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Friday, October 04, 2019 @ 8:00 AM  

Lexis Advance® Quicklaw®
Appeal by the plaintiff's insurer, TD Home and Auto, from two summary judgment rulings. The defendant Park was driving a vehicle when the defendant Hnatiuk reached from the passenger seat and pulled the steering wheel. The vehicle instantly collided with an automobile containing the plaintiff, McKay. The plaintiff suffered serious injuries. The plaintiff and her family sued Park on the basis that she was negligent, and vicariously liable for Hnatiuk's negligent conduct. Park sought summary judgment on two matters. She sought dismissal of the plaintiffs' action, as well as a pre-trial ruling that Hnatiuk was not entitled to indemnity under her motor vehicle insurance policy. The plaintiff's insurer opposed both motions. Park's motions were granted. The insurer appealed.

HELD: Appeal allowed in part. The motions judge did not erroneously shift the burden of proof related to establishing whether there was a genuine issue for trial. The judge did not err in applying the law of possession of the vehicle related to the issue of vicarious liability. The factual finding that, by grabbing the steering wheel, Hnatiuk took control of the vehicle from Park without her consent, disclosed no palpable and overriding error. At no time did Park entrust Hnatiuk with her vehicle in a manner supporting a finding of vicarious liability. The evidence supported the judge's finding that there was no genuine issue for trial on the plaintiffs' theories of negligence. However, the motion judge erred in law in finding that the indemnity issue was appropriate for determination on a Rule 21 motion, and failed to give a meaningful explanation for the reasoning leading to her decision.

McKay v. Park, [2019] O.J. No. 4245, Ontario Court of Appeal, J.C. MacPherson, M.H. Tulloch and A.L. Harvison Young JJ.A., August 13, 2019. TLD-September302019013