Be Careful Where You Leave Your Car Keys: Express And Implied Consent In The Context Of Vicarious Liability

• Law Firm: McLeish Orlando LLP
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Author: Mr Brandon Pedersen and Cody Malloy (Summer Student)
• Published date: 07 February 2023

Naghash v. Pashahzahiri, 2023 ONSC 609

This recent decision focuses on the rebuttable presumption that a vehicle in the possession of somebody other than the lessee has the consent of the lessee. If the lessee cannot rebut this presumption, the lessee is vicariously liable for any damage caused by the operation of the motor vehicle. Consent can be either express or implied.

In this case, MG had rented a motor vehicle on or about July 3, 2017. On July 5, 2017, MG parked the rented vehicle outside of his mechanic shop. MG left the keys hanging on a board near the shop office. AM (friend of MG) asked MG if him and VP could borrow the car that MG had rented. MG claimed he said "no". VP drove away in the vehicle with AM as a passenger shortly thereafter. While VP was driving the rented vehicle, a collision occurred.

The issue before the court was whether MG had given express or implied consent for AM and VP to use the vehicle. If express or implied consent had been provided, MG would be vicariously liable for the damages caused by VP's operation of the vehicle.

Evidence

MG's position was that he did not provide express or implied consent to AM and/or VP to use the rented vehicle. MG testified that on July 5, 2017, he parked the rented vehicle in a parking lot adjacent to the shop, and he left the keys hanging on a board in the shop near the office where both employees' and customers' keys are kept. MG knew AM for two years at this point but had never met VP. AM and VP came by the shop in the evening of July 5, 2017. AM asked MG if they could borrow the vehicle, to which MG replied "no". A few hours later, MG was about to go home but he noticed the keys and vehicle were missing. MG called AM, and AM advised that him and VP had borrowed the car. MG decided to stay the night at the shop. The next day, AM advised MG that the vehicle had been involved in a collision.

The Law

Section 192(3) of the Highway Traffic Act places a rebuttable presumption on the lessee of a vehicle:

A lessee 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 lessee's consent in the possession of some person other than the lessee or the lessee's chauffeur.

Justice McCarthy outlined the following with respect to consent to use or operate a vehicle:

• Consent is an issue to be determined by the trier of fact -...