Reasons for judgement were published this week by the BC Court of Appeal revealing a valuable lesson to registered owners of vehicles.  Owners must take care in choosing who they lend their vehicle to as they can be found personally liable if such a person carelessly injures others while driving or operating the vehicle.

In today’s case (Robert v. Forster) Mr. Forster (the owner of a vehicle) allowed his daughter to use it.  He had rules restricting the scope of this permission, and these were that she “was not to drink and drive” and that “no one other than (the daughter) was to drive the vehicle“.

On June 2004 Mr. Forster’s daughter took the Jeep out.  She has been drinking at a bar.  After leaving the bar the daughter followed the first rule and did not drink and drive, however she broke her father’s second rule and let a friend drive the vehicle.  As the friend was driving the daughter “wrenched the steering wheel to the right” and caused the vehicle to flip into a ditch resulting in injuries to the occupants.

Various lawsuits were brought.  At trial the daughter, despite being a passenger, was found to be “driving” the vehicle.  She was found to be careless in grabbing the steering wheel with a finding that “t]he only conclusion I can come to on the evidence adduced at trial is that (the daughter’s) intoxication led her to believe that a hazard existed where there was none, or to think that it would be humorous to give the Jeep a shake by grabbing the steering wheel”  The Court went on to find that not only was she liable for the occupants injuries but so was the father as a result of s. 86 of the BC Motor Vehicle Act which holds as follows:

In an action to recover loss or damage sustained by a person by reason of a motor vehicle on a highway, every person driving or operating the motor vehicle who is living with and as a member of the family of the owner of the motor vehicle, and every person driving or operating the motor vehicle who acquired possession of it with the consent, express or implied, of the owner of the motor vehicle, is deemed to be the agent or servant of that owner and employed as such, and is deemed to be driving and operating the motor vehicle in the course of his or her employment.

The father appealed arguing he should not be held liable because the daughter was a passenger at the time and therefore could not have been “driving” the vehicle.

The BC Court of Appeal disagreed and dismissed the appeal.  In doing so the BC Court of Appeal made it clear that s. 86 of the BC Motor Vehicle Act is to be given a broad interpretation because it is intended to “expand the availability of compensation to injured plaintiffs).”  Specifically the BC High Court held as follows:

[21] This Court considered the purposes of s. 86 in Yeung (Guardian ad litem of) v. Au, 2006 BCCA 217, 269 D.L.R. (4th) 727, affirmed 2007 SCC 45. After reviewing the history and context of the section, Madam Justice Newbury commented as follows:

[38] …  the purposes of s. 86 are, I would suggest … to expand the availability of compensation to injured plaintiffs beyond drivers who may be under-insured or judgment-proof, and to encourage employers and other owners to take care in entrusting their vehicles to others.

The Court concluded in that case that a proper interpretation of s. 86 created vicarious liability on lessors of motor vehicles whose drivers are negligent in their operation if the drivers are in possession of the vehicle with the consent of the lessors.

[22] In my opinion, the conclusion that Ms. Forster was driving the Jeep is in accord with the grammatical and ordinary meaning of the language of s. 86 and the object and intention of the Legislature in enacting it. The decision in R. v. Bélanger establishes that a person sitting in the passenger seat of a vehicle can be regarded to be driving the vehicle if he or she controls the direction of the vehicle by turning its steering wheel. It is consistent with the first purpose of s. 86 articulated in Yeung v. Au to conclude that the Legislature intended an owner of a vehicle to be vicariously liable if a person, in possession of the vehicle with the consent of the owner, commits a deliberate, but negligent, act affecting the direction of the vehicle that causes injuries to another person.

[23] I therefore agree with the conclusion of the trial judge that Ms. Forster was driving the Jeep for the purpose of s. 86.

• Implied Consent

Another interesting point of this judgement was the Court’s discussion of whether the Father consented to the daughter’s friend driving the vehicle.   You will recall that one of the clear rules was that only the daughter was allowed to drive, not her friends.  At trial Mr. Justice Rogers held that the father nonetheless consented to the friend operating the vehicle and provided the following reasons:

[32] Barreiro makes it clear that the policy that drove the result in Morrison extends to situations where the owner gives the keys to its agent and the agent passes the keys on to a third party. Barreiro stands for the proposition that so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party’s possession of the car.  That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.

[33] In my view, except for the fact that (the owner) obtained no financial benefit from (the driver’s) possession of the Jeep, the present case is not distinguishable from Barreiro.  (the owner) freely gave the Jeep’s keys to (his daughter).  She freely gave the keys to (the driver).  (the owner) must, therefore, be taken to have expressly consented to (the driver’s) possession of the Jeep on the night in issue.

[34] For the same reason, (the owner) must be taken to have expressly consented to (his daughter’s) possession of the Jeep that night, and that is so notwithstanding the fact that she was intoxicated and that her being intoxicated broke the other of (the owner’s rules.

The BC Court of Appeal was asked to overturn this ruling but they refused to do so.  The BC High Court held that, since the driver of the vehicle was not careless (and therefore not responsible for any of the passengers injuries) the issue of whether or not there was consent “is moot and need not be decided on this appeal“

You can click here to read my 2008 article discussing the trial judgement.

Important reasons for judgement came to my attention today dealing with discovery of documents in BC Injury Litigation.

The BC Supreme Court Rules require parties to give discovery of relevant documents in their possession or control.  Often times there are relevant documents that are not in the Plaintiff’s possession or control but the Plaintiff has the ability to easily get these documents.  (For example medical records documenting accident related injuries.)  Such records are commonly referred to as “Third Party Records”.

When a Defendant requests Third Party Records Plaintiff’s often consent, obtain the documents, and then exchange a copy of the relevant records.  When the parties don’t consent a Court Motion can be brought.

With this background in mind today’s case dealt with an important topic; when a motion for Third Party Records is brought can the Court order that the Plaintiff sign authorizations to allow the Defendant to get the records directly?  Mr. Justice Hinkson held that such a shortcut is not allowed under the Rules of Court.

In today’s case (Stead v. Brown) the Defendant “brought an application to require the plaintiff to execute consent forms for the production of the records of some ten doctors, three hospitals, two groups of physiotherapists, WorkSafeBC, the Ministry of Housing, and Service Canada“.

The Plaintiff opposed the application on the basis that the Court lacked the power to make such an order.  Mr. Justice Hinkson agreed and held that even if the requests were relevant a Court could not compel disclosure in this fashion, instead the Defendant would have to follow the procedure set out in Rule 26(11) of the BC Supreme Court Rules.

In reaching this conclusion Mr. Justice Hinkson was referred to the BC Court of Appeal decision Peel Financial Holdings Ltd. v. Western Delta Lands where the BC High Court held that “The Supreme Court judge cited no authority fo rhis power to compel a party to consent, and no authority for such a power was provided to us.  As I jhave said, a consent given pursuant to an order is a contradiciton in terms“.

Mr. Justice Hinkson went on to find that while there was another case (Lewis v. Frye) which held that a Supreme Court judge could compel a party to sign an authorization, that decision was wrong.  Specifically Mr. Justice Hinkson held as follows:

Regrettably the decision of the Court of Appeal in Peel Financial Holdings Ltd. was not considered which Hood J. and I am persuaded that the binding nature of that authority if considered would have altered the conclusion reached by him had the authority been brought to his attention.

I conclude that the plaintiff in this case cannot be ordered to execute authorizations for the release of records in the (hands) of third parties.  The mechanism that must be pursued in order to obtain the hospital and doctors’ records is pursuant to Rule 26(11) of the Rules of Court.

This decision is important because it clarifies the procedures that must be used when Defendants in Injury Lawsuits wish to obtain the records in the hands of Third Parties and the Plaintiff does not consent.

As readers of this Blog already know, the New BC Supreme Court Civil Rules come into force on July 1, 2010.  Will this decision continue to be of use then?  The answer seems to be yes as Rule 26(11) while reworded remains intact in almost its identical form and can be found at Rule 7-1(18) of the New Rules.

As I’ve previously written, section 86 of the Motor Vehicle Act makes owners or lessees of vehicles responsible for any damage or loss caused by the operation of their vehicle by an individual to whom consent was given.

Reasons for judgement were released today by the BC Supreme Court interpreting the meaning of ‘consent’.  In today’s case (Morris v. Morris) the Plaintiff was injured when riding as a passenger in a vehicle driven by his brother.  The vehicle was rented from Enterprise Rent-A-Car.   The Plaintiff sued the driver and the rental car company.

The vehicle, however, was not rented to the Plaintiff’s brother, but rather his mother.  The rental contact stated “No Other Driver Permitted“.   Despite this restriction, after renting the vehicle the Plaintiff’s mother let the Plaintiff’s brother drive the vehicle.

The issue at trial was whether, in these circumstances, Enterprise Rent-A-Car could be held liable as registered owner.  A recent case (McEvoy v. McEachnie) held that a registered owner can be held liable in similar circumstances (click here to read my summary of the McEvoy case).  In today’s case, however, Mr. Justice Cole refused to follow the precedent set in McEvoy finding that the judge in that case “failed to consider binding authority“.  In finding the rental company not liable as having not consented to the driver operating the vehicle Mr. Justice Cole summarized the law and distinguished the McEvoy case as follows:

[31] The most recent case from British Columbia dealing with the interpretation of implied consent under s. 86 of the Act, and the plaintiff argues I am bound by that decision, isMcEvoy v. McEachnie, 2008 BCSC 1496 [McEvoy]. In that case, a father gave his daughter consent to drive his vehicle but made it expressly clear that no other drivers were permitted. The daughter subsequently allowed her friend to drive the vehicle, because she was intoxicated, and an accident ensued. In finding the father liable, the Court appliedBarreiro, a case where a rental car employee consented to a vehicle being rented by an underage driver, contrary to company procedure, and interpreted it, at para. 32, to stand for the proposition that:

[32] … so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party’s possession of the car. That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.

[32]         The Court in McEvoy concluded that, except for the fact that the father did not obtain a financial benefit from the friend’s possession of the vehicle, the case was not distinguishable from Barreiro. In the present case, other than the fact that the agreement forbidding other drivers was written, rather than oral, the facts cannot be distinguished  from McEvoy. Enterprise freely gave the keys to Ms. Kauth, she freely gave the keys to Mr. Morris, despite expressly agreeing that there would be no other drivers. Enterprise would, on the logic of McEvoy, be taken to have consented to Mr. Morris’ possession of the vehicle and therefore, Enterprise would be vicariously liable pursuant to s. 86 of the Act for any liability that Mr. Morris may have for this accident.

[33]         On its face, it would appear that this decision would be binding on this Court, because the facts cannot be differentiated merely because the agreement in McEvoy was oral and not written. In Hansard, Spruce Mills Ltd., Re (1954), 4 D.L.R. 590 at 592, 13 W.W.R. (N.S.) 285 (B.C.S.C.) [Hansard], the Court held that a trial judge should follow the decisions of his brother judges of the same court unless subsequent decisions have affected the validity of the impugned judgment; it is demonstrated that some binding authority in case law or some relevant statute was not considered; or the judgment was unconsidered, where an immediate decision is given without the opportunity to fully consult authority. If none of these situations exist, barring a distinguishing feature between the facts, a court would be correct in following decisions of a court of the same level.

[34] On the basis of the test set out in Hansard, McEvoy in my view is not binding on this Court as it failed to consider binding authority. In Godsman, Smaldino, Prasad and Louisthe Court refused to find consent where it would not have been given in the circumstances. McEvoy overlooks these decisions and does not consider this test.

[35] The Court instead held the father liable because they interpreted Barreiro to mean that if keys are transferred by free will to the daughter, the father is deemed to consent to subsequent transfers of possession including his daughter’s friend’s possession. However, in Barreiro the company transferred possession to the rental car employee and gave the employee the authority to transfer possession to people wishing to rent the vehicle. Therefore the employee had authority to transfer the vehicle subject to following proper procedures, but in McEvoy the daughter lacked authority to transfer the vehicle.

[36] Furthermore, the Court in McEvoy relied upon Morrison to support the finding of consent. In Morrison, consent was given subject to conditions upon the authorized driver, namely that the company vehicle was not to be operated by an employee for personal use. These conditions were breached, but the Court held that the conditions did not vitiate the consent. In McEvoy, the Court interpreted “no other drivers” as a condition. However, in my view there is a distinction between no consent at all and consent subject to conditions. The Court should first find implied consent exists on all the circumstances and then apply Morrison to any conditions added to that implied consent: K.T. v. Tran, 2007 ABCA 13, 280 D.L.R. (4th) 142.

[37] Had the Court in McEvoy considered Godsman, Smaldino, Prasad and Louis, the result may have still been the same on the second ground for finding consent, stated by Mr. Justice Rogers, but not on the first. Based on Godsman, Smaldino, Prasad and Louis, consent can only be implied if it would have been granted as a matter of course in the circumstances. In McEvoy, the father’s purpose in telling the children to not let others drive his cars was not to limit his statutory liability as the car’s owner, but because he trusted his kids but not their friends and he wanted to keep his children and his cars safe. It could be argued that the father in McEvoy would have consented in the circumstances to the friend driving because his daughter was intoxicated and he would want the car and his daughter home safely. On the present facts, like in Prasad, it is hard to imagine that Enterprise would have given consent in the circumstances.

[38] The trend in our jurisprudence tends to be more restrictive than the broad policy approach that is taken in some United States jurisdictions and in some degrees by the Alberta courts. I am satisfied that the test for implied consent in British Columbia is whether the owner would have consented in the circumstances:  Godsman, Smaldino, Prasad and Louis. Based on the facts of the present case, there was no express consent given by Enterprise to Mr. Morris and in my view, it is clear that consent would not have been given in the circumstances. Enterprise did everything possible to limit its liability and if its liability is to be extended in any event, to prefer the protection of third parties, then that is the job of the Legislature to rewrite the wording of the statute.

[39] I therefore dismiss the action against the defendant Enterprise and they are entitled to their costs.

I understand that the McEvoy case is going to be heard by the BC Court of Appeal in the near future and the law of ‘consent’ with respect to registered owner liability should hopefully be more clear after they weigh in on this issue.

The law places a very heavy burden on vehicle owners in BC when their vehicles are involved in an at-fault collision.  In British Columbia registered owners are “vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent (express or implied) of the owner“.

What this means is, if you let someone else operate your vehicle and they are at fault for a crash then you are at fault for that crash.  Reasons for judgement were released today showing just how far Courts in BC can go in determining the circumstances in which an owner “consents” to someone else operating their vehicle.

In today’s case (Snow v. Friesen) the Plaintiff was seriously injured in Vernon BC when a vehicle owned by a man named Mr. Saul and driven by a woman named Ms. Friesen struck the Plaintiff while walking on a sidewalk.  The Defendant driver apparently fell asleep at the wheel and lost control.

The Court found that Mr. Saul did not intend to let Ms. Friesen borrow his vehicle, he in fact did so by mistake.  Mr. Justice Williams found that Ms. Friesen asked to borrow Mr. Saul’s vehicle but at the time he was busy working and did not hear her because he was hard of hearing and had his hearing aid out.  As a result Mr. Saul mistakenly thought someone else was asking to borrow his vehicle so he granted permission,   Notwithstanding this interesting factual finding the Court went on to find that Mr. Saul was still vicariously liable for the collision because his actions constituted ”express consent” under section 86 of the BC Motor Vehicle Act.

The Court’s discussion of the law of liability of registered owners is set out below.  This case is worth reviewing in full for all vehicle owners in British Columbia as it shows the serious duties courts impose on vehicle owners when they let others take possession of their vehicles:

[68] Pursuant to the common law and s. 86 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, an owner of a vehicle is vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent, express or implied, of the owner.

[69] As is apparent from my analysis of the evidence and findings of fact, the implied consent doctrine does not arise in this case.  Instead, the issue stands to be determined on the basis of express consent.  Specifically, it is necessary to decide whether, in these circumstances, the plaintiff has proven that Ms. Friesen had the vehicle with the consent of Mr. Saul.

[70] I consider the following statement of Thackray J.A. in Barreiro v. Arana, 2003 BCCA 58, to be apposite:

[13]      Whether there was consent must be determined by reference to the facts and by the application of general legal principles viewed in the context of the statutory scheme.  The issue of consent is not, as suggested by the trial judge, “defined by s.86”: however the statute is the governing factor.

[71] The cases are replete with reference to the notion of public policy and the necessity of recognizing the legislative intent of s. 86.  Again, I will resort to a quotation from Barreiro:

[26]      The effect that legislative intent has upon the meaning of “consent” is emphasized by the words of Goldie J.A. in Morrison as quoted by the trial judge:

[24]  It is apparent the legislature has imposed a heavy burden on those who have within their power the control of motor vehicles. … The reason for legislative intervention may be traced, in part at least, to the appalling consequences of reckless use of motor vehicles.  Irresponsibility on the part of those who may deny or confer possession of motor vehicles may be seen as the reason for the legislative initiative.  The legislation in question must be regarded as remedial.

[27]      Legislative intention must be acknowledged as having a fundamental purpose and as having been inspired by a need.  As Mr. Justice Goldie said, the legislation is remedial.  As such it might well be at odds with traditional legal concepts of agency, but that will not deny its validity.

[28]      The legislative intent in section 86 must be taken, as noted by Goldie J.A. in Morrison, to address the reckless use of motor vehicles and the section imposes “a heavy burden on those who have within their power the control of motor vehicles.”  In Bareham, Mr. Justice MacDonell, after reviewing the statute, said at 194:

In this case, the only policy reasons to be considered are those in favour of protecting innocent third parties seeking compensation for injuries suffered at the hands of negligent automobile drivers and, vicariously, owners.

[72] A helpful discussion of the importance of bearing in mind the underlying rationale, or legislative purpose, of the legislation is found in Yeung (Guardian ad litem of) v. Au, 2006 BCCA 217, where the matter was touched upon by Newbury J.A., writing for a five judge division of the Court, although the issue there was principally one of determining the liability of an individual who held rights under a conditional sales contract.  Nevertheless, she considered the social and economic policy objectives of the legislation, and the legislative intention.  Her analysis is found at paras. 32 through 38.  I will not reproduce the entire discussion, but consider it worthwhile to quote a portion of her conclusion as found at para. 38:

… the purposes of s. 86 are, I would suggest, similar – to expand the availability of compensation to injured plaintiffs beyond drivers who may be under-insured or judgment-proof, and to encourage employers and other owners to take care in entrusting their vehicles to others.  These objectives are consonant with the objectives of vicarious liability generally, as described by McLachlin J. (now C.J.C.) in Bazley v. Curry [1999] 2 S.C.R. 534, 62 B.C.L.R. (3d) 173, the leading Canadian case on vicarious liability.

[Emphasis added.]

[73] In my view, the outcome which must result in the facts at bar is determined by an application of the leading decision on the issue, Vancouver Motors U-Drive Ltd. v. Terry, [1942] S.C.R. 391.  There, an employee of Vancouver Motors U-Drive Ltd. had rented an automobile to a driver who had no valid licence.  The driver had falsely represented that he was another person, and showed that person’s valid driver’s licence.  He signed that person’s name to the rental agreement.  The driver was subsequently involved in an accident, and the appellant argued that it was not vicariously liable because the negligent driver had not acquired possession of the car with the appellant’s consent.  In interpreting a legislative provision similar to s. 86 of the Motor Vehicle Act, Kerwin J., for the majority, stated as follows:

In the present case, the appellant physically transferred the possession of the motor vehicle to Walker. Does the fact of Walker’s false statement that he was Hindle and the holder of a subsisting driver’s licence, accompanied by the forgery of Hindle’s name, vitiate the consent that was in fact given? There may be no difficulty in two of the hypothetical cases put in argument, (1) where a motor vehicle is stolen from a garage, and (2) where possession is obtained from the owner by duress. In the first there would be no consent in fact and in the second the owner would not have been at liberty to exercise his free will. On the other hand, the class of owners under subsection 1 of section 74A is not restricted to those who carry on such a business as the appellant and circumstances may be imagined where an owner loaned his automobile to a friend on the latter’s statement that he possessed a subsisting driver’s licence, which statement might be false either because he never had possessed such a licence or because his current licence had been revoked; or again, where A secured possession of an automobile by falsely representing himself in a telephone conversation with the owner of the vehicle to be a neighbour’s chauffeur. It is impossible to conceive all the various circumstances that might give rise to the question to be determined here but in my view an express consent is given, within the meaning of the enactment, when possession was acquired as the result of the free exercise of the owner’s will.

[74] Later, Kerwin J. reached the following conclusion:

The word “consent” may have different meanings in different statutes. In the present case it has, in my opinion, the meaning already indicated and, on that construction, express consent was given by the employees of the appellant to Walker’s possession of the motor vehicle even though the action of the employees was induced by Walker’s false statements.

[75] In this case, Mr. Saul, of his own free will, absent duress or theft, gave consent to the person who asked to use the motor vehicle.  The fact that Mr. Saul was mistaken as to the identity of that individual does not change the outcome.

[76] In Vancouver Motors U-Drive, consent was not vitiated even though the agent/employee was misled as to the identity of the person renting the car.  In Bareham (Guardian ad litem of) v. Desrochers, [1994] B.C.J. No. 1826, 97 B.C.L.R. (2d) 186 (S.C.), on an application of the same principle, the mother of the driver argued that she had not consented to her son having her vehicle because she was not aware that he had no driving licence.  The trial judge there, Macdonell J., found that once the mother gave consent, the fact that her son was driving her car illegally was irrelevant to the application of s. 86(1).

[77] The erroneous basis upon which Mr. Saul granted his consent is no defence.  The onus was on him to ensure the public safety in lending his truck.  The statute imposes a duty upon him, which duty includes knowing and assessing the fitness of the driver who seeks to have his vehicle.  The heavy burden which is imposed upon motor vehicle owners was not met.

[78] In the present case, Mr. Saul did not take steps to confirm the identity of the person who sought to use his vehicle, other than relying upon what turned out to be the assumption of Mr. Connolly.

[79] The focus of the analysis is on whether the owner gave express consent to the individual who seeks to have the vehicle.  Once that is found, as the facts of that case indicate, there is not a great deal which will impact upon the imposition of liability.

[80] While judicial interpretation of s. 86(1) may, at first glance, appear overly strict, as Paris J. stated in Beaudoin v. Enviro-Vac Systems Inc., [1992] B.C.J. No. 205, 1992 CanLII 444 (S.C.), at para. 13:

The Legislature has placed a very heavy onus on the owner of a motor vehicle who chooses to permit another to drive it. Whether that policy is or is not draconian is not for me to say.

[81] I have no doubt that the outcome here may seem harsh from the perspective of Mr. Saul.  However, holding him liable fits within the purpose of s. 86(1) and the manner in which it has been applied.  From a broader policy perspective, it fits within what has been found to be the most efficient and effective risk allocation from both an economic and public safety perspective, two elements that are central to s. 86(1).