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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 ?
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:
 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.
 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”. […]
 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. […]
 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.
 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.
Lock your car doors. You may be liable to lose more than you think and it could affect your insurance claims.
What’s the worst that could happen when a car door is left unlocked in a driveway or parking lot? Most would assume that their car, or the belongings inside it, could be stolen. The consequences turned out to be much worse in a recent case involving an Ontario garage and dealership . The Supreme Court of Canada looked at the insurance claims and recently ruled that the owner of that garage owed a duty of care to a minor who was injured in one of their unlocked vehicles after it was stolen.
On a summer evening in 2006, two teenagers walked around their hometown with the intention of stealing from unlocked cars before finding themselves at Rankin’s Garage & Sales — a business that serviced and sold cars and trucks. The garage property was not secured, and the two found an unlocked Toyota Camry with keys left in the ashtray. Despite not having a driver’s license or any driving experience, one teen got behind the wheel and set off for a joyride with the plaintiff as his passenger. The vehicle crashed, and the plaintiff suffered a catastrophic brain injury.
Difference levels of responsibility in insurance claims
The victim sued and the Trial Judge determined that the garage owed a duty of care to the minor plaintiff and a jury apportioned 37% responsibility to the garage for the teen’s injuries. The primary issue on appeal was whether the Trial Judge had erred in finding that the garage owed a duty of care to the plaintiff in the circumstances, which included his participation in the theft. The Garage appealed.
The Court of Appeal decides on insurance claims
The Court of Appeal found it reasonably foreseeable in the circumstances that minors might steal an unlocked car with keys in it and injure themselves doing so. The basis for this conclusion was that Rankin’s Garage was easily accessible, there were no security measures to keep people off the property after hours, cars were left unlocked with keys in them, and there was evidence of a history of theft in the area and from the garage itself.
The Court of Appeal concluded that the garage should have had minors in mind when considering security measures, and that the care and control of many vehicles imposed a responsibility of securing them against minors. Securing vehicles by locking them and keeping keys secure was the garage’s responsibility.
We all know that there are possible dangers in leaving our vehicles unlocked, but we don’t often think beyond the obvious. A case like this should be a reminder that cars, machinery, and tools can cause harm to those who are not experienced in using them safely. Owners of these items have a responsibility to make sure that they do not fall into the wrong hands.
A business that leaves a car unlocked with the keys inside will not necessarily be responsible when someone is injured after the car is stolen, the Supreme Court has ruled. The business will only be responsible where it should have known both that the car could be stolen, and that someone could be injured due to it being driven unsafely.
We just had our first long weekend of the summer and Ontario Police have launched their Drive Safe Campaign in conjunction with National Road Safety Week. (May 15 – 21, 2018). Using the campaign slogan, “Who’s in Control?”, the police emphasized the need for drivers to consider the effects of vehicle safety systems, impaired driving, distracted driving, aggressive driving, and seatbelt safety. Throughout the campaign, police were also warning the public that the legalization and regulation of cannabis means that everyone will have to take extra care on the road.
“Drug-impaired driving is already an issue. With legalization and regulation of cannabis, we expect that, based on the experience in other jurisdictions, drug impaired driving will increase,” said Chief Superintendent Chuck Cox (Ontario Provincial Police). “This is not a new issue to police. We are already dealing with it and have people trained as Drug Recognition Evaluators (DREs) to conduct Standardized Field Sobriety Tests (SFST).”
As new legislation and safeguards come available to stop drug-impaired driving and give police powers to investigate and arrest drug impaired drivers, it is still not clear how the legalization of marijuana will impact police from a day-to-day operational perspective, including how it will affect police agencies’ budgets. There is concern that federal funding for police to deal with the impact of legalized cannabis may not be enough.
Drivers can expect increased police presence on our roads in the hopes of reducing accidents. Officers will be looking to make sure that motorists are in control of their vehicles. This includes distracted driving.
So far this year, OPP have seen 40 deaths related to distracted and inattentive driving. That is around twice the number of impaired-driving deaths. It’s the seventh year in a row that distracted driving has caused more deaths than impaired driving. These stats are startling and disheartening.
If you are a driver, commit to turning your phone to silent and driving without distractions. If you are a passenger in a vehicle and you see the driver is distracted, voice your concerns or choose not to ride with them
The minimum fine for distracted driving is $490 and three demerit points.
Mental Health Week 2018
One of the leading causes of disability in Canada, mental illness affects one in five Canadians every year with about eight per cent of adults experiencing a major depression. Mental illness is serious and it is largely misunderstood considering its ability to impact the social and professional lives of those it affects.
Mental Health Week brings awareness
Mental Health Week seeks to bring awareness to this “invisible illness”, to reduce the stigma around it and to encourage conversations about mental illness and mental health. Sadly, stigma and shame keep those suffering with mental illness from seeking the treatment they desperately need. Lack of awareness and understanding isolates people from the support of their family, friends and co-workers. This is especially true for those who are filing disability claims.
Mental Health Week and disability claims
Mental health awareness is imperative in filing a disability claim. A successful claim requires proof of treatment. It requires a clear understanding of the illness and the limitations of the claimant. To make a claim, the insurance company will need to know how the illness affects the claimant’s ability to perform their job as well as information and observations from a doctor. These are all much easier to obtain when the stigma is removed and there is awareness, understanding and open dialogue about mental illness.
The CMHA provides the following statistics to create greater awareness of the disease.
* By age 40, about 50 per cent of the population will have or have had a mental illness.
* Anxiety disorders affect 5 per cent of households, causing mild to severe impairment.
* Approximately 1 per cent of Canadians will experience bipolar disorder.
* 1 per cent of the Canadian population is affected by schizophrenia.
* 49 per cent of those who feel that they suffer from depression or anxiety have never been to see a doctor about it.
* Stigma/discrimination presents a serious barrier to diagnosis and treatment and acceptance in the community.
The Canadian Mental Health Association, founded in 1918, is one of the oldest voluntary organizations in Canada. Each year, they provide services and supports to more than 1.3 million Canadians through the combined efforts of more than 11,000 volunteers and staff across Canada in over 330 communities.
If you or someone you know needs assistance in filing a disability claim, please contact us for a free consultation. We understand, we care and we are here to help.