Vicarious Liability of Motor Vehicle Owners of ATV’s
This Court of Appeal decision was an appeal of a motion for summary judgment regarding the vicarious liability of a motor vehicle owner for the negligence of a person who has possession of the vehicle with the owner’s consent. The case involved a plaintiff who was seriously injured while a passenger of an all-terrain vehicle (ATV) that rolled over on a highway. The ATV driver was given the keys to the ATV by the owner and was advised to try it out. The owner’s cousin advised the ATV driver not to leave the owner’s property with the ATV. At issue was the proper interpretation of s. 192(2) of the Highway Traffic Act, which states that a vehicle owner is liable for the negligent behaviour of the vehicle’s operator if the operator’s possession has been consented to.
The motions judge found that the ATV owner had permitted the driver to possess the ATV and did not impose any restrictions on her use of same. The motions judge also ultimately followed a long line of prior case law finding that the owner’s consent to possess a vehicle made the owner vicariously liable for the driver’s subsequent actions. The owner’s insurer appealed the motions judge’s decision on the basis that the judge did not follow the Court of Appeal’s previous decision in New and Newman v. Terdik,  O.R. 1 (C.A.) (“Newman”) and erred in concluding that the owner consented to possession at the time of the accident, in the absence of an express prohibition against taking the ATV off the owner’s property.
On appeal, a five-judge panel of the Court of Appeal set out to clarify this murky area of law. The court re-affirmed the motions judge finding of fact that the ATV owner did not forbid the driver from driving the ATV on the highway and took no steps to stop the driver after he had learned that she had driven off his property. The court found that while there is a “subjective” element with respect to “possession”, a driver’s subjective belief that he or she has consent to drive is not the sole determining factor. The court ultimately concluded thatNewman was wrongly decided and confirmed the long line of authority stating that if an owner consents to possession, he or she will be vicariously liable for a driver’s actions even if there is a breach of condition imposed by the owner regarding the use or operation of the vehicle.
Click here to read original posting through the Ontario Bar Association.