DATE: 20050415
DOCKET: C39735 C41076 C41839
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B E T W E E N : |
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REGINA MAZUR,
CLARA GRASS, ANNA MAZUR,
HENRY MAZUR ANTHONY MAZUR,
DENISE MAZUR, MICHAEL GRASS,
WALTER MAZUR, and STACEY
MAZUR |
Valerie D. Wise
and Maia L. Bent |
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- and - |
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GLORIA ELIAS,
THE ESTATE OF WIGEH ELIAS, and HER MAJESTY THE QUEEN IN RIGHT
OF ONTARIO AS REPRESENTED BY THE MINISTRY OF FINANCE |
Adrien P. Cameron
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- and - |
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COMMERCIAL
UNION ASSURANCE COMPANY OF CANADA, DENNIS COLLISION and PATERSON
INSURANCE BROKERS LTD. |
Brian A. Foster
and Christopher Prince |
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Heard: April 12, 2005 |
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On appeal from the judgment of Justice R. J. Haines of the Superior Court of Justice dated July 10, 2002 and from the judgment of Justice R. J. Haines dated February 21, 2003.
[1] There are three appeals and two cross-appeals before this court arising from the judgment of the Honourable Mr. Justice R. J. Haines dated July 10, 2002 as amended by Supplementary Reasons for Judgment issued February 21, 2003 and by Endorsement dated November 4, 2003.
[2] The facts which give rise to the litigation are as follows. On August 25, 1996 Gloria Elias (hereafter Gloria) was the operator of a motor vehicle which struck and injured the plaintiff Regina Mazur. In 1994 Gloria had purchased the motor vehicle but registered it in the name of her father, Wigeh Elias (hereafter Wigeh). Gloria arranged, with her father’s consent, to include the vehicle under his motor vehicle policy with the Third Party, Commercial Union Assurance Company of Canada. Wigeh paid all premiums for the insurance and was listed as the “insured”. Gloria was listed as the principal driver of the vehicle.
[3] In August, 1996 Wigeh was notified that the insurance on all his vehicles was cancelled by reason of his failure to pay necessary premium. Wigeh contacted Gloria and told her not to drive the vehicle until new insurance was arranged. Gloria obeyed. The day before the accident, however, after speaking to her brother she believed insurance coverage was once again in place. She believed it was permissible for her to drive the car and resumed doing so. Unfortunately no new insurance was actually placed until August 26, 1996 and this accident occurred on August 25.
[4] Wigeh Elias died before the commencement of trial. At trial both his estate and the Third Party Commercial Union took the position that the plaintiff could not recover under Wigeh’s vehicle insurance policy because Gloria was the sole owner of the vehicle or, in the alternative because she was operating the vehicle without Wigeh’s consent.
[5] Gloria on the other hand took the position that she and Wigeh were co-owner’s of the vehicle and as such she did not need his consent to operate the vehicle and they were both liable for the loss by operation of s. 192(1) of the Highway Traffic Act.
[6] In considering the issue of ownership the trial judge referred to the decision of Gillese J. (as she then was) in Dalton (Litigation Guardian of) v. Emerson Estate [1999] O.J. No. 3508 as well as the decision of the Supreme Court of Canada in Hayduk et al. v. Pidoborozny et al. (1972), 29 D.L.R. (3d) 8 and correctly concluded that proof of registration is treated as proof of ownership unless and until the contrary is shown. He then proceeded to consider the evidence before him and concluded on the basis of that evidence that Gloria Elias was an owner of the vehicle even though she was not the registered owner and that so too was her father Wigeh Elias an owner of the vehicle. In my view his findings are factual and absent palpable and overriding error, are entitled to deference in this court. I would not interfere with his finding that Wigeh Elias was an owner of the vehicle for the purpose of section 192(1) of the Highway Traffic Act.
[7] The trial judge next turned to consider s. 192(1) of the Highway Traffic Act, R.S.O. 1990, Chapter H. 8 which provides:
The owner of a motor vehicle or streetcar is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or streetcar on a highway unless the motor vehicle or streetcar was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur, and the driver of the motor vehicle or streetcar not being the owner is liable to the same extent as the owner.
[8] The trial judge concluded that Gloria Elias did not have her father’s consent when she drove the vehicle on the highway on August 25, 1996.
[9] The interpretation of a statute is purely a question of law and the standard of review is correctness.
[10] The Interpretation Act, R.S.O. 1990, Chapter I.11 provides:
28. In every Act unless the contrary intention appears:
(j) words importing the singular number of the masculine gender only include more person, parties or things of the same kind than one, and females as well as males and the converse;
(k) a word interpreted in the singular number has a corresponding meaning when used in the plural.
[11] If in reading s. 192 the word “owners” is substituted for the word “owner” and the superfluous language (for present purposes) is omitted the result is as follows:
The owners of a motor vehicle are liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle on a highway unless the motor vehicle was without the owners’ consent in the possession of some person other than the owners …
[12] On the facts the motor vehicle was never in the possession of “some person other than the owners”. It was at all times in the possession of Gloria Elias who was one of the owners of the vehicle. In my view a plain reading of s. 192 of the Highway Traffic Act does not permit the meaning given to it by the trial judge. It is unnecessary for the purpose of the section for one owner to have the consent of the other owner before liability will attach to both. I would set aside the trial judge’s finding in this respect.
[13] Counsel indicated to us at the conclusion of argument that if the main appeal by the defendant Gloria Elias succeeded in respect of the interpretation of s. 192(1) of the Highway Traffic Act and the cross appeals by the estate of Wigeh Elias and Commercial Union in respect of the ownership issue were dismissed it was unnecessary for the court to deal with the remaining appeals by the estate and Commercial Union in respect of the propriety of the motion for reconsideration.
[14] In the result the appeal by Gloria Elias is allowed and the cross-appeals by the estate of Wigeh Elias and Commercial Union Assurance Company of Canada are dismissed. In view of the result and the way in which these matters were argued, I am of the view that Gloria Elias should have her costs of the her appeal as well as her costs in responding to the cross-appeals against the estate and Commercial Union which I would fix in the sum of $15,000.00 inclusive of G.S.T. and disbursements.
[15] I would dismiss the appeals of the estate and Commercial Union without costs.
“I agree Robert J. Sharpe J.A.”
“I agree Robert A. Blair J.A.”