A person who operates a motor vehicle without a driver’s licence, with the implied consent of the registered owner, is in breach of s. 55(5) of the Regulations under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83 and is not entitled to indemnity under the policy of automobile insurance

Insurance Corp. of British Columbia v. Chaytor, [2005] B.C.J. No. 2417, British Columbia Supreme Court

On July 23, 1999, Ms. Chaytor was driving a 1992 Ford pickup truck owned by her husband. She struck and killed Ms. Brown who was a pedestrian. The vehicle was insured by the Insurance Corporation of British Columbia (“ICBC”). ICBC paid $205,597.56 to settle the claim brought by Ms. Brown’s surviving spouse. ICBC commenced an action against Ms. Chaytor and her husband, Mr. Chaytor, to recover the monies it paid to settle the claim brought by Ms. Brown’s estate.

Shabbits J. noted that ICBC acted reasonably in settling the claim brought against Mr. and Mrs. Chaytor for the sum of $205,597.56. Furthermore, section 55 of the Revised Regulations (1984) under the Insurance (Motor Vehicle) Act states that ICBC is not liable to an Insured who operates a vehicle if he or she is not authorized and qualified by law to operate the vehicle; and that an Insured named in a Certificate shall not permit the vehicle described in the Certificate to be operated by a person in breach of that condition.

Ms. Chaytor had been resident in British Columbia since 1999. She did not have a valid B.C. Driver’s Licence and was therefore not authorized by law to drive at the time of the motor vehicle accident. The Court noted that Ms. Chaytor did not speak with her husband on the morning of the accident before she left to drive their daughter to playschool. The Court determined that this trip was one of a number of occasions on which Ms. Chaytor drove her husband’s truck for that purpose. Shabbits J. noted that the law relating to the issue of what circumstances provide a person with implied consent to use a motor vehicle were set out at para. 15 of Smaldino v. Calla (1999), 48 M.V.R. (3d) 315, in which Madam Justice Lynn-Smith noted that the test was: “would, in all the circumstances, have the owner consented to the person acquiring possession of their car as a matter of course.” That is, was there an expectation and a willingness on behalf of the owner that the person would drive the vehicle. If so, the vehicle was driven with the implied consent of the owner. Shabbits J. determined that he was satisfied that Mr. Chaytor would have consented to his wife using his vehicle had he been asked, and that she was operating his truck with his implied consent to drive their daughter to playschool. ICBC was entitled to judgment, jointly and severally, against Mr. and Mrs. Chaytor.

To stay current with the new case law and emerging legal issues in this area, subscribe here.