Everyday owners routinely allow acquaintances to drive their vehicles: friends, colleagues, customers, relatives, etc. This is typically done with the owner’s consent, and as such, the owner remains vicariously liable for the driver’s errors. Contrast this with stolen vehicles where the owner is largely exempt from liability because of the absence of the owner’s consent, barring anything unusual.
The case of an absolute stranger taking your vehicle is easy because this is abject theft where the owner will typically report it as a theft to the police. But what happens when someone you know takes your vehicle for a drive without your consent?
These situations are challenging for a number of reasons. First, since the person is known to the owner, there is a strong presumption of consent. Second, when there isn’t consent, it is often following a brief verbal exchange, rather than a written exchange between the owner and the driver. Third, despite any overt anger on the part of the owner, the kinship or relationship with the driver often makes it morally difficult for the owner to report the matter as a theft with the police.
Although not exhaustive, what follows is a list of typical factors a court would consider when a vehicle is taken by someone known to the owner, starting first with a high rebuttable presumption that consent was given:
Factors when Driver is Known to the Owner
Pre-Use Conduct of the Owner and Driver
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- whether the driver used the car historically (despite the alleged ban);
- whether the keys (ownership and insurance paperwork) were physically kept away from the driver;
- whether the owner had good reason to deny the driver access to the vehicle (ie: the driver had a suspended driver’s licence, was suffering from drug and alcohol addiction, or was an excluded driver under the Owner’s Automobile Insurance Policy); and
- whether the driver had to sneak around to get access to the vehicle (ie: wait until the owner left for work, etc);
Post-Use, but Pre-Accident, Conduct of the Owner
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- whether the owner reported the matter as a theft to the police;
- whether owner attempted to contact the driver in order to instruct them to immediately park the car;
Post-Accident Conduct
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- whether the contemporaneous words of the owner and driver immediately following the accident were consistent with lack of authority (ie: did the driver blurt out something like “oh man, my mom is going to kill me because I wasn’t supposed to take the car,” etc), and whether those contemporaneous words match the position taken before the court;
- whether the owner reported the matter as a theft to the police.
Not any one circumstance is determinative.
To my mind, in situations where the owner finds out that the friend, colleague, relative, etc took their vehicle without consent, the level of outrage immediately after finding out is very important to the analysis. If the owner is just upset that the driver took the car, but otherwise resigns themselves to waiting for the driver to return to give them a scolding, I would hasten to say that the outcome is not good for the owner. By contrast, if the owner reports this as a theft to the police, or gets in touch with the driver and commands them to park the vehicle and to find alternative transportation (ie: taxi, bus, etc), it would go a long way in establishing that consent was never given.
This recent case dealt with the former situation – a person that suspected his vehicle was taken by a friend, but did nothing to stop the friend from using the car after the owner got in touch with the driver on his cell phone. Once in contact, the owner simply asked the driver to return the vehicle (para 17). To me, the analysis should end here. Although not addressed in the decision, I believe that implicit in demanding the driver (the friend in this case) to return the car is actual consent to operate the vehicle: indeed, permission, at a minimum, to operate the vehicle until it arrived home. The accident in this case occurred sometime after the owner asked the driver to bring the car home.
Clearly the owner was mad, and upset, but the owner resigned himself to wait and give the driver a scolding when he returned with the car. Put another way, the owner did not treat this as a huge violation of his property rights, he did not call the police, nor did he insist that the driver immediately decommission the vehicle. Absent that level of outrage, condemnation, and instruction to immediately desist using the vehicle, the practical reality is that the owner was okay with it, but just really upset with what occurred. Being very angry about a friend, relative or colleague taking your vehicle without your consent is typically not enough to avoid vicarious liability, in my view.
Although the court also concluded that the owner consented to his friend using the vehicle, the judge arrived at this conclusion very differently: the judge came to this conclusion by outright rejecting the owner’s testimony altogether, starting at paragraph 18:
“I find this pattern of reaction and conduct on the part of …[the owner]… to be inconsistent with what one would reasonably expect on the part of an individual who had flatly refused to lend his vehicle to a friend a short time before. On the contrary, I find … [the owner’s]… reaction and behavior to be far more consistent with a person who understood and accepted that his vehicle was in …[the driver’s]… possession with his consent. It is equally consistent with a person who had knowingly acceded in actions, conduct or words to the use of his vehicle by his friend. Had …[the owner]… greeted the request from …[the driver and another friend]… for the use of his vehicle with a flat no, then his subsequent discovery that the pair had taken the vehicle against his wishes, not just to purchase cigarettes, but for a jaunt to the casino, would have prompted and even compelled …[the owner}… to contact the police. The circumstances in which the vehicle was taken would have allowed for no other reasonable course of action.
I reject …[the owner’s]… evidence that he flatly refused the request made by …[the driver and his friend}… to use the vehicle. [The owner]… failed to provide the court with any reason for this refusal.”
I don’t believe the judge had to make a credibility assessment and reject the owner’s testimony to arrive at the conclusion that there was consent. I believe the owner’s evidence could have been accepted at face value: he said “no” to his friend when the friend asked to use the vehicle, he found out later that his friend went behind his back and took the vehicle nonetheless, and once the owner found out, the owner asked his driver friend to drive the car back to the shop: which by any yardstick is actual consent to drive the car (at least from that moment onwards).
Regardless, the problems for owners whose cars are taken by acquaintances without their consent is still a big problem mainly because of that friendship or connection. Restrictions are typically communicated very informally, nothing is written down, and when troubles arise, no one wants to report friends or colleagues to the police as thieves. So if you have someone close to you that you do not want driving your car (and have a real concern that they would be tempted to take use your vehicle), the best advice is to do the following:
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- text or email them your instructions not to drive the vehicle (ie: a written record);
- make access to the keys difficult for the person (objective evidence that consent not given);
- if the vehicle is taken, and you find out before an accident, obviously the best thing to do is call the police and report the vehicle stolen, but if for some reason you can’t take that step (morally or otherwise), then at a minimum do everything reasonably within your power to get the driver to immediately stop and park the car (call cellphone, send text and/or email, etc with clear instructions to stop and park the vehicle), and reiterate your condemnation of their behaviour in a text and email when they return the vehicle. It matters not that the car may be a thousand miles away from you or civilization when you ask them to park the car. You will have to make arrangements to get it returned, and seek to recover your costs from the errant driver;
- if the vehicle is taken, and you find out after an accident, the best thing to do is similar to above – call the police and report the vehicle stolen by the driver who took it without your consent, but if for some reason you can’t take that step (morally or otherwise), be very stern with those investigating the accident that the driver was operating your vehicle without your consent, and share the email and text exchanges you created in A), and the steps you took in B).
Naghash v. Pashahzahiri, 2023 ONSC 609
https://www.canlii.org/en/on/onsc/doc/2023/2023onsc609/2023onsc609.html