Claims Against Mother Dismissed as Son Did Not Have Consent to Drive Her Car


As the owner of a motor vehicle in Ontario, you may be liable for the negligent actions of another individual who is in possession of and operates your vehicle. This is known as vicarious liability.

Pursuant to section 192(2) of the Ontario Highway Traffic Act, an owner of a motor vehicle is vicariously liable for any loss or damage sustained in the event of negligence by the vehicle’s operator. However, the exception to this rule occurs when the operator of the motor vehicle does not have the owner’s consent to possess or operate the vehicle.

When applying section 192(2) of the Highway Traffic Act to the facts of the case against Elaine Clement (“Elaine”), Justice R. Dan Cornell granted Elaine summary judgment to have the plaintiff’s claim and the defendant’s, Intact Insurance Company (“Intact”), crossclaim dismissed against her.


On November 17, 2012, the plaintiff’s vehicle (the person bringing the case against another in a court of law) was struck by a Chevrolet Uplander van (“defendant’s vehicle”). Jason Clement (“Jason”) was driving the defendant’s vehicle, which is owned by his mother, Elaine.

At the time of the accident, Jason was living at his mother’s home. Jason’s driver’s licence was suspended in autumn of 2010, and remained suspended at the time of the accident.

According to Elaine’s sworn affidavit, she did not permit Jason to drive her vehicle as his licence was suspended. Elaine did admit that she, on occasion, allowed her son’s friend, Eric, drive her vehicle to give Jason rides.

As a result of the motor vehicle accident, the plaintiff commenced a lawsuit against Elaine and Intact. Intact proceeded to commence a crossclaim (a claim brought by one defendant against another in the same proceeding) against Elaine.


Elaine brought a motion for summary judgment to have both the plaintiff’s claim and Intact’s crossclaim dismissed against her.

A summary judgment motion is one party’s endeavour to put an early end to a lawsuit, including a personal injury lawsuit. On a summary judgment motion, one party is requesting that the court rule that another party has no case as there are no facts in dispute. The judge must decide whether there is a genuine issue which requires a trial by considering the facts and applying the law to these facts.

In Elaine’s case, the question was whether or not the owner of the vehicle gave consent to the operator to drive the vehicle. The onus is on the owner of the vehicle to prove that the vehicle was in the possession of the operator without the owner’s permission.

In an effort to rule on the summary judgment motion with respect to the issue of consent, Justice Cornell relied upon the following considerations made by the judge in the decision of Seegmiller v. Langer:

  1. Whether a motor vehicle is in the possession of an individual without the consent of the owner is a question of fact to be determined by the evidence in each individual case;
  2. The meaning of possession is a question of law, but the application to any particular set of facts is not a question of law alone;
  3. There are different types of possession, but the primary definition of possession takes into consideration power, control or dominion over property;
  4. The onus is on the owner of the vehicle to establish that the vehicle was in the possession of the operator of the vehicle without the consent of the owner;
  5. The owner is vicariously liable under section 192 of the Highway Traffic Act based upon possession of the vehicle, not the operation of the vehicle;
  6. Consent to possess a vehicle is not the same as consent to operate a vehicle;
  7. The owner will be liable if possession is given, even if there is a breach of a condition attached to the possession (including the condition that the person in possession will not operate the vehicle); and.
  8. Breach of conditions placed by the owner on the person’s possession of the vehicle, including the condition not to operate the vehicle, do not change the possession of the vehicle.


Elaine filed an affidavit in support of her motion wherein she deposed that she was aware that her son’s driver’s licence was suspended when he moved in with her, and therefore he was not permitted to possess her motor vehicle. She further deposed that on the day of the accident, Jason took her vehicle without her knowledge or consent while she was asleep.

In Jason’s affidavit, he deposed that he took his mother’s vehicle without her knowledge or consent while she was asleep. He also affirmed that he did so without his mother’s permission and had the intention to return the vehicle before she knew he had taken it.

Justice Cornell found no evidence to suggest that Elaine had transferred “power, control or dominion” of the vehicle to Jason. Justice Cornell further rejected Intact’s argument that Elaine had previously permitted Jason’s friend, Eric, to operate the vehicle and by doing so she had previously granted possession of the vehicle to Jason on the condition that a licenced driver operate the vehicle. On the contrary, Justice Cornell found that Elaine had granted Eric possession of the vehicle on the occasions where Eric operated the vehicle, not her son.

Justice Cornell concluded that Elaine established that, at the time of the accident, Jason did not have her express or implied consent to have possession of the defendant’s vehicle. As such, Justice Cornell granted summary judgment and dismissed the plaintiff’s claim and the crossclaim by Intact against Elaine.

If you or a loved one were injured in a motor vehicle accident and you are considering making a claim for damages against the “at fault” driver, contact the experienced personal injury lawyers at Jasmine Daya & Co. today to learn about your legal right to compensation. Contact our office online or by phone at 416-967-9100 and make an appointment for a free consultation.