( Disponible en anglais seulement )
Juliet Bratanov’s 18 year old grandson used her van to run-down and kill Kevin Persaud after a drug deal gone bad. Persaud’s family consequently commenced an action against Bratanov claiming that Bratanov was vicariously liable for the actions of her grandson simply by virtue of her ownership of the van. They additionally claimed that Bratanov was negligent in having entrusted her van to her grandson’s father in a situation where she knew or ought to have known that the van would be used by her grandson who was a poor, incompetent, and incapable driver, as well as a danger and menace to society. Bratanov, in response, moved for summary judgment, arguing that the claims made against her could not succeed and there was consequently no genuine issue for trial.
Bratanov’s motion required consideration of two separate issues:
- Was there a genuine issue requiring a full trial to determine whether Bratanov was vicariously liable for the plaintiffs’ damages simply by virtue of her ownership of the van?
- Was there a genuine issue requiring a full trial to determine whether Bratanov was liable for the plaintiffs’ damages as a result of her allegedly negligent entrustment of her van to her grandson’s father?
Justice Campbell, in addressing these issues, provided a useful summary of the leading case with respect to summary judgment motions, being Combined Air Mechanical Services Inc. v. Flesch (2011), 108 O.R. (3d) 1 (C.A.); leave granted:  S.C.C.A. No. 47 and 48., having determined that the necessary « ‘full appreciation of the evidence and issues’ required to render a dispositive finding in relation [to the above-noted issues could] be fairly and justly achieved by way of this summary judgment motion, without need of a full trial« .
Issue 1: Vicarious Liability
The issue of Bratanov’s vicarious liability turned on the proper interpretation of section 192(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8. Why? Because it was apparent from that section that vicarious liability for the plaintiffs’ damages could only be imposed if the negligent operation of Bratanov’s van took place on a « highway ». In this particular case, Bratanov’s grandson had been driving in a park. It was Bratanov’s consequent position that a park is not a highway and liability could not be imposed. Justice Campbell, having considered the common sense interpretation of the term « highway », the application of the ejusdem generis rule of statutory interpretation, and the governing judicial authorities, agreed with Bratanov’s position.
Issue 2: Negligent Entrustment
As explained by Justice Campbell, judicial authorities suggest that each of the following elements must be established in order to find a defendant liable for negligent entrustment: (1) the entrustment of a chattel by its owner to the entrustee; (2) incompetence, inexperience or recklessness on the part of the entrustee; (3) the entruster must have known or ought to have known of the entrustee’s condition or proclivities; (4) the entrustment must have created an appreciable risk of harm to the plaintiff and a coincident relational duty of care on the part of the defendant/entruster; and (5) the entrustee’s negligence must have been the proximate or legal cause of the damages suffered by the plaintiff.
In this particular case, Bratanov admitted to having entrusted her van to her grandson’s father; however, the plaintiffs could not establish the remaining elements set out above. As stated by Justice Campbell, Bratanov could not be found liable in the absence of any negligence on the part of her grandson’s father. Second, the relationship between Bratanov and the plaintiffs did not provide a sufficient degree of reasonable foreseeabiltiy and proximity to establish a duty of care on the part of Bratanov. And third, as the plaintiffs’ damages were not reasonably foreseeable, any potential negligence on the part of Bratanov could not properly be said to have been a proximate cause of the plaintiffs’ damages. As explained by Justice Campbell, while Bratanov « should reasonably have foreseen the possibility that her vehicle might be used by her grandson, and that he might have driven her vehicle carelessly and/or negligently on a highway, and thereby might accidentally have caused harm to other users of the highway – motorists or pedestrians« , she « could not reasonably have anticipated that her grandson would use her vehicle as a weapon in a public park to criminally take the life of a fleeing pedestrian« .
In the result, Bratanov’s summary judgment motion was granted and the claims made against her were dismissed in their entirety.