Court of Appeal remits vicarious liability matter to trial

Two men struggling for control of a rented vehicle made it difficult to assess vicarious liability in a case involving the interpretation of an Insurance Act exclusion, and a motions judge erred in deciding the factual issues by means of a summary judgment, the Ontario Court of Appeal has ruled.
In Henwood v. Coburn, George Fitzgerald rented a vehicle from Ontario Car and Truck Rentals and listed the driver as Peter Henwood.
Fitzgerald, a supplier of meat products, asked Henwood, a door-to-door frozen meat salesman, to take Frederick Coburn along on his sales trip so that Coburn could be trained. Coburn had neither a driver’s license nor car insurance.
Henwood and Coburn went to a local tavern at the end of the day. At that time, according to Henwood, Coburn began drinking and became belligerent. When Henwood refused to drive Coburn home to Barrie, Coburn allegedly punched Henwood in the face and stole the keys to the truck.
Coburn drove away, but Henwood was somehow able to hop into the passenger side of the vehicle while it was moving. According to Henwood, Coburn was drunk and would not listen to Henwood’s attempts to tell him to stop the vehicle and slow down. The vehicle left the road, crashed into a field and Henwood was injured.
The issue is who is vicariously liable for Henwood’s injuries. A motions judge applied Section 192(2) of the Insurance Act, which states: “the owner of a motor vehicle is liable for loss or damage sustained by any person by reason of negligence in the operation of the vehicle unless the motor vehicle . . . was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur.”
The motions judge found as fact that the owner was liable because the vehicle was in possession of the operator with the owner’s consent and dismissed the owner’s application for summary judgment.
However, the Court of Appeal judge found that the motion judge “exceeded his role under Rule 20 by granting summary judgement when there were material facts to dispute. In my view, it is no answer to say that Henwood invited the motion judge to make findings of fact.”
The judge set aside the order of motion that Henwood was in possession and remitted the matter to trial.