In Joseph v. Coxall-Mejia et al, 2021 ONSC 2508, the court granted summary judgment to the owner of an automobile and the owner’s insurer because the defendant driver did not have consent to possess the automobile. The driver was the son of the owner.
The plaintiff went to visit the son. The son asked his mother if he could drive the plaintiff home. His mother said no. After his mother went to sleep, the son went into her bedroom and found the keys to the car after searching for five to 10 minutes.
The son ended up driving the plaintiff home and was involved in a serious accident. At the time of the accident, the son had a G1 driver’s licence which meant that he could only drive if accompanied by a licenced driver. On previous occasions, the son had driven his mother’s car but was always accompanied by his mother.
Section 192(2) of the Highway Traffic Act provides that an owner of a motor vehicle is not liable if the motor vehicle was in the possession of another person without the owner’s consent.
Further, section 1.8.2 of the standard Ontario Automobile Policy indicates that there is no coverage if the automobile is used or operated by a person in possession of the automobile without the owner’s consent.
The owner has the onus of proving that the vehicle was in the possession of another person without the owner’s consent.
Justice Belobaba noted that previous caselaw has indicated that a person may be found to have permitted possession of a vehicle if they failed to take reasonable precautions to prevent an incident from occurring. In addition, tolerant, indulgent, or ineffective control over an irresponsible family member can lead to an inference of implied consent.
In the case at bar, the son had never previously attempted to take the car without his mother’s consent. The mother routinely hid her keys in her bedroom because she did not trust her teenage children. The mother had explicitly denied her son’s consent to take the car on the evening in question. The son knew that he could not drive unless accompanied by a fully licenced driver, and he acknowledged that he made a “poor decision”.
Justice Belobaba concluded that the defendants had proven that the son took his mother’s car without her express or implied consent. Therefore, the action was dismissed as against the mother and the mother’s insurer.