The Principles of Ownership in Vehicle Negligence Actions

Exploring Three Case Examplars of the Non-ownership Defence

If anyone is negligent in the operation of a vehicle, the victim(s) of such negligence may seek damages from the owner(s) of that vehicle.[1] A key word in that legal formula is “owner.” The word “owner” is not defined in the relevant Act.

In cases where people have sued others as being owner of the motor vehicle that was used negligently in an accident, the persons being sued have sought to evade legal liability by arguing that they were not, in fact, the owner.

The legal issue of whether a party is an “owner” of a vehicle is often a preliminary one. Thus, in instances where people alleged to be owners take the position that they are not, they often bring this issue forward in what is called a motion for summary judgment, which takes place early in the proceeding and if successful can bring an end to their legal peril in the action.

The procedural rules[2] state that the court must grant summary judgment if there is no genuine issue requiring a trial with respect to a claim or a defence. There will be no genuine issue requiring a trial if the judge is able to reach a fair and just determination on the merits of a motion for summary judgment. This will be the case where the process: allows the judge to make the necessary findings of fact; allows the judge to apply the law to the facts; and is a proportionate, more expeditious and less expensive means to achieve a just result.[3] The court is entitled to presume on a motion for summary judgment that the evidentiary record is complete.[4]

As mentioned above, the word “owner” is not defined in the legislation. A body of case law has developed about the criteria for ownership. A starting point is the literal definition of ownership as being a bundle of rights including control, possession, use and right to disposal of the property. Further, it is possible for there to be more than one owner of a vehicle.

Registration of the vehicle creates a rebuttable presumption that the registered owner is the owner of the vehicle unless and until the contrary can be shown.[5] The onus of proof is on the party who wishes to prove that they are not the owner of the vehicle, notwithstanding being the registered owner of the vehicle.[6] The party wishing to prove that registered ownership is not ownership of the vehicle must prove, on a balance of probabilities, that he/she does not retain indicia of title.[7]

Actions or circumstances that indicate the change of ownership of a vehicle include:

• Having no control over the vehicle
• Having done everything that could reasonably be done to transfer ownership
• Removal of license plates from the vehicle
• Transfer of ownership of the vehicle either verbally or supported by a written bill of sale
• No longer having an insurable interest in the vehicle
• Not being responsible for the certification or repairs of the vehicle
• Acknowledgement of ownership by the other person
• Accepting the proceeds of sale of the vehicle

The following are three examples of where the defence of non-ownership was raised in negligence civil actions.

In Smith v. Mikel,[8] the defendants brought motions for summary judgment that their defence of non-ownership should succeed; some of them won. There was a snowmobile accident on February 24, 2001. The backseat passenger and her mother sued the driver; the passenger for negligence and her mother for a Family Law Act claim. Other defendants included B & K Tire and Battery Company and the individuals DW and JW. B & K sold the snowmobile to DW knowing he was buying it for his brother, JW. DW was on the bill of sale. DW took possession. JW did not give DW any money for the snowmobile because DW already owed him a debt in the amount of its purchase price. JW took possession of the snowmobile on Dec 15, 2020. JW was advised to register his ownership but B & K remained the registered owner as JW could not afford the transfer taxes or insurance. M bought the snowmobile from JW and took possession of the snowmobile in return for working for JW in January 2021. B & K was the registered owner at the time of the accident. Summary judgment was granted for B & K’s defence that it was not an owner of the snowmobile, because: B & K agreed to sell the snowmobile and received the purchase price for it; B & K gave the necessary paperwork to JW to complete the transfer of ownership; B & K did not exercise possession or control of the snowmobile after Dec 15, 2020; B & K did not have keys to the snowmobile; and B & K was not in a position to consent or withhold consent to the use or operation of the snowmobile at the time of the accident. Summary judgment was also granted for DW’s defence of non-ownership, since: DW never intended to be the vehicle’s owner; DW was never registered as the vehicle’s owner; and DW did not have possession or control of the snowmobile after Dec 15, 2020. Summary judgment was not granted to JW for his non-owner defence, as: the existence of a transfer was unclear; JW and M were friends; therefore, there are issues of credibility and a trial is required to decide whether JW was an owner of the snowmobile.

In Liu v. The Personal Insurance Company of Canada,[9] a defendant insurance company, Personal, successfully brought a motion for summary judgment dismissing the claims against it; the individual defendant P, who argued that she was not an owner of the vehicle involved in the MVA, was found to be the owner. There was a MVA where the four plaintiffs, who were suspected by the defendant T of having hurt his friend, were driven off the road by T and into a tree, and as a result suffered severe injuries. T was convicted of a series of criminal charges including criminal negligence causing bodily harm and aggravated assault. P is T’s mother. Her position was that T owned the truck because he bought it from her, paid the insurance on the truck, she remained the registered owner of the truck only to secure the loan that she gave to T to purchase the truck, she drove the truck only a few times, he had the only set of keys, T got the proceeds of sale of the truck when he sold it after the accident, he paid for maintenance and gas and she had intended to gift the truck to T on his birthday which had not yet occurred at the time of the accident. The court determined that P was the owner of the vehicle, not T. There was no documentary evidence that the loan existed, that T made any loan payments to P or that he had paid off the loan. Likewise, there was no documentary evidence that she intended to gift the truck to T on his birthday such as filled-in transfer of ownership forms. Rather, P was the owner of the truck. T lived with P and her partner. She had control of the truck, given that she was the registered owner, and she had possession of the truck, given that T lived with her. P did not rebut the presumption of ownership.

In Dyck v. Ken & Essex Mutual,[10] a defendant succeeded on their motion for summary judgment of their defence of not owning the vehicle involved. On June 12, 2018 there was a MVA on the Hwy 401 near the City of Chatham where the plaintiffs were rear-ended by a transport truck driven by G. O was the registered owner of the tractor portion of the truck while IWD was the owner of the trailer portion. D had leased the tractor from O and the lease agreement stated at article 11 that D was to obtain insurance and, if D failed to provide proof of insurance, O had the right but not the obligation to obtain insurance at D’s expense. On November 1, 2017 D had made every payment on the lease and exercised the option to purchase and attended at O’s office to pick up the bill of sale on March 19, 2018. D only registered himself as owner on July 4, 2018, which was after the accident. In September 2020, he initiated bankruptcy proceedings and listed the truck as an asset of the bankrupt estate. He was uninsured at the time of the MVA and so the plaintiffs sued their own insurance company, Kent & Essex, for uninsured motorist coverage. The plaintiffs also sued O. K & E brought a crossclaim against O as an owner of the vehicle; O raised as a defence that he was not an owner of the vehicle and brought a motion for summary judgment about his defence. The court granted O summary judgment. O had rebutted the presumption of ownership as the registered owner. The reasons are that: O agreed to sell the tractor to D and D paid the purchase price in full; O gave the necessary paperwork to D to transfer the ownership; O exercised no possession or control of the vehicle after March 19, 2018; there was no evidence that O retained keys to the vehicle; O was not in a position to consent or withhold consent to the use or operation of the vehicle after March 19, 2018; O did not have an insurable interest in the vehicle at the time of the accident; and O had retained no other indicia of ownership aside from the MTO registration.

As these cases demonstrate, in vehicular negligence cases, the question of who owned the vehicle at the time of the MVA is a question of fact that is based on all of the evidence. While being the registered owner of the vehicle creates a presumption of ownership, that presumption can be rebutted by the registered owner with evidence that tends to show that the registered owner did not retain many indicia of title. The case of Liu highlights the importance of bringing forward all evidence possible for a summary judgment motion regarding a defence of non-ownership. In their case, certain evidentiary deficiencies, such as a lack of documentation corroborating the existence of the loan relationship whereby the son T allegedly paid for the vehicle, undermined P’s argument attempting to rebut the presumption of ownership as the vehicle’s registered owner.

[1] Highway Traffic Act, RSO 1990, c H.8, s. 192(2). (https://canlii.ca/t/562c9)

[2] Rules of Civil Procedure, RRO 1990, Reg. 194, r. 20.04(2). (https://canlii.ca/t/t8m)

[3] Hryniak v. Mauldin, 2014 SCC 7 (CanLII), para. 49. (https://canlii.ca/t/g2s18)

[4] Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, paras. 26-27. (https://canlii.ca/t/g4bdw)

[5] Hayduk v. Pidoborozny, 1972 CanLII 136, page 884. (https://canlii.ca/t/1xd2z)

[6] Ibid, page 886. (https://canlii.ca/t/1xd2z)

[7] Dalton (Litigation Guardian of) v. Emerson Estate (1999), 103 OTC 586, para. 20.

[8] Smith v. Mikel, 2003 CanLII 47093 (ON SC). (https://canlii.ca/t/1fz5b)

[9] Liu v. The Personal Insurance Company of Canada, 2017 ONSC 4232 (CanLII). (https://canlii.ca/t/h4pp8)

[10] Dyck v. Kent & Essex Mutual, 2023 ONSC 3725 (CanLII). (https://canlii.ca/t/jxxw4)