A 2016 civil action arose after C.S. (a minor) stole a car, lost control of the vehicle and crashed into a wall, causing significant injury to his passenger, C. M. (also a minor). The car was stolen from the vehicle owner’s driveway. Due to the severity of their injuries, the injured plaintiff had very little or no memory of the event.
In C.M. v. C.S., the plaintiff commenced a legal action to amend their Statement of Claim to have the owner of the stolen vehicle added as a defendant on the civil suit, after finding out that the vehicle owner had left his car keys in his car console and the car unlocked, on the day of the accident.
There were three key issues to be considered in this action.
1. Did the plaintiff show that the discovery date of the claim against Mr. Chisholm is an issue requiring trial or summary judgement and therefore, should leave be granted to add Mr. Chisholm as a defendant?
2. Did the plaintiff show they have a reasonable cause of action against Mr. Chisholm?
3. Has Mr. Chisholm shown prejudice not compensable by costs or will an adjournment cost him if the Court grants the plaintiff leave to amend their claim?
Regarding the first issue, the judge referenced Wakelin v. Gourley (2005), wherein it was noted that very little evidence is required by a plaintiff, at a pleadings amendment stage, to establish that a proposed defendant could not have been identified with due diligence within the limitation period. In other words, the threshold is not very high for the plaintiff to show that they were unable to identify Mr. Chisholm as a defendant within the two-year limitation period.
On the final issue of prejudice, the judge remarked that Mr. Chisholm did not show evidence of sufficient prejudice in his materials, in response to the plaintiff’s proposal to add him to the existing action. Rather, Mr. Chisholm appeared to be presenting the argument of prejudice simply because he was being named as a defendant in the lawsuit.
Although it remains to be seen whether the car owner will be held liable or contributorily liable for the plaintiff’s injuries, the judge in this case allowed for the possibility that a vehicle owner may be found negligent despite the fact that the vehicle was clearly taken without their consent. In a 2015 trial, Nemeth v. Yasin, a parent/owner was held vicariously liable for injuries caused to another driver, after his son took his father’s car without consent and was involved in an accident. The decision in Nemeth was largely based on the fact that the father’s car keys were still ‘available’ for the son to access, although father and son had submitted an Excluded Driver Form to the vehicle insurer and the son was expressly forbidden to drive until he obtained his own insurance. However, in another recent case, Thorne v. Prets, an Ontario court ruled that the car’s owner was not liable for a plaintiff’s injuries after the defendant, a ‘friend of a friend’, drove the car without either the consent of the owner or consent of the plaintiff, his friend (who was borrowing the car with the owner’s permission and asleep in the car at the time of the accident).