September 2019

If you take the wheel, you take control

Case Study: McKay v. Park, 2019 ONCA 659

Van Krkachovski
Partner

By Van Krkachovski

A front-seated passenger who unexpectedly grabbed the wheel of a vehicle, causing an accident, is considered to have operated the vehicle without the driver's consent. It was not foreseeable the passenger would grab the wheel, despite the fact that the driver and passenger were arguing and emotional.

The owner of the vehicle in such a situation is not vicariously liable under s. 192(2) of the Highway Traffic Act. Summary judgment in favour of a dismissal against the owner was upheld.

Lessons: The rule 20 appeal against summary judgment

1. It is not necessary for a judge to rehearse in every case who bears the burden. It is appropriate for a judge to focus only on the areas of contention when explaining her conclusion that there is no genuine issue requiring trial.
   
   
2. “The primary definition of possession contemplates power, control or dominion over property.”¹ The motion judge found that by seizing the wheel, Mr. Hnatiuk “took control of the car” away from the driver. The motion judge's failure to use the word “possession” when expressing her ruling is not a palpable and overriding error.
   
   
3. The motion judge was not obliged to refer to all the evidence that she considered in order to show her path to the decision.

Read the full decision on Canlii.

1. Seegmiller v. Langer, 2008 CanLII 53138 (ON SC), 301 D.L.R. (4th) 454 (Ont. S.C.J.), at para. 34

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