Decision Content
In the Court of Appeal for the Northwest Territories
Citation: Elleze v Norn, 2021 NWTCA 4
Date: 2021 04 22
Wayne Maurice Elleze
Respondent
(Plaintiff)
- and -
Brent Norn, Royal & SunAlliance Insurance Company of Canada,
John Doe and XYZ Corporation
Respondents
(Defendants)
Leslie Norn and Leslie Norn operating as Les Norn Contracting
Appellants
(Defendants)
_______________________________________________________
The Court:
The Honourable Mr. Justice Frans Slatter
The Honourable Madam Justice Barbara Lea Veldhuis
The Honourable Mr. Justice Thomas W. Wakeling
_______________________________________________________
The Honourable Madam Justice V.A. Schuler
_______________________________________________________
_______________________________________________________
The Court:
[1] Brent Norn hit and injured the plaintiff, who was walking on a road on the Hay River Reserve. Brent Norn was impaired and did not have a driver’s licence. The F-250 truck he was driving was owned by the appellant, his employer Les Norn Contracting, a sole proprietorship operated by his father.
[2] The issue in this litigation is whether Brent Norn was driving with the consent of his sole proprietor father, the owner of the F-250. If so, then Les Norn and Les Norn Contracting, as the owner of the F-250, is responsible for the plaintiff’s damages.
[3] The trial judge decided that at the time of the accident, Brent Norn did have the owner’s consent to drive the F-250: Elleze v Norn, 2020 NWTSC 3, 53 MVR (7th) 273. Les Norn and Les Norn Contracting appeal that decision.
The Statutory Background
[4] Automobile insurance is mandatory in the Northwest Territories. The vehicle owner’s insurance is responsible for the first $200,000 of damage caused in an accident: Insurance Act, RSNWT 1988, c. I-4, s. 144, 156. The exposure of the owner above that amount depends on whether the driver had the vehicle with the consent of the owner.
[5] The Motor Vehicles Act, RSNWT 1988, c. M-16 outlines the liability of the owner:
271(1) Subject to subsection (2), the owner of a vehicle is liable for damages for injury, loss or damage to persons or property caused by the negligence or improper conduct of the driver of the vehicle in the operation of the vehicle on a highway and the driver is liable to the same extent as the owner.
(2) The owner of a vehicle is not liable under subsection (1) if at the time the vehicle caused the damage, the vehicle was being operated by a person without the consent of the owner.
(3) For the purposes of subsection (2), the driver of a vehicle shall be presumed to be operating the vehicle with the consent of the owner of the vehicle where the driver is
(a) living with and is a member of the family of the owner, or
(b) an employee or agent of the owner,
unless the owner can prove that the driver was, at the time of the accident, operating the vehicle without his or her consent.
Since Brent Norn was an employee of the owner, Les Norn Contracting, the reverse onus in s. 271(3)(b) was engaged. The onus was on Les Norn Contracting to prove on a balance of probabilities that Brent Norn did not have consent to drive.
[6] Consent is a question of fact. It can be general or specific. The owner can say: “You have my consent to take my car, today, to go to the grocery store”. Or the owner might say: “Take my car whenever you need it; the keys are on the hook by the door.” Owners, however, are rarely that precise about giving consent. Often a culture, understanding or pattern will arise illustrating the circumstances in which actual consent has been given to the driver.
[7] It is also clear that the law does not recognize conditional consent. The owner cannot say: “You have my consent to drive my car, as long as you do not go through any stop signs”, or “as long as you only go to the grocery store and back”. Once the owner consents to possession or operation, the owner runs the risk of what the driver may do with the vehicle. If the driver breaches any condition attached to the consent, that condition cannot be asserted against third parties who were injured by the driver. The only exception is that the owner can make it a condition that the driver will not transfer consent to a third party: reasons at para. 50; Garrioch v Sonex Construction Ltd., 2017 ABCA 105 at para. 54(d), 50 Alta LR (6th) 258.
Facts
[8] The only issue at trial was whether Brent Norn had the consent of Les Norn to operate the F-250 at the time of the accident.
[9] The trial judge heard a considerable amount of evidence on the vital issue of consent from the Norn family, other guests at the house party that occurred on the evening of the accident, other residents of the Reserve, and the RCMP constable who investigated the accident.
[10] The trial judge found that Brent Norn drove the F-250 from time to time, even though he did not have a driver’s licence. Sometimes Brent Norn would just drive within worksites, but at other times, he would drive the F-250 through the Reserve and elsewhere. The trial judge summarized her findings:
139 As I have said, I am satisfied on the evidence that Brent drove the F-250 on a regular basis, sometimes alone or with Tina Bruha and sometimes accompanied by a licensed passenger, mainly his brother David. Sometimes Brent sought and obtained permission from Les to drive it. Sometimes he drove it without permission. However, the only consequence Brent faced when he drove the F-250 without first obtaining permission from Les was that Les would get mad and sometimes, but not always, deny permission when Brent asked to drive it the next time.
Les Norn, the owner of the F-250, knew of this pattern of driving: reasons at paras. 142-43. The trial judge rejected Les Norn’s evidence that he never gave permission to Brent Norn to drive the F-250: reasons at para. 140. Les Norn’s real objection was to Brent Norn driving when impaired, not that he should not drive at all: reasons at para. 144. The trial judge held that the evidence “leads me to the inference that Brent had ongoing implied consent from Les to drive [the F-250]”: reasons at para. 143.
[11] On the weekend before the accident, Les Norn left for Edmonton to pick up his wife Edith. Les Norn gave a set of keys to his other son, David Norn. On the night of the accident, David Norn drove the F-250 to a party at the Lafferty residence, where he became seriously intoxicated.
[12] Brent Norn was also at the party. He had started drinking even before he arrived at the party and was also severely intoxicated. He testified that when David Norn passed out, he took the keys to the F-250 from his pocket. The trial judge found that this evidence, which was the only evidence about how Brent Norn got the keys, was potentially unreliable and incomplete: reasons at para. 129. Another guest at the party thought that Brent Norn was not in a fit condition to drive and took the keys away from him. She, however, was intimidated by him and gave up the keys. Brent Norn took the keys and drove away. The accident occurred shortly thereafter.
[13] The trial judge found that the implied consent to drive that Les Norn had given to Brent Norn was continuing when the accident occurred, throughout the weekend while Les Norn was in Edmonton: reasons at paras. 150-51. She summarized her findings at para. 155:
155 As stated, I am satisfied that Brent did have the implied consent of Les to operate the F-250 at the time of the accident. For the reasons given, the evidence put forward by Les Norn to support his contention that he did not consent, is not persuasive and does not rebut the presumption of consent in s. 271(3) of the Motor Vehicles Act.
Since Brent Norn had the direct consent of Les Norn, this was not a situation where a person with consent (i.e. David Norn) had passed on consent to a third party (Brent Norn): reasons at para. 156.
Issues and Standard of Review
[14] The appellant frames the issues on appeal as being errors of law relating to the interpretation and application of s. 271(3) of the Motor Vehicles Act. No reviewable errors in the fact finding are alleged. The respondents argue that the issues raised are actually mixed questions of fact and law.
[15] Errors of law are reviewed on appeal for correctness. However, whether there was consent is largely a finding of fact, which would only be disturbed on appeal if it reflects palpable and overriding error. Findings on questions of mixed law and fact call for a “higher standard” of review, because “matters of mixed law and fact fall along a spectrum of particularity”: Housen v Nikolaisen, 2002 SCC 33 at paras. 28, 36, [2002] 2 SCR 235. A deferential standard is appropriate where the decision results more from a consideration of the evidence as a whole, but a correctness standard can be applied when the error arises from the statement of the legal test: Housen at paras. 33, 36.
Principles of Statutory Interpretation
[16] The first alleged error of law relates to the proper interpretation of statutes. This argument relies on differences between the statutes of the Northwest Territories and the statutes of other Canadian jurisdictions. First of all, the Northwest Territories Interpretation Act, SNWT 2017, c. 19 does not contain an express statement that statutes are to be construed as being remedial: reasons at paras. 24-25. Secondly, s. 271(3) of the Northwest Territories Motor Vehicles Act relates consent to the “operation the vehicle”, whereas the statutes of many other jurisdictions refer to “possession of the vehicle”: reasons at para. 40. Thirdly, s. 271(3) of the Northwest Territories Motor Vehicles Act assesses consent “at the time of the accident”, whereas the statutes of many other jurisdictions refer to “possession” generally: reasons at para. 33. The appellant alleges that while the trial judge recognized these differences in the statutes, she erred by failing to give effect to them in her analysis.
[17] The absence of an express statement that statutes are to be construed as being remedial is of no consequence here. Statutes are to be interpreted in their entire context harmoniously with the scheme of the act: Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 SCR 27 at para. 21. The purpose of s. 271 of the Motor Vehicles Act is obviously to change the common law in ways that will enhance the ability of persons who are injured by motor vehicles to have access to the mandatory liability insurance attached to the motor vehicle. For example, at common law, the owner of an object who lends it to a third party is not vicariously liable for any negligent use of that object by the third party. Interpreted in context, the purpose of s. 271 is clearly “remedial” in nature, whether or not there is any express statement of that principle in the Interpretation Act. The trial judge did not err by interpreting s. 271 in a way that would give effect to its obvious purpose.
[18] Given the facts of this case, that the Northwest Territories statute refers to “operation”, whereas the statutes of many other jurisdictions refer to “possession” is of no consequence. The trial judge’s analysis is not undermined by this distinction. The trial judge clearly found that Brent Norn had consent to operate the F-250, which is what the statute requires: reasons at paras. 40, 155. There are rare circumstances where someone has consent to “possess” a vehicle, but not consent to operate it: Finlayson v GMAC Leaseco Ltd, 2007 ONCA 557, 86 OR (3d) 481. It would be impossible for a person to have consent to operate a vehicle without also having consent to possess it. On this record there is no air of reality to the suggestion that Brent Norn may have had consent to possess the F-250 at the time of the accident, but not consent to operate it.
[19] Thirdly, the trial judge found that Brent Norn had consent to possess the F 250 “at the time of the accident”. This was a finding of fact. This was not a situation where Brent Norn obtained any specific consent from Les Norn to drive the F-250 on any particular occasion. The trial judge found that Brent Norn had a generalized consent to drive the vehicle from time to time, without seeking or getting consent on each particular occasion. There is nothing on this record to suggest that the generalized consent given to Brent Norn differed on the particular weekend when this accident happened. It cannot reasonably be argued that Brent Norn had consent when he left the Lafferty residence, and consent when he arrived home, but that somehow in the middle of his journey, at the time and place of the accident, he lost consent. It also cannot be suggested that he had consent on Friday, and would have had consent on Monday, but he did not have consent over the weekend. Nothing changed just because Les Norn was in Edmonton that weekend. The trial judge found the generalized consent given to Brent Norn had existed prior to that weekend and continued unchanged over the weekend: reasons at para. 150.
[20] The statue does not require a separate analysis of consent at the precise point in time when the accident occurred. Attempting a separate analysis of consent at that precise moment implies that consent could have been conditional on circumstances surrounding the method of operation at that time. It would invite a hindsight analysis, under which the owner would argue that consent would not have been given if the owner knew that the driver’s operation would be negligent at that point. As noted, the law does not recognize conditional consent.
The Test for “Implied Consent”
[21] The second ground of appeal is an alleged error in the statement of the legal test for “implied consent”. The appellant concedes that “consent” is a finding of fact, and does not challenge the trial judge’s findings of fact. The appellant, however, asserts an error of law in “not requiring an analysis based on similar circumstances to determine if there was implied consent”.
[22] Consent is a binary issue. There is either “consent” or “no consent”. What is sometimes referred to as “implied consent” is better described as “actual consent, inferred or implied from the evidence”. As the trial judge correctly observed at para. 39, where consent is to be inferred from the evidence: “Much will depend on the specific facts of the case”.
[23] Under this ground of appeal the appellant argues that there are certain lines of analysis that must be used when deciding if there was implied consent. For example, Palsky v Humphrey, [1964] SCR 580 approved the reasoning that “had [consent] been sought it would have been granted as a matter of course”. Godsman v Peck (1997), 29 BCLR (3d) 37 at para. 29, 87 BCAC 53 (CA) identified willingness to let another person drive, and an expectation that they would in fact drive. However, as pointed out in Garrioch at para. 54(a), the only issue was whether there was consent, and:
(i) other expressions such as “expectation and willingness”, “consent would have been given as a matter of course”, and “would have consented if asked” are at best analytical tools that might be helpful in examining the facts, but they do not displace the test in the statute. They are methods of analyzing the facts and the possible inferences, not statements of law; . . .
The cases cited by the appellant outline various ways that a trial judge might analyze the facts in the particular case, but they do not set out the only, or even the preferred method of analysis. At the end of the day, whether consent can be inferred from the evidence is a question of fact to be decided by the trial judge.
[24] In this case, the trial judge found as a fact that Brent Norn had the actual, generalized consent of Les Norn to operate the F-250, and that this consent existed on the weekend that the accident occurred: reasons at para. 150. The appellant has not identified any reviewable error in this conclusion.
Error in Applying the Legal Test
[25] The third ground of appeal is said to be a “failure to apply the correct interpretation of s. 271(3) and the correct legal test for implied consent to the facts”. This is said to be an error of law, but at its core it is merely a challenge to the trial judge’s fact findings. The appellant alleges that Brent Norn was never permitted to operate the F-250 on a continuing basis, Les Norn did not consent to him operating it regularly, and that Brent Norn “did not have an ongoing or general consent to operate the vehicle”. The appellant argues that if one compares “the circumstances at the time when the accident occurred to the whole of the evidence of prior operation to determine whether there would or would not have been consent”, it is clear that Les Norn had rebutted the presumption of consent found in the statute. These assertions are directly contrary to the fact findings of the trial judge, which findings are adequately supported by the evidence.
[26] The appellant attempts to characterize this as the type of case where the owner gives consent to one person (here David Norn), and then consent passes to a third person (Brent Norn). The appellant notes that while consent cannot be given on conditions, there is one exception. Consent can be given to one driver on the condition that consent will not be passed on to another driver. Cases like Godsman v Peck and Garrioch raise that issue.
[27] However, the trial judge found as a fact that this was not a case of consent being passed to a third party:
156 Because of my finding that Brent had implied consent from Les to drive the F-250, I need not deal with the third party issues that arose in such cases as Garrioch, where the vehicle owner gave possession of the vehicle to one individual, who then allowed another to use it.
Since Brent Norn’s consent came directly from the owner, Les Norn, not indirectly through his brother David Norn, this issue does not arise.
[28] The appellant also argues that the failure of Les Norn to exercise “due diligence”, or to actively prevent Brent Norn from operating the vehicle, or foreseeability of the possibility of driving, are not the same thing as consent. That is true, but the failure of the owner of a vehicle to object to someone else driving that vehicle is circumstantial evidence from which an inference of consent can be drawn. That is particularly so when the driving is occurring on a systematic or persistent basis, and the owner acquiesces in or turns a blind eye to that driving. A trial judge is entitled to conclude that for an owner to do nothing in these circumstances is inconsistent with an absence of consent.
Conclusion
[29] In conclusion, the appellant has failed to disclose any reviewable error. The appeal is dismissed.
Appeal heard on April 20, 2021
Memorandum filed at Yellowknife, NWT
Slatter J.A.
Authorized to sign for: Veldhuis J.A.
Wakeling J.A.
T. Kulasa
for the Respondent, Wayne Maurice Elleze
C.C. Neal
for the Respondents, Brent Norn and Royal & SunAlliance Insurance Company of Canada
A.D. Schmit
for the Appellants
A-1-AP-2018-000008
IN THE COURT OF APPEAL FOR THE
NORTHWEST TERRITORIES
Between:
Wayne Maurice Elleze
Respondent
(Plaintiff)
- and -
Brent Norn, Royal & SunAlliance Insurance Company of Canada, John Doe and XYZ Corporation
Respondents
(Defendants)
- and -
Leslie Norn and Leslie Norn operating as Les Norn Contracting
Appellants
(Defendants)
MEMORANDUM OF JUDGMENT