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Terminating Consent to Drive in Advance, Not a Condition

21-Jan-21

by Anthony Espejo & Richard Wong

 

The Court in Mansour v Rampersad, 2021 ABQB 44 clarified that an owner of a motor vehicle may terminate the express consent of another to drive and possess a vehicle in advance and at a specific point in time. This protects vehicle owners in situations where there is no other practical option but to terminate consent in advance at a specified time.

Where another individual is driving and in possession of the owner’s vehicle with consent, the Traffic Safety Act holds the owner vicariously liable for the actions of the driver.

The law is clear that consent (either express or implied) cannot be conditional.

An exception to the rule against conditional consent is that an owner can impose a condition that possession cannot be passed onto a third party.

The Master found express consent to drive and possess a vehicle continues until it is returned.

On Appeal, the Court confirmed that but for the third-party exception, consent to drive a vehicle is like an on or off switch – either it exists without conditions or it does not exist at all. The owner is deemed to accept the risk that the driver might cause an accident or operate the vehicle in an unsafe or unwanted way. A driver’s failure to comply with the owner’s imposed policies (i.e., conditions) are ineffective as a defence to excuse the owner’s vicarious liability.

However, the Court recognized, “[t]here is a notable difference between creating a condition to consent by imposing a time or location restriction, and revoking consent after a period of time has passed.” In this case, consent was expressly terminated at a specific point in time.

The Appellant, Ms. Pinksen, knew the Respondent, Mr. Rampersad, from his participation in a program through the Hope Mission, her employer. Mr. Rampersad stayed at Ms. Pinksen and her husband, Barry’s, home on May 8, 2015. Ms. Pinksen was out of town on May 9, 2015, when Barry gave consent to Mr. Rampersad to possess and drive the vehicle. Mr. Rampersad agreed to return the vehicle to Barry later that same day. He did not do so.

Ms. Pinksen attempted to contact Mr. Rampersad by telephone and text message between May 9 and 10 but did not receive a response. On May 11 Ms. Pinksen reported the vehicle stolen to the police. A police officer attended Ms. Pinksen’s home shortly before midnight on May 11 and contacted Mr. Rampersad by phone just after midnight on May 12. Mr. Rampersad did not have the vehicle at the time of the call. The officer gave Mr. Rampersad until 5:00 a.m. on May 12 to return the vehicle, failing which it would be listed as stolen in the police database. Ms. Pinksen was present during the call and agreed to Mr. Rampersad returning the vehicle as specified by the officer.

Mr. Rampersad did not return the vehicle as specified and Ms. Pinksen reported it as stolen. Mr. Rampersad was in a collision with Mr. Mansour on May 13 at about 2:30 p.m. Mr. Rampersad was charged with 6 offences including theft.

The Court found that Ms. Pinksen gave Mr. Rampersad express consent to drive on May 12,. Her express consent for Mr. Rampersad to return the vehicle back to her house ‘turned on’ consent, without conditions attached. If Mr. Rampersad were in an accident while driving between midnight and 5:00 a.m. on May 12, regardless of whether he was driving the vehicle to return it to Ms. Pinksen or not, the Court confirmed that she would be held vicariously liable.

However, Mr. Rampersad was expressly told to return the vehicle by 5:00 a.m. or it will be considered stolen. In other words, “return the vehicle and your consent to drive is terminated; or if you do not return the vehicle your consent to drive is terminated.” The Court found that in either case, as of 5:00 a.m. on March 12, 2015, the consent switch was ‘off’. As such, Mr. Rampersad was driving and in possession of Ms. Pinksen’s vehicle without her consent at the time of the accident.

This case clarifies a gap in the law regarding the circumstances of when express consent may be terminated. There was nothing further Ms. Pinksen could have done to discharge her responsibility as an owner and to terminate consent, which was expressly communicated in advance to Mr. Rampersad. Had the Master’s decision not been overturned, Ms. Pinksen would have been held vicariously liable for Mr. Rampersad’s negligence indefinitely until he decided to return the vehicle on his own accord, if ever. In this regard, the Judge allowed the appeal and dismissed the claim against Ms. Pinksen.

Should you have questions regarding the information above or any other insurance and risk management matter, please feel free to contact any member of our Insurance & Risk Management Practice Group.

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