Vehicle owners should always think long and hard before they lend their vehicle to another person, including any adult children, as owners are ultimately liable in the event of an accident. Also, once you have lent your vehicle to another person in the past, even if you did not expressly permit them to drive on a particular occasion, there may be an assumption of assumed consent.
In a recent case, Nemeth v. Yasin, a man was sued for damages resulting from a Mississauga car accident allegedly caused by his son. The accident occurred when the son, Wais Yasin, drove his father’s car after having been forbidden to drive any of the family vehicles under any circumstances, due to his poor driving record. As well, the father and son signed an OPCF-28 Excluded Driver Form and submitted it to the vehicle insurer, so Wais was uninsured at the time of the accident. Wais was told that he could only drive again if he purchased his own insurance coverage. Although the son was told by his father in no uncertain terms, that he could no longer drive his father’s cars, the keys to the car were never hidden.
The son’s primary residence was the Yasin family home in Mississauga, but he spent about half his time living with a friend in Hamilton. While Wais was at home, on September 10, 2009, his mother called and requested a ride home from the mall. Although the son knew he was not allowed to drive, particularly without insurance, he took his father’s Honda to pick up his mother, who was unaware that he had been forbidden use of the family vehicles. At the mall, the Honda was involved in a collision with a vehicle driven by Ms. Nemeth. Because there was only minor damage to the Honda, Wais did not tell his parents about the accident and drove the car to the Collision Reporting Centre the following week.
Almost two years after the accident, in June 2011, the father, Mohammed Yasin, received notice of a motor vehicle accident claim for damages from Ms. Nemeth. This was the first time the accident was revealed to Mr. Yasin, and during this period, ownership of the Honda had been transferred to Wais. Ms. Nemeth’s claim was brought against Wais, Mr. Yasin and her insurer, State Farm, for uninsured driver coverage.
In Nemeth v. Yasin, Mohammed Yasin sought a summary judgement to dismiss both Ms. Nemeth’s claim and State Farm’s crossclaim against him, on the grounds that there is no genuine issue requiring a trial because his son took his car without his consent or knowledge and therefore he is not liable for any claimed damages suffered by Ms. Nemeth due to the accident. The summary judgement motion was opposed by State Farm.
In deciding this case, the motions judge considered pertinent legislation under the Highway Traffic Act, sections 192(1) and (2), which define liability for loss or damage with respect to negligence in the operation of a motor vehicle, as follows:
(1) The driver of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway.
(2) The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner's consent in the possession of some person other than the owner or the owner's chauffeur.
In any questions of liability resulting from an accident, the onus is on the vehicle owner to prove that the vehicle was in someone else’s possession without their consent, at the time of the accident. The judge in Nemeth, cited Finlayson v. GMAC Leaseco Ltd., where the Ontario Court of Appeal held that vicarious liability under the Highway Traffic Act is based on possession of the vehicle, not operation. The owner of a vehicle cannot escape vicarious liability just because the person in possession of their car breaches some condition of its possession. This means, if an owner gives someone possession of their vehicle, even if that person is specifically prohibited from driving the car, the owner continues to be vicariously liable for any damages that are sustained due to a negligent driving action.
In Henwood v. Coburn, the Ontario Court of Appeal further interpreted Finlayson in the Court’s finding that if an owner’s actions expressly or impliedly entrust the physical possession of a vehicle to another person, for example, by making the car keys available, then the owner is vicariously liable for any accidents that occur in the operation of the vehicle.
The motions judge stated, when applying the Henwood and Finlayson decisions to this case, one can conclude that Wais had legal and physical possession of his father’s vehicle with the latter’s consent. Up until the time that his father had imposed a condition on driving the car (but not on the possession of the car), Wais clearly possessed the Honda with his father’s consent that he could use it to drive to work and for other reasons. Even after signing the OPCF-28 Excluded Driver Form, his father’s vehicle was still available for him to drive and eventually he took ownership of it.
The judge agreed with State Farm’s argument that the case should not be determined on whether Wais had implied consent to operate the vehicle, but rather, the fact that he continued to have access to the car keys, and physical and legal possession of the car. The only thing that changed is that he was forbidden to use a vehicle that he possessed legally. Therefore, the judge concluded that Mr. Yasin failed to prove that the vehicle was in his son’s possession without his consent. Accordingly, the court found that there are no grounds for a trial on this issue, although yet to be decided are Wais’ negligence and associated damages owing to the plaintiff.