Collision Damage Waiver for Rental Vehicle Invalidated

In Enterprise Rent-A-Car v. Richards, 2019 ONSC 5201, the defendant rented a minivan and purchased an optional Collision Damage Waiver.

The vehicle was involved in an accident. The defendant’s son was driving the vehicle with the defendant as a passenger. The son was not an authorized driver under the rental agreement and his licence was suspended.

The defendant provided evidence that she did not give permission to her son to drive the vehicle. She had been extremely tired and had stopped for gas. After paying for the gas, she found her son in the driver’s seat, and he refused to get out of it. She could not prevent him from driving the vehicle.

The Collision Damage Waiver did not apply if the vehicle was damaged when used or driven by any person other than the renter or an authorized driver without the owner’s written consent, or when driven by a driver with a suspended license.

Due to this, Justice Raikes found the defendant to be responsible for the damage to the vehicle. Once the son got behind the wheel of the minivan and put it in gear, the Collision Damage Waiver was invalidated, regardless of whether or not the son had his mother’s permission.

The plaintiff rental car company sought damages of approximately $35,000. It relied on written estimates of the cost of repair and the value of the vehicle, which were appended to a law clerk’s affidavit. The authors of the estimates did not swear affidavits.

Justice Raikes indicated that the estimates are opinion evidence and that such evidence “cannot be put before the court as an exhibit to a law clerk’s affidavit with none of the required badges for admissibility of expert evidence in place”. In addition, no evidence had been provided on the salvage value of the damaged vehicle.

Justice Raikes concluded that the amount payable needs to be addressed on full and proper evidence. A separate hearing for an assessment of damages was ordered.