ICBC Law

With more victims of historic childhood sexual abuse prepared to come forward and have their claims heard we have the benefit of more decisions being published by the BC Courts addressing the circumstances when an institution will be held vicariously liable for sexual abuse by their employees.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further addressing this area of law.

In last week’s case (R.G. v. Vancouver Police Board) the Plaintiff alleged to be the victim of historic sexual abuse at the hands of the Defendant police officer.  (its worth noting the Court made no findings about whether the abuse actually took place).

In his childhood the Plaintiff “alternated between living with his parents….and living with Mr. Hughes“.  They formed what was described as a father-son relationship.  The Plaintiff alleged he was abused in the course of this relationship.  The Defendant was a member of the Vancouver Police Department at the time.

The Plaintiff sued the personal defendant and also the City of Vancouver arguing they were vicariously liable for the abuse.  Mr. Justice Burnyeat disagreed and dismissed this portion of the Plaintiff’s claim.  In finding no employer vicarious liability should arise in these circumstances the Court provided the following reasons:

[27] The Plaintiff submits that society teaches children from an early age to trust police officers and that makes children and young people particularly vulnerable to the abuse of power by police officers.  In the circumstances, the Plaintiff submits that the City “has sufficient control, either directly or indirectly through its constant presence on the Board, to be vicariously liable for Hughes’ wrongdoing”, and that the City “had sufficient power over him through his extracurricular activities – pistol shooting competitions and fishing derbies, during which his abuse of … [the plaintiff] continued that it should be held vicariously liable”.

[28] If I could conclude that Mr. Hughes was an employee of the City, I could not conclude that his wrongful acts were sufficiently related to conduct authorized by the City.  I can find no “significant connection”.  I can only find that there were incidental connections between the abuse that occurred and the location of the abuse.  Many of the alleged abuses took place in VPD vehicles.  However, the power that was exerted by Mr. Hughes was the power flowing from the “father-son” relationship which had grown and not any relationship between the Plaintiff and Mr. Hughes as a police officer.  As well, the fact that Mr. Hughes was granted access to a VPD police vehicle did not afford any particular ability for Mr. Hughes to abuse his power.

[29] In rejecting the submission made on behalf of the Plaintiff, I cannot conclude that the wrongful acts of Mr. Hughes are sufficiently related to conduct authorized by the City to justify the imposition of vicarious liability.  There is not a significant connection between any promotion by the City and by society in general to promulgate the message that children should be taught from an early age to trust police officials and the significant wrongs that are alleged to have occurred.

Earlier this year I posed the question “are secret sex abuse settlements unethical?“.

This question was raised in the face of CBC’s reporting that Scouts Canada settled sex abuse claims and that confidentiality was a staple term.  CBC has continued to follow this matter.  Scouts Canada has softened their approach with respect to these settlements and now CBC reports that a historic abuse victim welcomes this development stating “It means freedom to speak as I wish — should I choose to speak — or not speak.”

When asked about the consequences of the confidentiality agreement following settlement CBC reports the following quote attributed to the victim of historic abuse “In a sense, you are revictimized...You become the isolated person who has to not tell anybody what the most important thing in your life is.”

Given this profound burden I repeat the question, is there any greater good that comes from the enforcement of these confidentiality agreements which outweighs their harm?

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing whether an employer should be found vicariously liable for harm caused by sexual abuse committed by one worker against another.  In short the Court found that without an employer giving more than an opportunity for abuse by virtue of “time and place” vicarious liability should not apply.

In last week’s case (Corfield v. Shaw) the Plaintiff was victimized on a number of occasions by her supervisor at work.   The supervisor was found liable and ordered to pay damages.  The Court was asked to find the employer vicariously liable for the abuse but refused to do so finding that the law should not extend liability in these circumstances.  In dismissing the claim against the employer Mr. Justice Butler provided the following reasons:

[73] The question a court must consider where there has been a sexual battery is whether the unauthorized acts of the employee are so connected with authorized acts that “they may be regarded as modes (albeit improper modes) of doing authorized acts”.  In Bazley, the court set out a two-step process for determining when an unauthorized act is so connected to the employer’s enterprises that vicarious liability should be imposed.  The first step is to consider whether there are precedents which unambiguously determine whether vicarious liability should apply in the circumstances.  The second step is to determine whether vicarious liability should be imposed in light of the policy rationales behind strict liability.

[74] The parties did not fully argue the first step analysis; whether there are precedents applicable to the vicarious liability analysis in this case.  This is likely because very few decisions which have considered the vicarious liability of employers since Bazley involve adult co-workers in commercial enterprises. ..

[76] In the absence of prior decisions which unambiguously determine whether vicarious liability should be found, I must proceed to the second step of the analysis.  This is described at paras. 41 and 42 in Bazley.  At this stage of the analysis, a court is to “openly confront the question of whether liability should lie against the employer”.  That is done by considering if there is “a significant connection between the creation or enhancement of a risk and the wrong that accrues”.  Incidental connections to the employment enterprise, like time and place (without more), will not suffice.  Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business.  In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.

[77] At para. 41 of Bazley, McLachlin J. (as she then was) set out some of the factors that may be considered by a court to determine if there was a strong connection between what the employer was asking the employee to do (i.e. the risk created by the employer’s enterprise) and the wrongful act:

(a)   the opportunity that the enterprise afforded the employee to abuse his or her power;

(b)   the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

(c)   the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

(d)   the extent of power conferred on the employee in relation to the victim;

(e)   the vulnerability of potential victims to wrongful exercise of the employee’s power.

[78] At para. 46, McLachlin J. summarizes the approach to this step:

In summary, the test for vicarious liability for an employee’s sexual abuse of a client should focus on whether the employer’s enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm. The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability ^__ fair and efficient compensation for wrong and deterrence. This requires trial judges to investigate the employee’s specific duties and determine whether they gave rise to special opportunities for wrongdoing. Because of the peculiar exercises of power and trust that pervade cases such as child abuse, special attention should be paid to the existence of a power or dependency relationship, which on its own often creates a considerable risk of wrongdoing.

[79] When I apply the relevant factors to the circumstances of this case, I conclude that there was not a strong connection between what Mr. Shaw was asked to do and the sexual assaults he committed.  The opportunity afforded to Mr. Shaw to abuse his power was not significant or unusual.  The assignment of work was done openly.  There was ample opportunity for employees to raise issues about the work or work assignments with senior management, Mr. Baker.  The wrongful acts did not further the employer’s aims in any way.  It cannot be seriously contended that there was friction, confrontation or intimacy inherent in the business of Baker Industries.  There was nothing about the operation of a residential service plumbing business that created situations of intimacy between employees.  While Mr. Shaw was provided with supervisory authority in relation to Ms. Corfield and other employees, the power given to him was not extensive.  As I have already noted, it was not power that could be easily used for a wrongful purpose.  Finally, plumbers in the employ of Baker Industries would not be expected to be potentially vulnerable to the wrongful exercise of Mr. Shaw’s authority as a supervisor.

[80] In short, there is nothing about the enterprise of Baker Industries or the authority imparted to Mr. Shaw that materially increased the risk of sexual assault of fellow employees.  Quite simply, this is a situation where Mr. Shaw took advantage of incidental connections to Ms. Corfield that occurred in an employment relationship.  He took advantage of the opportunities of time and place.  That alone is not sufficient for a finding of vicarious liability.

When sex abuse lawsuits settle out of court confidentiality agreements are often an accompanying term.  The Abuser (or institutions who employed the abuser) often suggest such clauses.  If a victim of abuse enters into such a contract and later speaks out they can jeopardize their settlement.

The CBC has recently reported that “Scouts Canada has signed out-of-court confidentiality agreements with more than a dozen child sex-abuse victims in recent years“.   This issue has a connection to British Columbia with CBC’s interactive map documenting some Scouts related abuse cases in BC.

A reader of this blog recently asked the following pointed question: “Would your parents have put you in Scouts if those cases had been published? “

This is a good question worth publicly posting here.  Is there any good that comes from confidentiality agreements in sex abuse litigation?  If not is there any reason why these agreements should be enforceable given the greater harm that secrecy can create?

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with an interesting issue - can a Court infer consent to operate when a commercial vehicle is involved in a ‘hit and run’ collision?

In last week’s case (Perret v. John Doe) the Plaintiff was injured in a 2005 collision.  She was run off the road by a U-Haul truck which was driving the wrong way on the highway.  The driver of the U-Haul did not remain at the scene of the accident.  The Plaintiff sued U-Haul arguing they are vicariously liable for the careless driver’s deeds under s. 86 of the Motor Vehicle Act.  She also sued ICBC under the unidentified motorist provisions of the Insurance (Vehicle) Act.

ICBC brought an application arguing U-Haul is at fault and that they are liable for the crash because anyone driving the vehicle likely had their consent to do so.  U-Haul opposed arguing ICBC should pay for the Plaintiff’s damages as this was an unidentified motorist claim and consent could not be proven.

The Court was asked to determine “whether ICBC or…U-Haul Co. is the proper Defendant” as a special case under Rule 9-3.  Ultimately the Court held that U-Haul was the proper defendant finding that it was reasonable to infer, on a balance of probabilities, that the driver had the company’s consent to drive.  In reaching this conclusion the Court made the following findings:

As previously discussed, section 86 of the BC 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.  In other words, if you let someone drive your vehicle and they cause a collision you can be sued to pay the damages.

Usually owners admit they allowed the driver to operate the vehicle.  In these cases there is ‘express consent‘.  Where there is no express agreement the law looks into the circumstances to decide if there was ‘implied consent‘.   Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dealing with this area of law.

In this week’s case (Green v. Pelley) two plaintiffs sustained serious injuries when their vehicle was struck by a vehicle (owned by the Defendant McIvor) and driven by the Defendant Pelley.

The Plaintiff’s sued for damages.   There was no issue that Pelley did not have express consent to drive McIvor’s vehicle.  The Plaintiff’s alleged that there was implied consent.  Mr. Justice Saunders disagreed and dismissed the claim against the Defendant McIvor.  In doing so the Court summarized the legal principles with respect to ‘implied consent‘ as follows:

[39] The test for a finding of implied consent under s. 86, in situations where consent has been given to one person but the vehicle ends up being driven by a third party, is as set out in Hartley v. Saunders (1962), 33 D.L.R. (2d) 638 (B.C.S.C.), and in Godsman v. Peck (1997), 29 B.C.L.R. (3d) 37 (C.A.). The evidence must establish that the vehicle owner had both an expectation and willingness that a third party would drive the vehicle.  Both an expectation and willingness must be shown.  One without the other will not suffice: L’Heureux v. Eustache, 2003 BCSC 347 at para. 9.

[40] The requirement that an owner have an actual expectation of a third party driving the vehicle is relaxed, where it is clear from the circumstances that consent would have been given, if sought, as a matter of course in the particular circumstances confronting the person who is in possession by consent: dissenting judgment of Porter J.A. in Palsky v. Humphrey (1963), [1964] 41 D.L.R. (2d) 156 (Alta. S.C. (A.D.)), as approved of and adopted by the Supreme Court of Canada on appeal, [1964] S.C.R. 580 at 662…

[53] The plaintiffs urge me to take a broad view of the concept of consent in light of the legislative intent behind s. 86, which is said to be that of maximizing the availability of compensation for injured parties.  Indeed, Macdonell J. stated in the Bareham decision, at para. 27, that the only public policy reasons to be considered in interpreting s. 86:

. . . are those in favour of protecting innocent third parties seeking compensation for injuries suffered at the hands of negligent automobile drivers and, vicariously, owners.  . . .

Bareham, as I have noted, is a case in which consent was found.  In Bareham, the public policy argument addresses the subject of whether the consent had been vitiated by the driver’s illegal use of the vehicle.

[54] The same public policy considerations were cited by the B.C. Court of Appeal in Morrison (Committee of) v. Cormier Vegetation Control Ltd. (1996), [1997] 28 B.C.L.R. (3d) 280 (C.A.), at para. 24, as justifying the legislation’s departure from the common law’s strict approach to vicarious liability.  These same considerations were also cited in Barreiro v. Arana, 2003 BCCA 58, as justifying the statute’s modification of the law of agency.

[55] Godsman, in which the Court of Appeal approved of and restated the “willingness and expectation” test, was decided after Morrison and Bareham.  I do not read Barreiro as having modified the Godsman test in any way.

[56] I find that there is no evidence of Mr. McIvor having consented by implication to Pelley’s operation of the vehicle.  Therefore, as I understand the issue before me, the claim of the plaintiffs against Mr. McIvor based on vicarious liability is to be dismissed.

Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff just over $110,000 for damages flowing from a ‘consensual‘ sexual relationship she had with her high school teacher.

While today’s case is likely to receive media attention due to its sexual theme, it is worth discussing more so because it highlights two important topics that sometimes arise in sexual abuse civil prosecutions; consent and vicarious liability.

In today’s case (AB v. CD) the Plaintiff had several sexual encounters with her grade 12 English teacher.   Following this relationship she sued him for damages and the school board claiming they were vicariously liable for the harm caused by the relationship.  The claim against the teacher was successful but the claim against the school board was dismissed.

The nature of the sexual encounters are summarized at paragraphs 28-52 of the reasons for judgement.  There is no need to repeat them here.  The Plaintiff agreed that “she had consented to…the touching incidents“.   Despite this admission, however, people in authority cannot have consensual sexual contact with people under their authority who are under 18 years of age as this is contrary to section 150.1 of Canada’s Criminal Code.

The school board’s lawyer argued that despite this prohibition, “consent remains a defence in a civil action for sexual assault“.  Madam Justice Gray soundly rejected this argument finding as follows:

[102] The Criminal Code provisions recognize that young people are inherently vulnerable to persons in positions of authority or trust.  While such young people may think that they are making a free choice to engage in a relationship with a person in authority, the very nature of the relationship precludes a free choice.

[103]  Like Stromberg-Stein J., I conclude that it would introduce an odd and problematic inconsistency in the law if a young person were considered legally incapable of consenting to sexual activity for the purposes of the criminal law, but were capable of giving such consent in a related civil action.

[104]  The public policy set out in the Criminal Code has the effect that a young person under the age of 18 cannot consent to sexual contact with a person in authority, as a matter of law, whether the applicable proceedings are criminal or civil.

[105]  As a result, CD is liable to AB for any damages she suffered as a consequence of the sexual battery.

(on a related note, click here to read a BC Court of Appeal decision released this week upholding a criminal conviction of an individual who failed to let his partners know he was HIV positive finding this omission was a ‘fraudulent misrepresentation’ which overrides otherwise consensual sexual contact)

The next issue that was noteworthy was the Court’s discussion of vicarious liability.  As previously discussed, the law sometimes holds an employer responsible for the deeds of an employee even though the employer did not act negligently.  The law of the vicarious liability of School Boards for the sexual battery by teachers is still developing in Canada and there are relatively few judgements addressing this topic.

Madam Justice Gray found that the School Board should not be vicariously liable on the narrow facts of this case and in doing so provided a useful discussion of applicable legal principles at paragraphs 131-155 of the reasons for judgement and applied the Bazley principles to the facts of the case at paragraph 157.

Important reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing lawsuits for damages against police officers when excessive force is used in the line of duty.

This week’s case (Camaso v. Egan) has been covered in the conventional press and I don’t intend to repeat all the well publicized details.  From a legal perspective, however, this case is useful for anyone interested in the law of police officer liability in British Columbia.

In this week’s case the Saanich Police Department were called to deal with a disturbed man.   Constable Dukeshire was one of the officers who responded to this call.  Shortly after encountering the disturbed individual Constable Dukeshire shot him several times resulting in his death.  He was found negligent making the City of Saanich liable for his actions under the principles of vicarious liability.  Damages of almost $350,000 were awarded to the disturbed man’s survivors under the BC Family Compensation Act.

Mr. Justice Burnyeat of the BC Supreme Court went further and found the officer grossly negligent for the death.  Paragraphs 269-308 are worth reviewing in full for anyone interested in this area of law.  Some of the highlights of Mr. Justice Burnyeat’s reasons were as follows:

[272] It is not in dispute that Constable Dukeshire shot Mr. Camaso.  Having established that, the onus shifts to Constable Dukeshire to establish that the shooting was justified.  In Prior v. McNab (1976), 16 O.R. (2d) 380 (Ont. H.C.), Reid J. stated in this regard:

… It is enough to allege and prove an assault.  Plaintiff need not prove that the force used was excessive.  He need prove only that it was used upon him.  The onus of proving that the force was not excessive would lie on the policeman.  This is clear from the decisions of our Court of Appeal.

The onus on a plea of justification in the use of force lies on him who asserts it: Miska v. Sivec, [1959] O.R. 144, 18 D.L.R. (2d) 363.  This applies to one who sets up the defence of self-defence (as in Miska) or on one who relies on a statutory duty:  O’Tierney v. Concord Tavern Ltd., supra, per Roach, J.A., who said, at p. 534:

It was implicit in a plea of justification even based on a statutory duty that the degree of force used was not excessive and the party making that plea must prove it.

That onus would lie on the police if sued. (at p. 385)…

[282] The “Use of Force Continuum” that is taught to all officers and which is part of the Policy of the Saanich Police Department provides for a continuum from “presence” to “communication” to “open hand control” to “taser” to “capsaicinoid aerosols” (pepper spray) to “empty hand impact techniques” to “impact weapons” to “lateral neck restraint” to “firearms”.

[283] After Mr. Camaso came out from behind his vehicle the first time, Constable Dukeshire moved directly to “firearms” without going through any of the earlier stages of the continuum.  After Constable Dukeshire saw that Mr. Camaso was not holding a weapon which could cause him harm from afar, Constable Dukeshire failed to deescalate the situation in order to establish “presence” and in order to establish “communication”.  This failure to do so breached the duty of care which Constable Dukeshire owed to Mr. Camaso.

[284] Rather than calling for backup, Constable Dukeshire pursued Mr. Camaso on his own.  Saanich Police Department Policy required Constable Dukeshire to engage a supervisor.  He failed to do so.  Saanich Police Department Policy required Constable Dukeshire to take charge and coordinate the efforts of the other two Constables.  He did not do so.  Rather than pursuing Mr. Camaso as the leader of a team or as part of a team, Constable Dukeshire pursued Mr. Camaso without the knowledge of the location of Constables McNeil and Murphy, and without attempting to coordinate their activities with his own.  No call was made by Constable Dukeshire for a supervisor to coordinate activities.  No attempt was made by Constable Dukeshire to allow Constables McNeil and Murphy to catch up to him in order that they could assist him in apprehending Mr. Camaso under the Mental Health Act….

[289] It was not reasonable for Constable Dukeshire to continue to aim his gun at Mr. Camaso when Mr. Camaso appeared to be complying by going down onto the ground as was requested by Constable Dukeshire.  His service revolver should have been holstered….

[295] Even with one or two potential weapons in Mr. Camaso’s hands, Constable Dukeshire who weighed almost one hundred pounds more and stood almost a foot taller than Mr. Camaso could not have had a reasonable belief that it was necessary to shoot Mr. Camaso for his own preservation.  It was always apparent to Constable Dukeshire that Mr. Camaso did not have a gun in his hands. …

[299] Putting myself in the position of Constable Dukeshire or putting a reasonable officer in the position of Constable Dukeshire, it is not reasonable to conclude that it is part of the responsibility of Constable Dukeshire to shoot Mr. Camaso three times and it is not possible on reasonable grounds to conclude that the force he used was necessary for the purpose of protecting himself and others from imminent or grievous bodily harm.  Putting myself in the position of Constable Dukeshire or putting even an inexperienced officer in the position of Constable Dukeshire, it is not possible on reasonable grounds to conclude that the force that was used was necessary.  Constable Dukeshire did not act on reasonable grounds when he shot Mr. Camaso.

[300] I find that Constable Dukeshire breached the duty of care owed to Mr. Camaso when he did not use the least amount of force necessary to carry out his duties, when he failed to remain a safe distance away from Mr. Camaso, when he failed to properly assess the situation before approaching Mr. Camaso, when he failed to plan an appropriate method to deal with the situation, when he advanced on Mr. Camaso thereby failing to deescalate the situation once it appeared that Mr. Camaso was beginning to comply with his commands, and when he failed to wait for backup support.  Constable Dukeshire breached his duty owed to Mr. Camaso to use only so much force as was reasonably necessary to carry out his legal duties.

[301] In the circumstances, I find Constable Dukeshire liable in negligence because I find that there was duty of care owed to Mr. Camaso, that there was a breach of that duty of care, and that the breach of the duty of care caused the death of Mr. Camaso.

[302] At the same time, Constable Dukeshire has failed to establish that the shooting was justified and that the force that he used was not excessive.  In fact, the Plaintiffs have shown on the balance of probabilities that the force that was used was excessive.  I find that Constable Dukeshire cannot rely on s. 25 of the Criminal Code of Canada or the provisions of ss. 16 and 28 of theMental Health Act.  His use of force was not justified.  I cannot find that Constable Dukeshire believed on reasonable grounds that it was necessary for his self-preservation to use the force that he did.  I have reached the conclusion that Constable Dukeshire is liable in damages as a result of his failure to act in good faith and with reasonable care…

307] In reviewing all of the circumstances of this case, I conclude that Constable Dukeshire was grossly negligent.  When the pursuit of Mr. Camaso commenced, Constable Dukeshire was not involved in a dangerous activity.  However, as soon as Constable Dukeshire removed his service revolver from its holster and aimed it at Mr. Camaso, he was involved in an activity where it is plain that the magnitude of the risks involved were such that more than ordinary care had to be taken.  If more than ordinary care was not taken, a misstep or a mishap was likely to occur such that loss of life or serious injury would be almost inevitable.  More than ordinary care was not taken.  The loss of the life of Mr. Camaso resulted.  I also find Saanich vicariously liable for the damages caused by Constable Dukeshire.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, ordering the Government of BC to pay a Plaintiff $605,000 in damages as a result of childhood sexual abuse.

In today’s case (D.K.B. v. British Columbia) the Plaintiff was sexually abused by his hockey coach when he was 13 years old.    The abuse occurred in 1988.    The hockey coach was a convicted sex offender and his probation officer failed to warn the minor hockey association of this fact.  In 2005 the Province of BC was found vicariously liable for the sexual abuse.  Today’s case focused on damages.

The details of the abuse are set out in paragraphs 5-10 of today’s judgement.  The Plaintiff suffered harm as a result of this abuse.    Dr. O’Shaughnessy testified about the extent of the harm and his opinion was accepted by the Court.  Specifically Dr. O’Shaughnessy provided the following opinion:

Ultimately, however, I am impressed that given the nature of the sexual assaults and in particular at the critical developmental point that more likely than not the sexual assaults were a material factor in the development of his Mood Disorder and his substance abuse as well as his Personality Disorder. While indeed he may have gone on to develop problems with substance abuse in any event, I think the sexual abuse was a critical factor and more likely than not he would not have gone on to develop these difficulties had the sexual assaults not occurred

The Plaintiff went on to have a career in professional hockey and subsequently as a realtor.  He testified that this was impacted by the consequneces of the abuse.  Mr. Justice Dley agreed and awarded just over $450,000 for the impact the abuse had on the Plaintiff’s earning capacity.

The balance of the claim was made up largely of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  The parties settled this head of damage at $125,000.  Since this aspect of the case was privately settled today’s judgement is not, strictly speaking, a binding precedent on the issue, however, given the relative lack of reported cases dealing with non-pecuniary damages for sexual abuse in British Columbia I thought it would be useful to add today’s case to this site’s civil sex abuse claims database.

As I’ve previously written, 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.  Today the BC Court of Appeal published reasons for judgement clarifying the application of this legal principle.

In today’s case (Snow v. Saul) the 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 trial judge 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 (you can click here to read my article summarizing the trial finding).

The Defendant appealed arguing the trial judge incorrectly applied the law.  The BC Court of Appeal agreed and overturned the trial verdict finding the registered owner was not vicariously liable for the crash.  In reaching this conclusion the BC High Court made the following findings:

[16]         The central question raised by this appeal is whether the effect of Vancouver Motors U-Drive is that whenever a person (“O”), of his own free will, permits his vehicle to be driven by “A”, he is deemed to have consented to the vehicle being driven by anyone, and is thus liable to an injured plaintiff for damages caused by “B”.  In my view, the case does not stand for that proposition.  The grammatical structure and wording of s. 86(1) are such that it is the “person driving the motor vehicle” who must have acquired possession with the owner’s consent.  Thus in cases where B negligently causes damage to a plaintiff, the argument made by the plaintiff depends on proof of implied consent (which as noted above is not argued in the case at bar).  In such instances, British Columbia courts have ruled that O will not be liable, without more, for injuries resulting from B’s operation of the motor vehicle.  The plaintiff must in addition show that the owner had an “expectation and willingness” that the vehicle would be driven by B: see Simpson v. Parry (1968) 65 W.W.R. 606 (B.C.S.C.), per MacFarlane J. (as he then was), citing Martell v. Chartier & Dominion Motors Ltd. [1935] 1 W.W.R. 305 (Man. C.A.) and Antilla v. Majeau (1954) 12 W.W.R. (N.S.) 575 (Alta. Ap. Div.).  More recently, in Godsman v. Peck, supra, this court ruled that without evidence that the owner of a motorcycle who had lent it to another (A), expected that A would lend it to a third party (B), the owner’s consent to B’s operating the cycle could not be implied.  As the Court stated:

There should be evidence to show, or support the inference, that the owner turned his mind to the likelihood of that further transfer of possession. If there is no such evidence, a court finding liability on the owner’s part is not implying consent so much as deeming it. One of the commendable goals of s. 79(1) may be to induce owners of motor vehicles to exercise discretion when transferring control of them to others, but to impose liability in a case where such a transfer was not within the contemplation of the owner would do nothing to further that goal, and simply goes too far.  [At para. 28; emphasis added.]

(See also Smaldino v. Calla [1999] B.C.J. No. 2816 (S.C.).)

[17]         Conversely, consent may be implied from a course of conduct or circumstances known to the owner, as illustrated by Deakins v. Aarsen [1971] S.C.R. 609.  There it was held that an owner who had lent her car to her son to use whenever he wanted it, had not discharged the onus on her under s. 105(1) of the Highway Traffic Act, R.S.O. 1960, c. 172, to prove that when the son had lent the car to his girlfriend, he had done so without the mother’s consent.  The Court emphasized in brief reasons that the car was “for all practical purposes” the son’s car and that his mother exercised no control over who was to drive it.  She had been aware the girlfriend was her son’s “constant companion” and the trial judge evidently disbelieved her evidence that she had told her son not to let anyone else drive the car.

[18]         Counsel for the plaintiff submits that the implied consent cases are irrelevant to this case, which he says concerns “consent at law, not consent in fact”.  In his submission, what was in the owner’s mind is irrelevant as long as he gave up possession of his vehicle as a result of the exercise of his free will.  Thus what Mr. Weatherill characterizes as a “mistake” on Mr. Saul’s part when he gave his consent is neither here nor there – just as the “mistake” under which the employees of the car rental company in Vancouver Motors U-Drive Ltd. were labouring was found not to affect the validity of its consent to the fraudster’s operation of its car.

[19]         In my respectful view, however, this case is very different from Vancouver Motors U-Drive, where the appellant’s employees intended to lend the car to the person standing before them, and that person in fact drove the car.  In the case at bar, accepting the trial judge’s findings of fact, the owner did not consent to Ms. Friesen’s driving his truck.  He was told that “Neal” wanted to borrow it.  That is what Mr. Saul expressly consented to.  It defies common sense to say that he in fact consented to Ms. Friesen’s driving it.  Indeed, the trial judge accepted at para. 37 of his reasons that Mr. Saul would not have lent his vehicle to Ms. Friesen, as opposed to Neal Bourgeois.

[20]         Does the fact that we are here concerned with the application of a statutory provision change this common-sense conclusion?  Again, in my view, the answer is no.  Section 86 does not on its face “deem” one to have the owner’s consent when he or she does not have it in fact; nor does it impose a “legal” definition of consent that is at variance with the ordinary and natural meaning of the word.  The respondents rely heavily on the two purposes of s. 86, as described in Yeung, supra.  I do not see that the second objective is engaged in this case since, despite Mr. Weatherill’s suggestion that Mr. Saul had “casually” consented to lending his car, there is no evidence Mr. Saul did anything other than take reasonable care in consenting to Neal Bourgeois’ using his truck.  The trial judge found that Mr. Bourgeois did not share his partner’s drug addiction and that Mr. Saul is a “reasonably careful person who does not take unnecessary chances.”  (Para. 36.)  As for the expansion of the availability of compensation, s. 86(1) goes only so far: it does not state that whenever a person uses another’s car, the owner is vicariously liable.  The intention of the legislation is to place liability on a person who permits his car to be used by another, where that other negligently causes injury to a plaintiff.  In this case, the person to whom Mr. Saul gave his consent was Neal Bourgeois.  It was not Mr. Bourgeois who drove the truck negligently.

[21]         In the result, I would allow the appeal and set aside the trial judge’s order imposing vicarious liability on Mr. Saul pursuant to s. 86(1) of the Act.