The Rebuttable Presumption Of Implied Consent In Motor Vehicle Accidents When The Vehicle Was Taken By Someone Else

• Published date: 28 June 2023
• Subject Matter: Transport, Rail, Road & Cycling
• Law Firm: Devry Smith Frank LLP
• Author: Devry Smith Frank LLP and Tijana Potkonjak

Under Section 192(3) of the Highway Traffic Act, when you rent a motor vehicle, you are ultimately responsible if you lend that vehicle to someone else. If the other person took it without your permission, you are not liable for that person's negligence. But what if you did not explicitly provide permission for the other person to take the vehicle but the evidence suggests that your consent was implied?

The Naghash case is crucial in widening the scope of what "implied consent" is in determining whether an owner of a motor vehicle or a person who leased a vehicle is liable for damages caused by operating the vehicle. In brief, the evidence must be able to rebut the presumption that a vehicle is in the possession of somebody other than the owner or the person leasing the vehicle with his or her consent. If a defendant is unable to rebut this presumption, he or she will be liable for any loss or damage caused by negligently operating the vehicle.

Background

On or about July 5, 2017, the defendant Mohammad Ganjikhany ("Mohammad") parked his rented vehicle outside the mechanic shop and left the keys hanging on a board near the shop office.¹ The plaintiff Ali Mehraein ("Ali"), a friend of Mohammad, and the other defendant Vahid Pashahzahiri ("Vahid") asked Mohammad if they could borrow the car that Mohammad rented.² Mohammad claimed that he said no.³ Ali and Vahid drove away in the rented vehicle with Ali as the passenger.⁴ A collision occurred while Vahid was driving Mohammad's rented vehicle.⁵

The issue for determination at the Ontario Superior Court of Justice was whether Ali had Mohammad's express or implied consent to possess the vehicle at the time of the accident. If the Ontario Superior Court found that there was consent, then Mohammad would be vicariously liable for any loss or damage caused by Vahid.

The Law

In Ontario, the courts presume that an individual who has possession of a vehicle that is owned or leased by another person has that person's consent to possess the vehicle. If that presumption is not refuted, then the owner of the vehicle or the person who leased the vehicle will also be liable for any loss or damage caused by any negligent operation of the vehicle.⁶ Whether or not a vehicle is in the possession of some other person with the consent or implied consent of the lessee is a question of fact to be determined by the evidence of the case.⁷ If a vehicle is in the possession of a person with the owner's consent, the owner is liable...