What is implied consent? Our Ottawa injury lawyers explain…

Does no consent mean implied consent?

What happens if someone uses your vehicle without your consent and causes an accident or injury? Is this implied consent ?

Implications when lending your car.

In the recent case of Michaud-Shields v. Gough, the defendant driver had a suspended license and did not have the consent of the vehicle owner (Nancy) to drive the vehicle. The owner had made it clear to her son (Justin) that he would not be allowed to use her truck until his license was re-instated. He took the vehicle anyway, and it resulted in an uninsured automobile coverage claim.

The Highway Traffic Act, RSO 1990, c.H.8, sets out, at section,192(2):

A motor vehicle owner is liable for the losses arising out of another person’s negligent operation of his/her vehicle unless that vehicle was in the other person’s possession without the owner’s consent at the time the negligent act occurred.

Traders General, Justin’s carrier, motioned for a summary dismissal, based on their position that, although Nancy had not given Justin her verbal consent, he was driving with her implied consent, because the keys were not hidden from him in her home.

Justice de Sa, however, found that a “lack of appropriate diligence to prevent use” does not constitute implied consent for the vehicle’s use. The presence of the vehicle on the defendants’ premises, with the keys on a hook inside the door, did not represent “the right to possess the vehicle” or “an understanding that the vehicle may be driven”.

In arriving at his conclusion, Justice de Sa noted:

[25] Traders argues that Nancy did nothing to prevent Justin’s access or use to the vehicle, and she did not expressly forbid him to drive the vehicle while she was away. According to Traders, Nancy’s decision to leave the vehicle in the driveway with the keys on the hook essentially invited Justin to drive the vehicle. Given that Justin was left with “possession” of the vehicle, Traders maintains that Nancy should be liable for his actions while the vehicle was in his possession. According to Traders, consent should be implied in the circumstances, particularly in light of the broader policy issues in play.

[26] I don’t accept Traders’ proposed interpretation of consent. In my view, the suggested interpretation is far too broad. Traders’ position seems to impose liability on an owner for an accident unless steps are taken to prevent unauthorized use of the vehicle. The approach essentially requires that an owner hide their keys in order to avoid liability. However, in my view, this is hardly what is contemplated by s. 192(2) of the Highway Traffic Act. Nor does Traders’ suggested interpretation accord with the ordinary meaning of “consent”. […]

[28] No doubt permission to use the vehicle need not be express. If there is a general understanding that someone is allowed to use the vehicle, there need not be “express” permission to find liability in a particular case. However, to import a notion of liability on the basis of a lack of appropriate diligence to prevent use is to take the meaning of consent much too far. Indeed, if Traders’ position were accepted, arguably a thief would be found to have the consent of the owner to possess the vehicle. […]

[30] There must be an understanding between both the owner and the driver (either express or implied) that the driver is authorized by the owner to use the vehicle.

[31] In this case, on the evidence before me, there was no consent given to Justin to drive the vehicle. The evidence filed on the motion indicates the exact opposite. Both Justin and Nancy indicated that there was no consent. Traders does not contest their evidence on this point.

Justice de Sa dismissed the motion.