Garraway v. Enterprise Rent-A-Car Canada Ltd., 2013 ABQB 10

Court of Queen ’ s Bench of Alberta Citation: Garraway v. Enterprise Rent-A-Car Canada Ltd., 2013 ABQB 10 Date: 20130107 Docket: 1203 00122 Registry: Edmonton Between: Patrick Garraway Appellant - and - Enterprise Rent-A-Car Canada Ltd. Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] This appeal concerns the liability of a car rental business for the damage caused by one of its vehicles while it is driven by someone who is neither the renter of the vehicle nor a designated secondary driver in the car rental agreement. [ 2 ] On June 18, 2008, Enterprise Rent-a-Car Canada Ltd. rented one of its Mazda cars to Chantell Stamp until July 3, 2008; the vehicle bore the usual stickers identifying it as a rental vehicle owned by Enterprise. The rental contract signed by Ms.

Stamp contained a printed clause which reads: “ Additional authorized driver(s) - Except as required by law, none permitted without owner ’ s written approval ” and Ms. Stamp separately signed that clause, expressly indicating that she was not requesting Enterprise ’ s permission to allow any other driver to operate the vehicle. On June 28, 2008, the Enterprise Mazda t-boned a Ford 150 truck owned by the plaintiff Patrick Garraway, causing a little more than $8,000.00 damage to the truck. When it collided with the truck, the Enterprise vehicle was being

driven by Shayla Rattlesnake; Ms. Rattlesnake was 19 years old at the time and did not have a driver’s licence; she was not, of course,identified in the vehicle rental contract as an authorized driver. Five individuals were in the Enterprise vehicle when it collided with Mr.Garraway’s truck; one of those individuals was the renter, Ms. Stamp. [3] Garraway sued Stamp, Rattlesnake and Enterprise. Neither Stamp nor Rattlesnake defended Garraway’s claim, and bothwere noted in default. Neither appeared at the trial. Garraway obtained judgment at trial against Rattlesnake.

However, the trial judgedeclined to grant default judgment against Stamp because Garraway had not alleged any negligence against her. The trial judge alsodenied Garraway judgment against Enterprise, on the basis that the defendant Rattlesnake was not in possession of the rental vehicle withthe consent, express or implied, of Enterprise. The latter conclusion was based, in large part, on the trial judge’s assessment that thedefendant Stamp was not deemed in law to be an owner of the rental vehicle and therefore could not consent to Rattlesnake driving thevehicle.

The trial judge also found that even if Stamp could be considered to be the owner of the rental vehicle, Garraway had not provedthat Rattlesnake was in possession of the vehicle with Stamp’s express or implied consent. The trial judge concluded that there was noevidence that Enterprise had, impliedly, consented to Rattlesnake driving its Mazda rental vehicle. [4] In this appeal, Garraway argues that the trial judge erred in law when he concluded that there was no trial evidence aboutwhether Enterprise had impliedly consented to Rattlesnake driving the Enterprise vehicle.

He maintains that there was some evidence,and that the only evidence favoured the plaintiff. [5] The appeal is allowed. [6] The trial judge erred in law in concluding that there was no evidence of implied consent by Enterprise.

On the contrary,there was some evidence of implied consent, including not only evidence that the renter of the Enterprise vehicle and the driver of thevehicle were in the rental car together at the time of the accident, and that the relationship between them at that time was friendly, but,most importantly, the unchallenged evidence that Enterprise, as a commercial operator of a vehicle rental business, knew that renters oftheir vehicles might allow non-authorized drivers to operate Enterprise rental vehicles. [7] Judgment is granted to Garraway against Enterprise in the amount of $8,210.34.

However, Enterprise’s Third Party Noticesof action against Stamp and Rattlesnake are re-instated. Cases and authority cited [8] By Mr.

Garraway: Garraway v Rattlesnake 2011 ABPC 360; Housen v Nikolaisen, 2002 SCC 33; Mugford v Weber,2004 ABCA 145; Ireland (Next Friend of) v Perez, 2007 ABCA 12; Baumann v Springer Construction Ltd. 58 W.W.R. 592 (Alta.S.C.); Beier Estate v Sonmore Estate 52 A.R. 198 9Q.B.); Fontaine v British Columbia (Official Administrator) (SCC), [1998] 1 S.C.R. 424; Ezzedine v Dalgard 2006 ABQB 826. [9] By Enterprise Rent-a-Car Canada Limited: Schoff v Royal Insurance Company of Canada, 2004 ABCA 180; Morris vMorris, 2009 BCSC 1567; Robinson v Flahr, 2000 ABQB 508; Traffic Safety Act RSA 2000, S.187(2); E.T. (Estate of Tran) v Tran,2007 ABCA 13; Tonneguzzo-Norvell (Guardian ad litem) v Burnaby Hospital, (SCC), [1994]1 S.C.R. 114; Yoc v Crazy Bull 2007 ABPC 172; Thorne v Prets (ON CA), 45 M.V.R. (4th) 69; Henwood v Coburg 2007 ONCA 882;Scoff v Royal Insurance Co. of Canada 2002 ABQB 881, 2004 ABCA 180; Canada Trustco Mortgage Co. v Canada 2005 SCC 54;Kwawukumey v R. [2001] O.R.

C.T.C. 2566; Canzinco Ltd. v Canada (Minister of Indian Affairs & Northern Development) 2004 FC1264; Provincial Court Act RSA 2000, c. P-31, S.51. [10] By the court: Garraway v Rattlesnake 2011 ABPC 360; Antilla v Majeau [1954] A.J. No. 59 (S.C.A.D.); Parris v Laidley2012 ONCA 755. Appendix A: Legislative history from the year 2000 to 2012 of s. 187 of the Traffic Safety Act 1. Background

a) Factual [ 11 ] The facts are set out in the trial decision appealed from and can be summarized as follows. Patrick Garraway is the owner and was - on June 28, 2008 - the operator of a truck that was t-boned, or side-swiped, while driving along the highway immediately south of the Devonian Gardens, i.e. west of Edmonton, by a rental Mazda car which emerged from the passenger side ditch abutting the highway. After the collision, the five persons in the Mazda rental vehicle exited that vehicle and came over to inquire about the health of the individuals in the Garraway vehicle.

There was an Enterprise sticker on the back bumper of the vehicle that came out of the ditch. When they learned that Mr. Garraway was telephoning 911, the people from the rental vehicle asked him not to. Mr. Garraway did not accede to their request. The individuals from the Mazda then went back to their vehicle; Mr. Garraway told them not to leave the scene. When they realized the Mazda was not driveable, the individuals who had been in that vehicle all jumped out of the vehicle and started running away from the scene. Mr.

Garraway caught up to the person that he assumed was the renter of the vehicle and one of the other people from the vehicle and all three returned to the collision scene together and waited for the police. [ 12 ] The following are excerpts from the testimony of Mr. Garraway as transcribed in pp 8 - 10 of the Appeal Book as to the identity of the persons in the Mazda: After that point I noticed them all get back into their car . . . They said they were leaving ... . . . so I reached in over the passenger to turn the car off to which point they grabbed my phone . . . So now they ’ re running. . .

So they grabbed all their papers out of the glove box, obviously trying to take everything saying that they didn ’ t have a vehicle and it wasn ’ t them, and they began to run down the highway.. . . . At that point the one girl who had all the paperwork who rented the vehicle said that she wanted to stop, that they ’ re not going to get away, this isn ’ t going to happen.

The driver and another fat passenger said in lesser terms, No, let ’ s leave, this is going to be fine, let ’ s get away . . . which they did, those two people left and me and the renter of the car and I guess one of her friends waited for the police to come. Q. So were you able to discern who was driving and who was renting? A. Yeah. Oh, yeah. Q. And when you had those conversations they that you referred to, did they involve the renter and the driver? A. I didn ’ t really necessarily talk to the driver, she was being very belligerent, but the renter was being fairly cooperative after the fact. . . . Q.

And it was obvious - or at least she confirmed to you that she was the renter? A. Yeah. Yeah, she was the renter. . . . Q. And there was no doubt to you that this Rattlesnake gal was driving. Is that fair to say? A. Yeah. No, she was driving. [ 13 ] Enterprise called Ms. Houle, the branch manager of the branch which rented the vehicle to Stamp as a witness. Ms. Houle indicated that she had to track down the renter of the Mazda, Ms. Stamp, after the police provided Enterprise with an accident report. Ms. Houle testified that she did not entirely recall the conversation she had with Ms.

Stamp, but that she typed on her computer what Ms. Stamp told her about the accident. Part of what she wrote is “ Chantell (Stamp) said that she passed out in the back seat and (Rattlesnake) took over the wheel. She said they woke her up to tell her they were in an accident. ”

[ 14 ] Ms. Houle also gave the following evidence: Q. Would you agree with me that Enterprise can foresee, you know, renters allowing other people to use the vehicle and that ’ s why it ’ s [the fact that unauthorized drivers aren ’ t allowed to drive the vehicle] mentioned again and again? A. Yes. Q. You ’ d agree with that? A. Yes. [ 15 ] The parties agreed that the damages to the Garraway vehicle totalled $8,210.34.

There is no question of the liability of the driver of the Mazda for the collision; indeed, part of the trial evidence included a certificate of conviction on June 28, 2008 of Rattlesnake for careless driving. [ 16 ] The evidence before the trial judge included evidence of Chantell Stamp ’ s rental contract with Enterprise in which she separately signed a term of the contract which stated, in capital letters, that no additional authorized drivers were permitted without Enterprises ’ written approval and in which no additional drivers were identified. [ 17 ] Neither the renter of the vehicle, Stamp, nor the driver of the vehicle, Rattlesnake, appeared at the trial.

b) Legislative [ 18 ] On the date of the collision between the Garraway truck and the Enterprise car, s. 187 of the Traffic Safety Act read as follows: When driver deemed agent of owner 187(1) In an action for the recovery of loss or damage sustained by a person by reason of a motor vehicle on a highway, a person who, at the time that the loss or damage occurred, (

a) was driving the motor vehicle, and (

b) was living with and as a member of the family of the owner of the motor vehicle, is deemed, with respect to that loss or damage, (

c) to be the agent or employee of the owner of the motor vehicle, (

d) to be employed as the agent or employee of the owner of the motor vehicle, and (

e) to be driving the motor vehicle in the course of that person's employment.

(2) In an action for the recovery of loss or damage sustained by a person by reason of a motor vehicle on a highway, a person who, at the time that the loss or damage occurred, (

a) was driving the motor vehicle, and (

b) was in possession of the motor vehicle with the consent,

expressed or implied, of the owner of the motor vehicle, is deemed, with respect to that loss or damage, (

c) to be the agent or employee of the owner of the motor vehicle, (

d) to be employed as the agent or employee of the owner of the motor vehicle, and (

e) to be driving the motor vehicle in the course of that person's employment.

(3) Notwithstanding subsections (1) and (2), nothing in this

section relieves any person who is deemed to be the agent or employee of the owner and to be driving the motor vehicle in the course of that person's employment from liability for the loss or damage. [ 19 ] The legislative history of s. 187 of the Traffic Safety Act from the year 2000 to the present day is set out in Appendix A. It indicates that although there have been recent and ongoing legislative changes to that section, none of those changes affects the purposive

interpretation of the legislation as described in Alberta case law for over 50 years as being legislation intended for the protection of the public. 2. Standard of review [ 20 ] The parties agree, and I agree with them, that the standard of review here is correctness with respect to errors of law, palpable and overriding error with respect to factual findings, and on a sliding scale between those two standards for errors of mixed fact and law, depending on the mix of factual and legal conclusions reached. 3.

Did Enterprise impliedly consent to Rattlesnake driving its rental vehicle? [ 21 ] With respect, the trial judge erred when he stated that there was no evidence of implied consent by Enterprise. On the contrary, the trial judge himself pointed to the evidence of foreseeability which, as he put it, is only one circumstance relating to the notion of implied consent.

Having determined that evidence of foreseeability was some evidence of implied consent, the trial judge then had to consider whether there was any other evidence of implied consent and either had to make a decision on the basis of limited, but uncontradicted, evidence of implied consent, or hold that the plaintiff had the burden of proving implied consent and the limited evidence available was insufficient to discharge that burden.

The trial judge failed to make any finding of law relating to the burden in a situation such as this one. [ 22 ] It was clear, of course, that Enterprise did not expressly consent to Rattlesnake as driver: the rental contract is determinative on that point. [ 23 ] However, the trial judge does not explain why he concludes that there is no evidence on the issue of whether Enterprise impliedly consented to any driver other than Stamp. [ 24 ] For ease of reference, I repeat the conclusion of the trial judge ’ s lengthy, careful, reasons: 37 The facts and circumstances as found by this Court, along with the tests laid out in Mugford , Perez and Robinson, suggest that the task of a trial judge is analyze all of the facts and circumstances presented and arrive at a reasonable conclusion by application of the tests already articulated by the Court of Appeal.

In conclusion I am satisfied there is no evidence before me as to how Rattlesnake

acquired possession of the Enterprise motor vehicle. Yes, there was proof of Rattlesnake driving the Enterprise motor vehicle but no evidence was presented that Enterprise granted consent, expressly or implicitly, to Rattlesnake. There was no evidence provided that the renter Stamp had granted consent, expressly or implicitly, of the motor vehicle to Rattlesnake.

"There is nothing inherently different in third party scenarios that render the principles set out in Palsky and Mugford inapplicable, save for the additional circumstance that a driver is a third party to the arrangement between the original owner and borrower. In some cases, that circumstance may mean little. In other scenarios, it may be very important in light of other circumstances relating to how the driver came into possession of the vehicle and the use to which it was put."( Ireland , supra, at paragraph 27 ). I accept the pronouncements of our Court of Appeal that

section 187 of the Traffic Safety Act combined with the mandatory scheme of insurance in Alberta is intended to protect innocent third parties. However, even where there is proof of driving, the requirements under section 187(2)(

b) dictate that without proof of implied or express consent to possession from the owner, there can be no vicarious liability of the owner for the negligence of the driver.

I am satisfied that it would be unreasonable for Rattlesnake to believe that she had consent to operate the Mazda rental vehicle nor was she justified in deeming that she had implied consent to drive. 38 I am satisfied that in all the circumstances addressed by the Court in the previous pages, the Plaintiff has failed to discharge the burden of proving on a balance of probabilities that the Defendant Rattlesnake was in possession of the Defendant Enterprise's motor vehicle with the consent, express or implied of the Defendant Enterprise.

I have stated earlier in my decision why the Defendant Stamp was not an owner of the rental vehicle and therefore could not provide consent to possession of the motor vehicle such as to trigger the deeming provisions under

section 187 of the Traffic Safety Act. Even had I been pre-disposed to find that the Defendant Stamp was an owner of the Mazda motor vehicle, again, I am not satisfied that the Plaintiff has discharged the burden of proving that Rattlesnake was in possession of the motor vehicle with the consent of the alleged owner Stamp, either express of implied, such as to trigger the deeming provisions of

section 187 for vicarious liability of the owner. I would therefore dismiss the Plaintiff's claim as against the Defendant Enterprise Rent-A-Car Limited. 39 In relation to the action against the Defendant Rattlesnake, who had failed to file a defence in these proceedings and where the Plaintiff has Noted this Defendant in Default, I am satisfied that Ms. Rattlesnake was negligent in the operation of the motor vehicle and that the Plaintiff is entitled to Judgment against Ms. Rattlesnake in the amount of $8,210.34 as set out by agreement of the parties at the outset of this Trial.

The Plaintiff has also Noted the Defendant Stamp in default for failing to defend the action against herself. Here, I note my earlier analysis that while the pleadings in the Civil Claim detail the allegations of negligence of the Defendant, Shayla Louise Rattlesnake no such allegation of negligence has been levied or proven against the Defendant, Stamp. Earlier I determined that the Defendant, Chantelle Stamp, was not an owner as defined under section 1(1)(ee) of the Traffic Safety Act and therefore cannot be found vicariously liable for the negligent acts of the driver Rattlesnake.

I would therefore dismiss the claim against the Defendant, Chantelle Stamp, notwithstanding the Plaintiff's Note in Default against her. 40 The Defendant, Enterprise's Third Party Notice action against Stamp and Rattlesnake is dismissed as it is an indemnity claim contingent upon the finding of liability against Enterprise; the claim against Enterprise has been dismissed. (Emphasis added) [ 25 ] Earlier in his reasons, the trial judge made the following reference to the evidence of the Enterprise employee: 32 Was it foreseeable for Enterprise when it entered into the rental arrangement with Stamp that a third party, not a party to the Rental Contract, would obtain possession and drive the owner's vehicle?

The question was answered in the positive by the witnesses for Enterprise. However, foreseeability is only one circumstance for the consideration by the Court in determining whether implied consent exists. Furthermore, the foreseeability admitted to by the witnesses for the Defendant Enterprise is one of a general nature. Stated in another manner, anytime an owner of a vehicle consents to the possession and use of the automobile it may be said that it is foreseeable that that person may allow a third party to drive the owner's motor vehicle.

Therefore, it can be said that foreseeability is always present in any circumstance where a third party driver drives the owner's motor vehicle . The element of foreseeability that must be considered by the Court must be connected in some way to how the driver acquired possession in the circumstances of the case before the Court and not simply a hypothetical question.

In Ireland , supra, had the son not frequented bars and clubs but rather church meetings, the answer to the question of whether it would be foreseeable for the father (owner) to believe that someone other than his son would drive the motor vehicle would have still been in the positive; specifically for circumstances where there was an emergency or the son was injured or in severe pain. Clearly that circumstance would not have been determinative of the issue of implied consent.

In Ireland , however the foreseeability of the owner was in relation to the impairment of the son, which more likely than not would have resulted in a third party driving the owner's vehicle. (Emphasis added)

[ 26 ] With respect, the portions of the trial decision excerpted above indicate that the trial judge erred in law when he stated that foreseeability is “ always present ” and concluded that foreseeability is not, therefore, a relevant factor in determining implied consent. The issue in law is whether the specific owner of the vehicle in question could foresee the possibility of an unapproved driver. Here, the only evidence was that the owner of the vehicle, Enterprise, could foresee that, every time it leases a vehicle, an unapproved driver could drive the vehicle.

Indeed, such a degree of foreseeability is “ general ” , as described by the trial judge. The equivalent in an Ireland type of case would be if, the father/owner of the vehicle had testified that he knew that every time his son drove his vehicle, whether the son was frequenting bars or on any other driving occasion, the son would allow other individuals to drive his father ’ s car.

If such a father/owner continued to allow his son to take possession of his car, then surely the father/owner would be found responsible for the damage caused by his car when a third party was driving it. [ 27 ] Foreseeability of driving by an unauthorized driver is an important feature of implied consent not only because foreseeability could vary from case to case but also because a condition restricting the permission of a renter to allow someone else to drive the rented vehicle was identified by our Court of Appeal as the type of condition which cannot be imposed by the owner of a vehicle.

Relatively recently in the Ireland decision, our Court of Appeal, guided by the consistent principle that s. 187 of the Traffic Safety Act represents a policy determination by Alberta that owners of vehicles are responsible for damage caused by their vehicle to innocent members of the travelling public, rejected the notion of conditional consent by the owner of a motor vehicle and gave the following examples: 25. . . . .

For example, conditions may be placed on a borrower for fear that he or she will breach rules of the road, drive dangerously, or otherwise authorize someone else to drive . (Emphasis added) [ 28 ] Alberta jurisprudence has, in interpreting the reach of s. 187, and its predecessor sections, long held that an owner may be held liable for damage caused by a vehicle he owns even when the person driving the vehicle at the time was not expressly authorized by the owner to drive the vehicle. More than half a century ago, in Antilla , our Court of Appeal held: 12 Martel v.

Dominion Motors Ltd. differs from the instant case in that the Dominion Motors, the owner, in giving possession to its borrower, one Ray, in the first instance, made careful inquiries as to who would be driving the vehicle and that the driver in possession at the time of the accident was a person unknown to the owner and not a person whom the owner could have contemplated would be driving the vehicle. 13 With respect, in my view, in both these cases the reasoning, rather than leading to the view that in the present instance Ethier had not at least the implied consent of Majeau, tends much more to the conclusion that, in the circumstances here present, he had acquired possession of Majeau's motor car with his consent. 14 In the Martel case, for instance, Trueman, J.A. said: "I appreciate that the owner of a motor vehicle should be held to impliedly consent to the driving of the motor vehicle by another than the borrower when the circumstances show that he is aware that the motor vehicle is acquired by the borrower with the intention of its being driven by another, when the borrower may not be present." [[1935] 2 D.L.R. at pp. 193-4] 15 While I agree that the

section in question, enlarging as it does the common law liability of owners of motor vehicles, should not be extended beyond its reasonable implications, I think the

section covers just such a case as the present where one person acquires possession of the vehicle with the express consent of the owner under circumstances which clearly show that the owner knew that it was acquired with the expectation and willingness on his part that it would be driven by another person known to him at the will of the person to whom possession was first so given. [ 29 ] Here, the trial judge stated that foreseeability was not an important factor in determining implied consent because it was always foreseeable that someone else might drive the vehicle.

With respect, to conclude that foreseeability is never a factor in determining implied consent is an error of law. [ 30 ] Moreover, the evidence both of foreseeability and of the relationship between the renter and the driver constituted at least

some evidence on the issue of implied consent. Although Enterprise might have called evidence on that issue, it chose not to do so. Here, the evidence presented by Mr. Garraway was that the renter of the vehicle and the driver of the vehicle were both in the rented vehicle when it collided with the plaintiff ’ s vehicle.

The evidence was also that the renter of the vehicle and the driver of the rented vehicle appeared to be on friendly terms because they initially ran away along with the others present in the vehicle; in other words, the renter of the vehicle was not a prisoner of the driver of the rented vehicle. The evidence was also that the starting mechanism of the rental vehicle was intact. Finally, and importantly, the unequivocal evidence was that Enterprise realized that renters of its vehicles may allow persons other than themselves to drive the vehicle.

In other words, the situation facing the trial judge was not at all a hypothetical one but one where, if a comparison were made to the Ireland case, Oscar Sr. testified that he knew that people other than Oscar Jr. drove his car whenever he gave possession of his car to Oscar Jr. [ 31 ] I pause to add that the evidence of the Enterprise employee concerning the statement made to her by Stamp could not be considered by the trial judge on the issue of implied consent: that statement was hearsay and no consideration was given as to whether, on a principled basis, it could be admitted for the truth of its contents on the core issue of the lawsuit.

However, the trial judge appears to have used that statement in coming to his conclusion on the issue of implied consent. At para. 26 of his decision, he states: “ At the time of the motor vehicle accident there were 5 occupants of the Mazda rental vehicle with Stamp passed out . Stamp provided an oral statement to the witness Houle in which she stated that ‘ . . . that she (Stamp) passed out in the back seat and Shayla (Rattlesnake) took over the wheel.

She said that they woke her up to tell her they were in an accident ’ . ” In other words, there was no admissible trial evidence either that Stamp was passed out at the time of the collision or about how Rattlesnake came to be the driver of the vehicle at the time of the collision. Indeed, at para. 37 of his decision, the trial judge stated: “ In conclusion I am satisfied there is no evidence as to how Rattlesnake acquired possession of the Enterprise motor vehicle ” .

It was an error of law for the trial judge to have taken hearsay evidence into account. [ 32 ] Enterprise could have chosen to call evidence relating to the transfer of control of the vehicle from Stamp to Rattlesnake, but did not do so. A trial judge must consider who bears the burden of proving either implied consent or the lack of implied consent. In my respectful view, once Garraway had established a prima facie situation of implied consent, the evidentiary burden shifted to Enterprise.

Such a result accords not only with the traditional view of the law concerning onus in civil litigation, but, also with the constant

interpretation of this particular legislation which is that the legislation intends to protect the public. I am grateful for the assistance of counsel in providing case law, in Alberta and elsewhere, about the onus of proof in actions such as this one. There is no doubt that Garraway has the burden of proving his case. He did call evidence about the circumstances of the collision, and obtained evidence useful to himself from the evidence called by Enterprise. Garraway had the ability to call both Stamp and Rattlesnake, but was in no way obliged to do so. He did call some evidence of implied consent.

Enterprise called no evidence on the issue of implied consent. Enterprise also had the ability to call both Stamp and Rattlesnake and had, moreover, the advantage of having actually spoken to Stamp about the circumstances of the collision; such evidence could have been called at trial. At the end of the trial, the only evidence before the trial judge was the prima facie evidence that Rattlesnake and Stamp were friends and that Enterprise knew that persons other than Stamp might drive its vehicle.

A trial judge does not need to make findings against the party who did not call evidence, but is certainly entitled to make findings based on the actual evidence that was presented. [ 33 ] In this context, I find comfort in the approach taken by the Ontario Court of Appeal in Parris : 1. The motions judge granted

summary judgment on the issue of implied consent against the owner of a car involved in an accident when driven by his son. Essential to his conclusion that the defendant had not rebutted the presumption of consent was an adverse inference he drew against the defendant because he failed to make any real effort to make his son Derrick's evidence available. 2 Drawing adverse inferences from failure to produce evidence is discretionary. The inference should not be drawn unless it is warranted in all the circumstances.

What is required is a case-specific inquiry into the circumstances including, but not only, whether there was a legitimate explanation for failing to call the witness, whether the witness was within the exclusive control of the party against whom the adverse inference is sought to be drawn, or equally available to both parties, and whether the witness has key evidence to provide or is the best person to provide the evidence in issue. 3 In this case, the motions judge failed to take into account all relevant evidence in determining that the conditions precedent to drawing the adverse inference had been met.

In particular, he made no findings concerning the credibility of the defendant's evidence that supported his position that his son had no consent, express or implied, to drive the automobile on the occasion in issue. The evidence, if accepted, gave rise to a strong inference of lack of consent. It was an error to draw an adverse inference without assessing this evidence. Alberta legislation does not, of course, contain any statutory deeming of consent in the situation with which we are concerned.

However, where a plaintiff establishes a prima facie basis for implied consent, a trial judge must deal with that evidence; there is no unfairness in either basing a decision on that evidence or in drawing an adverse inference against the defendant who has not called evidence. Here, the trial judge did neither.

[ 34 ] In

summary then, the trial judge erred in law in stating that there was no evidence of implied consent, when he himself observed that foreseeability was some evidence of implied consent, he erred in law in concluding that foreseeability is never a factor in considering implied consent, he erred in law in considering hearsay evidence on the crucial issue of whether there was implied consent, and he erred in law in failing to determine whether the limited, but uncontradicted, evidence of implied consent was sufficient evidence on which to find implied consent. 4.

What form of relief is appropriate here? [ 35 ] The appellant asks the court to grant its appeal and hold Enterprise liable for Rattlesnake ’ s conduct. For the reasons set out above, I have concluded that the trial judge committed some errors of law which justify the granting of the appeal. The issue then becomes whether the appeal court should order a new trial or whether the appeal court can replace the trial decision with one of its one. Here, Enterprise does not ask for a new trial if the appeal were granted; probably, the relatively small value of the damages explains that position.

In those circumstances, the court concludes that the relief requested by the appellant, ie. that the appeal decision should hold Enterprise liable for Rattlesnake ’ s conduct, is granted. Judgment is granted to Garraway against Enterprise in the amount of $8,210.34. [ 36 ] The respondent observes, however, that if a judgment is entered against Enterprise, the Third Party Notice actions by Enterprise against Stamp and Rattlesnake should be re-instated. I agree that this relief should also be granted to Enterprise, and its actions against Stamp and Rattlesnake are hereby re-instated. 5.

Costs [ 37 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard at the City of Edmonton, Alberta, on September 13, 19 and 27 and October 4 and 5, 2012. Dated at the City of Edmonton, Alberta this 4 th day of January, 2013. J.B. Veit J.C.Q.B.A. Appearances: Damian Shepherd, Chatwin LLP for the Appellant/Garraway Colin C. Neal, Dean Duckett Carlson LLP for the Respondent/ Enterprise Rent-a-Car

Appendix A Recent legislative history of s. 187 [ 38 ] The current version of s. 187 of the Traffic Safety Act reads as follows: When driver deemed agent of owner 187(0.1) In this section, (a) “ lender ” means a person who holds a security interest in a motor vehicle through a written security agreement, who under that agreement has lent money to a person in respect of the motor vehicle and who is not in possession of the motor vehicle but retains title to the motor vehicle, or a person to whom the lender has assigned the agreement; (b) “ lessor ” means a person who by agreement, in the ordinary course of the person ’ s business, leases or grants exclusive use of a motor vehicle to another person for a term of more than 30 days or otherwise grants exclusive use of a motor vehicle to another person for a period of more than 30 days, and who is not in possession of the motor vehicle, or a person to whom the lessor has assigned the agreement; (c) “ motor vehicle liability policy ” means a motor vehicle liability policy under the Insurance Act; (c.1) “ renter ” means a person who, by agreement, in the ordinary course of the person ’ s business, rents a motor vehicle to another person for a term of no more than 30 days and who is not in possession of the motor vehicle, or a person to whom the renter has assigned the agreement; (d) “ security agreement ” means a security agreement under the Personal Property Security Act; (e) “ security interest ” means a security interest under the Personal Property Security Act; (f) “ seller ” means a person who holds a security interest in a motor vehicle through a written security agreement and sells the motor vehicle to another person under a contract in writing but retains title to the motor vehicle until the purchaser has carried out the terms of the contract and who is not in possession of the motor vehicle, or a person to whom the seller has assigned the security agreement or the contract.

(1) In an action for the recovery of loss or damage sustained by a person by reason of a motor vehicle on a highway, a person who, at the time that the loss or damage occurred, (

a) was driving the motor vehicle, and (

b) was living with and as a member of the family of the owner of the motor vehicle,

is deemed, with respect to that loss or damage, (

c) to be the agent or employee of the owner of the motor vehicle, (

d) to be employed as the agent or employee of the owner of the motor vehicle, and (

e) to be driving the motor vehicle in the course of that person ’ s employment.

(2) In an action for the recovery of loss or damage sustained by a person by reason of a motor vehicle on a highway, a person who, at the time that the loss or damage occurred, (

a) was driving the motor vehicle, and (

b) was in possession of the motor vehicle with the consent, expressed or implied, of the owner of the motor vehicle, is deemed, with respect to that loss or damage, (

c) to be the agent or employee of the owner of the motor vehicle, (

d) to be employed as the agent or employee of the owner of the motor vehicle, and (

e) to be driving the motor vehicle in the course of that person ’ s employment.

(2.1) Notwithstanding any other provision in this Division except subsections (5) and (6), in an action for the recovery of loss or damage sustained by a person by reason of a motor vehicle on a highway, the maximum amount for which a lender, lessor, renter or seller of the motor vehicle is liable in respect of the same incident in its capacity as a lender, lessor, renter or seller of the motor vehicle is the amount determined under subsection (4) less any amounts that (

a) are recovered for loss or damage under the third party liability provisions of contracts evidenced by a motor vehicle liability policy issued to a person other than a lender, lessor, renter or seller, (

b) are in respect of the use or operation of the motor vehicle, and (

c) are in respect of the same incident.

(3) Notwithstanding subsections (1) to (2.1), nothing in this

section relieves any person who is deemed to be the agent or employee of the owner and to be driving the motor vehicle in the course of that person ’ s employment from liability for the loss or damage.

(4) The maximum amount for which a lender, lessor, renter or seller of a motor vehicle is liable for the purposes of subsection (2.1) is the greatest of

(a) $1 000 000, (

b) the amount of third party liability insurance required by law to be carried in respect of the motor vehicle, and (

c) the amount established, or determined in the manner prescribed, by regulation. (5) Subsection (2.1) does not apply (

a) in respect of amounts payable by a lender, lessor, renter or seller other than by reason of vicarious liability imposed by this section, or (

b) to prescribed lenders, lessors, renters or sellers or motor vehicles, or prescribed classes of lenders, lessors, renters or sellers or motor vehicles.

(6) This

section applies only in relation to loss or damage sustained on or after the date this

section comes into force.

(7) The Minister may make regulations (

a) establishing amounts payable, or prescribing the manner of determining amounts payable, for the purposes of subsection (4)(c); (

b) prescribing lenders, lessors, renters and sellers and motor vehicles or classes of lenders, lessors, renters and sellers and motor vehicles for the purposes of subsection (5)(b).

(8) The Minister may make different regulations under subsection (7)(

b) in relation to lenders, lessors, renters and sellers and motor vehicles, or classes of lenders, lessors, renters and sellers and motor vehicles, for different circumstances. RSA 2000 cT-6 s187; 2007 c45 s13 ; 2009 c35 s9 2. The history of the legislation since the year 2000 begins with the status of s. 187 in the year 2000: When driver deemed agent of owner 187(1) In an action for the recovery of loss or damage sustained by a person by reason of a motor vehicle on a highway, a person who, at the time that the loss or damage occurred, (

a) was driving the motor vehicle, and

(

b) was living with and as a member of the family of the owner of the motor vehicle, is deemed, with respect to that loss or damage, (

c) to be the agent or employee of the owner of the motor vehicle, (

d) to be employed as the agent or employee of the owner of the motor vehicle, and (

e) to be driving the motor vehicle in the course of that person's employment.

(2) In an action for the recovery of loss or damage sustained by a person by reason of a motor vehicle on a highway, a person who, at the time that the loss or damage occurred, (

a) was driving the motor vehicle, and (

b) was in possession of the motor vehicle with the consent, expressed or implied, of the owner of the motor vehicle, is deemed, with respect to that loss or damage, (

c) to be the agent or employee of the owner of the motor vehicle, (

d) to be employed as the agent or employee of the owner of the motor vehicle, and (

e) to be driving the motor vehicle in the course of that person's employment.

(3) Notwithstanding subsections (1) and (2), nothing in this

section relieves any person who is deemed to be the agent or employee of the owner and to be driving the motor vehicle in the course of that person's employment from liability for the loss or damage. 3. In 2007, the Legislature passed the following amendment to s. 187: 13

Section 187 is amended (

a) by adding the following before subsection (1):

(0.1) In this section, (a) "lender" means a person who holds a security interest in a motor vehicle through a written security agreement, who under that agreement has lent money to a person in respect of the motor vehicle and who is not in possession of the motor vehicle but retains title to the motor vehicle, or a person to whom the lender has assigned the agreement; (b) "lessor" means a person who by agreement, in the ordinary course of the person's business, leases or grants exclusive use of a motor vehicle to another person for a term of more than 30 days or otherwise grants exclusive use of a motor vehicle to another person for a period of more than 30 days, and who is not in possession of the motor vehicle, or a person to whom the lessor has assigned the agreement; (c) "motor vehicle liability policy" means a motor vehicle liability policy under the Insurance Act; (d) "security agreement" means a security agreement under the Personal Property Security Act;

(e) "security interest" means a security interest under the Personal Property Security Act; (f) "seller" means a person who holds a security interest in a motor vehicle through a written security agreement and sells the motor vehicle to another person under a contract in writing but retains title to the motor vehicle until the purchaser has carried out the terms of the contract and who is not in possession of the motor vehicle, or a person to whom the seller has assigned the security agreement or the contract. (

b) by adding the following after subsection (2):

(2.1) Notwithstanding any other provision in this Division except subsections (5) and (6), in an action for the recovery of loss or damage sustained by a person by reason of a motor vehicle on a highway, the maximum amount for which a lender, lessor or seller of the motor vehicle is liable in respect of the same incident in its capacity as a lender, lessor or seller of the motor vehicle is the amount determined under subsection (4) less any amounts that (

a) are recovered for loss or damage under the third party liability provisions of contracts evidenced by a motor vehicle liability policy issued to a person other than a lender, lessor or seller, (

b) are in respect of the use or operation of the motor vehicle, and (

c) are in respect of the same incident. (

c) in subsection (3) by striking out "subsections (1) and (2)" and substituting "subsections (1) to (2.1)"; (

d) by adding the following after subsection (3):

(4) The maximum amount for which a lender, lessor or seller of a motor vehicle is liable for the purposes of subsection (2.1) is the greatest of (a) $1 000 000, (

b) the amount of third party liability insurance required by law to be carried in respect of the motor vehicle, and (

c) the amount established, or determined in the manner prescribed, by regulation. (5) Subsection (2.1) does not apply (

a) in respect of amounts payable by a lender, lessor or seller other than by reason of vicarious liability imposed by this section, or (

b) to prescribed lenders, lessors or sellers or motor vehicles, or prescribed classes of lenders, lessors or sellers or motor vehicles.

(6) This

section applies only in relation to loss or damage sustained on or after the date this

section comes into force.

(7) The Minister may make regulations (

a) establishing amounts payable, or prescribing the manner of determining amounts payable, for the purposes of subsection (4)(c);

(

b) prescribing lenders, lessors and sellers and motor vehicles or classes of lenders, lessors and sellers and motor vehicles for the purposes of subsection (5)(b).

(8) The Minister may make different regulations under subsection (7)(

b) in relation to lenders, lessors and sellers and motor vehicles, or classes of lenders, lessors and sellers and motor vehicles, for different circumstances. . . . 15 Sections . . . 13 and . . come into force on Proclamation. 4. In 2009, s. 187 was further amended: 9(1) The Traffic Safety Amendment Act, 2007 is amended by this section.

(2) Section 13 is amended (

a) in clause (a), in the new subsection (0.1) by adding the following after clause (c) (c. I) "renter" means a person who, by agreement, in the ordinary course of the person's business, rents a motor vehicle to another person for a term of no more than 30 days and who is not in possession of the motor vehicle, or a person to whom the renter has assigned the agreement; (

b) in clause (b), in the new subsection (2.1) by adding "renter" after "lessor" wherever it occurs; (

c) in clause (d), (

i) in the new subsection (4) by adding ", renter" after "lessor"; (ii) in the new subsection (5) (

A) in clause (

a) by adding "renter" after "lessor"; (

B) in clause (

b) by adding "renters" after "lessors" wherever it occurs; (iii) in the new subsection (7)(

b) by adding "renters"after "lessors" wherever it occurs; (iv) in the new subsection (8) by adding "renters" after "lessors" wherever it occurs. . . . 11 Sections . . .9, . . . come into force on Proclamation. . 5. The 2007 amendment to s. 187 was assented to on December 7, 2007. The 2009 amendment to s. 187 was assented to on June 4, 2009. Both the 2007 and 2009 amendments were proclaimed in force on March 1, 2011.