Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Garrioch v Sonex Construction Ltd., 2017 ABCA 105

AREAS OF LAW:   Torts; Motor vehicle accident; Vicarious liability; Consent of owner

~ Under s. 187 of the Traffic Safety Act, a vehicle owner’s vicarious liability extends only to the person to whom the owner gives consent to possess the vehicle. The owner is not vicariously liable for the actions of any third party to whom that person might then give the vehicle.~

BACKGROUND:

The Appellant, Sonex Construction Ltd., owned a truck which was being driven by a Mr. Tessman when it was involved in a single vehicle rollover accident. At the relevant time a Mr. Otto was the Appellant’s supervisor, and he had given possession of the truck and its keys to the Respondent, Dustin Garrioch, a Sonex employee. Mr. Otto did not know that the Respondent did not have a driver’s licence. However, the day before the accident a local farmer reported that he’d seen one of the Appellant’s trucks being driven irresponsibly. The trial judge concluded that the Respondent was driving at the time and that Mr. Otto became aware of this fact but left the Respondent in possession of the truck. The Respondent then gave possession of the truck to Mr. Tessman, who was staying with him at a hotel. Mr. Tessman had been an employee of the Appellant but the parties disagreed on whether he was at the time of the accident or not. There were five other people in the truck with Mr. Tessman, including the Respondent, when he lost control of it on the highway and rolled it several times, injuring the passengers. The Appellant had a “designated driver” policy, and the judge found that the Respondent was the designated driver of the truck. The evidence did not suggest that Mr. Otto had given the Respondent express permission to allow others to drive the truck. The trial judge accepted that by giving possession to the Respondent, the Appellant implicitly gave the Respondent consent to pass possession of the truck to third parties like Mr. Tessman. Having so determined, the judge found that Mr. Tessman was the agent and employee of the Appellant. This meant that the Appellant was vicariously liable for the losses and damage he caused.

APPELLATE DECISION:

The appeal was allowed. The main issue on appeal was whether Mr. Tessman was operating the truck with the Appellant’s consent. While at common law the employer is liable for the torts of an employee committed in the ordinary course of employment, the Appellant’s alleged liability in this case arose from the provisions of the Traffic Safety Act. Section 187 of that Act provides that a person in the possession of a motor vehicle with the express or implied consent of its owner is deemed to be the owner’s agent or employee with respect to any loss or damage the person causes while driving it. The common law element of “in the ordinary course of employment” is absent from the statute. Furthermore, consent under s. 187 is unconditional. Failure to comply with a policy or condition cannot terminate possession with consent. However, upon reviewing the jurisprudence, the majority concluded that a third-party driver exception is permitted because the statute says it should be permitted. The only condition the statute expressly allows the owner to place on his vicarious liability is consent. If a third party wants to possess the vehicle, that party must obtain the owner’s consent, not the second party’s. In the majority’s words, “just because the owner consents to one driver having possession of his vehicle does not mean that the owner consents to the whole world having possession.” The majority also found the trial judge erred in considering as relevant Mr. Tessman’s subjective view regarding whether he had consent to drive, as well as whether the Respondent had consented to Mr. Tessman driving. The only relevant consent was the Appellant’s, and it was not given.

Mr. Justice Berger dissented. In his view, the trial judge was under no misapprehension of the facts, and her reasonable inferences from the evidence and findings of fact amply supported her conclusion that the Appellant impliedly consented to Mr. Tessman operating the vehicle. He would have dismissed the appeal.

Counsel Comments provided by Connor Glynn, Counsel for the Appellant:

“This case arose from a single vehicle rollover accident in May 2004. Four separate personal injury claims were advanced. The issue of consent was at the forefront from the early days of the litigation and consumed all of the efforts of counsel on both sides. Despite the accident occurring in 2004, no Questionings with respect to the injuries and quantum of any of the plaintiffs ever took place. The trial and ensuing appeal was solely on the issue of negligence of the driver and whether the owner was vicariously liable for that negligence by having given implied consent to the operator.

The Court of Appeal took the opportunity to clarify what was a confusing and muddled state of the law in Alberta with respect to consent. The earlier companion decisions (Ireland v. Perez and T.(E.) Estate v. Tran) essentially offered six different decisions in the two cases from the three Justices. It was conceded by the Court of Appeal that this “complicates the analysis”.

The appeal was based on two distinct grounds. The first was that the trial judge had missed or ignored a number of key pieces of evidence which, if addressed, would have likely rendered a different result at trial. The second was the interpretation of the case law and the examination required with respect to assessing if there is implied consent. The Court of Appeal focussed on the interpretation of the case law which, if applied properly to the evidence, would have rendered a finding of there being no consent. This permitted the Court of Appeal to reverse the trial judge’s findings and avoid ordering a new trial.

Although the panel was split 2-1, the dissent of Justice Berger agreed with the majority on the interpretation of the law. The dissent was based on the assessment that the Trial Judge had properly determined on the facts that consent had in fact been given to the third party borrower.

This case has further value with respect to the allegation of negligent entrustment. The Court of Appeal comes very close to stating that negligent entrustment is not a recognized tort in Alberta.”