Is the driver liable for an accident when a passenger grabs the wheel? - McKay v. Park, 2019 ONCA 659 (CanLII)

January 02, 2020, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

McKay v. Park, 2019 ONCA 659 (CanLII)

COURT OF APPEAL FOR ONTARIO

Date of Decision: August 19, 2019
Heard Before: Paciocco, Harvison Young and Zarnett JJ.A.

LIABILITY: Rules of Summary Judgement; entrustment of vehicle; unpredictable act; does owner entrust vehicle to another; is owner and driver in possession of vehicle when passenger unpredictably grabs the wheel of the vehicle causing accident; vicarious liability; Highway Traffic Act; possession of vehicle; No, owner/driver is not in possession of the vehicle;

REASONS FOR DECISION

Ms. Park was driving her car when during an argument Mr. Hnatiuk reached over from the passenger seat and grabbed the steering wheel almost immediately causing an accident colliding with a car carrying Ms. McKay.

The question before the court was who is leasable for an accident after a passenger grabs the wheel during driving causing an accident?

The Ontario Court of Appeal determined that ‘no’ the owner was not liable for the accident in this case when considering a motion for summary judgement brought by the owner of the car. The driver was not negligent as the passenger acted in an unpredictable manner when he caused the accident by reaching over and grabbing the wheel causing an accident.

The owner was also accused of being vicariously liable pursuant the Highway Traffic Act however the motion judge determined that the driver of the car was not in possession of the vehicle notwithstanding that she was in the driver seat.

As a result, the owner/defendant/driver of the vehicle was successful in their motion for summary judgement dismissing the plaintiff’s claim. The Plaintiffs’ insurer appealed the decision but was no successful on appeal.

The Ontario Court of Appeal affirmed the motion judge’s decision on both issues.

In the past cases have held that vehicle owners can be found vicariously liable if they are present in their vehicle when someone else is driving their car. In this appeal however, the Court determined the purpose of The Highway Traffic Act section 192 is meant to have owners assume the risk of those to whom they have entrusted their vehicle. In this case, and another recent decision Moushi v. Stephen, 2019 ONSC 3125 it is established that vehicle owner vicarious liability only extends where there is real entrustment to another, not in cases where the driver has not truly consented for another person to drive their vehicle.

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