Alberta’s top court has ruled that a car owner is liable for an accident that an acquaintance got into after borrowing her vehicle — despite the fact that the accident took place after a police-imposed deadline to return it.
The decision in Mansour v. Rampersad 2022 ABCA 173 has its genesis in an accident that Roger Rampersad got into while driving a car owned by an acquaintance, Krista Pinksen. Rampersad borrowed the car from Pinksen’s husband to run a few errands with the intention of bringing it back later in the day, but he never did. Pinksen then reported the car stolen, and a police officer told Rampersad he had until 5 the next morning to return it — but after that deadline passed, he got into a collision.
Pinksen brought an application for a summary dismissal of the other driver’s claim, arguing she was not vicariously liable for the accident because Rampersad did not have her consent to drive the vehicle at the time of the accident. An Alberta Court of Queen’s Bench judge agreed, reasoning that while Rampersad may have initially had consent to drive, but that consent expired at 5 on the morning he spoke to the police (Mansour v. Rampersad 2021 ABQB 44). Rampersad was ultimately charged with six offences, including theft of the vehicle.
But the Alberta Court of Appeal ruled that violating the 5 a.m. condition did not have the effect of negating Pinksen’s vicarious liability. Justice Frans Slatter, who authored the unanimous decision, held consent cannot be terminated by the failure of a condition that was placed on that consent.
“Since the consent cannot be terminated in that way, the consent continued to exist at the time that the loss or damage occurred. Stipulating that consent cannot be given conditionally does not mean that consent can never be withdrawn or terminated,” he wrote in the decision, which was released May 11. “There is no doubt that the owner of the car can withdraw consent, whether it was implied or express, but in law it cannot have the effect of turning consent into conditional consent. What cannot be done is to place a condition on the consent such that the consent will expire if the condition is not met, whether that condition is imposed before or after the driver actually takes possession of the vehicle.”
Any temporal limit on consent is ineffective, Justice Slatter wrote.
“If the owner gives the driver consent to have possession of the vehicle for a fixed period of time, say 24 hours, the owner remains liable even if the driver keeps possession of the vehicle after that time,” he wrote. “There is no difference between consenting to possession based on a condition that will terminate the consent and terminating actual consent by imposing a condition after the fact. Revoking consent by imposing a condition after the fact is in substance the creation of conditional possession, not the revoking of consent.”
Colin Roberts of Calgary’s Roberts Law, who represented Rampersad, said the decision reflects a movement by courts towards absolute liability for motor vehicle owners unless the vehicle is actually stolen.
“Situations where you can avoid vicarious liability when it is your car and you give another person the keys are getting very slim,” he said. “This judgment is somewhat bizarre in that the police officer phoned Rampersad and told him to bring back. When he didn’t bring it back that might be the point at which the owner has done everything they can, but the court said that didn’t make a difference.”
The movement towards absolute liability is meant to protect the public and fits in with mandatory insurance schemes, said Roberts.
“The old-fashioned view of the car is that it is your chattel, and you can choose to do whatever you want with it. If you tell someone not to do something then you should be able to avoid liability for it,” he said. “But in the last 10 years or so the courts have been saying you can’t make conditions — if you give someone your keys, you are responsible.”
Counsel for Pinksen did not respond to a request for comment.
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Originally printed TheLawyersDaily.ca.