Mansour v Rampersad, 2021 ABQB 44

Court of Queen’s Bench of Alberta Citation: Mansour v Rampersad, 2021 ABQB 44 Date: 20210115 Docket: 1703 03278 Registry: Edmonton Between: Yaser Mansour Appellant - and - Roger Rampersad and Krista Pinksen Defendant _______________________________________________________ Decision of the Honourable Mr. Justice R.A. Jerke _______________________________________________________

Appeal from the Order by L.A. Smart, Master in Chambers Filed on the 19 th day of September, 2019 Dated the 12 th day of September, 2019 Introduction [ 1 ] Krista Pinksen, the defendant, appeals Master Smart’s dismissal of her

summary judgment application striking the claim by the plaintiff, Yaser Mansour arising from a car accident involving her car. The car was driven by the defendant, Roger Rampersad. Ms. Pinkson contended that Mr. Rampersad did not have her consent to drive or possess the vehicle at the time of the accident. Mr. Mansour and the Motor Vehicle Accident Claims Fund resisted the application. [ 2 ] Master Smart found that Ms. Pinksen’s expressed language was sufficient to provide consent to vehicle possession that continued until the vehicle’s return and as a consequence Ms. Pinken, as the owner, is liable under the legislation. H e dismissed the application for

summary judgment. [ 3 ] This is an appeal of that dismissal. Facts [ 4 ] Ms. Pinksen knew Mr. Rampersad from his participation in a program through her employer, the Hope Mission. Mr. Rampersad stayed at Ms. Pinksen and her husband, Barry’s, home on May 8, 2015. [ 5 ] Ms. Pinksen was out of town on May 9, 2015, when Barry lent the vehicle to Mr. Rampersad to run errands. Mr. Rampersad agreed to return the vehicle to Barry later that same day. He did not do so. [ 6 ] Ms. Pinksen attempted to contact Mr. Rampersad by telephone and text message between May 9 and 10 but did not receive a response. On May 11 Ms.

Pinksen reported the vehicle stolen to the police. [ 7 ] A police officer attended Ms. Pinksen’s home shortly before midnight on May 11 and contacted Mr. Rampersad by phone just after midnight on May 12. Mr. Rampersad did not have the vehicle at the time of the call, but informed the officer it was parked in Summerside. [ 8 ] The officer gave Mr. Rampersad until 5 AM on May 11 to return the vehicle, failing which it would be listed as stolen in the police database. Ms. Pinksen was present during the call and agreed to Mr. Rampersad returning the vehicle as specified by the officer. Ms.

Pinksen “trusted the police officer and indicated that, yes, Mr. Rampersad could drive the vehicle back from Summerside to [her] house”. [ 9 ] Mr. Rampersad did not return the vehicle and Ms. Pinksen reported it stolen to the police. [ 10 ] Mr. Rampersad was in a collision with Mr. Mansour on May 13 at about 2:30 PM. Mr. Rampersad was charged with 6 offences including theft. Questions for Determination [ 11 ] This appeal raises the following questions: 1. What are the legal principles concerning consent to drive and possess a vehicle? 2.

Can consent be terminated in advance or be subject to an expiration period? 3. Was consent terminated here? 4. Has Ms. Pinksen shown there is no merit to Mr. Mansour’s claim as against her? Standard of Review [ 12 ] The standard of review on an appeal from a Master’s decision is correctness: Bahcheli v Yorkton Security , 2012 ABCA 166 . On appeal from a decision of a Master the reviewing Court owes no deference to the decision below and may substitute their own views for those of the Master. Issues

1. What are the legal principles concerning consent to drive and possess a vehicle? [13] Section 187(2) Traffic Safety Act, RSA 2000, c T-6, (TSA) imposes vicarious liability on the owner of a vehicle when thevehicle is operated by another person. It provides:

(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 thetime 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, withrespect 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. [14] The following principles concerning the

interpretation and application of TSA section 187(2) are applicable: • Consent can be express or implied; implied consent is determined through mixed subjective and objective factors; implied consentcan be terminated: Palsky v Humphrey, [1964] SCR 580, (SCC) at para 23. • The driver’s subjective state of mind is not a relevant factor for implied consent.

However, relevant to the overall context is if thedriver objectively might have thought from all the circumstances that he had consent: Garrioch v Tessman, 2017 ABCA 105, at para 27. • TSA section 187(2) imposes vicarious liability on an owner when consent has been given to both possess and drive the vehicle.The owner is not liable where there is consent to possess the vehicle, but not to drive. Consent to drive can be terminated even when aperson may have possession.

Conditional consent is not permitted: Mugford v Kodiak Construction Ltd, 2004 ABCA 145 at paras 41-43. • An exception to the rule against conditional consent is that an owner can impose a condition that possession will not be passed onto third parties or classes of third parties: Garrioch at para 54(d). This condition can be express or implied: Garrioch at para 23, 54(d)(ii), 56. 2.

Can consent be terminated in advance or be subject to an expiration period? [15] I find that clear, unequivocal, and unambiguous express termination or revocation of consent to drive is effective, even ifmade in advance. [16] The respondents submit that express advance notice of termination of consent is unenforceable because it is nothing morethan a limitation on consent. In other words, it is the same as a condition on consent, which is not permitted. I disagree. [17] In Mugford, the Alberta Court of Appeal found: Requiring consent at the time of the accident operates to the same effect as conditional consent.

Where the owner has not, expressly orimpliedly, required specific consent for each possession and use of the vehicle, there is no requirement to determine consent for eachtime the driver uses the vehicle.... where the owner has consented to a situation or arrangement where the owner has no control over theuse and possession of the vehicle, a negative answer to the hypothetical question of whether consent would have been given at the timeof the accident cannot relieve the owner of liability; otherwise, the purpose of s. 181 would be undermined: Mugford at para 46. ...

As stated by the courts in Gillard and Barreiro, the legislation is intended for the benefit of users of highways and that benefit should notbe circumvented by conditions imposed by owners by agreement or otherwise. The policy favours innocent third parties seekingcompensation for injuries suffered at the hands of negligent automobile drivers. The recourse for owners is to exercise more care whenentrusting their vehicles to another and to obtain insurance in excess of the statutory minimum limits: Mugford at para 51. [18] There cannot be conditions attached to consent, but for the third-party exception.

Consent to drive a vehicle is similar to an onor off switch; it either exists without conditions or it does not exist at all: Garrioch at para 19. If an owner gives consent to a driver, theowner is deemed to accept the risk that the driver might in some particular respect, on some particular occasion, be negligent, or use thevehicle in an unauthorized or unanticipated way: Garrioch at para 19. [19] An owner’s personal or internal policies about use of the vehicle, even if expressly made a condition of the transfer ofpossession of the vehicle, are ineffective in law against third parties.

A driver’s failure to comply with an owner’s policy or conditioncannot terminate the “possession with consent”: Garrioch at para 20. [20] The Alberta Court of Appeal further held that when an owner gives consent to drive a vehicle the owner is deemed to acceptthe risks of what the second party does with it, and the owner’s insurance is engaged. Limitations on the place, timing, or purposes of thedriving are ineffectual against injured plaintiffs: Garrioch at para 21. [21] However, when a vehicle owner trusts someone with the possession and operation of the vehicle, the owner retains somecontrol of the vehicle.

For instance, although an owner may have given up possession of the vehicle, and in one sense may have “lostcontrol”, the law still entitles the owner, not the driver, to determine who has consent to drive that vehicle: Garrioch at para 68.

[ 22 ] Further, if the owner can terminate implied consent ( Palsky ), then express consent can also be terminated. All counsel before me agreed that consent can be terminated or revoked by an owner.

Consent to operate a vehicle can be terminated while a driver maintains possession. [ 23 ] If an owner can consent to a second party driving, yet forbid a third-party drive while the vehicle is in the possession of the second party, ( Garrioch ), an owner must also be able to consent to a second party driving and expressly forbid that same second party from possessing or driving the vehicle at a specific later time. [ 24 ] There is a notable difference between creating a condition to consent by imposing a time or location restriction, and revoking consent after a period of time has passed. 3.

Was consent terminated here? [ 25 ] I find that Ms. Pinksen’s consent for Mr. Rampersad to drive her vehicle was terminated at 5am on May 12, 2015. [ 26 ] Mr. Rampersad was in possession of the vehicle from May 9, 2015 when Ms. Pinksen’s husband gave him consent to possess and drive it. He was to return the vehicle to Ms. Pinksen’s husband later that same day. Mr. Rampersad did not return the vehicle and on the evening of May 11, 2015. Ms. Pinksen reported her vehicle as stolen to the police. After midnight on May 12, 2015, a police officer called Mr. Rampersad and instructed him to return the vehicle to Ms.

Pinksen’s house by 5am May 12, 2015, failing which it would be listed as stolen in the police database. Ms. Pinksen was present during this call and gave her consent. [ 27 ] Mr. Rampersad did not return the vehicle as directed and Ms. Pinksen reported it as stolen. [ 28 ] I find that Ms. Pinksen gave Mr. Rampersad express consent to drive on May 12, 2015. Whether or not there had been implied consent before then matters not. Her express consent for Mr. Rampersad to return the vehicle back to her house was the consent ‘on’ switch, without conditions attached. If Mr.

Rampersad were in an accident while driving between midnight and 5 am on May 12, 2015, regardless of whether he was driving the vehicle to return it to Ms. Pinksen or not, she would have vicarious liability. [ 29 ] But Mr. Rampersad was expressly told: return the vehicle by 5am or it will be considered stolen. In other words, return the vehicle and your consent to drive is terminated; or if you do not return the vehicle your consent to drive is terminated. Either way, as of 5am on March 12, 2015, the consent switch was ‘off’.

There was nothing unclear, ambiguous, or equivocal about the termination of consent. [ 30 ] There was nothing further Ms. Pinksen could have done to terminate consent. The vehicle was stolen, and compensation to any injured party would be provided by the state under s. 5 of the Motor Vehicle Accident Claims Act , RSA 2000, c. M-22 : Garrioch at para 16 . 4. Has Ms. Pinksen shown there is no merit to Mr. Mansour’s claim against her? [ 31 ] A defendant can obtain

summary judgment if they prove, on the balance of probabilities, there is no merit to the claim against them, meaning there is no real issue to be tried: Weir-Jones Technical Services Incorporated v Purolator , 2019 ABCA 49 , at para 31 . To oppose a defendant’s

summary judgment application, the plaintiff must prove there is a genuine issue to be tried, or that the defendant has not met its evidentiary burden. [ 32 ] The Court must also be satisfied that a fair and just adjudication is possible on a

summary basis. A dispute on material facts, or one depending on issues of credibility, can leave genuine issues requiring a trial: Weir-Jones at para 35; 102 Street Developments Ltd v Derk's Formals Ltd , 2019 ABQB 781 , at para 16 . [ 33 ] Mr. Mansour’s claim is based solely on Section 187(2) of the Traffic Safety Act . That provision imposes vicarious liability on an owner for the actions of a driver, but only if the driver has the owner’s consent, expressed or implied. [ 34 ] The accident happened on May 13, 2015, more than a day after Ms. Pinksen revoked her consent.

TSA s. 187(2) does not impose liability on these facts. [ 35 ] I find that Mr. Rampersad was driving and in possession of Ms. Pinksen’s vehicle without her consent. There is no merit to Mr. Mansour’s claim against Ms. Pinksen, and

summary judgment is just and appropriate in this circumstance. The appeal is allowed; the claim is therefore dismissed as against Ms. Pinksen. [ 36 ] If counsel are unable to agree on costs they may be spoken to within 60 days. Heard on the 29 th day of October, 2020. Dated at the City of Edmonton, Alberta this 15 th day of January, 2021.

R.A. Jerke J.C.Q.B.A. Appearances: Anthony C. Espejo for the Appellant Ms. Pinksen Ward Hanson for the Respondent Mr. Mansour Michelle Andresen Agent of the Motor Vehicle Accident Claims Fund