The vehicle, however, was not rented to the Plaintiff s brother, but rather his mother. The rental

As I ve previously written tour guides for manta ecuador , section 86 of the Motor Vehicle Ac t makes owners or lessees of vehicles responsible for any damage or loss caused by the operation of their vehicle by an individual to whom consent was given.
Reasons for judgement were released today by the BC Supreme Court interpreting the meaning of consen t .  In today s case ( Morris v. Morris ) the Plaintiff was injured tour guides for manta ecuador when riding as a passenger in a vehicle driven by his brother.  The vehicle was rented from Enterprise Rent-A-Car.   The Plaintiff sued the driver and the rental car company.
The vehicle, however, was not rented to the Plaintiff s brother, but rather his mother.  The rental contact stated No Other Driver Permitted .   Despite this restriction, after renting the vehicle the Plaintiff s mother let the Plaintiff s brother drive the vehicle.
The issue at trial was whether, in these circumstances, Enterprise Rent-A-Car could be held liable as registered owner.  A recent tour guides for manta ecuador case (McEvoy v. McEachnie) held that a registered owner can be held liable in similar circumstances ( click here to read my summary of the McEvoy case).  In today s case, however, Mr. Justice Cole refused to follow the precedent set in McEvoy finding that the judge in that case failed to consider binding authority .  In finding the rental company tour guides for manta ecuador not liable as having not consented to the driver operating the vehicle Mr. Justice Cole summarized the law and distinguished tour guides for manta ecuador the McEvoy tour guides for manta ecuador case as follows:
[31] The most recent case from British Columbia dealing with the interpretation of implied consent under s. 86 of the Act, and the plaintiff argues I am bound by that decision, isMcEvoy v. McEachnie, 2008 BCSC 1496 [McEvoy]. In that case, a father gave his daughter consent to drive his vehicle tour guides for manta ecuador but made it expressly clear that no other drivers were permitted. The daughter subsequently allowed her friend to drive the vehicle, because she was intoxicated, and an accident ensued. In finding the father liable, the Court appliedBarreiro, a case where a rental car employee consented to a vehicle being rented by an underage driver, contrary to company procedure, and interpreted it, at para. 32, to stand for the proposition that:
[32] so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party's possession of the car. That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.
[32]         The Court in McEvoy concluded tour guides for manta ecuador that, except for the fact that the father did not obtain a financial benefit from the friend's possession of the vehicle, the case was not distinguishable from Barreiro. In the present case, other than the fact that the agreement forbidding other drivers was written, rather than oral, the facts cannot be distinguished  from McEvoy. Enterprise freely gave the keys to Ms. Kauth, she freely gave the keys to Mr. Morris, despite expressly agreeing that there would be no other drivers. Enterprise would, on the logic of McEvoy, be taken to have consented to Mr. Morris' possession of the vehicle and therefore, Enterprise would be vicariously liable pursuant to s. 86 of the Act for any liability that Mr. Morris may have for this accident.
[33]         On its face, it would appear that this decision would be binding on this Court, because the facts cannot be differentiated merely because the agreement in McEvoy was oral and not written. In Hansard, Spruce Mills Ltd., Re (1954), 4 D.L.R. 590 at 592, 13 W.W.R. (N.S.) 285 (B.C.S.C.) [Hansard], the Court held that a trial judge should follow the decisions of his brother judges of the same court unless tour guides for manta ecuador subsequent decisions have affected the validity of the impugned judgment; it is demonstrated that some binding tour guides for manta ecuador authority in case law or some relevant statute was not considered; tour guides for manta ecuador or the judgment was unconsidered, where an immediate decision is given without the opportunity to fully consult authority. If none of these situations exist, barring tour guides for manta ecuador a distinguishing feature between the facts, a court would be correct in following decisions of a court of the same level.
[34] On the basis of the test set out in Hansard, McEvoy in my view is not binding on this Court as it failed to consider binding authority. In Godsman, Smaldino, Prasad and Louisthe Court refused to find consent where it would not have been given in the circumstances. tour guides for manta ecuador McEvoy overlooks these decisions and does not consider this test.
[35] The Court instead held the father liable because they interpreted Barreiro to mean that if keys are transferred by free will to the daughter, the father is deemed to consent to subsequent transfers of possession including tour guides for manta ecuador his daughter's friend's possession. However, in Barreiro the company transferred possession to the rental car employee tour guides for manta ecuador and gave the employee the authority tour guides for manta ecuador to transfer possession to people wishing to rent the vehicle. Therefore the employee had authority to transfer the vehicle subject to following proper procedures, but in McEvoy tour guides for manta ecuador the daughter lacked authority to transfer the vehicle.
[36] Furthermore, the Court in McEvoy relied upon Morrison to support the finding of consent. In Morrison, consent was given subject to conditions upon the authorized driver, namely that the company tour guides for manta ecuador vehicle was not to be operated by an employee for personal use. These conditions were breached, but the Court held that the conditions did not vitiate the consent. In McEvoy, the Court interpreted "no other drivers" as a condition. However, in my view there is a distinction between no consent at all and consent subject to conditions. The Court should first find implied consent exists on all the circumstances and then apply Morrison tour guides for manta ecuador to any conditions added to that implied consent: tour guides for manta ecuador K.T. v. Tran, 2007 ABCA 13, 280 D.L.R. (4th) 142 .
[37] Had the Court in McEvoy considered Godsman, Smaldino, Prasad and Louis, the result may have still been the same on the second ground for finding consent, stated by Mr. Justice Rogers, but not on the first. Based on Godsman, Smaldino, Prasad and Louis, consent tour guides for manta ecuador can only be implied tour guides for manta ecuador if it would have been granted as a matter of course in the circumstances. In McEvoy, the father's purpose in telling the children to not let others drive his cars was not to limit his statutory liability as the car's owner, but because he trusted his kids but not their friends and he wanted to keep his children and his cars safe. It could be argued that the father in McEvoy would have consented in the circumstances to the friend driving because tour guides for manta ecuador his daughter was intoxicated and he would want the car and his daughter home safely. tour guides for manta ecuador On the present facts, like in Prasad, it is hard to imagine that Enterprise would have given consent in the circumstances.
[38] The trend in our jurisprudence tends to be more restrictive than the broad policy approach that is taken in some United tour guides for manta ecuador States jurisdictions and in some degrees by the Alberta courts. I am satisfied that the test for implied consent in British Columbia is whether the owner would have consented in the circumstances:  Godsman, Smaldino, Prasad and Louis. Based on the facts of the present case, there was no express consent given by Enterprise to Mr. Morris and in my view, it is clear that consent would not have been given in the circumstances. tour guides for manta ecuador Enterprise did everything possible to limit its liability and if its liability is to be extended in any event, to prefer the protection tour guides for manta ecuador of third parties, then that is the job of the Legislature to rewrite the wording of the statute.
I understand that the McEvoy case is going to be heard by the BC Court of Appeal in the near future and the law of consent with respect to registered owner liability should hopefully be more clear after they weigh in on this issue.
Tags: consent , express consent , implied consent , lessee liability , McEvoy v. McEachnie , Morris v. Morris , Mr. Justice Cole , Registered owner liability , s. 86 motor vehicle act , vicarious liability
This site is created by MacIsaac & Company, a British Columbia Personal Injury Lawfirm. This website is not affiliated in any way with the Insurance tour guides for manta ecuador Corporation of British Columbia (ICBC).This web site is made possible through funding provided by the British Columbia law firm MacIsaac and Company. bc-injury-law.com is designed to empower individuals to better understand their ICBC Claim and the process involved in dealing tour guides for manta ecuador with ICBC. This web site is offered for information only and is not claim-specific legal advice. Use of the site and sending or receiving information through it does not establish a solicitor / client relationship. Links to and from this website do not state or imply a relationship between MacIsaac and Company and the linked entity.