Most of us trust our automobile insurance to protect us in the event we are injured while traveling in our car, or hit by another drive. Insurance can even extend to people who have borrowed your car with your permission. But what about if someone is using your car without permission, or after you’ve expressly revoked permission? This was the situation in a recent case heard by the Alberta Court of Queen’s Bench.
Friend borrows car, but fails to return it
The event leading up to the litigation started when a man (“RR”) visited the home of “KP” and her husband. The two knew each other through KP’s employer.
On May 8, 2015, RR visited KP’s home. She was away at the time, and her husband lent RR KP’s car so he could run some errands. RR said he would return the car to their home later that day. However, the end of the day came and went without the return of the car.
Over the next two days, KP attempted to contact RR by phone and text message. Her attempts to reach him were not successful, though. As a result of this, the police were called and the vehicle was reported as stolen. The police visited the home of RR later that evening. RR told the police he did not have the vehicle at that time, but it was parked in another city and would be returned. The police gave RR until 5:00 am on May 12 to return the car. KP was on the phone with police during that conversation and she agreed to let RR return the vehicle as per the police officer’s instructions.
The deadline passed without the return of the vehicle, at which point it was registered as stolen in the police database.
The following day RR was involved in a collision and was charged with 6 offenses, including theft. The main question before the court was whether RR had permission to drive the vehicle.
What is consent, and was it terminated?
Alberta’s Traffic Safety Act imposes vicarious liability on the owner of a vehicle in situations where it is being operated by another person. One of the conditions is that the driver “was in possession of the motor vehicle with the consent, expressed or implied, of the owner of the motor vehicle, is deemed, with respect to that loss or damage, (c) to be the agent or employee of the owner of the motor vehicle.”
The court spent some time discussing the nuances of consent, and how it can be express or implied and is determined through a mix of subjective and objective factors. One section of the Act states that consent can be terminated when a person may have possession of the vehicle, but that conditional consent is not permitted.
It was RR’s position that the revocation of consent as of 5:00 am on May 12 was a condition and therefore unenforceable. The court did not buy this, though, stating “I find that clear, unequivocal, and unambiguous express termination or revocation of consent to drive is effective, even if made in advance.” The court stated that there was a clear difference between creating a condition to consent by imposing a time or location restriction, which would not be allowed, and the revocation of consent after a period of time has passed.
In this case, RR had express consent to drive on May 12, 2015. The “consent switch” was turned “off” at 5:00 am that day, after which point, RR did not have consent to drive the car.
As a result of these findings, liability for the accident could not be imposed on KP.
At HMC Lawyers our Insurance Team has decades of collective experience and a deep, thorough understanding of potential risks as well as legal issues that commonly arise. We understand the importance of risk management, especially when it comes to questions of insurance coverage and strive to provide our clients with certainty by helping them identify and avoid potential problems wherever possible. To discuss an insurance coverage matter or related dispute, call 1-800-480-3534 or contact us online.