The Ontario Court of Appeal decision of McKay v Park, 2019 ONCA 659, was an appeal brought by TD Insurance, on behalf of its insured, McKay, to set aside a Rule 20 summary judgment decision and a Rule 21 motion to determine a question of law prior to trial.  In the absence of a viable claim against Park’s policy, TD would be obliged to respond to Park’s injuries claims under the uninsured, underinsured and family protection endorsement provisions of its policy.

The case arose out of a motor vehicle accident that occurred between Park’s vehicle and the Plaintiff, McKay’s vehicle, which resulted in serious injuries for McKay. The Defendant Park, was travelling with her boyfriend, Hnatiuk, at the time of the accident. The two were having an argument, when Hnatiuk reached over from the passenger’s seat and grabbed the steering wheel. The resulting accident with McKay occurred almost instantaneously.

McKay alleged Park was vicariously liable for her resulting injuries under s 192(2) of the Highway Traffic Act which provides that an owner is vicariously liable due to negligence in the operation of their motor vehicle “unless the motor vehicle… was without the owner’s consent in the possession of some person other than the owner”. Park sought a summary judgment under R 20 dismissing the Plaintiff’s action against her and also moved under R 21 for a determination before trial to deny the passenger in the Defendant vehicle, Hnatiuk, indemnity under the Defendant Park’s insurance policy. The motion judge granted both motions.

Rule 20 Appeal

On appeal, the three judge panel consisting of Paciocco JA, Harvison Young JA and Zarnett JA,   held that the motion judge did not err in allowing the Rule 20 Summary Judgment motion. Firstly, TD argued that the motion judge erred by placing the onus on McKay to show there was a genuine issue requiring trial, when the onus should have been on Park to show there was not a genuine issue requiring trial. The Court rejected this argument, and found that it was appropriate for the motion judge to focus on areas of contention, and that there was no indication that the judge got the onus wrong.

TD then argued that the motion judge erred by not applying the law of possession properly. TD argued that Park, despite having the steering wheel seized, remained in possession of the vehicle and was therefore vicariously liable for the actions of Hnatiuk. The court rejected this argument as well, and held that the exemption from vicarious liability under s 192(2) of The Highway Traffic Act applies because “at no time did Ms. Park entrust Mr. Hnatiuk with her motor vehicle” as is required under s 192(2). The court applied the definition of possession as it appeared in Seegmiller v. Langer, 301 D.L.R. (4th) 454 by stating that “the primary definition of possession contemplates power, control or dominion over property” and that the sheer act of taking control of the wheel ultimately removed all elements of control from the Defendant in this case.

TD also argued that the motion judge erred in finding that Park’s negligence was not a genuine issue requiring trial. The court disagreed and said “the only evidence was that Ms. Park had been driving without incident until Mr. Hnatiuk grabbed the wheel… and that Mr. Hnatiuk took control of the car”. The court held that this evidence, plus the motion judge’s finding that Mr. Hnatiuk’s act was not foreseeable, extinguished any realistic negligence claim against Park.

Finally, TD argued that the motion judge did not give adequate reasons regarding the Rule 20 decision. The court blatantly disagreed and held that “her r. 20 decision was explained adequately to enable appellate review.”

The Rule 20 appeal was dismissed.

Rule 21 Appeal

In contrast, the court set aside the motion judge’s Rule 21 determination for two reasons. The first reason being that the motion judge gave no meaningful explanation for the reasoning path she took in coming to her decision. Her reasoning was insufficient, and as such was not subject to appellate review. Secondly, the court emphasized that Rule 21 motions are to resolve questions of law raised by the pleadings, and that without leave, no evidence is admissible on such a motion. The court held that the motion judge did not make her decision based on a question of law but rather on evidence from the Rule 20 motion.  

The Rule 21 appeal was allowed, and the decision set aside. The court found that the only way the motions judge could have concluded that indemnity was not owed to Hnatiuk  on Park’s policy was by relying on the findings in the summary judgment motion, which was improper where no leave was sought to rely on that evidence.  The court did note however, that its conclusion was not a disposition of the merits of the issue raised by the Rule 21 motion, and that the parties are at liberty to bring further proceedings to have that issue determined.


McKay v Park has provided clarity on the meaning of “possession” under section 192(2) of the Highway Traffic Act. The Ontario Court of Appeal drew a clear line regarding what it means to be in control of a vehicle, and how one’s personal and vicarious liability is affected if a third party grabs the wheel and an accident ensues. Moving forward it is uncertain whether insurance companies may take an entirely off-coverage position for all Defendant parties, regardless of whether the policy holder themselves is liable.

 If you have a question about this decision or a similar file, please contact the Appellate Advocacy group