When is the driver of a car considered not to be in possession of their own vehicle?

Written by litigator and mediator Irvin Schein and originally published at irvinschein.com. 

In the recent Court of Appeal decision in McKay v. Park, Hnatiuk and TD Home and Auto Insurance Company, the court dealt with a situation in which Ms. Park and Mr. Hnatiuk were driving together in a vehicle. Ms. Park was behind the wheel. The two individuals argued and Mr. Hnatiuk reached over from the passenger seat and grabbed and pulled the wheel of the vehicle. The vehicle immediately collided with another vehicle that carried the Plaintiff. The Plaintiff was seriously injured. The Plaintiff sued both Ms. Park and Mr. Hnatiuk.

Against Ms. Park, the Plaintiff alleged that Ms. Park had been negligent and was vicariously liable for the negligence of Mr. Hnatiuk. The Plaintiff relied on a provision in the Highway Traffic Act that provides for vicarious liability for a car owner due to the negligence in the operation of their car unless the car, without the owner’s consent, was “in the possession” of a person other than the owner.

Normally, this type of exception would apply to situations in which a car is stolen and then becomes involved in an accident.

In this case, the car was not stolen but the wheel was pulled by a passenger while the owner was sitting in the driver’s seat, without the owner’s consent. Does that mean that Ms. Park was not “in possession” of the car?

Ms. Park brought a motion for summary judgment dismissing the Plaintiff’s action against her on the basis that she was not in possession of the vehicle within the meaning of the statute. The motion court judge agreed and dismissed the action against Ms. Park. The decision was appealed to the Ontario Court of Appeal.

At the Court of Appeal, the argument was made that the motion judge had erred by not applying the law of possession properly. The Appellant took the position that despite Mr. Hnatiuk’s act of seizing the wheel, Ms. Park remained in possession of the vehicle. This ground of appeal failed. The Court of Appeal agreed with the motion judge that by seizing the wheel, Mr. Hnatiuk had taken control of the car away from Ms. Park. It affirmed that the purpose of vicarious liability under the Act is to have owners assume the risk of those they have entrusted with their motor vehicle. In this case, Ms. Park never entrusted Mr. Hnatiuk with her motor vehicle.

The Appellant also argued that Ms. Park had been negligent on several theories. It was argued that Ms. Park was negligent in operating the vehicle while Mr. Hnatiuk was agitated in the front passenger seat, knowing that he had a volatile and impulsive character. In addition, the argument was made that she had been negligent in driving while distracted by the emotion of the argument.

The Court of Appeal rejected these arguments. It felt that the motion judge had been entitled to find that Mr. Hnatiuk’s actions were not foreseeable, that any agitation Ms. Park may have had did not contribute to the accident, and that there was no element of negligence in the manner in which she conducted herself.

It does not appear from the reasons issued by the Court of Appeal that any consideration had been given to the possibility that Ms. Park could have slammed her foot on the brake at the time that Mr. Hnatiuk seized the wheel. One is left to wonder whether or not this might have helped avoid the accident altogether. There is also no evidence as to whether or not Ms. Park attempted to resist Mr. Hnatiuk’s pulling of the wheel.

In any event, this rather bizarre fact situation does seem to have led to a sensible result. It is indeed possible for someone to be sitting in the driver’s seat of a moving vehicle without being in possession of it. It is also a good idea for passengers to keep their hands to themselves!