Implied Consent Not Easily Established - Leigh and Michaud-Shields

By Greg Specht Sep 11, 2018

Ontario’s statutory motor vehicle insurance scheme aims to ensure individuals injured as a result of the negligent operation of a vehicle are able to seek recovery for their damages from the at-fault party. Through operation of statute, liability for an accident is not limited to just the at-fault operator but can also extend to the vehicle’s owner. The vicarious liability of owners comes from section 192(2) of the Highway Traffic Act, which simultaneously creates an exception to this rule: an owner will be liable for the negligent operation of a vehicle “unless the motor vehicle was without the owner’s consent in the possession of someone other than the owner”. This exception gives rise to the principle of implied consent. Implied consent arises in scenarios where the owner did not give explicit permission to someone to operate their vehicle, but where possession of the vehicle is permitted, the owner is responsible in law for how the vehicle is used. Even if the vehicle is operated contrary to restrictions expressed by the owner, once possession is given, the consent to operate the vehicle is implied.

Two recent rulings on summary judgment motions  Leigh v Clement, 2018 ONSC 4508 (CanLII) and Michaud-Shields v Gough, 2018 ONSC 4977 (CanLII)  have addressed the issue of implied consent. Both cases involved similar fact scenarios where an accident is caused by an at fault driver, neither of whom was the owner of the car they were operating.  In both cases, the operators were the sons of the owner of the vehicle, both operating the vehicle with a suspended licence, while intoxicated, resulting in a collision. The insurers in both cases denied coverage to the drivers. The owner/mother in each case  stated that they had not consented to their son driving. It is the UIM insurer for the injured plaintiffs that dispute the lack of consent and take the position that the mothers had given implied consent to their sons through possession of the vehicles. Despite the similarities in the underlying fact patterns, a finding of implied consent requires a nuanced examination of the specific details in each case.

In Leigh v Clement, Justice Cornell spent significant effort in his reasons setting out the jurisprudence of implied consent.  Much of the heavy lifting in that task came from a recitation of the law found in Seegmiller v Lagner,  another Superior Court of Justice decision written in 2008 by current Chief Justice George Strathy.  In that case the Court had previously set out eight maxims of implied consent:

  1. Possession without consent is a question of fact based on the evidence in a particular case;
  2. Possession is a question of law but application of the definition to a particular set of facts is not a question of law alone;
  3. Possession is a concept capable of different meanings and there are different types of possession;
  4. Once ownership of a vehicle is established, the onus passes to the owner to establish that the vehicle was without consent of the owner in the possession of some person other than the owner;
  5. An owner’s vicarious liability under the HTA s 192 is based on possession as opposed to operation of the vehicle;
  6. Consent to possession is not synonymous with consent to operate it. Public policy considerations reinforce the importance of maintaining that distinction;
  7. If possession is given, the owner will be liable even if there is a breach of a condition attached to that possession, including a condition that the person in possession will not operate the vehicle; and,
  8. Breach of conditions placed by the owner on a person’s possession of the vehicle, including conditions as to who may operate the vehicle do not alter the fact of possession.

These eight points are instructive in how the question of implied consent should be determined, however they do not provide for an eight step analysis. Rather, the analysis boils down to a determination of whether the owner had granted possession of the vehicle to the driver.

In Leigh, the subject accident occurred when Jason Clement, took the key’s to his mother’s vehicle while she was sleeping and drove off for a night of drinking. He expected to be home before she had noticed the vehicle was taken, however he was involved in an accident when returning home. The evidence was that as a rule, mom, Elaine Clement, did not permit her son Jason, to drive her vehicle, although she had on several previous occasions allowed Jason to start the car for her and make repairs. Elaine had also allowed Jason’s friend Eric, to drive him in her car from time to time. Intact, the plaintiff’s UIM insurer, argued that these facts should establish that Jason had Elaine’s implied consent. Intact sought to frame those occasions where Eric had used vehicle, as events where Jason had been given possession of the vehicle with the condition that a licensed driver operate it. Justice Cornell however rejected this argument as it could not be supported by the evidence.

The conclusion reached was that Elaine did not give possession of the vehicle to her son previously or on the night of the accident. Justice Cornell relied on the affidavit and discovery evidence that Jason took his mother’s vehicle while she was sleeping, without her knowledge or consent. Elaine had usually kept the keys in her coat or in her purse and so maintained control of the keys and possession of the vehicle. Those few occasions where he was allowed to start the vehicle or make repairs to it, were held to be events that fell short of possession and did not establish that Elaine had relinquished possession of the vehicle.

As a result, Elaine was granted summary judgment, dismissing both the plaintiff’s claim and Intact’s cross claim against her.

Justice De Sa’s decision in Michaud-Shields was consistent with the underlying principals and law of implied consent as that in Leigh, though was lighter on the judicial history.

In Michaud-Shields the son, Justin, lived at home with his mother, Nancy. Justin’s licence had been suspended previously due to a medical condition. The accident happened on a night when Nancy was out of town. Justin drove his mother’s pickup truck causing an accident, injuring a third party. The injured plaintiff brought an action against Justin, Nancy, and their own insurer, Traders, for UIM coverage under the family protection endorsement. Traders brought a motion for summary judgement seeking a determination as to whether Nancy had granted possession of the vehicle to Justin.

On the night that Nancy was out of town, the keys to her truck had been left at home unsecured, hanging by the door as they always were. Trader’s position was that by Nancy leaving the keys at home with Justin she had not done enough to prevent him from taking the vehicle and so consent should be inferred.

Traders argued that the vicarious liability imposed on owners under s 192(2) of the Highway Traffic Act  is meant to protect the public by imposing on the owner of a vehicle the responsibility for careful management of the vehicle. It noted that the Court of Appeal for Ontario in Fernandes v Arajuo, had established a rule that where possession of a vehicle is consented to by an owner, the owner will be liable even if the vehicle is operated in a manner which was forbidden by the owner. Justice De Sa, rejected Trader’s position that this created an enhanced duty for owners to actually prevent possession of their vehicles. While it was not disputed that Nancy had normally kept the keys hanging by the door, it was understood that Justin could not drive the vehicle and he had never used the truck or asked permission to do so after his licence suspension. To impart liability for a lack of diligence to prevent the use of the vehicle would expand the meaning of consent too far, which Justice De Sa feared would lead to future arguments that even a thief could be found to have the consent of an owner to possess a vehicle, if the owner had not taken additional steps to secure their keys.

It was stressed that consent requires a positive conferral of the right to possess the vehicle, with the understanding (either express or implied) that the driver is authorized by the owner to use the vehicle.

Trader’s summary judgment motion was dismissed.

Greg Specht is an associate at the firm and author of this blog. If you have a question about these decisions or a similar file, please contact Greg.

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