Section 86 f the BC Motor Vehicle Act makes an owner of a vehicle involved in an accident liable for the negligence of the driver if evidence shows that, on an objective view of the circumstances, the owner can be taken to have consented, expressly or by implication, to the use of the vehicle by that driver. In the recently published case of Green v. Pelley, 2011 BCSC 841, lawyers for a defendant owner (Mr. McIvor) brought an application under Rule 12-5(4) to have a lawsuit against him dismissed on the basis that the Plaintiffs had produced no evidence that Mr. McIvor provided a driver involved in a serious collision with consent to use his vehicle.
Consent in Car Accident Injury Case
In this case, the owner in question had given his consent to allow his daughter to drive his Ford pickup truck. His daughter had a criminal past related to her involvement with drugs and associated with an individual who also reportedly had a significant history of criminal behavior: Dean Pelley.
At the time of the accident Mr. Pelley was driving McIvor’s truck, McIvor’s daugter was a passenger in the vehicle. There was a stolen license plate on the truck from another vehicle and the truck was full of personal items, including credit cards, belonging to other people. After the accident, Mr. Pelley gave blood and urine samples that indicated the presence of cocaine and various sedatives.
While there was some evidence that Mr. McIvor was aware of Mr. Pelley’s criminal ways, there was ultimately no evidence that he had provided him with his consent to use the pickup truck on the day of the accident (or at any other time). On this point, Mr. Justice Saunders said as follows:
 The test for a finding of implied consent under s. 86, in situations where consent has been given to one person but the vehicle ends up being driven by a third party, is as set out in Hartley v. Saunders (1962), 33 D.L.R. (2d) 638 (B.C.S.C.), and in Godsman v. Peck (1997), 29 B.C.L.R. (3d) 37 (C.A.). The evidence must establish that the vehicle owner had both an expectation and willingness that a third party would drive the vehicle. Both an expectation and willingness must be shown. One without the other will not suffice: L’Heureux v. Eustache, 2003 BCSC 347 at para. 9.
 The requirement that an owner have an actual expectation of a third party driving the vehicle is relaxed, where it is clear from the circumstances that consent would have been given, if sought, as a matter of course in the particular circumstances confronting the person who is in possession by consent: dissenting judgment of Porter J.A. in Palsky v. Humphrey (1963),  41 D.L.R. (2d) 156 (Alta. S.C. (A.D.)), as approved of and adopted by the Supreme Court of Canada on appeal,  S.C.R. 580 at 662
 There is no evidence in the present case to support a finding that Mr. McIvor, if asked to consent to Pelley’s operation of the pickup, would have consented as a matter of course. There is no evidence that he ever let Jill lend the car to others and no evidence that he was aware of Pelley ever having previously driven the vehicle.
In dismissing the Plaintiff’s claim against Mr. McIvor, the Court addressed the Plaintiffs’ argument that a “due diligence test” is part of the test for willingness. They argued that Mr. McIvor should be liable because it appeared that he was “indifferent” to his daughter’s continued association with Mr. Pelley and, therefore, must be taken to have been willing to let him drive the truck. In rejecting this argument Mr. Justice Saunders said the following:
 There are two problems with this argument. The first is that in both Bareham and Usher the owner had actual knowledge of the probability of the vehicle being driven by someone whose conduct was questionable. Mr. McIvor, in contrast, did not know that Pelley was going to drive his truck, or there is no evidence that he had such knowledge, and there were no circumstances that pointed to this being a probable event. This situation before me is not one of a strong expectation amounting to willingness. There is no evidence at all of any expectation on Mr. McIvor’s part, nor can I find any evidence of implied willingness on Mr. McIvor’s part. Even given his knowledge of Pelley’s and his daughter’s crimes and past drug use, his apparent indifference, if it could be called that, to his daughter’s conduct, when he confronted her on September 18th, as evidenced by his failure to act, might fairly be construed as evidence of his willingness for his daughter to be in Pelley’s company, and his willingness for Pelley to be a passenger in his vehicle, but it does not lead to the inference that he was willing to have Pelley become the driver.
 The second problem with this argument advanced by the plaintiffs is that it amounts to an argument that Mr. McIvor should, through his failure to exercise due diligence, be deemed to have given consent, but this is the very approach to s. 86 which the Court of Appeal in both Godsman and Snow warned was incorrect. In the absence of evidence of actual consent or evidence from which I can infer consent, I cannot deem consent to have taken place.
No Evidence Motions:
The Court said the following regarding no evidence motions:
 There is a distinction between a no evidence motion and a motion to dismiss for insufficient evidence. On a no evidence motion, the court must restrict its inquiry to a determination of whether there is any evidence capable of supporting the plaintiffs’ claim or, to put it another way, whether there is some evidence on each element of the cause of action. The reasonableness of the evidence in terms of its weight or quality is not to be considered: 317159 B.C. Ltd. v. C.A. Boom Engineering (1985) Ltd.,  B.C.J. No. 2699 (C.A.); Roberge v. Huberman, 1999 BCCA 196.
 Thus, for example, on a no evidence motion, the trial judge may not make findings of credibility, may not choose which of any possible valid but competing and mutually inconsistent inferences to be drawn from the facts is more probable, and may not engage in weighing pieces of circumstantial evidence against each other. The court’s only function is to determine whether evidence has been adduced that is probative of the claim.
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