Like a Light Switch: Court Examines Consent + Vicarious Liability
May 2022 - 3 min read
A recent case from the Alberta Court of Appeal confirms that the imposition of conditions on the consent of possession does not protect a vehicle owner from vicarious liability.
Pinksen owned a car, and her husband allowed Rampersad to use the vehicle to run a few errands. He was to return the car later that day, but he never did. Rampersad was told that he had until 5 AM the next morning to return the vehicle, and if it was not returned, it would be listed as stolen in the police database.
Rampersad did not return the vehicle by 5 AM and Pinksen reported it stolen. After the deadline to return the vehicle passed, Rampersad was in a collision with Mansour. Rampersad was charged with six offences, including theft of the vehicle.
Mansour brought a claim against Pinksen claiming she was vicariously liable for his losses. Pinksen brought an application for 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. Pinksen was not originally successful before a Master with respect to her summary dismissal application. She appealed to a Justice of the Court of Queen’s Bench and was successful on that appeal.
Mansour appealed to the Court of Appeal. The issue on this appeal is whether Rampersad was driving Pinksen’s car with her consent at the time of the accident. If Rampersad was driving with consent at the time of the accident, he would be covered by Pinksen’s insurance. If not, the claim would have to be answered under the Motor Vehicle Accidents Claim Act, RSA 2000, c. M-22.
The Court found in favor of Mansour, as Rampersad had consent to be in possession of the vehicle at the time of the accident.
Pinksen argued that the consent given to Rampersad terminated at 5 AM, before the time that the loss and damage occurred, but the court found this to be a circular argument. The court in this case said at paragraph 16 that;
“If the owner gives the driver consent to have possession of the vehicle for a fixed period of time … the owner remains liable even if the driver keeps possession of the vehicle after that time.”
The above is in line with the finding from Mugford v Kodiak Construction Ltd., 2004 ABCA 145 (“Mugford”) where the court held that consent cannot be terminated by the failure to abide by a condition that is placed on the consent.
Since consent cannot be terminated by non-compliance with an imposed condition on possession, the consent continued to exist at the time that the loss occurred.
In this case, Rampersad had the consent of the owner to operate the vehicle. The imposition of the condition that the vehicle be returned by 5 AM and Rampersad’s failure to respect the condition did not have the effect of negating Pinksen’s vicarious liability. This ruling stands for the proposition that conditions cannot be imposed on consent to alleviate findings of vicarious liability. An owner is free to impose conditions, however this does not mean that those conditions are effective in law.
It follows that conditional consent to possession such as the following would be ineffective in law to dispute a vicarious liability claim:
- You have my permission to take my car to go to the store, but you have to come right back.
- You have my permission to have my car until 5 PM, but I need it back by then because I have to drive to work this evening.
- You have my permission to take my car, provided you do not drive on any gravel roads.
- You have my permission to take my car, provided you do not exceed the speed limit.
- You have my permission to take my car, provided you do not leave the city limits.
- You have my permission to take my car, provided you do not drink and drive.
Many other examples could be provided. The breaching of any such conditions by the driver is not effective, in law, to revoke the consent given, and displace the owner’s vicarious liability. If the driver is in an accident while in violation of one of the above conditions the owner is still likely vicariously liable for any damage caused. The only exception in law to the above is that an owner can impose a condition that possession is not passed on to third parties (Garrioch v Tessman, 2017 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 light switch, it is either on or off. When an owner consents to someone else operating their vehicle, they cannot restrict the use of the vehicle by imposing conditions once they grant consent 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 v Rampersad, 2022 ABCA 173