How do courts treat consent issues in motor vehicle accident cases on motions for summary judgment?
The driver (son) and owner (father) of the vehicle lived together but had never driven each other's vehicle before. The son borrowed the father's vehicle without asking for explicit permission, resulting in a motor vehicle accident.
The determination of consent to possess a person's vehicle is an appropriate question to be resolved under the summary judgment process since the issue is often discrete from the remaining issues at trial: consent to drive relates only to the Highway Traffic Act, RSO 1990, c H.8 vicarious liability provisions. This reduces, if not eliminates the risk of inconsistent findings or duplicative and inefficient proceedings. (Ip et al. v. Olokun et al.). Once the issue of consent is resolved, barring unusual facts, there is little left to try and the case should settle. (Pinto v. Kaur et al.).
However, since the question of whether a motor vehicle was in the possession of some other person without the owner's consent is a question of fact to be decided by the evidence in each particular case, summary judgment should not be granted where there are material facts in dispute regarding possession. (Henwood v. Coburn). To grant a summary judgment, the evidentiary record must be sufficient for the court to make a finding on possession and consent. (Ip et al. v. Olokun et al., Forestall v Carroll). Evidence to resolve the issue of consent by summary judgment may include affidavits, transcripts of examinations for discovery and documents supplied to insurers. (Ip et al. v. Olokun et al., Conners v D’Angelo).
Section 192 of the Highway Traffic Act, RSO 1990, c H.8, provides that the owner of a motor vehicle is 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 owner’s consent in the possession of some person other than the owner or the owner’s chauffeur. The owner’s vicarious liability under s. 192 of the Highway Traffic Act is based on possession, as opposed to the operation of the vehicle.
Possession of a vehicle has been held to be "power, control or dominion" (Ligaj and Ligaj v. Ismail et al.). If possession is consented to, the owner will be liable even if there is a breach of a condition attached to that possession, including a condition that the person in possession will not operate the vehicle. Breach of conditions placed by the owner on a person's possession of the vehicle, including conditions as to who may operate the vehicle, do not alter the fact of possession (Finlayson v. GMAC Leasco Limited).
Where the driver that caused the accident is not the person to whom the owner entrusted possession, the issue to be determined is whether the driver was driving within, so to speak, the possession of the person to whom the owner had entrusted possession. In other words, the issue is whether the person entrusted with possession continues to have possession, which would be the case if he or she was actually in possession or if he or she expressly or impliedly consented to the driver having possession. In some cases, the driver's conviction for theft or taking a vehicle without consent under the Criminal Code would negate the owner's vicarious liability (Conners v D’Angelo).
The vicarious liability provided for in s.192 is triggered by consenting to possession. Where the owner has consented to possession, they will be liable even if the vehicle is operated in a manner forbidden by the owner. Once the owner gives up possession, breach of conditions placed by the owner on another person's possession of the vehicle do no alter the fact of the second person's possession, and from possession flows liability. (Fernandes v. Araujo).
Section 192 of the Highway Traffic Act, RSO 1990, c H.8, c H.8 states the following:
Liability for loss or damage
192 (1) The driver of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway. 2005, c. 31, Sched. 10, s. 2.
(2) The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur. 2005, c. 31, Sched. 10, s. 2.
In Finlayson v. GMAC Leasco Limited, 2007 ONCA 557 (CanLII), the Ontario Court of Appeal affirmed a long line of authority going back to 1933 holding that as the vicarious liability of an owner rests on possession rather than operation of the vehicle, the owner will be vicariously liable if the owner consented to possession, even if the driver operated the vehicle in a way prohibited by the owner.
In Fernandes v. Araujo, 2015 ONCA 571 (CanLII), the Court refers to a decision of the same Court, Thompson v. Bourchier, 1933 CanLII 106 (ON CA), in stating that the purpose of s. 192(2) of the HTA is “to protect the public by imposing, on the owner of a motor vehicle, responsibility for the careful management of the vehicle.” The Court further states at para. 20:
The provision is an integral element of the Highway Traffic Act’s mandatory licencing and insurance scheme to ensure the public safety. The owner has the right to give possession of the vehicle to another person, but this provision “encourages owners to be careful when exercising that right by placing legal responsibility on them for loss to others caused by the negligent operation of the vehicle on a highway.”
The question in Fernandes v. Araujo was whether the Court should overturn a previous decision of the Ontario Court of Appeal, Newman and Newman v. Terdik, 1952 CanLII 97 (ON CA), which held that where the owner gave the driver permission to drive on private property but expressly prohibited the driver from operating the vehicle on the highway, the owner is not vicariously liable for damages sustained as a result of a highway accident when the person with possession of the vehicle violated the condition and drove the vehicle on a highway.
The Court concluding that Newman was wrongly decided and inconsistent with the reasoning and principles expressed in the long line of cases commencing with Thompson v. Bourchier, that if the owner has consented to possession, the owner will be vicariously liable even if there is a breach of a condition imposed by the owner related to the use or operation of the vehicle. The Court set out the following relevant legal principles:
 ...As I have already observed, Finalyson reaffirmed what the 1933 decision in Thompson held to be the purpose of s. 192(2), namely the protection of the public by insisting that the owner of a vehicle exercise careful management when giving permission to another person to use it. This purpose is achieved by imposing vicariously liability for damages if the vehicle is operated in a negligent fashion.
 It is fundamental to that purpose, and to the operation of s. 192(2), that the owner’s vicarious liability is triggered by consenting to possession and that the concepts of possession and operation are distinct: “[C]onsent to possession of a vehicle is not synonymous with consent to operate it. Public policy considerations reinforce the importance of maintaining that distinction”: Finlayson, at para. 3.
 There is a long line of authority for the proposition that where the owner has consented to possession, the owner will be liable pursuant to s. 192(2) even if the vehicle is operated in a manner forbidden by the owner. As stated in Finlayson, at para. 28, “possession and operation are not the same thing, in law.” Where the owner gives possession of the vehicle, “[b]reach of conditions placed by the owner on another person’s possession of the vehicle…do not alter the fact of the second person’s possession,” and from possession flows liability.
 In Seegmiller v. Langer, 2008 CanLII 53138 (ON SC), at para. 34, Strathy J. identified and applied the following well-settled propositions relating to the interpretation and application of the owner-liability provisions of s. 192(2):
If possession is given, the owner will be liable even if there is a breach of a condition attached to that possession, including a condition that the person in possession will not operate the vehicle.
Breach of conditions placed by the owner on a person’s possession of the vehicle, including conditions as to who may operate the vehicle, do not alter the fact of possession.
Although the person to whom the owner gave possession of the car drove it contrary to the owner’s stipulation that he not do so until he obtained a licence, the owner was held vicariously liable.
 In Henwood v. Coburn, 2007 ONCA 882 (CanLII), at para. 12, Rosenberg J.A. noted that the reasons in Thompson “have repeatedly been followed by this court, the Divisional Court and trial courts for over eighty years.” At para. 14, he added that those cases make it clear that the fact that “the driver may be operating the vehicle without the consent of the owner, or even contrary to the express wishes of the owner, is irrelevant provided that the person to whom the owner entrusted the vehicle is in possession of the vehicle.” See also Cooper et al. v. Temos et al.,  OR 175,  OWN 518, 3 DLR (2d) 172,  OJ No 163 (QL) (Ont. C.A.), where the owner was held vicariously liable despite the fact that the person in possession operated the vehicle contrary to owner’s stipulation of no drinking and driving.
 There is a long list of trial decisions to the same effect, including cases where the owner stipulated that the person with possession not drive the vehicle: see, e.g. Lajeunesse v. Janssens et al., 1983 CanLII 1714 (ON SC) and McKay v. McEwan, 1999 CanLII 14777 (ON SC) (vehicle driven by another party contrary to owner’s stipulation that no one else drive); Donald v. Huntley Service Centre Ltd. et al., 1987 CanLII 4199 (ON SC) (owner consented to possession but stipulated that the person with possession not drive); Naccarato v. Quinn, 1994 CanLII 7253 (ON SC) (vehicle driven by another party and for another purpose contrary to owner’s stipulation).
 The proposition upon which Newman rests, namely, that “possession can change from rightful possession to wrongful possession, or from possession with consent to possession without consent” where the person in possession violates a condition imposed by the owner, is inconsistent with the reasoning of this line of authority.
In Henwood v. Coburn, 2007 ONCA 882 (CanLII), the Court ruled that the motion judge had erred in granting a summary judgment The Court noted that just because the defendant was physically in the car, this fact, though undisputed, did not determine that he was in possession. The Court stated that asserting a right to possession is not necessarily the same as being in possession. Possession is a question of fact, since there were material facts in dispute it was inappropriate to grant summary judgment:
 Similarly, in my view, Henwood was not entitled to summary judgment. Even though Henwood was physically in the car, that undisputed fact did not determine that he was in possession of the vehicle. While cases where the person who has the owner's consent to possess the vehicle is not in possession although physically present may be rare, they do exist. Thorne is one example. There are others.
 For example, in DiFede v. McCarthy,  O.J. No. 1124, 27 M.V.R. 170 (Div. Ct.), the owner's husband, who did not have a driver's licence, grabbed the car keys without her consent. The owner jumped in the car as it began moving and yelled at him to stop driving. The accident occurred a short time later. The court held that at the time of the accident, the owner was not in possession; rather, she was attempting to gain possession. Craig J. held at para. 8 that:
In my view, the husband commenced to drive off without the owner's consent and at that time, he had possession of the motor vehicle without consent of the owner; she never did regain possession in the true sense although she was attempting to do so, and she never did give consent to possession by her husband.
In those circumstances, the owner, like the owner in Thorne, was not liable under s. 192(2).
 This case also bears some similarity to Kuhmo and Laakso v. Helberg, 1931 CanLII 147 (ON CA),  O.R. 630,  O.J. No. 464 (S.C.(A.D.)), [See Note 2 below] where the court found that the owner was not liable even though his chauffeur was physically in the vehicle. The owner had leased the car to one Moline on the condition that the owner's chauffeur drove it. During the journey, Moline became drunk and insisted on driving. He was able to wrest control of the vehicle from the chauffeur despite the chauffeur's resistance. As the court said at p. 633 O.R., "the change of operators was due to duress and brought about a situation distinctly contrary to the [owner's] express instructions and the bargain made with Moline". The court reasoned that if fraud or force had been used to enable Moline to "oust" the chauffeur, the owner would clearly not be liable. The court saw no difference between the effect of duress and of fraud or force.
 These cases demonstrate that it is open to dispute whether Henwood was in possession of the vehicle at the time of the collision. Whether or not Henwood was in possession in turn determines the appellant's liability, regardless of the fact that Coburn was operating the vehicle without Henwood's or the owner's consent. In my view, the motion judge erred in granting summary judgment in favour of Henwood when there were material facts in dispute. The motion judge's error is found in the following passage from para. 46 of his reasons:
The court finds that Henwood was in possession of the rented vehicle at the time of the accident within the meaning of s. 192 of the Highway Traffic Act and Ontario Car is liable as owner of the vehicle. The very reason that Henwood got into the passenger's side of the vehicle was that he was asserting his continued right to possession of it.
 Henwood may or may not have been asserting his right to possession, but that did not mean that he was necessarily in possession. Asserting a right to possession and possession are not the same thing. As Kellock J. said in Marsh v. Kulchar, 1951 CanLII 56 (SCC),  1 SCR 330, at p. 335 S.C.J.:
When a motor car is stolen from the owner, the thief takes actual physical possession, and thus takes it out of the possession of the owner, although the right to possession remains with the latter. [See Note 3 below]
 It is a question of fact whether Henwood had regained possession of the vehicle at the time of the accident. As this court has said in a number of decisions, most recently in Thorne at para. 18, "the question of whether a motor vehicle was in the possession of some other person without the owner's consent is a question of fact to be decided by the evidence in each particular [page89 ]case". I note that in Finlayson at para. 23, this court stated that, "Possession is a question of law whereas operation of a vehicle is a question of fact." I think it more correct to say that the meaning of possession is a question of law; the application of that definition to any particular set of facts is not a question of law alone. There is no suggestion in Finlayson that the court intended to depart from the line of authority referred to in Thorne holding that whether a person is in possession of a vehicle depends on the particular facts.
 Some of the evidence showing that there was a genuine issue for trial on the question of Henwood's possession includes the following, tending to weigh against Henwood having possession:
-- According to Henwood, Coburn began drinking and became belligerent and when Henwood refused to drive Coburn to Barrie, Coburn punched him in the face and took the keys.
-- Henwood was trying to get Coburn to stop and slow down.
-- In one of his statements, Henwood stated that "[t]here is no way Fred Coburn could have got the impression he had my consent to drive that truck. He had never driven it in the past and he forcibly took the keys from me."
 In purporting to find that Henwood was in possession, the motion judge exceeded his role under Rule 20 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] by granting summary judgment when there were material facts in dispute. In my view, it is no answer to say that Henwood invited the motion judge to make findings of fact. There is no suggestion that the appellant agreed to the motion judge adopting that role and counsel for the appellant denied before us that his client took any such position before the motion judge.
In Wagner v. Fellows, 2017 ONSC 7309 (CanLII), the driver of a motor vehicle was involved in a collision after surreptitiously taking his mother's vehicle in the middle of the night, knowingly violating the terms of his G1 license. The primary issue was whether the driver may be taken to have had his mother's implied consent to possession of the vehicle, given all of the circumstances. The Court provided the following applicable principles:
1. Consent (to possession) is a question of fact and independent of consent to or conditions restricting operation
2. The meaning of possession is a question of law to be applied to the facts as determined
3. The onus rests on the owner to establish that the vehicle was not in possession with consent
In concluding that the son did not have consent to possession of his mother's vehicle, the Court providing the following:
 Implied consent is to be determined on a case by case basis, taking into account all of the circumstances, not just those peculiar to the one occasion under consideration. There are all kinds of variables in the facts of cases that have considered this issue, none exactly comparable to this case.
 I accept the evidence of Madison Fellows that his mother did not give him consent to possession or operation of her vehicle, except for one time when he drove with her beside him in the passenger seat. I find that she secured the keys in her personal possession at all times, including through the night while she was asleep. Clearly, Mr. Fellows was surreptitious when obtaining the keys to the vehicle. He took the vehicle only while his mother was asleep. He was disappointed in his expectation she would teach him to drive as soon as he had his licence. Impatiently, he helped himself to the keys and the vehicle. He knew it was contrary to the terms of his G1 licence to drive the vehicle without another fully licensed driver with him and between the hours of 12:00 and 5:00 a.m.
 Ms. Ley confronted her son over her suspicions when her daughter's booster seat was not where she expected. He lied to his mother on this occasion, I find. He lied to his mother when he awakened her one night while trying to find the keys. She reported his taking of her vehicle on April 2, 2011 as a theft to police and caused her son to be prosecuted for the criminal offence of taking a vehicle without permission. Her concern for insurance coverage for her loss does not, I consider, detract from what I find to be her truthful account that he had taken her vehicle without her knowledge or consent.
 I find that Ms. Ley has met the onus to prove that her son did not have possession of her vehicle with her consent, express or implied. He knew he did not have her permission. I do not consider that, whatever her suspicions, the circumstances under which her son gained access to the keys and the vehicle gave rise to implied consent. It follows that she is not liable for his negligence pursuant to the provisions of section 192(2) of the HTA.
In Ligaj v. Ismail, 2018 ONCA 271 (CanLII), affirmed on appeal (Ligaj v. Ismail, 2018 ONCA 271 (CanLII)), the defendant, NI, was involved in a motor vehicle accident with the plaintiff while operating a vehicle belonging to his father, SI. NI held a G1 beginners license. The Court found that NI did not have consent to drive the vehicle when not in the company of a licensed driver. However, the real issue for the Court was whether the father had a suspicion that his son (or someone else in the house) was using the vehicle without consent and if that suspicion required the father to remove the keys from the accessible hangar.
The Court stated the following:
 It is clear to me (and for the most part accepted by counsel) that there is no evidence of express consent. The issue requiring my assessment deals with whether or not there was implied consent.
 The test is outlined in Palsky v. Humphrey,  S.C.R. 580 (S.C.C.) — "Did the operator believe that he had consent; is he justified in having that subjective belief?" More recently, our Court of Appeal in Fernandes v. Araujo, 2015 ONCA 571 (CanLII), stated that while there is a subjective component to the test for implied consent, a judge must give "careful consideration to all the evidence". The driver's subjective belief that he or she had consent to possess the vehicle is not alone determinative of whether consent was implied.
In applying the law to the facts, the Court set out the following analysis:
 In the case before me, Nihad Ismail was clear that he did not have his father's consent; never asked his father to use the car as he knew the answer would be never. Nihad knew it was a rule that he could only drive when his father was with him; he had never been permitted to drive without his dad in the vehicle previously.
 There clearly, in my view, was no evidence that Sherif Ismail ever allowed his son to drive on his own before. Moreover, shortly post-accident when asked by police (at his home) Nihad Ismail said that he did not have his father's consent to drive on the evening of the accident. He had known the house rule and disobeyed it — that is why he had Dilvin call his father after the accident. Dilvin as well, confirmed the house rule, asking Nihad what he was doing with the car when he pulled up to her at the bus stop. She also she told him she was going to tell their father.
 I had no evidence of bad behaviour, or a criminal record on Nihad's part before the accident. While Nihad admitted that he had used the car once before on his own, he never told his father until sometime after this accident.
 I thus find that Mr. Sherif Ismail did not act unreasonably by leaving his keys on a hanger in a public area. From my review of the law, same is not fatal unless the owner of the vehicle knew of the driver's record of bad or irresponsible behaviour or had allowed him to drive on his own in the past. There is no evidence that Sherif had any such knowledge or allowed Nihad to drive on his own at any time previously.
 The best argument that can be advanced relates to Sherif's discovery evidence that he chalked tires. Absent any information that he did so (four to five years before the March 2013 discovery, thus in 2008 or 2009 when Nihad was fourteen or fifteen) because Nihad specifically gave Sherif reason to be suspicious I do not accept that implied consent has been proven.
 Even if the discovery transcript evidence is accepted, I had no evidence that Sherif Ismail continued to chalk the tires right up until the date of the 2011 accident. Moreover, even if I were to infer from the chalking that Sherif had a suspicion in 2008 or 2009, did that relate to Nihad or another of his siblings? As well, I had no evidence that the chalking continued until the motor vehicle accident and am thus unable to link this "suspicion" to the accident in question. At the end of the day, there is insufficient evidence to warrant a finding of implied consent based on the accessibility of the keys alone.
 In the case before me, Nihad said that on previous occasions he had been permitted to get something forgotten from the cars; listened to music; might have washed the car. Sherif Ismail said that Nihad could get something out of or put something into the car. When asked if Nihad could have washed or repaired it if he wanted to, Sherif said "he hasn't done it yet". He was not asked about listening to music.
 Accepting that Mr. Sherif Ismail permitted Nihad to be in possession of his vehicle to get something in or out of it, I find it stretches common sense and the rationale behind the public policy reasons aforesaid in connection with s. 192(2) to suggest that a father's consent to his son "possessing" the vehicle to grab an item from the trunk could, at a later date, be construed as consent to possess the vehicle to drive it, particularly when he was not fully licenced.
 Utilizing the principles set out by Justice Strathy in Seegmiller, I find it a stretch to suggest that Sherif ever implicitly granted Nihad "power, control or dominion" over the Honda. To the extent that Nihad was ever granted sole possession of the Honda, it was for brief durations and specified purposes, none of which involved the vehicle leaving its parking spot.
 I do not accept that vicarious liability has been established based on these elements of possession.
The principles distilled by Justice Strathy in Seegmiller v. Langer, were reproduced at paragraph 60:
1. The question of whether a motor vehicle is in the possession of some person without the consent of the owner is a question of fact to be determined by the evidence in a particular case: Henwood v. Coburn, above, at para. 25; Thorne v. Prets,  O.J. No. 5241, 45 M.V.R. (4th) 69(Ont. C.A.); Barham v. Marsden,  O.J. No. 60,  O.W.N. 153 (Ont. C.A.) at 154; Newman v. Terdik (1952),  O.R. 1 (Ont. C.A.) at 7.
2. The meaning of possession is a question of law but the application of that definition to any particular set of facts is not a question of law alone: Henwood v. Coburn above.
3. Possession is a concept capable of different meanings and there are different types of possession. The primary definition of possession contemplates power, control or dominion over property: see Black's Law Dictionary, (8th ed., 2004).
4. Once ownership of a vehicle is established, the onus passes to the owner to establish that the vehicle was, without the consent of the owner, in the possession of some person other than the owner: see Ross v. Vayda (1990), 40 O.A.C. 149,  O.J. No. 1583 (Ont. C.A.).
5. The owner's vicarious liability under s. 192 [of the H.T.A.] is based on possession, as opposed to operation of the vehicle: see Thompson v. Bourchier , above; Finlayson v. GMAC Leaseco Ltd./GMAC Location Ltée, above.
6. "[C]onsent to possession of a vehicle is not synonymous with consent to operate it. Public policy considerations reinforce the importance of maintaining that distinction.": Finlayson v. GMAC Leaseco Ltd./GMAC Location Ltée, at para. 3.
7. If possession is given, the owner will be liable even if there is a breach of a condition attached to that possession, including a condition that the person in possession will not operate the vehicle: Finlayson v. GMAC Leaseco Ltd./GMAC Location Ltée; Donald v. Huntley Service Centre Ltd.(1987), 61 O.R. (2d) 257,  O.J. No. 829 (Ont. H.C.).
8. Breach of conditions placed by the owner on a person's possession of the vehicle, including conditions as to who may operate the vehicle, do not alter the fact of possession: Thompson v. Bourchier, above; Finlayson v. GMAC Leaseco Ltd./GMAC Location Ltée, above.
In Conners v D’Angelo, 2017 ONSC 1104 (CanLII), the Court held that where the driver that caused the accident is not the person to whom the owner entrusted possession, the issue to be determined is whether the driver was driving within, so to speak, the possession of the person to whom the owner had entrusted possession. In other words, the issue is whether the person entrusted with possession continues to have possession, which would be the case if he or she was actually in possession or if he or she expressly or impliedly consented to the driver having possession:
 Applying the above case law to the case at bar, it is helpful to begin by comparing and contrasting the case at bar with Thompson v. Bourchier and by considering the problematic of the owner of a vehicle entrusting possession to another person but that other person not being the driver of the vehicle involved in the accident. Thus, in the immediate case, Ms. Tartaglia entrusted her sister, Lucie Tartaglia, with possession of the Jetta but it was not Lucie, but her son, Mr. D’Angelo, that was the driver of the vehicle that was involved in the accident.
 These cases reveal that when the driver that caused the accident is not the person to whom the owner entrusted possession, the issue to be determined is whether the driver was driving within, so to speak, the possession of the person to whom the owner had entrusted possession. Put differently, the issue becomes whether the person entrusted with possession continues to have possession, which would be the case if he or she was actually in possession or if he or she expressly or impliedly consented to the driver having possession. For vicarious liability, the determinative question is whether there was a consent to possession that can be attributed to the owner.
Conners involved a child taking a car without consent. On the specific facts before it, the Court found that the person who had been given possession of the vehicle by the owner was dispossessed by their child who took the keys. The Court held that in some cases, the driver's conviction for theft or taking a vehicle without consent under the Criminal Code would negate the owner's vicarious liability. On the facts before it vicarious liability was negated regardless of the criminal proceedings:
 The facts of this case are that Ms. Tartaglia entrusted possession of the Jetta to sister, Lucie Tartaglia, and that Lucie’s possession, which in law is Ms. Tartaglia’s possession, was interrupted or she was dispossessed, by her son taking possession of the vehicle without consent. The result, using the language of s. 192 of the Highway Traffic Act, being that the motor vehicle (the Jetta) was in the possession of some person (Mr. D’Angelo) other than the owner (Ms. Tartaglia) without the owner’s consent. It follows that Ms. Tartaglia’s summary judgment motion should be granted.
 Before concluding, I wish to comment that the result of this case would be the same regardless of whether or not criminal proceedings were commenced against Mr. D’Angelo, and it was unnecessary, unseemly, and unfortunate that the insurer pressured Ms. Tartaglia to lay criminal charges against her nephew.
 In the immediate case, the circumstances that Mr. D’Angelo was charged with taking a motor vehicle without consent and that he admitted his wrongdoing establishes only that, for the purposes of the Criminal Code, he took a motor vehicle without consent, which just begs the question of whether he had possession of the motor vehicle without the consent of the owner for the purposes of the Highway Traffic Act, which, as the above discussion reveals, has its own special interpretation.
 In some cases, but not the immediate one, the driver’s conviction for theft or taking a vehicle without consent under the Criminal Code would negate the owner’s vicarious liability under the Highway Traffic Act. In the immediate case, in my opinion, vicarious liability was negated regardless of the outcome of the criminal proceedings.
The Court granted a summary judgment. The Court relied on the following evidence for the summary judgment motion. The Court rejected the use of discovery transcripts without cross examination as evidence, noting that this was not appropriate "other evidence" on a motion for summary judgment:
 The evidence for this summary judgment motion consisted of:
• the examination for discovery transcript and an affidavit from Ms. Tartaglia, who was cross-examined;
• an affidavit from Lucie Tartaglia, Ms. Tartaglia’s sister and Mr. D’Angelo’s mother, who was cross-examined;
• the examination for discovery transcript and an affidavit from Mr. Conners, who was cross-examined;
• the examination for discovery transcript of Mr. D’Angelo, which was put into evidence by Mr. Conners; and
• an affidavit from Christopher Parisi, who was cross-examined. Mr. Parisi was another passenger in the vehicle. Mr. Parisi was Mr. D’Angelo’s friend and is Mr. Conner’s nephew by marriage.
 As noted, there was no cross-examination of Mr. D’Angelo in aid of the summary judgment motion, but Mr. Conners filed the transcript of Mr. D’Angelo’s examination for discovery in response to Ms. Tartaglia’s motion for summary judgment. This, however, is not proper “other evidence” for the purposes of a summary judgment motion against someone other than Mr. D’Angelo. See Lana International Ltd. v. Menasco Aerospace Ltd. (2000), 2000 CanLII 16845 (ON CA), 50 O.R. (3d) 97 (Ont. C.A.); Colautti Construction Ltd. v. Ashcroft Development Inc.,  O.J. No. 1492 (S.C.J.); Toll v. Marjanovic,  O.J. No. 1308 (S.C.J.); Ozerdinc Family Trust v. Gowling Lafleur Henderson LLP, 2017 ONSC 6; CIBC v. Deloitte & Touche, 2015 ONSC 7695, rev’d on other grounds 2016 ONCA 922.
 Strictly speaking, Mr. D’Angelo’s transcript from his examination for discovery is not proper evidence for or against Ms. Tartaglia or Mr. Conners. However, both Mr. Conners and Ms. Tartaglia relied on or referred to the discovery evidence, and, therefore, I shall admit it for the purposes of her summary judgment motion as evidence that may be used for or against Ms. Tartaglia or Mr. Conners.
The Court stated that the case was appropriate for summary judgment since the evidence was adequate to make the determination of the facts about vicarious liability and there was no risk of inconsistent findings of fact at the trial on other issues. The Court emphasized that the question of possession is a question of fact and that owner has the onus of proving that the vehicle was in another's possession without his or her consent:
 I begin the discussion and analysis by noting that there is no doubt that the case at bar is an appropriate case to be determined by a summary judgment motion.
 In particular, this is an appropriate case to determine summarily whether Ms. Tartaglia is vicariously liable for the negligence, if any, of Mr. D’Angelo, who was the driver of her vehicle that was involved in the motor vehicle accident that injured Mr. Conners. The evidence proffered for the motion was adequate to make the determination of the facts about vicarious liability. The forensic resources of a trial are not required to fairly determine the contested issues. Both the moving party and the responding party pushed hard for a substantive result on the motion. There is no risk of inconsistent findings of fact at the trial on other issues, and it is fair and in the interests of justice that the issue of vicarious liability be decided.
 Apart from noting its jurisprudential importance in sustaining the predominance of the Thompson v. Bourchier line of cases, and in bringing some clarity to the matter of implied consent to possession, for present purposes, I need say no more about Fernandes v. Araujo, supra.
 With this background and subject to mentioning several evidentiary points, I am now able to apply the above case law to the circumstances of the immediate case. The evidentiary points to mention are that the question of whether a motor vehicle is in the possession of some person without the consent of the owner of the vehicle is a question of fact to be determined by the evidence in a particular case: Barham v. Marsden,  O.J. No. 60 (C.A.); Thorne v. Prets, 2003 CanLII 22084 (ON CA),  O.J. No. 5241 (C.A.); Henwood v. Coburn, supra, at para. 25. The onus of proving that a vehicle on a highway was in another's possession without the consent of the vehicle's owner is on the owner: Watts v. Dunham, 2013 ONSC 6848.
A recent albeit brief discussion of s.192 by the Court of Appeal can be found in McKay v. Park, 2019 ONCA 659 (CanLII). While McKay involved a passenger grabbing the wheel, the Court referred to s.192 & Thompson in determining whether there was vicarious liability. Thompson, in turn, involved a renter of a vehicle letting another drive it, in breach of the rental contract. In Thompson liability was found. No liability was found on the facts of McKay:
 TD Home also argues that the motion judge erred by not applying the law of possession properly. In effect, it is TD Home’s position that despite Mr. Hnatiuk’s act of seizing the steering wheel, Ms. Park remained in possession of the automobile and is therefore vicariously liable under s. 192 of the Insurance Act. They claim that the motion judge erred by not recognizing her possession or joint possession.
 We would not give effect to this ground of appeal. As Strathy J. (as he then was) observed in Seegmiller v. Langer, 2008 CanLII 53138 (ON SC), 301 D.L.R. (4th) 454 (Ont. S.C.J.), at para. 34, “[t]he primary definition of possession contemplates power, control or dominion over property” (citation omitted). In addressing TD Home’s argument that Ms. Park had possession of the vehicle, the motion judge disagreed, finding that by seizing the wheel, Mr. Hnatiuk “took control of the car” away from her. We see no palpable and overriding error in this finding of fact or in the motion judge’s failure to use the word “possession” when expressing her ruling. It is obvious this is what she meant.
 Moreover, under the terms of s. 192(2) of the Highway Traffic Act, vicarious liability arises unless “the motor vehicle … was without the owner’s consent in the possession of some person other than the owner”. TD Home does not contest that Mr. Hnatiuk, who is not the owner, was at least in joint possession of the motor vehicle, and the motion judge found on uncontested evidence that Mr. Hnatiuk’s act of taking control of the motor vehicle (which gave him possession) was without Ms. Park’s consent. The exemption from vicarious liability under s. 192(2) therefore applies. This outcome makes sense since the purpose of vicarious liability is to have owners assume the risk of those they have entrusted with their motor vehicle: Thompson v. Bourchier, 1933 CanLII 106 (ON CA),  O.R. 525 (C.A.). At no time did Ms. Park entrust Mr. Hnatiuk with her motor vehicle. She should not bear vicarious liability.
The Court also rejected the appellant’s argument that the motion judge erred during the summary judgment by not placing the onus on the owner who brought the summary judgment:
 TD Home argues that the motion judge erred by placing the onus on Ms. McKay to show there was a genuine issue requiring trial, when the onus should have been on Ms. Park, who brought the summary judgment motion, to show there was not a genuine issue requiring trial. This submission is based on the facts that: (1) the motion judge did not expressly identify who bore the burden; and (2) she structured her decision by addressing only the McKays’ arguments as to why there was a genuine issue requiring trial.
 We would not give effect to this ground of appeal. The motion judge is presumed to know the law. It is not necessary for a judge to rehearse in every case who bears the burden. Nor is there any indication that the motion judge got the onus wrong. Her decision to focus only on the areas of contention when explaining her conclusion that there is no genuine issue requiring trial is understandable and appropriate.
In Ip et al. v. Olokun et al., 2019 ONSC 5265 (CanLII), the Court ruled that the question of whether the defendant was driving the car with the consent of the owner was appropriate for summary judgment. The Court pointed to several factors that weighed in favour of a summary judgment including the issue of consent could be easily bifurcated, the record was sufficient and it would not delay the main action:
 Smith and TD agree that the determination of consent to possess Smith’s vehicle was an appropriate question to be determined under the summary judgment process described in Rule 20 and consistent with the principles outlined in Hyrniak v. Mauldin.
 The parties jointly submitted that whether Olokun had Smith’s consent to possess the car is an issue that can be readily bifurcated without risking untimely adjudication of the trial, duplicative proceedings or inconsistent findings.
 Motions for partial summary judgments which do not dispose of the whole action, are expected to be rare and limited to circumstances where the issue can be readily bifurcated.
 It is important to consider the potential for frustrating the objectives of summary judgments: to deliver “proportionate, timely and affordable justice.”
 I agree with the position taken by the parties to the motion that this is one of those circumstances where the issue can appropriately be decided prior to trial because:
1. The record is sufficient and will not improve with delay: the examinations for discovery, the documents supplied to the insurance adjustor, the affidavit of the defendant Smith, Olokun’s statement and the policy materials all assist with a determination of whether Smith consented to Olokun’s possession of the car;
2. The issue is discrete from the remaining issues at trial: consent to drive relates only to the Highway Traffic Act vicarious liability provisions. This reduces, if not eliminates the risk of inconsistent findings or duplicative and inefficient proceedings;
3. The main action will not be delayed because a ruling and reasons on this discrete issue can be made expeditiously;
5. A finding on this issue now will narrow the issues, and the parties at trial. There will be no need to re-argue this point at trial once it is decided;
6. The moving party and responding party agree that this is an appropriate use of the summary judgment provisions: the plaintiff takes no position and the third defendant is not involved in the action.
 I conclude it is appropriate to use the summary judgment procedure to determine whether or not Smith gave consent for Olokun to possess her vehicle and the issue of whether Smith is vicariously liable under the Highway Traffic Act for any driver negligence that gave rise to the accident.
In Bonter v. Estate of Nathan Laird et al., 2019 ONSC 2604 (CanLII), the Court ruled that a summary judgment was inappropriate in a motion to determine consent under s.192 even though the facts were largely undisputed. The owner had given a friend the keys to her car to retrieve a pack of cigarettes, but the friend had taken off with the car instead. However, the Court concluded that there was a genuine issue for trial since it was not clear whether simply handing keys to another person so that he or she could get something from the car constituted consent. This was a genuine issue requiring a trial:
 State Farm submits that both cases are distinguishable because the keys were taken without the owner’s consent; here, there is no dispute that Ms. Barrett voluntarily handed over the keys to Mr. Ward and did not explicitly tell him not to drive the vehicle. By giving him the keys, she legally transferred possession because he now had power, control or dominion over the car without an express prohibition on driving it.
 I disagree. Giving someone the keys to your car to retrieve their personal property from it is not giving possession of your car to them; it is giving them the keys to get something out of it. To conclude otherwise would lead to results that appear at odds with a sensible interpretation of the statute.
 The example used during argument of the motion was the owner who picks up supplies for work to be done at their home by a tradesperson. When the tradesperson arrives, the owner gives them the keys to get the supplies from the trunk. Nothing is said about not driving the car. The tradesperson, instead of retrieving the supplies, drives away in the car. The owner reports the theft to the police. There is an accident and the owner is sued. Was the car in the tradesperson’s possession with the consent of the owner?
 State Farm’s answer is yes and it has the virtue of certainty – keys equal possession of the vehicle provided the transfer is consensual. Ms. Barrett says no – possession of the device which allows you to open the car and even drive it does not mean the owner has given you possession of the vehicle itself if the conferral of the keys was for the purpose of obtaining personal property from it.
 I return to the statutory purpose and the recognition that, as Strathy,J. states in Seegmiller, this issue “is a question of fact to be determined by the evidence in a particular case”. This leads me to conclude that State Farm is wrong in its interpretation of s. 192(2) but there could be cases where handing over the keys to another person would constitute an abdication of the owner’s responsibility for the careful management of the vehicle and, if so, a court could find the owner liable.
 As the moving party, State Farm has the onus of establishing that there is no genuine issue for trial. I have concluded that there is. Based on the evidentiary record before me, a court could find that Ms. Barrett reasonably believed that Mr. Ward would use the keys solely to unlock the vehicle and retrieve his cigarettes. Whether it be cigarettes or some other personal property, a court could view it as such a commonplace occurrence that there was no need for Ms. Barrett to take any additional safeguards to prevent Mr. Ward from stealing her car.
The Court also found there was a genuine issue for trial relating to whether the malfeasant driver was under the influence of alcohol when the owner gave him the keys. Because the owner asked "you’re just going to get your cigarettes, correct?”, there was a question as to whether she acknowledge that he might use the car to drive:
 Considering the other side of the coin, as I must because of Ms. Barrett’s request for summary judgment dismissing the action as against her, I also find a genuine issue for trial. There is evidence that Mr. Ward was still under the influence of alcohol when he arrived at her apartment and no explicit confirmation that, when she gave him the keys, he was sober. Her comment to him when she handed over the keys “you’re just going to get your cigarettes, correct?” could be interpreted as an implicit acknowledgment of a suspicion that he might use the opportunity to drive the car. Because of this and the fact that Mr. Ward was, essentially, a stranger to her, a court could conclude that prudence should have led her to ask her son to accompany him to the car or go herself. There is also the discrepancy in her evidence about when Mr. Ward left the apartment and her claim to have quickly discovered and reported the theft to the police. I appreciate that the passage of time might have affected her recollection of that day but it is somewhat peculiar that she is off by two hours and reports the theft shortly after the accident has happened nearby. This does not mean she is liable under s. 192(2); only that I cannot resolve this issue on the current evidentiary record.
 Having found that there is a genuine issue for trial, I must next decide if I should exercise the expanded fact-finding powers in rule 20.04 (2.1) of the Rules of Civil Procedure or order the presentation of oral evidence under rule 20.04 (2.2). I should only do so if their use would not be contrary to the interest of justice and “will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole”: Hryniak v. Mauldin,  1 SCR 87, 2014 SCC 7 (CanLII) at para. 66.
 I do not see any benefit to the parties or the administration of justice in doing so. A resolution of this legal issue would require the testimony of several witnesses who will be testifying in any event at the trial, assuming that both liability and damages remain contested. The evidence on the issue of consent will not take up a significant amount of time at trial. Although there may be cases in which a jury could decide the issue of consent (e.g. where it depended exclusively on the credibility of the witnesses, the driver testifying they had the owner’s consent and the owner denying this), it will likely have to be decided by the judge in this case because of the legal nuances and the court will have the benefit of a full evidentiary record.
 As I indicated at the outset, Mr. Baldwin and Mr. Peloso agreed that summary judgment was appropriate in this case. I have come to the conclusion that it is not and, if that is my opinion, I should decline to grant it notwithstanding the agreement of the parties: Gordashevskiy v. Aharon, 2019 ONCA 297.
In Forestall v Carroll, 2015 ONSC 2732 (CanLII), the Court refused to grant a summary judgment on the question of possession since the evidentiary record was deficient:
 There are only two parties with direct evidence of the presence, or lack of, consent to possess and operate the vehicle: Celina and Elizabeth.
 For the reasons which follow, I do not believe this to be an appropriate case to grant summary judgment. Specifically, I am troubled by the deficient evidentiary record filed by Celina and in particular the lack of direct evidence from Elizabeth which could have explained the discrepancies set out below.
 The evidence filed on this motion is far from “leading trump”. Celina has both a legal and evidentiary onus to satisfy this Court that there is no genuine issue requiring a trial. It is her obligation to present a record that could enable this Court to avail itself of the enhanced powers under Rule 20.04 if the record warranted the exercise of such discretion.
 This record does not warrant any exercise of such discretion. Since the release of Hryniak, much has been said about the mandate bestowed upon the Court in disposing of proceedings by way of summary judgment in the appropriate case. However, in my view the purpose of the enhanced powers under Rule 20.04 does not include allowing a party to buttress a deficient evidentiary record through the use of a mini-trial. That power is reserved for the Court once it is satisfied that a moving party has placed a full record before the Court which requires some additional evidence in order to resolve the presence of a genuine issue requiring a trial.
 That is not the case here. In my view, the formal admission, coupled with the deficient evidentiary record, are obstacles which Celina cannot overcome and her motion for summary judgment is therefore dismissed.
In Pinto v. Kaur et al., 2014 ONSC 5329 (CanLII), the Court declined to grant a summary judgment since the evidence was deficient, but instead ordered a "mini-trial" so the parties could present oral testimony. The Court suggested that this mini-trial could eliminate the need for a trial altogether, since once the issue of consent was resolved the parties would likely settle:
 Applying the first step in the roadmap to this case, I do not think that there is sufficient evidence available to fairly and justly adjudicate the dispute based on the record currently before the court. There are inconsistencies that need to be resolved, inherent improbabilities to be explained, and gaps in the evidence that prevent me from finding that a grant of judgment on the current record would be a fair and just outcome.
 The next step is to consider if I can exercise the discretion to weigh evidence, evaluate credibility of witnesses, and draw reasonable inferences from the evidence now rather than at trial in a manner that is fair and just. I do not think that trying to do so would be fair to either side. The Court does not have enough information to make a final credibility finding. Raising questions and saying that there are credibility issues is not a finding on credibility. Witnesses may have explanations. Their behaviours may be layered with nuance and texture that is not self-evident from incomplete examinations. Had all parties been fully cross-examined, on all producible documents, then the issue might have been different.
 Moreover, a finding on credibility alone will not fill all the gaps that Axa may need to try to prove that there was implied consent. Axa cannot be faulted for failing to put its best foot forward on this motion. Ms Kaur has not been willing to attend for proper examination. Undertakings remain outstanding by Mr. Pannu. Moreover, Mr. Pannu refused to answer on discovery a question as to whether, if asked, he would have given Ms Kaur permission to take his car to take her ill child to the doctor. Counsel took the position that the question was hypothetical and therefore inadmissible. Might it not be relevant to assessing the reasonableness of whether subjectively Ms Kaur thought she could take the car (as opposed to her thinking she was outright stealing it)? Axa is entitled to a proper opportunity to try to obtain its proof from the opposite parties such as it can.
 It seems to me that the basic, practical question to be asked is “Will the addition of a mini-trial, with whatever processes and procedures it will entail, make the resolution of the overall case more efficient, affordable, timely or proportionate?” In lay terms, does a mini-trial make the path to a final outcome of this case quicker and cheaper or slower and more expensive? Will the mini-trial risk obscuring witnesses’ voices or require so many witnesses to be heard to avoid that risk that the mini-trial becomes a poor substitute and expensive addition to the trial itself?
 Looked at practically, this motion is a contest between two insurance companies. If the court finds that Ms Kaur possessed the car with Mr. Pannu’s implied consent, then Mr. Pannu’s insurer, State Farm, will respond to the plaintiff’s claim. If the court holds that Ms Kaur drove without Mr. Pannu’s implied consent, then the plaintiff’s uninsured driver coverage through her insurer, Axa Insurance Canada, will respond to the claim. Whichever insurer responds, it will be facing a claim based on a rear-ender. Despite Ms Kaur’s statutory declaration, barring unusual circumstances, it is unlikely that liability will be contested at trial. Trial, therefore, is likely to be limited to the issue of the quantum of the plaintiff’s damages. I have no indication about the extent of the plaintiff’s injuries. Unless there is a threshold issue, catastrophic injuries, provable exaggeration, or chronic pain claimed, a trial on damages is also not very likely. That is, once the issue of consent is resolved, barring unusual facts, there is little left to try and the case should settle. In fact, the sooner that the issue of responsibility between the insurers is settled, the sooner the plaintiff’s claim is likely to be resolved.
 In this case, therefore, holding a mini-trial may well eliminate the need for a trial altogether. Even if the plaintiff’s claim proceeds, a trial on damages is completely distinct from a trial on the issue of consent. I see no synergies or savings by having them both together as opposed to hearing the issues sequentially. The witnesses on the mini-trial and the damages trial are distinct. There is no risk of allowing affidavits to mask a witness’s testimony. In fact it is the need for limited oral testimony on a gating issue in this case that makes the mini-trial desirable. In this case, resolution may speed up the case, eliminate the need for a trial and, even if not, will not cause any loss of efficiency in the trial process for whatever remains.
 If a party cannot win summary judgment on a written record, then the analysis of whether to hold a mini-trial should be a practical one focusing on whether there is benefit to all parties by resolving issues sequentially and whether efficiencies can be found or may be lost by doing so. If holding a mini-trial does not enhance the prospects for overall resolution in a tangible and not merely hypothetical way, or if the mini-trial will cause a loss of efficiency, increased cost, or delay that cannot be controlled with careful case management, then the case should proceed toward trial with the motion judge seized with case management in all but exceptional cases as required by the final steps in the Hryniak roadmap.
 In this case, in my view, there should be a mini-trial on the issue of consent. I will case manage and hear the mini-trial. The parties are to contact my Assistant to set up a Case Conference within two weeks at which the trial process will be formulated and scheduled. All communication with my office shall be by email to my Assistant. Documents shall be filed for the mini-trial only by searchable PDF attachments to emails. No Books of Authorities will be filed. Rather cases, if any, will be referenced by hyperlinks in written submissions. I anticipate a short trial of one or two days being held later this year or early in the New Year depending on trial office scheduling availability. Costs are reserved to the outcome of the mini-trial.
In Persaud v. Bratanov and Unifund Assurance Co., 2012 ONSC 5232 (CanLII), the Court granted summary judgment on the issue of consent under s.192 finding that the necessary evidence was present to make a dispositive finding. There was no dispute around three of the four main elements of vicarious liability and the only dispute was whether the incident took place on a highway. The parties agreed on the location of the accident but disagreed on the legal interpretation of whether it was a highway or not. The Court concluded that there was no need for a trial to resolve this legal issue:
 I have no hesitation in concluding that the question of whether or not Ms. Bratanov is vicariously liable for the plaintiffs’ damages under s. 192(2) of the Highway Traffic Act meets the “full appreciation” test from the Combined Air Mechanical decision. I have no doubt that the necessary “full appreciation of the evidence and issues” that is required in order to make a dispositive finding in relation to this liability issue can be fairly and justly achieved by way of this summary judgment motion, without the need for a full trial.
 There are, essentially, four components of vicarious liability under s. 192(2) of the Highway Traffic Act which must be established by a plaintiff, namely: (1) that the defendant was the owner of the vehicle; (2) that the negligent operation of the vehicle by the driver caused the plaintiff’s damages; (3) that the incident took place on a “highway;” and (4) that the driver was operating the vehicle with the consent of the owner. See: Ladouceur v. Zimmerman,  O.J. No. 4777 (S.C.J.) at para. 21.
 There is no dispute with regard to three of these four components. First, there is no dispute that Ms. Bratanov was, in fact, the lawful owner of the van used in connection with the death of the deceased. This fact is admitted by Ms. Bratanov. Second, there is no dispute that Andrew was at least negligent in his operation of the vehicle on the evening in question. Indeed, as noted, Andrew has already pled guilty to manslaughter, been found guilty and sentenced in the criminal proceedings. Third, Ms. Bratanov has agreed that, for purposes of this summary judgment motion, Andrew had her consent to drive her vehicle. While there is evidence to suggest otherwise, this is not currently a point of dispute between the parties for purposes of this motion.
 Whether Ms. Bratanov is vicariously liable turns only on resolution of the legal issue of whether the public park where the incident took place can be properly viewed as a “highway” within the meaning of the Highway Traffic Act in the circumstances of this case. There is no need for a full trial in order to determine that question of law. With no facts in dispute, no inferences to draw, and no credibility issues to determine, this legal issue is perfectly suited to being determined by way of summary judgment motion.