The Plaintiff succeeded in his action against the Defendant car rental agency which was found liable for damages sustained in a motor vehicle accident when the vehicle was driven by an unauthorized driver. The permitted driver acquiesced to the unauthorized driver’s use of the vehicle by riding in the car with him and therefore continued to remain “in possession” of the vehicle.

Henwood v. Coburn, [2006] O.J. No. 3275, Ontario Superior Court of Justice

This was an action brought by the Plaintiff, Mr. Henwood, who had been provided with a rental truck by his employer. The truck was rented from the Defendant, Ontario Car and Truck Rentals Ltd. (“Ontario Car”). The employer asked the Plaintiff to take the Defendant, Mr. Coburn on a sales trip. Mr. Coburn did not have a driver’s license and the employer advised the Plaintiff that Mr. Coburn was not allowed to drive. An altercation ensued in the course of the trip and Mr. Coburn jumped into the driver’s seat and started the vehicle. The Plaintiff jumped into the passenger seat in an attempt to talk Mr. Coburn out of taking the truck. During the course of the ensuing journey, the Plaintiff tried to convince Mr. Coburn to stop the truck. When the truck was involved in a motor vehicle accident, the Plaintiff was injured and sought damages for his injuries. There was no dispute that Mr. Coburn was at fault.

The Plaintiff’s claim against Ontario Car was that, as owner of the vehicle, it was responsible for Mr. Coburn’s negligence. Ontario Car argued that at the time of the accident, its motor vehicle was in the possession of Mr. Coburn without its consent and therefore, it should not be liable. The Court acknowledged authorities that where the permitted driver remains an occupant in the vehicle and either specifically allows the non-permitted driver to drive the car or acquiesces to the driver using the car, the permitted driver continues to remain “in possession” of the vehicle and the owner will remain liable.

The Court found that by deciding to occupy the vehicle and taking the action that he did, the Plaintiff continued to assert his possession of the vehicle. Accordingly, the Plaintiff was in possession of the rented vehicle at the time of the accident within the meaning of s. 192 of the Highway Traffic Act and Ontario Car was therefore liable for damages as a result of the negligent driving of Mr. Coburn.

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