Duties after a Motor Vehicle Collision (13:IV)

A. General

Vicarious liability of a motor vehicle owner, lessor, or lessee is governed by MVA ss 83-86:

• An “owner” includes a person in possession of a motor vehicle under a contract by which he or she may become its owner on full compliance with the contract (s 83(1)).
• An “owner” is neither a seller of vehicles under contracts of conditional sale nor a true lessee (s 86).
• A “lessor” includes a person who, under an agreement in writing and in the ordinary course of the person's business, leases or rents a motor vehicle to another person for any period of time or an assignee of the lease (s 86).
• A “lessee” is a person who leases or rents a motor vehicle from a lessor for any period of time (s 86), and is included as an owner for the purposes of liability under ss 83-83.1 of the MVA.

In Yeung v Au, 2006 BCCA 217, 269 DLR (4th) 727, the Court of Appeal decided that a vehicle leased with an option to purchase is not a vehicle that “has been sold” under MVA s 86(3) and that unless and until the lessee should exercise the option to purchase, title remains in the lessor. The Court concluded that the lessor may be vicariously liable pursuant to s 86(1). The rule in Yeung has now been codified in MVA s 86(1.2).

B. For Damages

Although the driver of a motor vehicle is primarily liable for damage caused by that motor vehicle, under MVA s 86, the owner (or lessor or lessee) will also be vicariously liable for damages caused by that motor vehicle if the driver had the owner’s express or implied consent to drive. If the driver lives with and is a member of the owner’s (or lessee’s) family, the driver is deemed to have the implied consent of the owner (or lessee).

NOTE: It has been argued that the vicarious liability provisions of the MVA create a contractual master-servant relationship between owner and driver, an implied term of which is to drive with reasonable care and to indemnify for losses arising from any breach. However, the courts have held that this does not give an owner a right of indemnity (compensation) against a negligent driver who drives with the owner’s consent: Labentsoff v Smith, [1969] BCJ No 455, 71 WWR 304 (BC Co Ct). The owner and driver are held to be joint tortfeasors.

C. For Offences

Pursuant to MVA ss 83 and 88, the owner of a motor vehicle is liable for any violation of the MVA or MVAR unless he or she can prove that:

• a) he or she did not entrust the motor vehicle to the person in possession or exercised reasonable care and diligence when doing so (MVA s 83(3));
• b) although the registered owner, he or she is not the actual owner (MVA s 83(5)(b)); or
• c) the person committing the offence was not the registered owner’s employee, servant, agent or worker (MVA s 88(3)).

Under MVA s 83(4), if an owner is liable for an offence committed by the driver, a fine of not more than $2,000 may be imposed in place of the fine or term of imprisonment specified in the enactment.

Under s 83(7), no owner is liable if the driver was convicted under the MVA for:

• a) driving without a license or without the appropriate class of license (s 24(1));
• b) driving while prohibited by order of peace officer or Superintendent (s 95);
• c) driving while prohibited by operation of law (s 102);
• d) impaired driving (s 224); or
• e) refusing to give a blood sample (s 226(1)).

Generally, where the driver of a motor vehicle has been convicted of an offence, financial liability rests on him and further relief cannot be sought against the owner of the vehicle.

D. Stolen Vehicles

If a motor vehicle is stolen, both ICBC and the police should be notified immediately. However, if the owner suspects or knows the identity of the person who allegedly stole the vehicle, the police may be reluctant to pursue the matter. The owner should insist that the matter be investigated.