A mom forbids her son from driving her car. Why she was found vicariously liable for his crash

Even if your clients forbid their children from driving the car, they can still be found vicariously liable for an accident if they surrender possession of the car to their children, the Ontario Superior Court has confirmed.

Surrendering possession of the car to a child, even while prohibiting them to drive it, is considered to be “implied consent” to drive the car, the court confirmed in Eden v. Levasseur.

“An owner’s vicarious liability under s. 192 of the HTA [Highway Traffic Act] is based on possession, not operation of the vehicle,” Ontario Superior Court Justice John McCarthy writes in a decision released Mar. 17. “An owner may be vicariously liable if she consents to another individual possessing the vehicle, regardless of whether she consents to that person operating the vehicle.”

Matthew Levasseur is the son of Patricia Mason. Matthew was the unlicensed driver of a 2001 Volkswagen Jetta owned by Patricia during the time of a single-vehicle accident on Thunder Bay Road at or near Fort Erie in December 2017.

Christopher Eden was a passenger in the vehicle at the time of the accident. He sued Matthew, Patricia, Patricia’s auto insurer, Aviva Canada, and a sports bar, seeking damages for personal injuries. The parties agreed to a settlement.

In Eden, the question was: whose auto insurer had to pay the settlement? Patricia’s or Eden’s?

Aviva Canada insured the mother, Patricia, who owned the car. Heartland Farm Mutual insured the injured passenger, Eden.  

Heartland said Aviva should have to pay the settlement, since Patricia had given implied consent for her son Matthew to drive the car; she was therefore vicariously liable for the crash. She did this by giving possession of the car to Matthew, even if she forbade him from driving it.

The court found several indicators that Patricia had surrendered possession of the vehicle to her son Matthew.

For example, she bought the vehicle from Matthew’s friend, Darin Griem, in September 2017. Matthew gave Patricia the money to buy the vehicle. At the time of purchase, Patricia understood that the vehicle was not roadworthy.

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Patricia bought the vehicle to give Matthew something to work on with Darin, the court found. Matthew’s father had recently drowned, and Matthew was suffering from post-traumatic stress disorder.

The decision notes Patricia consented to the vehicle being stored at Griem’s residence where it could be restored and put into a roadworthy condition. She never saw the vehicle or possessed the key. In fact, at the time of the accident, she forgot that she’d even bought the car.

Patricia did not know the vehicle was roadworthy at the time of the accident, the decision notes. She never checked on the status of the vehicle or the repairs and never attended Griem’s residence. She did not know his address.

Patricia intended to transfer the vehicle to Matthew once his license was reinstated and he was able to obtain auto insurance, McCarthy writes. She did not know he had been driving the vehicle six months prior to the accident.

Patricia placed insurance on the vehicle with Aviva when she bought the car because she thought she had to. She did not tell her auto insurer Matthew would be driving the vehicle, because she did not think he would be doing so.

Allowing Matthew to possess, store, and work on the car to make it roadworthy, the court found, made it clear she gave Matthew implied consent to operate the car.

“[I]t was reasonably foreseeable (even inevitable) that Matthew would operate the vehicle on the roadway at the first opportunity,” McCarthy writes. “After all, what is the purpose of seeking to make a vehicle roadworthy other than to operate it on a roadway? And how would one know a vehicle is roadworthy without operating it on a road?

“I find it incredible that Patricia would have believed that any prohibition on Matthew operating the vehicle would have been observed by him.

“Matthew’s attempts to hide the vehicle’s location from Patricia coupled with her failure to make any inquiry about the vehicle’s whereabouts or the status of its ‘roadworthiness’ at any time, point to a total domination of possession by Matthew without the slightest element of control or concern by the legal owner.

“’De facto’ control was with Matthew. The fact that Matthew operated the vehicle on the road for perhaps six months prior to the accident simply reinforces the objective and realistic belief that any prohibition against him operating the vehicle was singularly ineffective and wholly unenforced. I can fairly infer that it was never seriously intended to be observed.”

David Gambrill

David has twice served as Canadian Underwriter’s senior editor, both from 2005 to 2012, and again from 2017 to the present.