Canadian Underwriter

Why mom is not liable for son’s traffic collision driving mom’s car

April 12, 2021   by Greg Meckbach

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When a parent says no to a child who wants to drive the car, and the parent does not leave the keys out in the open to be easily found, the child does not in fact have the parent’s consent to take the car.

That may seem straightforward to the average person, but is nonetheless a key takeaway from Joseph v. Coxall-Mejia et al, an Ontario Superior Court of Justice ruling released Apr. 6.

Denoson Joseph was seriously impaired while a riding in a car driven by Douglas Coxall-Mejia. The vehicle was owned by Douglas’ mother (Vidnia Mejia Ramos) and insured by Certas Home and Auto Insurance.

Joseph was visiting Coxall-Mejia Sept. 5, 2017, at the home where Coxall-Mejia lived with his mother. The companions smoked “a lot of weed” and the plaintiff also consumed a large amount of Crown Royal whiskey, Ontario Superior Court Justice Edward Belobaba wrote.

Coxall-Mejia asked his mother if he could drive Joseph home and his mother said no.

After Vidnia Mejia Ramos went to bed, her son searched for and eventually found her car keys.

As the result of a subsequent collision, Joseph sued both Coxall-Mejia as the driver and Mejia Ramos as the owner.

Certas and Mejia Ramos went to court asking that that Mejia Ramos be removed as a defendant on the grounds that the vehicle was driven without her consent.

The plaintiff Joseph argued that the question of whether the vehicle was driven with the owner’s consent cannot be answered on summary judgement. Instead, that matter should be decided at a trial.

Justice Belobaba disagreed, ultimately ruling on summary judgement that Coxall-Mejia took his mother’s car without her “implied” consent.

“This is not a case where the owner of the vehicle failed to take reasonable precautions with her car keys. Nor is it a case where the owner demonstrated ineffective control over an irresponsible member of the family,” Justice Belobaba wrote.

Mejia Ramos did not leave the keys on a hook by the door or otherwise easily available. In fact, it took her son five to 10 minutes of searching her bedroom to find them.

In Ontario, there is often an argument about whether a driver had “implied consent” to drive someone else’s vehicle.

This affects insurance coverage for two reasons.

Section 192 (2) of the Highway Traffic Act states:

The owner 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 owner’s consent in the possession of some person other than the owner or the owner’s chauffeur.

Ontario’s standard auto policy has a section, on Excluded Drivers and Driving without Permission, that says:

Except for certain Accidents Benefits coverage, there is no coverage (including coverage for occupants) under this policy if the automobile is used or operated by a person in possession of the automobile without the owner’s consent…

Consent can be either express or implied, Justice Chris de Sa wrote in Michaud-Shields v. Gough, released in 2018 by the Ontario Superior Court of Justice.

“If there is a general understanding that someone is allowed to use the vehicle, there need not be ‘express’ permission to find liability in a particular case,” wrote de Sa. “There must be an understanding between both the owner and the driver (either express or implied) that the driver is authorized by the owner to use the vehicle.”

Michaud-Shields arose from a 2012 collision between a Saab 9.3 driven by Daniel Michaud-Shields and a Ford F150 driven by Justin Gough and owned by his mother Nancy Gough.

Michaud-Shields sued the Goughs.

A dispute arose over whether Justin Gough had implied consent from Nancy Gough to drive her F150.

Compagnie d’Assurance Traders Generale argued Nancy Gough should be vicariously liable as the vehicle owner.

Justin Gough had taken the keys which were hanging on hooks by the front door. His mother was away at the time.

Traders argued that Nancy Gough did nothing to prevent her son’s access or use to the vehicle, and she did not expressly forbid him to drive the vehicle while she was away. Traders argued that Nancy’s Gough’s decision to leave the vehicle in the driveway with the keys on the hook essentially invited her son to drive the vehicle.

Justice de Sa disagreed with Traders, finding that the insurer’s approach “essentially requires that an owner hide their keys in order to avoid liability,” and this is not what was contemplated by the Highway Traffic Act.

“If there is a general understanding that someone is allowed to use the vehicle, there need not be ‘express’  permission to find liability in a particular case. However, to import a notion of liability on the basis of a lack of appropriate diligence to prevent use is to take the meaning of consent much too far,” wrote Justice de Sa in 2018.

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