If you own a car that is involved in a Ontario Highway Traffic Act, the owner of a registered vehicle is “liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle.”
However, an owner may escape liability if the person driving the vehicle had possession “without the owner’s consent.”
In some cases, ascertaining the owner’s consent is a relatively simple matter. For example, if someone steals your car and gets into an accident, you are clearly not responsible for the damages.
But what if someone living in your house “borrows” your car without telling you first and is subsequently involved in an accident? Put another way, is there such a thing as implied consent for purposes of Ontario law?
Two recent decisions from the Ontario Superior Court of Justice address this question. By pure coincidence, both cases involve scenarios in which a son used his mother’s car and, in the course of operating the vehicle, negligently caused an accident.
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Michaud-Shields v. Gough: When is Consent “Implied”?
In the first case, Michaud-Shields v. Gough, the son took his mother’s truck while she was away from the house. The son did not have permission to use the truck, and in fact did not possess a valid driver’s license. Nevertheless, he proceeded to drive the truck while under the influence of alcohol and caused an accident with a second vehicle, which the plaintiff was driving.
Ontario police subsequently charged the son with impaired driving and other criminal offences. Police asked the mother if she wished to press her own charges against the son for “stealing” the truck, but she declined to do so.
The truck actually belonged to the son at one point, when he was still a licensed driver. But several years after the son’s license was suspended, he transferred title to the mother. The mother used the truck and insured it in her own name.
Based on the evidence presented to the Superior Court, at no point did she allow her son to use his former truck, based primarily on the fact he was not a licensed driver.
The Arguments in Court
The plaintiff filed a personal injury lawsuit against a number of parties, including the son, the mother, and the plaintiff’s own uninsured motorist insurance carrier. The insurance company brought a motion for summary judgment in Superior Court, seeking a declaration that the son “was operating the subject truck with the implied consent” of the mother.
Essentially, if the son was driving the truck with implied consent, the mother (and her insurance carrier) would be liable for the plaintiff’s potential damages; otherwise, since the son lacks insurance of his own, the plaintiff’s carrier would be on the hook for any judgment.
Unfortunately for the insurer, Justice Chris de Sa denied the motion for summary judgment. While the judge agreed that “permission to the use the vehicle need not be express” for purposes of assigning liability under the Highway Traffic Act, the undisputed evidence here did not support a finding of any kind of permission.
The insurance company argued the judge should infer implied consent because the mother “did nothing to prevent Justin’s access or use to the vehicle, and she did not expressly forbid him to drive the vehicle while she was away.”
Justice de Sa said this “interpretation” of the law “is far too broad.” The mother did not grant consent simply by leaving her car in the driveway while she went away for the weekend. By that logic, the judge said an owner would give implied consent to a car thief if they do not take affirmative steps to prevent the theft.
Leigh v. Clement: A Question of “Possession”
The facts of the second case, Leigh v. Clement, are remarkably similar to the first. Here, an adult son was living with his mother. His driver’s license was previously suspended. The mother owned a vehicle but did not allow her son to drive it due the suspension. However, the mother did occasionally allow one of her son’s friends to use her car to give him a ride.
One day, the son took his mother’s car–without her express consent–and got into an accident. The driver of the other vehicle then sued the mother for damages. The plaintiff’s insurance company also filed a cross-claim against the mother.
This time it was the mother who moved for summary judgment. Justice R. Dan Cornell of the Superior Court granted this motion. Unlike the prior case where the court focused on the question of implied consent, here Justice Cornell framed the issue as “whether the owner granted possession of the vehicle to another person.”
By law, courts presume that an owner granted possession to the driver. So the burden of proof was on the mother here to disprove this.
But as it turned out, Justice Cornell said there was really no debate–the mother never gave possession to the son. Indeed, she was asleep at the time her son took the car. The son admitted his mother never gave him possession of the car. For her part, the mother said she was unaware of any instance (prior to the accident) in which her son took the car.
While the mother did allow her son’s friend to use the car, in those instances Justice Cornell said she gave possession to the friend, not the son. Accordingly, the mother was not liable for her son’s car accident.
Need Help Sorting Out a Car Accident? Call Preszler Law Today
Sorting out who is liable for an auto accident is often more complicated than you might think. A number of parties may be involved with driving, maintaining, owning, and insuring a given vehicle. This is why it is important to work with an experienced Toronto personal injury lawyer who is experienced in dealing with car accidents. Call Preszler Law Firm to schedule a free, no-obligation consultation with one of our lawyers today.