Did you know you can be held responsible for an accident without even being in the car?

Many people in Ontario are unaware that they can be held liable for an accident even if they were not in the vehicle at the time. As the owner of a motor vehicle in Ontario, you may be liable for the negligent actions of another person who is in possession of and operates your vehicle. This is called vicarious liability.

Section 192 (2) of the Ontario Highway Traffic Act states the following with respect to an owner’s liability:

The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur.

The key words contained in the provision are “possession” and “consent” – the interpretation of which has been the subject of many legal disputes.

Whether an owner has provided consent is largely a fact-based determination. However, vehicle owners should be aware that “consent” has been broadly interpreted by the Courts. Explicit consent is not always required as the Court may find that consent was implied.

Implied consent is evaluated from the perspective of the driver. The Court will assess whether, considering all circumstances, it was reasonable that the driver believed he had consent to operate the vehicle (see Palsky v. Humphrey, 1964 96 (SCC), [1964] S.C.R. 580). Some relevant considerations which may establish implied consent include the relationship between the driver and the owner, prior use of the vehicle, or whether the owner provided the driver with access to the keys.

In the 2013 decision of Watts v. Boyce, Dunham and Co-Operators, the Court found that implied consent extended to an impaired driver. Although the owner argued that he had only lent his vehicle to the driver for the specific purpose of attending an appointment and refuted ever allowing the driver to operate his vehicle under the influence, the Court found that he had not clearly expressed those conditions and did not take any action to terminate the driver’s possession of the vehicle.

The Watts decision exemplifies that consent applies to the “possession” of the vehicle rather than the operation. The onus is ultimately on the owner to establish that the individual did not have consent to possess the vehicle.

Owners may also be exposed to liability if their vehicle is involved in an accident and the driver attributes the cause to poor vehicle maintenance or a preventable mechanical failure. Common examples include burnt out headlights or turn signals, worn tires, or failure to regularly inspect and service brakes or steering mechanisms.

A prudent owner will be cautious of who they allow to operate their vehicle and should ensure that their vehicle is safe and well maintained.

 

Michael Giordano
Written by

Michael Giordano is a founding partner of Avanessy Giordano LLP. Prior to establishing his own practice, he was a partner of a prominent Mississauga personal injury firm.

He completed his law degree at the University of Ottawa. Prior to law school, Michael studied English and Law & Society at York University.

Michael is an active member of the Ontario Trial Lawyers Association and is the current Vice-Chair of the New Lawyers Division. He is a regular contributor to the OTLA blog and has also written for The Litigator.