In Henwood v. Coburn, the Court of Appeal today overturned the summary judgment that had been granted by Mr. Justice Barry MacDougall back in 2006 (see our post about the decision appealed from).
In this case, a company had leased a car for the use of one of its salesmen (Henwood). On the day in question, the company had asked that salesman to take along with him another employee (Coburn), for training purposes.
The two ended up at a tavern. Coburn got drunk and demanded that Henwood drive him to Barrie, several hours away. Henwood refused. Coburn punched him in the face, took the keys and began driving away. Henwood managed to get back into the vehicle as Coburn drove off. After about twenty minutes, Coburn lost control of the car and it crashed, injuring Henwood. In this action, Henwood sued for damages for his injuries.
The lessor of the vehicle moved for summary judgment before MacDougall J., arguing that it was not liable for Coburn’s negligence because under s. 192 of the Highway Traffic Act, Coburn had not been operating the car with its consent. Not only did Justice MacDougall dismiss that motion, he granted summary judgment in favour of Henwood, against the lessor of the car. He concluded that since Coburn was driving the car while Henwood was still in possession of it, the lessor was liable for Coburn’s negligence.
The Court of Appeal, made up of Justices Rosenberg, Armstrong and Juriansz, held that summary judgment ought not to have been granted in favour of either side and sent the case on to trial. It reaffirmed one of its decisions from 1933, in which it had been held that “an owner will be liable under s. 192(2) where the person to whom the owner entrusted possession of the vehicle is in possession of the vehicle at the time of the collision, even if that person was not actually driving at the time” (Thompson v. Bourchier, [1933] O.R. 525 (C.A.)). But the panel was of the view that whether or not Henwood was in possession of the car at the time was a question of fact that would have to be resolved at trial.