In the recent case of Wagner v Fellows,1 Mullins J. of the Superior Court found the defendant vehicle owner, Ms. Ley, not liable for the single-vehicle accident caused by her son under s. 192(2) of the Highway Traffic Act R.S.O. 1990, c H-8 ("HTA"). In assessing this issue, which was one of many issues before her, Mullins J. determined that Mr. Fellows had operated his mother's vehicle without her implied consent.
Background
Mr. Fellows obtained his G1 driver's license in February 2011, which required that he have a fully licensed driver with him while driving. As a single mother, Ms. Ley rarely had the opportunity to take her son driving, resulting in Mr. Fellows taking his mother's keys from her purse while she slept so he could go on joyrides. Ms. Ley's purse was always in her room when she slept and was either beside her bed on the floor, under her pillow, or under the comforter of the bed.
Mr. Fellows admitted that he would enter his mother's room to search for her keys and had been successful eight or ten times before the night of the crash. According to Mr. Fellows, he would take his mother's vehicle between the hours of about midnight and 6:00 a.m. Despite one previous event giving rise to suspicion – a moved booster seat in the back of the vehicle – Ms. Ley was not aware that her son had a history of taking her Dodge Caravan without her permission.
On the evening of April 1, 2011, Mr. Fellows and the plaintiff, Mr. Wagner, met at a party. During the party, Mr. Fellows drank beer, and the two decided to go for a ride in Ms. Ley's vehicle.
Mr. Fellows admitted that he would enter his mother's room to search for her keys...
The pair returned to Ms. Ley's home and Mr. Fellows clandestinely took his mother's keys. He and Mr. Wagner then drove to the home of a minor known as NH and took both NH and her minor friend, MF, from their hometown of Keswick to Newmarket and back. NH was later dropped home but MF continued to accompany the boys on their drive to Sutton.
As Mr. Fellows drove, Mr. Wagner became tired and decided to sleep in the back row of the van. He was not wearing a seatbelt. MF proceeded to take Mr. Wagner's place in the front passenger seat. She was wearing a seatbelt.
On their way home from Sutton, Mr. Fellows fell asleep. This caused the van to travel onto the soft shoulder next to the pavement, lose control, and roll over. All passengers were able to exit the vehicle, though Mr. Wagner sustained injuries.
Analysis
As mentioned above, one of the issues before Mullins J. was whether Ms. Ley should be found liable for the negligence of Mr. Fellows pursuant to s. 192(2) of the HTA. According to s. 192(2), an owner is liable for the loss or damage sustained by any person who is in possession of the owner's vehicle by reason of their implied or express consent.
In order to determine whether Mr. Fellows had Ms. Ley's express or implied consent, Mullins J. turned her attention to the summary of principles set out in Seegmiller v Lang:2
- Consent (to possession) is a question of fact and independent of consent to or conditions restricting operation
- The meaning of possession is a question of law to be applied to the facts as determined
- The onus rests on the owner to establish that the vehicle was not in possession with consent
Since Ms. Ley did not provide her son with her express consent to possess the vehicle on April 1, 2011, Mullins J. focused solely on the question of implied consent. In the circumstances of the case at bar, no distinction was made on the facts as to consent of possession as distinct from consent to operation.
According to Mullins J., implied consent is to be determined on a case by case basis, taking into account all of the circumstances, not just those peculiar to the one occasion under consideration. Looking at the facts of the case, Mullins J. accepted the evidence of Mr. Fellows that his mother did not give him consent to possess or operate her vehicle. It was also found that Ms. Ley secured the keys to the vehicle, including through the night as she slept. Mr. Fellows only took the keys when his mother was asleep and would do so surreptitiously.
... implied consent is to be determined on a case by case basis, taking into account all of the circumstances...
Justice Mullins did not find Ms. Ley's concern for insurance coverage to detract from what she found to be Ms. Ley's truthful account of what had happened to her vehicle on the night in question. Further, on April 2, 2011, Ms. Ley reported her vehicle stolen to police, which led to her son being prosecuted for the criminal offence of taking a vehicle without permission.
Conclusion
This case serves as a reminder of the factual circumstances when a court will refuse to find liability on the part of a vehicle owner whose vehicle is operated without their consent.
Insurers and insureds should be aware that finding implied consent is a fact driven exercise, which takes into account all of the circumstances, not just those on the date of a collision. Based on Wagner, the court will ask the following questions when deciding whether or not an owner should be held responsible for the loss caused by another person driving their vehicle without their express consent:
- Was there previous behaviour that could have indicated that the vehicle was being used without the consent of the owner?
- Did the owner correct that behaviour or acquiesce to the use of the vehicle?
- Did the owner take reasonable precautions to guard the keys from other persons or from plain sight?
- Knowing the vehicle was taken, did the owner report it to the police? This last question, in our view, is more trivial than the other questions since it is a parents' instinct to try and protect their children from criminal prosecution so not reporting a child to the authorities should carry very little weight in the overall analysis.
The above list of questions is not exhaustive. That being said, these questions are significant when a court undertakes to determine whether or not an owner is liable for the loss or damage sustained by any person who is in possession of the owner's vehicle by reason of the owner's implied consent under s. 192(2) of the HTA.
Footnotes
1 2017 ONSC 7309.
2 [2008] OJ No 4060.
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