Naghash v. Pashahzahiri, 2023 ONSC 609
Written By: Brandon Pedersen and Cody Malloy, Student-at-Law
This recent decision focuses on the rebuttable presumption that a vehicle in the possession of somebody other than the lessee has the consent of the lessee. If the lessee cannot rebut this presumption, the lessee is vicariously liable for any damage caused by the operation of the motor vehicle. Consent can be either express or implied.
In this case, MG had rented a motor vehicle on or about July 3, 2017. On July 5, 2017, MG parked the rented vehicle outside of his mechanic shop. MG left the keys hanging on a board near the shop office. AM (friend of MG) asked MG if him and VP could borrow the car that MG had rented. MG claimed he said “no”. VP drove away in the vehicle with AM as a passenger shortly thereafter. While VP was driving the rented vehicle, a collision occurred.
The issue before the court was whether MG had given express or implied consent for AM and VP to use the vehicle. If express or implied consent had been provided, MG would be vicariously liable for the damages caused by VP’s operation of the vehicle.
MG’s position was that he did not provide express or implied consent to AM and/or VP to use the rented vehicle. MG testified that on July 5, 2017, he parked the rented vehicle in a parking lot adjacent to the shop, and he left the keys hanging on a board in the shop near the office where both employees’ and customers’ keys are kept. MG knew AM for two years at this point but had never met VP. AM and VP came by the shop in the evening of July 5, 2017. AM asked MG if they could borrow the vehicle, to which MG replied “no”. A few hours later, MG was about to go home but he noticed the keys and vehicle were missing. MG called AM, and AM advised that him and VP had borrowed the car. MG decided to stay the night at the shop. The next day, AM advised MG that the vehicle had been involved in a collision.
Section 192(3) of the Highway Traffic Act places a rebuttable presumption on the lessee of a vehicle:
A lessee of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the lessee’s consent in the possession of some person other than the lessee or the lessee’s chauffeur.
Justice McCarthy outlined the following with respect to consent to use or operate a vehicle:
- Consent is an issue to be determined by the trier of fact – Argante v. Munro, 2014 ONSC 3626
- A consideration of implied consent requires a determination of whether the circumstances were such as would show that the operator of the vehicle was, at the time of the accident, in possession of it with the owner’s implied consent – Sparks v. Cushnie, 2021 ONSC 213
- If a vehicle is in the possession of a person with the owner’s consent, then the owner is liable regardless of whether the person actually operating the vehicle has the owner’s consent, even if that person is operating the vehicle contrary to the owner’s express wishes – Henwood v. Coburn, 2007 ONCA 882, 88 O.R. (3d) 81
- The owner of a vehicle is required to exercise careful management of it; and they must bear liability for all loss or damage caused by any person to whom they entrust possession of that vehicle – Cummings v. Budget car rentals Toronto Ltd., 1996 CanLII 1629 (ON CA), 29 O.R. (3d) 1 (ONCA)
- The accessibility of keys and the lack of steps taken by a vehicle owner to safeguard keys may be considered in determining the existence of implied consent – Deakins v. Aarsen et al., 1970 CanLII 27 (SCC),  S.C.R. 609
- An owner cannot avoid vicarious liability simply because the operator breached conditions or restrictions placed upon him – Parkinson v. MacDonnell, 1995 CarswellOnt 1402
Justice McCarthy noted the following factual circumstances surrounding the incident in its decision:
- MG and AM had been friends for several years
- AM frequently visited MG’s shop and was a former employee of the shop
- MG was aware of AM’s criminal history of stealing cars
- The keys to the vehicle were left in a conspicuous location (on a hook on a board by a door to the entrance to the office)
Furthermore, Justice McCarthy took issue with the fact that MG could not explain how AM knew which specific vehicle MG had rented only a couple of days prior to the discussion taking place in the garage on July 5, 2017. As such, Justice McCarthy drew an adverse influence that MG must have given AM a specific enough description of the rented vehicle.
Justice McCarthy also noted how MG assumed that AM had taken the vehicle when he noticed it was missing. MG also did not report the vehicle as stolen to the police because he thought AM would return it. MG also did not tell his wife about the missing vehicle because he didn’t want to upset her. Justice McCarthy took issue with the fact that someone would not inform their spouse they would be unexpectedly not returning home for the night.
As such, Justice McCarthy found MG’s conduct 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”.
Justice McCarthy found that MG “would have had no reason to contact either the police or his spouse that evening because his friend was in possession of the vehicle either with his express or implied consent”. MG did not rebut the presumption of consent and he was held vicariously liable for the damages caused by VP’s operation of the rented vehicle.