Owner of a Vehicle who Forbids another Person from Driving is Still Vicariously Liable

An owner of a vehicle who forbids another person from driving the vehicle on the highway is still vicariously liable for that drive because the owner had consented to the driver having possession of the vehicle.

Fernandes v. Araujo, [2014] O.J. No. 5248, 2014 ONSC 6432, Ontario Superior Court of Justice, November 4, 2014, P.M. Perell J.

The court considered whether the insured owner of an ATV was vicariously liable for the defendant driver, or whether the driver was operating the vehicle on a highway without the insured owner’s consent.

The insured owner allowed the plaintiff and the driver to operate the vehicle around his farm. The owner was present when another person told the driver not to leave the farm property on the vehicle. The owner did not forbid the driver to leave the property. The driver and plaintiff passenger left the property and travelled along the highway without asking for permission from the owner. They were subsequently involved in an accident where the plaintiff passenger was badly injured.

The court reviewed a long line of cases finding that vicarious liability under the Highway Traffic Act is based on possession, not operation, of the vehicle. The fact that a driver may be operating the vehicle without the consent of the owner, or even contrary to the express wishes of the owner is irrelevant if the vehicle is in the possession of a person with the owner’s consent, even if that person is only a passenger. The court distinguished a court of appeal decision which held that there is no consent if the owner expressly forbids use on the highway in the basis that the court of appeal decision may have been wrongly decided or did not consider the necessary differences between consent to possession and consent to use in a prescribed manner.

This case was digested by Djuna M. Field and edited by David W. Pilley of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact them directly at dfield@harpergrey.com or dpilley@harpergrey.com or review their biographies at http://www.harpergrey.com.

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