Under Section 192(3) of the Highway Traffic Act, when you rent a motor vehicle, you are ultimately responsible if you lend that vehicle to someone else. If the other person took it without your permission, you are not liable for that person's negligence. But what if you did not explicitly provide permission for the other person to take the vehicle but the evidence suggests that your consent was implied?

The Naghash case is crucial in widening the scope of what "implied consent" is in determining whether an owner of a motor vehicle or a person who leased a vehicle is liable for damages caused by operating the vehicle. In brief, the evidence must be able to rebut the presumption that a vehicle is in the possession of somebody other than the owner or the person leasing the vehicle with his or her consent. If a defendant is unable to rebut this presumption, he or she will be liable for any loss or damage caused by negligently operating the vehicle.

Background

On or about July 5, 2017, the defendant Mohammad Ganjikhany ("Mohammad") parked his rented vehicle outside the mechanic shop and left the keys hanging on a board near the shop office.1 The plaintiff Ali Mehraein ("Ali"), a friend of Mohammad, and the other defendant Vahid Pashahzahiri ("Vahid") asked Mohammad if they could borrow the car that Mohammad rented.2 Mohammad claimed that he said no.3 Ali and Vahid drove away in the rented vehicle with Ali as the passenger.4 A collision occurred while Vahid was driving Mohammad's rented vehicle.5

The issue for determination at the Ontario Superior Court of Justice was whether Ali had Mohammad's express or implied consent to possess the vehicle at the time of the accident. If the Ontario Superior Court found that there was consent, then Mohammad would be vicariously liable for any loss or damage caused by Vahid.

The Law

In Ontario, the courts presume that an individual who has possession of a vehicle that is owned or leased by another person has that person's consent to possess the vehicle. If that presumption is not refuted, then the owner of the vehicle or the person who leased the vehicle will also be liable for any loss or damage caused by any negligent operation of the vehicle.6 Whether or not a vehicle is in the possession of some other person with the consent or implied consent of the lessee is a question of fact to be determined by the evidence of the case.7 If a vehicle is in the possession of a person with the owner's consent, the owner is liable regardless of whether the person operating the vehicle has the owner's consent.8 An owner cannot avoid liability simply because the operator breached conditions or restrictions placed upon him or her.9

Implied consent requires a determination of whether the circumstances would demonstrate that the operator of the vehicle was in possession of the vehicle at the time of the accident with the owner's implied consent.10

Ontario Superior Court Decision

The Ontario Superior Court found that Mohammad's position that he did not provide either express or implied consent to Vahid and Ali to use the vehicle was untenable given the factual circumstances of surrounding the incident.11 Justice McCarthy noted that Mohammad and Ali had been friends for several years, Ali was a frequent visitor in the shop, Mohammad knew of Ali's criminal history which included stealing cars, and the keys to the vehicle were kept in a conspicuous location that would have been well-known to someone with familiarity with the shop.12

Justice McCarthy also found Mohammad's evidence highly problematic as Mohammad was unable to explain how Ali would have known the existence, make, and model of a leased vehicle that Mohammad had in his possession for a mere couple of days.13 Justice McCarthy provided that the only reasonable inference to draw was that Mohammad provided a specific description of the vehicle sufficient to identify it in the parking lot because he had consented to his friend's request to make use of it.14

Lastly, Mohammad had assumed that Ali had taken the vehicle when he noted that it was missing from the parking lot.15 Justice McCarthy noted that Ali did not report the vehicle to the police as he assumed that Ali would return the vehicle and did not report the missing vehicle to his wife because he did not want to upset her.16 Justice McCarthy further rejected Mohammad's evidence to the court that he refused the request made by Ali and Vahid to use his vehicle.17 If Mohammad truly did not intend to have Ali and Vahid to use his vehicle, Mohammad would have taken steps to prevent them from possessing the vehicle including safeguarding his keys or take steps to facilitate the vehicle's return including contacting the police.18 As such, Justice McCarthy found that the evidence was inadequate to discharge the onus to prove on a balance of probabilities that express or implied consent was not provided.19

Analysis and Conclusion

The Ontario Superior Court makes it clear that the evidence must be able to rebut the presumption that a vehicle is in the possession of somebody other than the owner or the person leasing the vehicle with his or her consent. If a defendant is unable to rebut this presumption, he or she will be liable for any loss or damage caused by negligently operating the vehicle.

The courts will determine whether a vehicle is in the possession of some other person with the consent or implied consent of the owner of the vehicle or the person leasing the vehicle based on the circumstances and evidence of the case. In doing so, the courts have broadened the concept of implied consent to include interpreting the parties' relationships, past conduct, inconsistencies, and reasonable expectations to determine whether implied consent was given.

Footnotes

1. 2023 ONSC 609 at para 6 [Naghash].

2. Ibid.

3. Ibid.

4. Ibid.

5. Ibid.

6. Highway Traffic Act, R.S.O. 1990, c. H.8 s.192(3).

7. Argante v. Munro, 2014 ONSC 3626 at para 27.

8. Henwood v. Coburn, 2007 ONCA 882 at para 14.

9. Parkinson v. MacDonnell, 1995 CarswellOnt 1402 at para 52.

10. Sparks v. Cushnie et al., 2021 ONSC 213 at para 10.

11. Naghash, supra note 1 at para 14.

12. Ibid at para 15.

13. Ibid at para 16.

14. Ibid.

15. Ibid at para 17.

16. Ibid at para 20.

17. Ibid at para 19.

18. Ibid at paras 17 and 21.

19. Ibid at para 23.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.