Rodney D. Dale

The plaintiff was injured when a rental truck in which he was a passenger crashed.

The truck had been rented for the plaintiff's use, but was driven by an intoxicated, unlicensed acquaintance who had taken the keys.

The plaintiff had jumped into the passenger seat to try to stop him.

The plaintiff sued the driver, the rental company, and his own insurer.

The rental company moved for summary judgment, arguing it was not vicariously liable under s. 192(2) of the Highway Traffic Act because the vehicle was operated without its consent.

The motion judge dismissed the rental company's motion and granted summary judgment in favour of the plaintiff, finding the rental company liable.

The Court of Appeal allowed the rental company's appeal, holding that while the rental company was not entitled to summary judgment because an owner can be liable if the person with consent remains in possession as a passenger, the plaintiff was also not entitled to summary judgment because whether he was actually in possession of the vehicle at the time of the crash was a genuine issue for trial.

The appellant owner leased a truck to a lessee who was expressly prohibited from driving it under the lease terms and an excluded driver endorsement.

The lessee drove the truck and was involved in a single-vehicle accident, injuring the respondent passengers.

The owner appealed a motion judge's finding that it was vicariously liable under s. 192(1) of the Highway Traffic Act.

The Court of Appeal dismissed the appeal, holding that consent to possession is distinct from consent to operate.

By leasing the vehicle, the owner consented to the lessee's possession, and the owner cannot contract out of its statutory vicarious liability.