Further Clarity from BC Court of Appeal on Vicarious Liability of Vehicle Owners
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:
 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.  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  B.C.J. No. 2816 (S.C.).)
 Conversely, consent may be implied from a course of conduct or circumstances known to the owner, as illustrated by Deakins v. Aarsen  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.
 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.
 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.
 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.
 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.