More on Registered Owner Liability and the Implied Consent Test
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:
 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.
 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),  41 D.L.R. (2d) 156 (Alta. S.C. (A.D.)), as approved of and adopted by the Supreme Court of Canada on appeal,  S.C.R. 580 at 662…
 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.
 The same public policy considerations were cited by the B.C. Court of Appeal in Morrison (Committee of) v. Cormier Vegetation Control Ltd. (1996),  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.
 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.
 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.