In Perret v John Doe, the Plaintiff was injured when she was run off the road by a U-Haul truck. The driver fled the scene, and the issue became whether or not the driver had implied consent to operate the truck in question. In considering all of the evidence, the Court ruled that it was reasonable to infer, on a balance of probabilities, that the driver had the implied consent of U-Haul.

 

[8]               ICBC draws to my attention the heavy burden imposed on commercial enterprises such as U-Haul that consent to the rental of their vehicles. Barreiro v. Arana, 2003 BCCA 58 (CanLII), 2003 BCCA 58 [Barreiro], discusses s. 86 of the Motor Vehicle Act. Beginning at para. 26, Thackray J.A., speaking for the court, wrote:

 

[26] The effect that legislative intent has upon the meaning of “consent” is emphasized by the words of Goldie J.A. in Morrison as quoted by the trial judge:

 

[24] It is apparent the legislature has imposed a heavy burden on those who have within their power the control of motor vehicles. … The reason for legislative intervention may be traced, in part at least, to the appalling consequences of reckless use of motor vehicles. Irresponsibility on the part of those who may deny or confer possession of motor vehicles may be seen as the reason for the legislative initiative. The legislation in question must be regarded as remedial.

 

[27] Legislative intention must be acknowledged as having a fundamental purpose and as having been inspired by a need. As Mr. Justice Goldie said, the legislation is remedial. As such it might well be at odds with traditional legal concepts of agency, but that will not deny its validity.

 

[28] The legislative intent in section 86 must be taken, as noted by Goldie J.A. in Morrison, to address the reckless use of motor vehicles and the section imposes “a heavy burden on those who have within their power the control of motor vehicles.” In Bareham, Mr. Justice MacDonell, after reviewing the statute, said at 194:

 

In this case, the only policy reasons to be considered are those in favour of protecting innocent third parties seeking compensation for injuries suffered at the hands of negligent automobile drivers and, vicariously, owners.

 

[9]               The Court of Appeal also observed at para. 13:

 

[13] Whether there was consent must be determined by reference to the facts and by the application of general legal principles viewed in the context of the statutory scheme. The issue of consent is not, as suggested by the trial judge, “defined by s.86”: however the statute is the governing factor. [Emphasis in original.]

 

[10]           I derive from Barreiro that as in all cases the facts must be carefully scrutinized, but in doing so the legislative intent to impose vicarious liability predicated on consent “is the governing factor.” The usual principles of agency that may lead to a finding of vicarious liability are not of paramount importance. It is the legislative scheme to create a heavy burden on those who have vehicles for hire which must be given considerable weight.

 

[20] When considering the circumstances of the accident of May 12, 2005, there is obviously no certainty when attempting to reach a conclusion that the U-Haul vehicle was driven by a person who had consent. However, the law does not require certainty. It does require that I draw a reasonable inference and do not rely on conjecture. The Court of Appeal in Lee [1994] B.C.J. No. 2459, has described Caswell v. Powell Duffryn Associated Colleries Ltd., [1940] A.C. 152 (H.L.) [Caswell], as the leading case making that distinction. In Caswell, at 169-70, Lord Wright observed:

 

My Lords, the precise manner in which the accident occurred cannot be ascertained as the unfortunate young man was alone when he was killed. The Court therefore is left to inference or circumstantial evidence. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.

 

[21] I conclude I can safely draw an inference that it is more likely than not that the driver had consent. I therefore answer question 2 in the affirmative.

In Green v Pelley, the Plaintiffs sued the Defendant owner, arguing that there was implied consent given to the driver, as there was no express consent. The Court disagreed, and dismissed the case as against the owner of the vehicle in question. The Court discusses the area of law of implied consent.

 

[39]             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.

 

[40]               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), [1964] 41 D.L.R. (2d) 156 (Alta. S.C. (A.D.)), as approved of and adopted by the Supreme Court of Canada on appeal, [1964] S.C.R. 580 at 662…

 

[42]           In Godsman, the B.C. Court of Appeal analysed this line of cases in terms of the owner’s general willingness to grant consent in particular circumstances.  Commenting on the two-pronged requirement for both willingness and expectation under s. 79(1), the predecessor to s. 86, the court said:

 

28.  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.

 

29.  The concept of consent, even though it be implied, is not satisfied by general evidence of willingness that another may drive.  Willingness is an attitude that must be crystallized by an expectation that another will drive.  For general willingness to amount to consent, certain specific circumstances must be within the owner’s contemplation.  These are the circumstances expected to arise in which possession may be transferred to a third person, and in which the owner would be willing for such a transfer to occur.  This willingness and expectation must be in the owner’s mind at the time when the vehicle is transferred to the original borrower.

 

[43]           With respect to deeming consent, as opposed to implying consent, the same point was made in Snow v. Saul, 2010 BCCA 416 (CanLII), 2010 BCCA 416 at para. 20, where Newbury J.A. said:

 

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. …

 

[56] 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.

 

In Snow v Saul, the British Columbia Court of Appeal overturned a trial judge’s decision that a registered owner was vicariously liable for the negligence of the driver. In the unique circumstances of this case, the registered owner mistakenly thought another person was asking to borrow his vehicle, so he granted permission.

 

[16]           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 reflex, (1968) 65 W.W.R. 606 (B.C.S.C.), per MacFarlane J. (as he then was), citing Martell v. Chartier & Dominion Motors Ltd. reflex, [1935] 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 [1999] B.C.J. No. 2816 (S.C.).)

 

[17]           Conversely, consent may be implied from a course of conduct or circumstances known to the owner, as illustrated by Deakins v. Aarsen 1970 CanLII 27 (SCC), [1971] 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.

 

[19]         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.

 

[20]         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.