The Test for Determining Implied Consent to Use a Motor Vehicle

In Myers-Gordon(Litigation guardian of) v. Martin, 2013 ONSC 5441 (S.C.J.), the defendant’s son drove his mother’s  car while impaired and was involved in an accident, killing two pedestrians and injuring two others. Claims were brought against the defendant’s mother, Karen Martin. The parties agreed that the Ms. Martin had not given her son express consent to use her vehicle. The issue before the court on this motion for summary judgement was whether Ms. Martin had given her son implied consent to take her vehicle.

Justice Kent relied on the 2008 decision in Seegmiller v. Langer [2008] O.J. No. 4060 where 8 principles were considered to determine if there was implied consent:

1. Whether a motor vehicle is in possession of some person without the consent of the owner is a question of fact determined on the evidence.
2. The meaning of possession is a question of law, applying this definition is not a question of law alone.
3. Generally, possession means power, control or dominion over property
4. Once ownership is established, the onus passes to the owner to establish that another was in possession without consent.
5. The owner’s vicarious liability is based on possession, not operation.
6. Consent to possession is not synonymous with consent to operate.
7. If possession is given, the owner will be liable despite a breach of a condition attached to possession, including that the person in possession not operate the vehicle.
8. Breach of the owner’s conditions, does not alter the fact of possession.

Justice Kent considered the above factors and found no implied consent despite the fact that the son had driven the vehicle with permission numerous times in the past, Ms. Martin left the keys at home where they were accessible to her son and Ms. Martin had not brought up the issue (with her son or the police) that her vehicle was taken without consent until a significant time after the accident. The actions were dismissed against Ms. Martin due to Justice Kent’s confidence in the son’s evidence that he never thought he had consent to possess or drive the vehicle.

Consent is fact-driven and the eight-fold test provides a useful framework in which to work. 

Supreme Court Sets Out The Test for Summary Judgment

The Supreme Court has overturned the "full appreciation" test used by the Ontario Court of Appeal in summary judgment.  The appeals in Hryniak v. Maudlin, 2014 SCC 7 and Bruno Appliance and Furniture v. Hryniak, 2014 SCC 8 were released January 23, 2014.


The Court emphasized that summary judgment rules must be interpreted broadly, "favouring proportionality and fair access to the affordable, timely and just adjudication of claims".  The new Rule 20 represents a significant alternative model of adjudication.


There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.  This will be the case when the process:



(1)  Allows the judge to make the necessary findings of fact;
(2)  Allows the judge to apply the law to the facts, and
(3)  Is a more proportionate, more expeditious and less expensive means to achieve a just result (para. 49).




The standard for fairness is whether it gives the judge confidence s/he can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. The evidence need not be equivalent to a trial.  The Court held that a documentary record, particularly when supplemented with the new fact-finding tools such as oral testimony, is often enough to resolve material issues justly and fairly (para. 57). The judge may need to compare things such as the cost and speed of a trial versus summary judgment.




At para. 66, the Court set out a roadmap for summary judgment:




There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).  If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2).  She may, at her discretion, use those powers, provided that their use is not against the interest of justice.  Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.




The Supreme Court's interpretation of r. 20 seems to be a firm statement that summary judgment is an appropriate way to resolve cases, rather than the restrictive interpretation taken by the lower courts.  We may see an increase in the number of summary judgment motions in the future.

The Limitation Period in False Arrest/Imprisonment Cases

A recent decision looks at when the limitation period begins to run in a false arrest/false imprisonment case, as well as the impact of a peace bond on a negligent investigation claim.

In E.B.F. (Litigation guardian of) v. Ontario, 2013 ONSC 2581 (S.C.J.), the plaintiff sued the Crown for false arrest, false imprisonment, breach of Charter rights and negligent investigation arising out of charges laid against him by the O.P.P in 2008.  The plaintiff's daughter alleged he had sexually assaulted her.  The charges were ultimately withdrawn in 2009 after the plaintiff agreed to enter into a peace bond.  The claim was issued in 2011.  The Crown brought a motion to strike the claim.  There were two issues for the Court to consider:

1.  Whether the limitation period began when the plaintiff was arrested or when the peace bond was entered into; and
2.  Whether the peace bond represented the charges being terminated in the plaintiff's favour, a precondition to being able to pursue a negligent investigation claim.

Justice Chiappetta held there was no reasonable cause of action against the Crown.  A claim for false arrest, false imprisonment or breach of Charter rights crystallizes on the date of arrest.  Although the plaintiff alleged he was unable to determine the arrest was wrongful until after receiving legal advice and the results of a private investigation, there was no persuasive evidence that the plaintiff suffered from any mental or psychiatric disorder that would have impacted his ability to understand the arrest, the charges and his belief of innocence.

The plaintiff argued that since the only conditions imposed by the peace bond were to keep the peace and be of good behaviour (as every other citizen is required to do), the proceedings terminated in his favour.  Justice Chiappetta held that the agreement to withdraw the charges in return for a peace bond represented a negotiated compromise, and was not a termination of proceedings in the plaintiff's favour.

Since the plaintiff's claim was issued beyond the limitation period and he failed to show the proceedings were terminated in his favour, the claim was dismissed.

Motion to Add Party Must be Served but not Heard Before Limitation Period Expires

When a plaintiff seeks to add a party defendant, must the motion be heard prior to the expiry of the limitation period?

According to Justice Edwards in Computer Enhancement Corporation v. J.C. Options, 2013 ONSC 4548 (S.C.J.), the motion must be served, but not necessarily heard, prior to the expiry of the limitation period.  Justice Edward held that the suggestion that a motion to add a party must be served, argued and a court order obtained prior to the expiry of the limitation period was "lacking in common sense".  There are lengthy delays in obtaining motion dates and the moving party is therefore "very much in the hands of the court" as to whether the motion can be argued and disposed of within the limitation period.

In making his decision, Justice Edwards followed the Divisional Court in Philippine v. Portugal, 2010 ONSC 956 (Div. Ct.), where the plaintiff was permitted to add a claim for conspiracy, and declined to follow Marks v. Ottawa, 2013 ONSC 1089 (S.C.J.) where the Court refused to permit the addition of a party where the motion had not been heard prior to the expiry of the limitation period.

Settlement Implies Release Will be Furnished

In most cases, parties are able to agree on the form of release when a settlement has been reached.  A recent case confirmed that there is an implied agreement to furnish a release, unless there is an express agreement to the contrary.

In OZ Optics Limited v. Timbercon Inc., 2013 ONSC 6439 (S.C.J.), the parties agreed on a settlement, but were unable to agree on the wording of a release.  Justice McNamara held that the case law is clear that where a settlement is reached, it is normally implied that an executed final released will be provided, unless there is an agreement otherwise.  In the circumstances, there was no express agreement not to furnish a release.  Justice McNamara held that the draft release prepared by the plaintiff was fair, reasonable and reflective of the agreement reached by the parties.