The Court of Appeal found that imposing a condition on a driver related to the possession of a vehicle after it has been loaned is conditional possession, not the revoking of consent. The failure of the driver to meet the condition (in this case to return the vehicle by the specified time) does not have the effect of negating the vicarious liability of the vehicle’s owner – Mansour v. Rampersad, 2022 ABCA 173 (CanLII)
In Mansour v Rampersad, 2022 ABCA 173 (CanLII), the vehicle was loaned to the driver by the owner’s husband to run some errands and was to be returned later that day. When the vehicle had not been returned two days later, the owner called the police. The police contacted the driver by telephone and advised the driver, with the owner’s agreement, that he must return the vehicle by 5:00 am or it would be reported as stolen in the police database. The vehicle was not returned by 5:00 am and the owner reported it as stolen. After the deadline had passed, the driver was in a motor vehicle accident involving the plaintiff.
The owner applied for summary dismissal of the plaintiff’s claims against her, arguing that she was not vicariously liable as the driver did not have her consent to drive the vehicle at the time of the accident.
The Master in Chambers found that the owner had given the driver permission to take the vehicle and dismissed the owner’s application. The owner appealed and the Chambers Judge found that the driver initially had consent to drive the vehicle but that consent expired at 5:00 am, at which point the driver was driving the vehicle without consent. The Chambers Judge found that there was a difference between creating a condition to consent by imposing a time or location restriction and revoking consent after a period of time had passed.
The Court of Appeal disagreed with the reasoning of the Chambers Judge, finding that withdrawing consent while the vehicle is in the possession of another person is legally equivalent to giving consent subject to a condition under which consent will be revoked. The Court of Appeal referred to several cases in which it was established that conditional consent is impermissible and does not have the effect of negating vicarious liability.
The driver had the conditional consent of the owner to have possession of the vehicle until 5:00 am. The failure of the driver to comply with the condition did not negate the owner’s vicarious liability. The appeal was allowed and the summary judgment was set aside.