowledge and consent.  She stated that the vehicle was in her physical possession throughout the day with William Dunham’s knowledge and consent.

[40]      Section 192(2)  of the Highway Traffic Act, R.S.O. 1990, c. H.8 states:

[41]      The burden of proving the vehicle was in the possession of the driver without the owner’s consent is on the owner of the vehicle.

[42]      The issue of vicarious liability under section 192(1) of the Highway Traffic Act, the predecessor  provision to the present section 192(2), came before the Ontario Court of Appeal in the case of Finlayson v. GMAC, (2007) 2007 ONCA 557 (CanLII), 86 O.R. (3d), 481 (C.A.).  At paragraph 3, Gillese J.A., writing for the court, stated:

[43]      At paragraphs 19 to 20, Gillese, J.A. went on to refer to the Ontario Court of Appeal case of Thompson v. Bourchier, 1933 CanLII 106 (ON CA), [1933] O.R. 525 (Ont. C.A.) which articulated the policy underlying the imposition of vicarious liability under s.41, the predecessor provision to s.192(1) and which has been followed by a long line of cases over the last eighty years.   Fisher, J.A. writing for the court in Thompson v. Bourchier, above stated:

[44]      William Dunham argues that he put restrictions on Patricia Boyce’s operation of his motor vehicle.  He argues that he gave consent to Patricia Boyce to drive to the appointment and that his consent to her operation of the vehicle ended when she got home from the appointment.  William Dunham’s counsel concedes that if Patricia Boyce had had the accident on the way home from the appointment, William Dunham would be vicariously liable as owner as he had given his consent to Patricia Boyce to possession of his motor vehicle to go to that appointment.

[45]      William Dunham submits that there are two lines of case law regarding consent in these circumstances.  One line of case law is the Thompson v. Bourchier line of cases that states that once consent is given it cannot be limited for a specific purpose or for a specific time. 

[46]      William Dunham submits that the other line of cases involves the test for determining implied consent as set out by the Supreme Court of Canada in Palsky v. Humphrey, 1964 CanLII 96 (SCC), [1964] S.C.R. 580 (S.C.C.).  That test is whether the operator believed that he had implied consent and whether that belief was justified in looking at all of the circumstances.

[47]      William Dunham relies on the case of Levatte v. Darton, 1998 CarswellOnt 129 (Ont. C.J. (Gen. Div.)) where  the Court found that in considering all the circumstances, the owner of the vehicle was not vicariously liable as the driver of the owner’s truck at the time of the accident did not have the owner’s express or implied consent to possession of the truck, even though the driver had had possession of the keys to the truck earlier in the evening from the owner  for a limited purpose, which was to get something from the truck.

[48]      William Dunham also relies on the case of Newman v. Terdik, 1952 CarswellOnt 123 (Ont. C.A.) and the case of Widdis (Litigation Guardian of) v. Hall, 1994 CarswellOnt 791 (Ont. C.J. (Gen. Div.)) for the proposition that the negligence in the operation of the motor vehicle must arise “on a highway” as set out in the current s. 192(2) of the Act, and in its predecessor sections. William Dunham argues that once Patricia Boyce returned home from the appointment, she no longer had his consent to possession of the vehicle “on a highway” as she was to leave the vehicle in the driveway, which is not a highway, and Patricia Boyce was not to take the vehicle out again.

[49]      William Dunham’s evidence at his discovery was that he told Patricia Boyce she could use his motor vehicle to go to the appointment, and then she was to bring the vehicle home and “that’s it.”  At trial William Dunham’s evidence was that he told Patricia Boyce that she could use his motor vehicle to go to her appointment and that she was to text him when she got home. 

[50]      Patricia Boyce testified that she could not remember the exact words of what William Dunham said to her when she asked to borrow his vehicle, but she thought that the evidence William Dunham gave at trial about being able to use the vehicle and text him when she got home, sounded to her like something William Dunham would say.  She stated that William Dunham agreed to her borrowing the vehicle but she didn’t think anything else was discussed.

[51]      On the evidence, I find that William Dunham did not put conditions on Patricia Boyce’s operation of his motor vehicle on September 10, 2009.  Even though William Dunham may have in his own mind believed that he had put conditions on Patricia Boyce’s operation of his motor vehicle on that day, I find that William Dunham did not express those conditions to Patricia Boyce. 

[52]      I find that William Dunham assumed that Patricia Boyce knew when he said she could use the vehicle to go to her appointment and to text him when she got home, that she would  know she was not to use the vehicle again that day, but that he never actually told her that she was not to use the vehicle again that day.  Patricia Boyce testified that William Dunham placed no limitations on her possession or use of the vehicle on September10, 2009.  She testified that William Dunham’s keys and motor vehicle were in her possession throughout the day in question with William Dunham’s full knowledge and consent.

[53]      William Dunham admitted that he knowingly and willingly gave possession of the keys to his motor vehicle to Patricia Boyce on September 10, 2009, and that he knowingly and willingly gave possession of his motor vehicle to Patricia Boyce on that day.  I find that William Dunham acknowledged that he was not a dictator and that Patricia Boyce had some leeway in her use of the vehicle. 

[54]      One such example of leeway was Patricia Boyce having lunch with William Dunham’s mother that day.  I find that William Dunham’s recollection of the events in September, 2009 would have been better at the time of his discovery in September, 2011 than at the trial in May 2013.  On the balance of probabilities, I find that William Dunham did not know ahead of time that Patricia Boyce was going to have lunch with his mother.  I find that William Dunham did not admonish Patricia Boyce, nor complain to her when he found out she had had lunch with his mother rather than returning directly home from her appointment.

[55]      Similarly, William Dunham assumed that his mother knew why Patricia Boyce was not to drive his vehicle without his consent, as he did not trust Patricia Boyce not to drink and drive.  William Dunham acknowledged, however, that he never actually told his mother why Patricia Boyce was not to drive his vehicle without his consent.  In fact, I find that his mother, Nancy Dunham did not know why William Dunham had taken that position, and Nancy Dunham came to her own different conclusion that it was because William Dunham was possessive of his vehicle.  

[56]      I find on the evidence that William Dunham made available the keys to his motor vehicle to Patricia Boyce and that William Dunham consented to Patricia Boyce’s possession of his motor vehicle without any conditions from the time he left home for work early on the morning of September 10, 2009 and continuing throughout the whole of that day.  I find that William Dunham took no steps to terminate Patricia Boyce’s possession of his motor vehicle that day by re-taking possession of the keys and vehicle himself,  or by having someone else come and pick up the keys from Patricia Boyce, if he were unable to do so by reason of the demands of his work.  This was despite William Dunham’s prior knowledge of Patricia Boyce’s issues regarding alcohol, and his continuing concerns about Patricia Boyce drinking and driving.

[57]      However, even if William Dunham had put conditions on Patricia Boyce’s operation of his motor vehicle that day and clearly expressed those conditions to Patricia Boyce, which I find is not the case, operation of a motor vehicle is different than possession of a motor vehicle.  It is possession of the motor vehicle which attracts the vicarious liability provisions of Section 192(2) of the Highway Traffic Act.

[58]      This was set out in paragraph 28 of Finlayson v. GMAC, supra, where Gillese, J.A. stated:

[59]      The aforesaid point made in Finlayson v. GMAC Leaseco Ltd., supra, was noted with approval in the subsequent Ontario Court of Appeal case of Henwood v. Coburn, 2007 ONCA 882, where Rosenberg, J.A. speaking for the court stated at paragraph 15:

[60]       I find that even if William Dunham had put conditions on Patricia Boyce’s operation of his motor vehicle and Patricia Boyce had breached the conditions of the operation of William Dunham’s motor vehicle by driving again much later in the day after her return home from the appointment, or by driving while under the influence of alcohol, Patricia Boyce nevertheless was in possession of William Dunham’s motor vehicle with his consent at all material times on September 10, 2009. 

[61]      Accordingly, I find on the evidence that at all material times on September 10, 2009, Patricia Boyce was in possession of William Dunham’s motor vehicle with his consent and that pursuant to s.192(2) of the Highway Traffic Act, William Dunham is liable for loss or damage sustained by the Plaintiffs by reason of Patricia Boyce’s negligent operation of the motor vehicle owned by William Dunham.

[62]      As I have found that William Dunham consented to Patricia Boyce having possession of his motor vehicle at all material times on the day in question, it is not necessary for me to deal with the issue of whether William Dunham was negligent in the care of his keys to his motor vehicle.

[63]      There will be judgment in favour of the Plaintiffs as against the Defendant William Dunham, the Defendant Patricia Boyce having already been noted in default.  The claim against The Co-operators General Insurance Company is hereby dismissed.  If Counsel are unable to agree on the issue of costs, the parties may submit brief written submissions on costs to me by December 5, 2013.