(Please note the case discussed in this post was overturned by the BC Court of Appeal. Please go to the September 2010 Archives of this site to read my article discussing the BC Court of Appeal decision)
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).