In Conners v D’Angelo, 2017 ONSC 1104, the Plaintiff was injured after his vehicle was struck by a Volkswagen Jetta being operated negligently by a 15 year-old boy without a license. The Plaintiff sued multiple parties including the owner of the vehicle – the boy’s aunt. She brought a motion for summary judgment. The issue was whether she was vicariously liable under section 192(2) of the Highway Traffic Act. Justice Perell found there was no consent and that she was not.
The aunt left the vehicle at the home of her sister (the boy’s mother) while sojourning in France for two weeks. It was accepted by the Court that neither the aunt nor mother had discussed the use of the vehicle with the boy. Although a bit of a trouble-maker, neither the aunt nor mother had any idea he had driven without a license in the past. The Court accepted his evidence that he did not ask permission to use the vehicle because he knew it would be denied.
Justice Perell revisited the “modern governing authorities”, including the 2015 decision of the Ontario Court of Appeal, Fernandez v. Araujo. It was reaffirmed that an owner will be found vicariously liable unless he or she can prove the vehicle was in the possession of someone else without their consent. The focus is not on consent to operate the vehicle.
The courts have adopted an “elastic notion” of possession. The legislature intended to hold owners to a high degree of responsibility for the safety of others – including for consequences arising out of the exercise of poor judgement. The policy objective is to ensure only trustworthy and law-abiding individuals are entrusted to borrow a vehicle. Therefore, it makes logical sense that a person entrusted to borrow a vehicle will be in possession even if remaining a passenger – and allowing a stranger to get behind the wheel. The owner will be on the hook liable if there is an accident.
This scenario did not apply to the facts of this case. The mother, who was entrusted with possession of the vehicle while her sister was in France, was not a passenger at the time of the accident. Therefore, she could not be said to be in possession in the classic or elastic sense.
However, Justice Perell went on to explore an expanded form of possession: “conferral of possession”. The permitted driver (the mother in this case) can hypothetically transfer her possession over the borrowed vehicle to a new person in the chain. She does not relinquish her possession in doing so – but rather exercises that possession. This transfer of possession can be done expressly (handing the person the keys and saying “be home by midnight!”) or “impliedly” (leaving the keys on the front hook of a shared home).
The test for implied transfer of possession is if the driver (the boy in this case) would be justified in thinking he had consent. Both his subjective thoughts and the conduct of the owner (or in this case his mother –the surrogate for the owner) are relevant factors. The ultimate questions is if it was reasonable in all the circumstances to assume there was consent.
In this case, the mother had never let him drive in the past and had no idea he was driving underage at the age of 15. Although she did not hide the keys, holding her to this standard would not have been reasonable. When the boy deceived his mother and took the keys that day it could be said the chain of possession with consent had broken.
Justice Perell makes a final comment on the “unseemly” decision of the insurance company to coerce the aunt into pressing criminal charges against her nephew as a condition to paying out her property damage claim. It was made clear that the test under section 335 of the Criminal Code (“taking a motor vehicle without consent”) is not the same as the test for vicarious liability under the Highway Traffic Act. Securing an admission was therefore unnecessary to craft a successful argument in the civil action.