To print this article, all you need to do is be registered or log in to Mondaq.com.
A recent decision by the Alberta Court of Appeal confirms that imposing conditions on consent to possession does not protect the owner of a vehicle from vicarious liability.
Pinksen owned a car, and her husband allowed Rampersad to use the vehicle to run some errands. He was supposed to return the car later that day, but he never did. Rampersad was told he had until 5 a.m. the following morning to return the vehicle and that if it was not returned it would be listed as stolen in the police database.
Rampersad failed to return the vehicle by 5 a.m., and Pinksen reported it stolen. After the deadline for returning the vehicle expired, Rampersad had a run-in with Mansour. Rampersad was charged with six offences, including stealing the vehicle.
Mansour sued Pinksen, claiming she was vicariously liable for her losses. Pinksen filed for a summary dismissal of Mansour’s claim, arguing that she was not vicariously liable for the accident because Rampersad did not have her consent to drive the vehicle at the time of the accident. accident. Pinksen was originally unsuccessful before a prothonotary on his application for summary dismissal. She appealed to a judge of the Court of Queen’s Bench and won.
Mansour appealed to the Court of Appeal. At issue in this appeal is whether Rampersad was driving Pinksen’s car with his consent at the time of the accident. If Rampersad was driving with his consent at the time of the accident, he would be covered by Pinksen’s insurance. If not, the request would have to be answered under the Motor Vehicle Accident Claims Act, RSA 2000, c. M-22.
The court ruled in Mansour’s favor because Rampersad had consented to possession of the vehicle at the time of the accident.
Pinksen argued that the consent given to Rampersad ended at 5 a.m., before the time the loss and damage occurred, but the court found this to be a circular argument . The court in this case stated at paragraph 16 that;
“If the owner gives consent to the driver to have possession of the vehicle for a specified period…the owner remains liable even if the driver retains possession of the vehicle after that period.”
The above is consistent with the conclusion of Mugford v Kodiak Construction Ltd., 2004 ABCA 145 (“Mugford”) where the court has ruled that the consent cannot be terminated by breach of a condition that is placed on the consent.
Since consent cannot be terminated by breach of a condition imposed on possession, consent continued to exist at the time the loss occurred.
In this case, Rampersad had the owner’s consent to operate the vehicle. The imposition of the condition that the vehicle be returned by 5 a.m. and Rampersad’s breach of the condition did not operate to negate Pinksen’s vicarious liability. This decision supports the proposition that conditions cannot be imposed on consent to mitigate findings of vicarious liability. An owner is free to impose conditions, but this does not mean that these conditions are effective in law.
Take away food
It follows that a conditional consent to possession such as the following would be ineffective in law against a claim for vicarious liability:
- You have my permission to take my car to the store, but you have to come right back.
- You have my permission to have my car until 5 p.m., but I need to get it back by then because I have to drive to work tonight.
- You have my permission to take my car, provided you don’t drive on gravel roads.
- You have my permission to take my car, provided you don’t go over the speed limit.
- You have my permission to take my car, provided you stay within the city limits.
- You have my permission to take my car, provided you don’t drive drunk.
Many other examples could be provided. Breach of these Terms by the Driver is not effective, in law, to revoke the consent given and shift vicarious liability from the Owner. If the driver is involved in an accident while violating any of the above conditions, the owner is still vicariously liable for any damage caused. The only legal exception to the above is that an owner may impose a condition that possession not pass to third parties (Garrioch vs. Tessman2017 ABCA 105 at para 56).
This case is an extension of the principles established in Mugford and Garrioch, it operates to solidify the notion that consent is a switch, whether on or off. When an owner consents to someone else driving his vehicle, he cannot restrict the use of the vehicle by imposing conditions once he has consented to its possession. The law does not recognize conditional consent, once the owner consents to the driver having possession of the vehicle, the owner accepts the risk of what that driver might do.
Link to decision: Mansour versus Rampersad, 2022 ABCA 173
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.