Sahota v Aviscar Inc, 2014 ABQB 752

Court of Queen ’ s Bench of Alberta Citation: Sahota v Aviscar Inc, 2014 ABQB 752 Date: 20141211 Docket: 0601 05405; 0701 06638 Registry: Calgary

Docket: 0601 05405 Between: Gagandeep Singh Sahota Plaintiff - and - Aviscar Inc., Nigel Montoute, Administrator Ad Litem of the Estate of Parminder Chahal, Deceased, Sukhjinder Bains, Branislav Popovic, Administrator Ad Litem of the Estate of Charnjit Singh, Deceased, Gary Kirk, Administrator Ad Litem of the Estate of Rena Dhillon, Deceased, Sundeep Sondh, Minor, Mandeep Sondh, Teghbir Badwal and John Doe Defendants Docket: 0701 06638 and Between: Mandip Sondh, also known as Mundeep Sondh an infant by his next friend Gurinder Sondh and Sundip Sondh, also known as Sundeep Sondh, an infant by his next friend Gurinder Sondh Plaintiffs - and – Aviscar Inc. and Sukhjinder Bains Defendants _ ________________________________________ ______________ Reasons for Judgment for Trial of an Issue of the Honourable Madam Justice S.L.

Hunt McDonald

_________________________________________ ______________ Issue [ 1 ] On November 6, 2013, Chief Justice N.C. Wittmann granted a trial of an issue to be heard pursuant to rule 7.1 (1) of the Alberta Rules of Court , Alta Reg 124/2010.

The issue was stated as follows: At the time of the accident, was Sukhjinder Bains in possession of and driving the 2004 Dodge Caravan vehicle with the consent, express or implied, of Aviscar Inc, thereby rendering Aviscar Inc. vicariously liable pursuant to s 187(2) of the Traffic Safety Act, RSA 2000, c.T-6 ? [ 2 ] The issue to be tried was set out in Consent Orders which set a four day trial date starting on January 13, 2014. [ 3 ] The Consent Orders were filed separately in actions 0601 05405 and 0701 06638 on November 12, 2013. [ 4 ] Subsequently, counsel on both actions for the Plaintiffs and the Defendants, entered into a Consent Consolidation Order for the purposes of the trial of an issue hearing set for January 13, 2014.

The Order was granted by Justice Sullivan and filed December 11, 2013. Background [ 5 ] On May 7, 2004, a single vehicle accident occurred at approximately 1:45 p.m. near Brooks, Alberta (the “Accident”). [ 6 ] The vehicle involved was a 2004 Dodge Caravan rental vehicle (the “Van”), British Columbia licence plate number 334- DEX, owned by Aviscar Inc (“Aviscar”). At the time of the Accident, Sukhjinder Bains (“Mr. Bains”) was driving the Van.

The Van was traveling westward on the Trans-Canada Highway No. 1 when suddenly, and without warning, the Van left the traveled portion of the highway and rolled several times. [ 7 ] Parminder Chahal (“Mr. Chahal”) and Charnjit Singh (“Mr. Singh”) were taking a group of six students, all of whom were minors, to a Sikh festival in Edmonton, Alberta. Mr. Chahal was a Sikh leader in Surrey, British Columbia. He ran an after school Sikh Marshall Arts program at the Guru Nanak Academy. Mr. Singh was an instructor at the academy. [ 8 ] Mr. Chahal’s wife, Rupinder Chahal (“Mrs.

Chahal”), rented the Van in Surrey from Aviscar for the group to travel in to Edmonton. When she rented the Van, Mrs. Chahal advised Aviscar that her husband, Mr. Chahal, may drive the Van. [ 9 ] The Plaintiff, Gagandeep Singh Sahota (“Mr. Sahota”), was a student and one of the passengers in the Van. [ 10 ] Mr. Chahal drove all night. He missed turning left at Calgary to go north to Edmonton, on the QE II highway. Later, realizing he was traveling in the wrong direction once they were east of Brooks, Alberta, he turned around at a gas station. [ 11 ] At the gas station, Mr. Chahal was tired and hungry.

He talked Mr. Bains into driving the Van. [ 12 ] Mr. Bains had told Mr. Chahal before they even left Surrey that he did not know how to drive. At the time, Mr. Bains was 16 years old, did not have a learner’s permit, novice licence or driver’s licence, had never driven a car, and had never taken any driving courses. [ 13 ] As a result of the Accident, there were 3 fatalities. Mr. Chahal, Mr. Singh and one of the minors, Rena Dhillon, died. Agreed Statement of Facts [ 14 ] For purposes of the trial of this issue, the following facts were jointly admitted by the Parties: 1.

A single vehicle accident occurred on May 7, 2004, near Brooks, Alberta (the “Accident”). 2. The motor vehicle involved in the Accident was a 2004 Dodge Caravan owned by the Defendant Aviscar Inc. (the “Van”). 3. The Van had been rented from Aviscar Inc., in Surrey, British Columbia by Rupinder Chahal on May 6, 2004 (the “Rental Contract”). 4. The term of the Rental Contract was for a maximum of 108 hours or four and one half days (the “Rental Period”). 5. Rupinder Chahal was the only person named on the Rental Contract. 6. Parminder Chahal was not the renter, nor was he present when the Van was rented. 7.

Parminder Chahal was the husband of Rupinder Chahal. 8. Sukhjinder Bains was not the renter nor was he present when the Van was rented. 9. At the time of the Accident, Sukhjinder Bains had never rented a vehicle previously.

10. There were no other authorized drivers listed on the Rental Contract. 11. When the Van left Surrey, British Columbia, it was being driven by Parminder Chahal. 12. Rupinder Chahal was not in the Van from the time it left Surrey, British Columbia, until the time of the Accident. 13. At the time of the Accident, the Van was being driven by Sukhjinder Bains. 14. Sukhjinder Bains had been asked to drive the Van by Parminder Chahal. 15. Sukhjinder Bains was aware before he started driving the Van that the Van was rented. 16.

Sukhjinder Bains did not ask or receive permission from Rupinder Chahal to drive the Van. 17. Sukhjinder Bains did not ask or receive permission from Aviscar Inc. to drive the Van. 18. Sukhjinder Bains did not advise either Rupinder Chahal or Aviscar Inc., that he would be driving the Van. 19. At the time of the Accident, Sukhjinder Bains: a. Was 16 years old; b. Did not have a learner’s permit, novice licence or driver’s license; and, c. Had not taken any driving courses. 20. At the time he commenced driving the Van Sukhjinder Bains did not know how to operate a motor vehicle. 21.

The Accident occurred during the Rental Period. 22. Had consent been requested of Aviscar to allow Sukhjinder Bains to drive the Van it would not have been granted. Relevant Legislation [ 15 ] Section 187(2) of the Traffic Safety Act , RSA 2000, c T-6 [ Traffic Safety Act ] outlines where a driver should be deemed the agent of the owner: 187(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. Relevant Provisions of the Rental Contract [ 16 ] The relevant provisions of the Rental Contract are outlined as follows: 7. Loss Damage Waiver (LDW), is not insurance and is not mandatory.

If I accept LDW at the daily rate indicated on the Rental Document and the car is operated in accordance with this agreement, you assume all loss or damage to the car except for my amount of “responsibility”, if any, as specified on the Rental Document. If I do not accept LDW, I will owe you for all loss or damage to the car. Loss and damage are described in the following paragraph and include theft and vandalism. 8. Loss of or Damage to the Car.

If LDW is not accepted, I owe for all loss or damage to the car regardless of fault whether due to theft, collision, vandalism or any other cause except accidental fire or explosion or natural causes. If the car is stolen or determined by you to be damaged beyond repair, I’ll pay its retail fair market value before theft or damage less salvage.

If the car is not damaged beyond repair, I’ll pay Avis’ repair price plus reasonable loss of use and an administrative fee determined by you (except in case of theft where the car is not recovered), towing and storage charges, all of which constitutes the loss (“The Loss”). I do not owe for loss or damage caused by accidental fire or explosion, windstorm, hail, earthquake or flood. Whether or not I accept LDW, I’m responsible for the loss if I or any additional driver authorized or not violates paragraph 16.

If my own insurance or my charge card issuer covers my responsibility for loss or damage, I will indemnify my insurer and policy number or card issuer and its insurer. I authorize you to collect

the loss directly from the insurer. I authorize you to collect the loss from a third party responsible for the damage. You will refund anysum you collect above loss or damage. ... 16. Prohibited Use of the Car.

I will not use or permit the car to be used 1) to carry passengers or property for hire; 2) to tow or pushanything; 3) to be operated in a test race or contest or on unpaved roads; 4) while under the influence of alcohol or a controlled substance;5) for conduct that could properly be charged as a crime including the transportation of a controlled substance or contraband; 6)recklessly or while overloaded and outside of Canada or, with your permission, the United States.

It is also a violation of this paragraphif I or an additional driver, authorized or not: 7) abuse the car; 8) fails to promptly report an accident to police and you; 9) fail to provideyou with an accident/incident report or fail to cooperate with your investigation; 10) obtained the car through fraud or misrepresentation;11) leave the car and fail to remove the keys or close and lock all doors, close all windows and the trunk and the car is stolen orvandalized.

A violation of this paragraph automatically terminates my rental and makes me liable to you for all the penalties, fines,forfeitures, liens and recovery and storage costs, including all related legal expenses. 17. Who Else May Drive the Car. Only my spouse, my domestic partner, my employer or a regular fellow employee incidental tobusiness duties or someone who appears at the time of rental and signs an Additional Driver Form, may drive the car but only with myprior permission. The other driver must be at least 25 years old and a capable and validly licensed driver.

There may be a charge for eachadditional driver authorized to drive the car which charge is specified on the Rental Document covering this rental unless prohibited bylaw. 18. Liability Insurance. Anyone driving the car as permitted by this agreement will be protected against liability for causing bodilyinjury or death to others or damaging the property of someone other than the driver and or the renter up to the minimum financialresponsibility limits required by applicable law. The limit for bodily injury sustained by one person includes any claim for loss of thatperson’s consortium or services.

Where the law extends coverage to a non-permitted driver, the same limits to all of the Conditions ofStandard Automobile Liability Insurance Policy, including all requirements as to notice and cooperation on my part, which are herebymade a part of this agreement. You can provide coverage under a Certificate of Self-Insurance or an Insurance Policy, or both, as you choose. In any case, a copy of thePolicy and/or Certificate will be available for my inspection at your main office. I understand that unless required by applicable law, youwill not provide:

A) coverage for fines, penalties, punitive or exemplary damages,

B) coverage for bodily injury to, or death of, myself while not a driver, or any member of my family or the driver family.

C) Defense against any claim after applicable limits of coverage that you furnish have been tendered,

D) Supplementary no fault, non-compulsory uninsured or undersigned motorist coverage, and any other optional or rejectable coverage,and you and I reject all such coverage to the extent permitted by law. Where any of these coverages are required or implied by law, thelimit shall be the minimum required under applicable statute. There is no coverage in Mexico. 19. Indemnification. I agree to indemnify you for any loss, liability and expense that you incur arising out of use of the car

A) whichexceeds the greater of the minimum limits imposed by applicable law or the limits of any Liability Insurance that you furnish to me or B)which results from any unauthorized use or prohibited operation of the car. If the rental takes place at a location operated by an AvisSystem Licensee and a claim relating to this transaction is made by me against Aviscar Inc. that alleges unfair, deceptive orunconscionable conduct that renting Avis Licensee agrees to indemnify and hold Aviscar Inc. harmless against such claim, including therelated costs and expenses.

Position of the Administrator of the Motor Vehicle AccidentClaims Act (the “Administrator”) and the Plaintiff [17] The Administrator and Plaintiff’s position is that Mr.

Bains was in possession of and driving the Van with the implied consentof Aviscar thereby rendering Aviscar vicariously liable. [18] The Administrator and Plaintiff submit that s. 187(2) of the Traffic Safety Act is legislation intended for the protection of thepublic from the irresponsible acts of people operating motor vehicles. [19] Their position is that an owner cannot escape liability where the owner gives consent to a person (“the permitted driver”) whois not driving at the time of the accident, but is an occupant of the vehicle being driven by a person to whom the owner has not givenconsent (the “non-permitted driver”): Thompson v Bourchier, (ON CA), [1933] OR 525 [Thompson].

TheAdministrator and the Plaintiff contend that conditions placed by the owner of a vehicle on the permitted driver’s possession of thevehicle do not affect the permitted driver’s possession as long as the permitted driver remains in the vehicle: Thompson. They rely on thisprinciple to support their position that Aviscar should be liable for damages on the basis of vicarious liability. [20] Applying the principle stated above to the facts of this case, the Administrator and the Plaintiff submit that Mr. Bains (thenon-permitted driver) was driving the Van at the request of Mr.

Chahal (the permitted driver), who remained in the passenger seat besideMr. Bains. The permitted driver, Mr. Chahal, was in possession of the Van at the time of the Accident because he was in the Van withMr. Bains, and accordingly, the owner (Aviscar) should be held liable.

Position of Aviscar [21] Aviscar’s position is that they should not be held vicariously liable because at the time of the Accident Mr. Bains was not inpossession of the rental vehicle with the consent of the owner and was not driving with the consent of the owner.

Aviscar submits thatthe only way Aviscar could be vicariously liable is by virtue of implied consent, which cannot be found in this case. [22] Aviscar submits that implied consent needs to be looked at through the lens of a rental car context because the reasonableexpectation of the parties in a rental car contract is that only authorized drivers under the rental contract will drive a rental vehicle. [23] Aviscar referred to clause 17 of the Rental Contract executed by Mrs. Chahal on May 6, 2004, and pages from their Rent-A-Car Administration Manual which deal with additional drivers.

These were contained in the Agreed Book of Exhibits marked as Exhibit2. Aviscar also relied on the testimony of the two witnesses they presented at trial: Jennifer Louise Allinson (a claims manager forAviscar) and Travis Wou (the rental agent who attended to Mrs. Chahal on May 6, 2004). [24] Relying on case law, the provisions relating to Additional Drivers and the testimony of the two witnesses, Aviscar submitsthat it cannot possibly be found that Mr. Bains had the implied consent of Aviscar to be operating the Van when the Accident occurred.

Analysis [25] Whether Aviscar should be held vicariously liable for injuries sustained by the Plaintiff, Gagandeep Singh Sahota, turns on acareful consideration of the facts set out in the Agreed Statement of Facts. [26] I have carefully read and reviewed all of the cases submitted and relied upon by both Parties. I do not believe it is necessary tocomment on every single case given that several can be factually distinguished because they turn on the issue of express consent and arenot rental car situations.

Additionally, several of the cases rely on out-of-province legislative provisions that have different requirementsthan s. 187(2) of the Traffic Safety Act in Alberta. [27] The meaning of s. 187(2) of the Traffic Safety Act should not be extended beyond its reasonable implications. If Mr. Chahalhad been driving the Van at the time of the Accident, there is no question that Aviscar would have been held liable. However, these arenot the facts of this case. At the time of the Accident, Mr. Bains was driving the Van. There is no doubt that Mr. Bains did not haveAviscar’s express consent to drive the Van.

Therefore, this case requires me to assess whether implied consent can be found in thesecircumstances. [28] Palsky v Humphrey and Byrne, (SCC), [1964] SCR 580 [Palsky] is the leading case on the issue of impliedconsent. Justice Spence, on behalf of the Supreme Court, agreed with the trial judge’s approach to determining whether there wasimplied consent, stating that the trial judge must draw proper inferences from the evidence.

Justice Spence held that the test for impliedconsent is whether, under all the circumstances, the person who is driving would have been justified in deeming that he had the impliedconsent of the owner to drive: Palsky at 582. On the facts in Palsky, consent was implied because it was clear that had permission beensought from the owner, it would have been granted as a matter of course: Palsky at 588. [29] The Alberta Court of Appeal in Ireland (Next Friend of) v Perez, 2007 ABCA 12 [Ireland] upheld the test set out in Palsky.The Parties referred to this case as Saravia in their oral submissions.

In Ireland, Justice Ritter held that implied consent requires anexamination of all the circumstances surrounding the use of the vehicle in question and thus when assessing the circumstances in aparticular instance, no one circumstance by itself is determinative: Ireland at para 22. The only circumstance that is inherently differentin third party scenarios is that the driver is a third party to the arrangement between the original owner and the borrower. Justice Ritterindicated that in some instances this may mean little, while in others it may be very important in light of other circumstances: Ireland atpara 27.

While the fact that consent would not have been granted if it had been sought is not determinative, Justice Ritter stated that insome cases it may be “practically conclusive”: Ireland at para 34. [30] Both parties relied on the Ireland case in their submissions. The Administrator and the Plaintiff submitted that Irelandconfirmed that no single factor may be determinative, and that in the circumstances Mr. Bains reasonably concluded that Mr. Chahalcould provide consent as the perceived renter of the Van.

Aviscar distinguished Ireland on its facts and submitted that Ireland confirmedthat all the circumstances must be considered, and that the third party factor is important and may be practically conclusive. [31] While the principles in Ireland relating to implied consent are applicable in this case, the facts in Ireland are distinguishablefrom the facts before me. In Ireland, Oscar A Saravia (“Oscar Sr.”) was the registered owner of the vehicle and had given consent to hisson Oscar G Saravia (“Oscar Jr.”) to drive the vehicle.

When Oscar Jr. became intoxicated and was unable to drive, Oscar Jr.’s friend, anunlicensed 18-year-old, drove the vehicle at Oscar Jr.’s request, and a single-vehicle accident occurred. The evidence in Irelanddemonstrated that Oscar Sr. regularly allowed Oscar Jr. to drive, that Oscar Jr. described the vehicle as his own despite the fact that itwas registered in his father’s name, and that family members indicated that the vehicle was bought for Oscar Jr.

The Court concludedthat it was reasonable for the driver, Oscar Jr.’s friend, to conclude that Oscar Jr., as the owner of the vehicle, could give him consent todrive. Thus, the Court of Appeal in Ireland held that the trial judge correctly concluded that Oscar Sr.’s implied consent could beinferred. [32] Mr. Bains testified that he knew that the Van was rented prior to the Accident. In examination in chief, Mr. Bains stated thathe thought Mr. Chahal had rented the Van for the trip to Edmonton. During cross-examination, Mr. Bains stated he knew that Aviscarwas the owner of the Van, not Mr. Chahal. Mr.

Bains confirmed on cross-examination that he knew he was not allowed to drive the Van,and that Aviscar would not have permitted him to drive it. In Ireland, Oscar Jr.’s friend believed that Oscar Jr. was the owner of thevehicle, and as the owner was giving him consent to drive. This is not the case on these facts. Mr. Bains knew that the Van was rentedand that Mr. Chahal was not the owner. Mr. Bains was under no impression that he was allowed to drive the Van. He agreed that Mr.Chahal had pressured him to drive the Van, and that at no point had Aviscar nor Mrs. Chahal agreed to allow him to drive.

[33] The Administrator and the Plaintiff relied on Thompson to support their position that Aviscar should be held vicariouslyliable. In Thompson, the defendant Bourchier owned Hertz-Drive-Yourself system which carried on the business of renting automobiles.One of the conditions in the contract of hire was that the automobile was not to be operated by any other person other than the renter orhis employee. The renter let someone else drive, and the plaintiff Thompson was injured. At trial, the renter was found to be inpossession of the automobile at the time of the accident.

On appeal, the issue was whether the renter had given up possession of theautomobile when the driver began operating it. [34] Justice Fisher stated that “[f]or the owner to escape liability under this amendment he must establish that the motor vehiclewas without his consent ‘in the possession of some person other than the owner or his chauffeur’.” Justice Fisher pointed out that anowner of an automobile cannot escape liability imposed by a statutory provision simply by providing in an agreement of hire that thehirer alone shall retain possession and operate the car.

He rejected a narrow construction of the word “possession” and concluded that, inall the circumstances, the renter was in possession of the automobile, with the owner defendant’s consent, at the time of the accident. [35] Aviscar distinguished Thompson relied upon by the Administrator and the Plaintiff. I agree with Aviscar. Thompson is anOntario case that relies on legislation that is materially different from s. 187(2) of the Traffic Safety Act.

The Alberta legislation requiresthat the individual be in possession of and driving the vehicle with the express or implied consent of the owner, whereas the Ontariolegislation only requires possession. In Thompson, it was clear that the owner never consented to anyone other than the renter to drivethe vehicle. The case turned on whether the renter was in possession of the vehicle at the time of the accident given that he was in thevehicle at the time of the accident. [36] The Administrator and the Plaintiff also rely on Mugford v Weber, 2004 ABCA 145 [Mugford].

In Mugford, Weber wasdriving a vehicle owned by his employer when he rear-ended the vehicle of Mugford causing damages. The issue on appeal was whethers. 181(

b) of the Highway Traffic Act, RSA 1980, c H-7 rendered the employer vicariously liable for Weber’s negligence. Mugford isdistinguishable from the facts of this case because it deals with express consent, not implied consent. In Mugford, the owner of thevehicle expressly consented to the driver’s possession and driving of the vehicle for the duration of his seasonal employment. When theaccident occurred, Weber was not driving for the purposes of his employment, but for another purpose. On the facts of this case, there isno evidence that Aviscar provided express consent to Mr.

Bains to possess or operate the Van at the time of the Accident, or at any timefor that matter. [37] Aviscar relied on Godsman v Peck (1997), (BC CA), 29 BCLR (3d) 37[Godsman]. The British ColumbiaCourt of Appeal in Godsman amplified the Palsky test at paragraphs 29 and 30: The concept of consent, even though it can be implied, is not satisfied by general evidence of willingness that another may drive.Willingness is an attitude which must be crystallized by an expectation that another will drive. For general willingness to amount toconsent, certain specific circumstances must be within the owner’s contemplation.

These are the circumstances expected to arise inwhich possession may be transferred to a third person, and in which the owner would be willing for such a transfer to occur. Thiswillingness and expectation must be in the owner’s mind at the time when the vehicle is transferred to the original borrower. The Court must then go on to examine the circumstances in which the vehicle was actually passed onto the third party, and relate thosecircumstances back to the owner’s state of mind at the time he gave up possession...

The mere possibility of such expectation (the ownerallowing a third party to drive rather than the person to whom he gave possession) and willingness is not enough. [38] At trial, Aviscar called both Ms. Allinson and Mr. Wou to give evidence. [39] Ms. Allinson, a claims manager for Aviscar, confirmed that the spouse of the renter is an authorized driver pursuant to clause17 of the Terms and Conditions of the Rental Contract. Clause 17 also provides that “the other driver must be at least 25 years old and acapable and validly licensed driver”. Ms.

Allinson testified that if you are an additional, authorized driver between the age of 21 to 25years, you may drive provided you pay an additional surcharge. Ms. Allinson confirmed that a separate, additional driver form was notcompleted by anyone, including Mrs. Chahal’s husband, Mr. Chahal. [40] Mr. Wou, who attended on Mrs. Chahal when she rented the Van on May 6, 2004, testified that it is his normal practice whena person rents a vehicle from him to ask if a spouse intends to drive.

If so, he would advise the renter that the spouse would need to gointo the closest location of Aviscar in order to present their valid driver’s license to confirm that they were entitled to drive. Mr. Woutestified that he would not have been able to rent or give possession of the Van to Mr. Bains, nor would he have been able to give Mr.Bains permission to drive because Mr. Bains was 16 years old, did not have a valid driver’s licence, and had never operated a motorvehicle before. [41] While Mr.

Wou testified in cross-examination that he has no specific recollection of having such a conversation with Mrs.Chahal on the date that she rented the Van, he confirmed that with every rental he follows the standard practice. He did not specificallyrecall asking Mrs. Chahal whether she had a spouse, or whether she told him that her husband intended to drive the Van. However, Mr.Wou stated in questioning for discovery that when Mrs. Chahal rented the Van she indicated to him that her husband may drive the Van.Mr.

Wou also confirmed in cross-examination that no provision in the Rental Contract requires the other authorized driver to come inand show their license to an Aviscar representative. [42] I am satisfied in the circumstances that Mrs. Chahal advised the Aviscar sales agent, Mr. Wou, that her husband would bedriving the Van. Thus, Aviscar impliedly consented to the driving of the Van by Mrs. Chahal’s spouse, Mr. Chahal. There was noevidence that Aviscar made inquiries as to whether Mrs.

Chahal would or would not be present while her husband was driving thevehicle. [43] Applying the amplified Palsky test set out in Godsman, I am satisfied in these circumstances that Aviscar never would havegiven possession of their rental vehicle to Mrs. Chahal if they had contemplated that her husband, who Mrs. Chahal indicated may drivethe vehicle, would request Mr. Bains to drive the vehicle knowing that he had not taken any driving course, did not have a learner’spermit nor his driver’s licence, was 16 years of age and had never driven a vehicle before other than occasionally an all-terrain vehicle.

[ 44 ] Accordingly, I am satisfied that Mr. Bains was not in possession of the vehicle with Aviscar’s implied consent. [ 45 ] Further, I am satisfied that Aviscar would never have given consent for an unlicensed driver to be operating the Van. Mr. Bains was neither 21 to 25 years of age nor a capable and validly licensed driver which was clearly a requirement of the Rental Contract for renting a vehicle from Aviscar. [ 46 ] Therefore, I hold that Aviscar is not vicariously liable pursuant to s. 187(2) of the Traffic Safety Act . At the time of the Accident, Mr.

Bains was not in possession of and driving the Van with the implied consent of Aviscar. [ 47 ] If the parties are unable to agree, they may come before me to speak to costs. Heard on the 13, 14 and 16 th days of January, 2014. Dated at the City of Calgary, Alberta this 11 th day of December, 2014. S.L. Hunt McDonald J.C.Q.B.A. Appearances: Dana C. Neilson, Rodin Law Frim for the Plaintiffs Gary D. Braun, First West Law LLP for the Administrator of the Motor Vehicle Accident Claim’s Act Scott E. Cozens, Cozens Wiens LLP For the Defendant, Aviscar Inc.