The British Columbia Court of Appeal recently released its decision in Megaro v Insurance Corporation of British Columbia[1] (Megaro). It is well-established law that vehicle owners are vicariously liable for individuals that they allow to operate their vehicles. However, an unusual set of facts recently led to a decision that a vehicle owner was liable for an accident caused by an unidentified driver in his vehicle.
Facts
The insured Defendant, Mr. Vanstone, drove himself and three friends, “Vish”, “Scott” and “Taylor”, to a nightclub in Vancouver, British Columbia. At the end of the night, Mr. Vanstone gave his car keys to Vish and left in a taxi. Mr. Vanstone’s car was later involved in a serious accident, injuring the Plaintiff, Mr. Megaro. The driver of Mr. Vanstone’s car fled the scene and was never identified.
At trial, the Judge determined that the unidentified driver of Mr. Vanstone’s vehicle was solely at fault for the accident. Mr. Megaro’s injuries were assessed at $1,546,081 and the trial Judge found Mr. Vanstone, as the owner of the vehicle, was vicariously liable under section 86 of the Motor Vehicle Act.[2] ICBC appealed the trial Judge’s decision with respect to, among other issues, the finding of vicarious liability.
In a unanimous decision, the British Columbia Court of Appeal upheld the trial Judge’s decision. In order to find a vehicle owner vicariously liable for an accident, the plaintiff must prove that the owner gave consent to the driver to operate the owner’s vehicle. Mr. Vanstone argued that he could not have given consent to the driver because the driver is unidentified. The Court of Appeal disagreed.
In assessing vicarious liability, consent can be either express or implied. Mr. Vanstone handed his keys to Vish, while in the presence of Scott and Taylor. The trial judge determined that either Vish, Scott or Taylor were the driver on a balance of probabilities and that Mr. Vanstone gave implied consent for any one of them to drive his vehicle. The test for implied consent comes from the Supreme Court of Canada’s decision in Palsky v Humphrey.[3] Consent is implied whenever it is clear that had it been sought, it would have been granted as a matter of course. The trial judge determined that Mr. Vanstone was willing to allow any one of his friends to drive and would have given consent as a matter of course to any of them. Therefore, even though it is unclear who was driving, Mr. Vanstone had given implied consent to all of the possible drivers.
Further, evidence was adduced that Mr. Vanstone attempted to engineer a cover-up, by pressuring his girlfriend to lie and stating to another witness that the car was stolen. The trial judge drew an inference from Mr. Vanstone’s deception that supported the finding that he had either given express or implied consent to the driver. The Court of Appeal confirmed that this defensive deception entitled the trial judge to draw a negative inference against Mr. Vanstone.
Takeaways
Vehicle owners can takeaway three lessons from the Megaro decision. First, it is well-established law that vehicle owners are vicariously liable for accidents caused by drivers that they permit to operate their vehicles. Second, vehicle owners will be vicariously liable, even when the driver’s identity is unknown, if the vehicle owner gave consent to all of the possible drivers. Finally, always be truthful if you are involved in an accident. Attempting to cover-up an accident through deception may result in a negative inference being drawn against you with respect to your guilt and culpability.
[1] Megaro v Insurance Corporation of British Columbia, 2020 BCCA 273.
[2] Motor Vehicle Act, RSBC 1996, c 318; The Alberta equivalent of this section is the Traffic Safety Act, RSA 2000, c T-6 at s 187(2).
[3] Palsky v Humphrey, [1964] SCR 580, 45 DLR (2d) 655.
