When a motor vehicle collision occurs that involves a borrowed car, typically the first area of concern that will arise between the parties is determining who should be held responsible; the owner or the borrower of the vehicle?
In accordance with section 4(1) of the Schedule Statutory Conditions under the Insurance Act,
“The insured shall not drive or operate or permit any other person to drive or operate the automobile unless the insured or other person is authorized by law to drive or operate it”.
This means that provided the parties involved are licensed and legally allowed to drive, the borrower is allowed to drive the vehicle where insured.
However, section 192(2) of the Ontario Highway Traffic Act provides that an owner of a registered vehicle can be liable for loss or damage sustained by a person due to the negligence in the borrower’s operation of a motor vehicle. Common law has interpreted this provision to mean that an owner of a vehicle is presumed to have given consent to the driver of the vehicle unless the exception to s.192(2) applies and the owner can rebut the presumption that they did not offer either express or implied consent.
To rebut this presumption of consent, the owner must first demonstrate that no express consent has been established. If there is no evidence to suggest express consent, then the owner must demonstrate that no implied consent has been given. In Palsky (Next friend of) v. Humphrey [1964] S.C.R. No. 580, the Supreme Court of Canada established the proper test for determining whether an owner has provided their implied consent where the courts must ask:
“Whether all the circumstances were such as would show that the person who was driving had the implied consent of the owner and therefore, would have been justified in deeming that he had such consent”.
This test is fact based and dependent on the circumstances of each case, including the consideration of factors such as the relationship and credibility between the parties involved.
What would this mean for the parent of a child that borrowed their friend’s car and was involved in a motor vehicle collision? Unless the owner of the friend’s vehicle can demonstrate that they did not give express or implied consent for the son to drive the car in the first place, then the owner of the vehicle will remain liable for damages sustained in a collision. Further, an owner can still be liable if they have entrusted the vehicle to someone else. For example, if an owner has allowed their son to use their car on the condition that only they drive it, but the son allowed their friend to drive the vehicle while they remained a passenger, the owner will still remain liable (McKay v McEwan [1999]). Ultimately, it is a question of fact that is needed to be decided by the courts on the evidence of each case who was in possession of the vehicle at the time of the collision. Overall, this places a clear responsibility on the owner of a motor vehicle since they are vicariously liable for damages caused within the interpretation of section 192(2).