At Your Risk Too: Vehicle Owners’ Vicarious Liability - Booker Zhang

Imagine somewhere in Canada, a speeding Honda Civic recklessly ran a red light and seriously injured a pedestrian who was crossing the road. The police tried to pull the Civic over but soon gave up, considering the potential risk to other civilians on the road. They then found the Civic involved in the accident hiding in a bush after a few hours, but the driver had already abandoned the car and fled. The police made an inquiry to Tom, the registered owner of the Honda Civic. Tom claimed that he had lent the car to his cousin Jerry and had stayed at home all day. Jerry had vanished, and no one could prove if Tom delivered the truth. Would Tom be liable for this horrific offence? The answer would be affirmative based on the idea of vehicle owners’ vicarious liability for drivers’ offences.

The Legislative Basis for Vehicle Owners’ Vicarious Liability

In Manitoba, the government introduced the Highway Traffic Act (the “HTA”) in 1985, aimed at controlling motor vehicles used on Manitoba’s roads for safety and public welfare purposes. Section 229 of the HTA states that an owner of a car may be liable for a driver’s offence unless the vehicle was in someone else’s possession without the owner’s express or implied consent at the time of the contravention.[1] Such regulation creates vicarious liability between the driver and the vehicle owner. Other provinces also embrace the principles behind section 229 of the HTA and have similar laws. Some examples are section 192 of the Ontario Highway Traffic Act and section 86 of the British Columbia Motor Vehicle Act (the “MVA”).[2]

The Constitutional Validity of Vehicle Owners’ Vicarious Liability

Some defendants have argued that imposing such vicarious liability on them violates section 11(d) of the Canadian Charter of Rights and Freedoms (the “Charter”). Section 11(d) of the Charter illustrates an important principle—presumption of innocence—that is rooted in the Canadian criminal law system. It states that any person charged with an offence has the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal.[3] In short, the burden will be on the Crown to prove beyond a reasonable doubt that the suspect is guilty. Taking section 229 of the HTA as an example, it seems irrefutable that it violates section 11(d) of the Charter by presuming that a vehicle owner is guilty for another person’s actions. However, the Manitoba Court of Appeal (the “Court”) has consistently rebutted section 11 challenges and has upheld the constitutional validity of vicarious liability arising from section 229 of the HTA.

In a recent case, R. v. Bernier (“Bernier”), from March 3, 2021, Bernier was charged as a vehicle owner regarding two speeding tickets taken by a photo radar. Bernier argued that section 229 of the HTA violated section 11(d) of the Charter by assuming that he was the driver.[4] However, the Court dismissed his challenge. They claimed that only two elements were necessary to convict the vehicle owner: ownership and the vehicle involved in a violation.[5] Given that Bernier simultaneously met both elements, he was thus guilty—it did not matter whether he was the driver. In other words, the Court never presumed that Bernier was the driver, nor did they need to establish that he was the driver in order to convict him.[6] Therefore, section 229 of the HTA did not invoke a violation of section 11(d) of the Charter, and Bernier was liable for the driver’s offence.

The decision of Bernier follows the law settled in R. v. Gray (“Gray”), a precedential case related to section 229 of the HTA, which was also determined by the Manitoba Court of Appeal. In Gray, the accused’s vehicle was involved in a list of offences, including careless driving, speeding, and failing to stop pursuant to a signal from a peace officer.[7] The court denied the accused’s appeal and concluded that the application of section 229 of the HTA practically “makes considerable good sense.”[8] By successfully upholding the constitutional validity of section 229 of the HTA, the Court also confirmed the validity of vicarious liability between drivers and vehicle owners.

The Imposition of Vehicle Owners’ Vicarious Liability

It is crucial to be prudent when dealing with vicarious liability, as it may impose unjust liability on vehicle owners. In a tragic case, Bowe (Litigation guardian of) v. Bowe (the “Bowe”), a 15-year-old teenager, Tyson Bowe, took his stepfather’s car keys without permission and invited his cousin Dale Bowe, who was also 15 years old, for a ride.[9] They then got into an accident when Dale drove negligently, and Tyson suffered life-altering injuries, including a moderate brain injury.[10] The Supreme Court of British Columbia ruled that Tyson’s stepfather Boltz was vicariously liable as the vehicle’s registered owner, even though Boltz was neither in the car nor had he granted permission to the two boys. The judge’s analysis wrote that “[T]his lack of consent, on the part of Mr. Boltz, is irrelevant, on a principled basis, to the intention and operation of s. 86(1)(a).”[11]

This decision seems to stray too far from reasonable vicarious liability, as it exposes vehicle owners to uncertain risks. Kyla Lee, a partner of Acumen Law Corporation in Vancouver, commented that “if somebody steals your vehicle, and they drive it like maniac in some type of police chase—then you are liable as the owner for everything that this criminal did, when you were just the victim yourself?”[12]

Boltz then appealed the decision. On January 31, 2022, the British Columba Court of Appeal reversed the decision and relieved Boltz from vicarious liability. Dan Griffith, a partner at ATAC Law Corp, believes that this decision is highly instructive by clarifying how courts should interpret section 86 of the MVA or other similar regulations in other provinces.[13] Although Bowe is a tort case, the same ratio also applies to criminal law since the Canadian criminal law model of vicarious liability was adapted from the law of torts.[14] Furthermore, a more prudent and stricter standard would also make more sense when considering criminal liability.

The New Challenge of Vehicle Owners’ Vicarious Liability

With the development of technology and following social changes, the traditional vehicle owners’ vicarious liability faces new challenges. The booming growth of self-driving vehicles has recently led to a heated discussion about potential hardships in liability apportionment. The problems coming out of self-driving vehicles are obvious: who is the driver in an autonomous self-driving car, and should the vehicle owner be vicariously liable for an offence committed by the driver? The ratio given by the British Columbia Court of Appeal in Bowe states that in order to operate a vehicle, the driver or operator must generally have physical control over the vehicle.[15] Given such consideration, when driverless mode is on for a self-driving vehicle, the driver would considered a passenger due to losing physical control over the vehicle. As there is no vicarious liability between a passenger and vehicle owner, the owner would then escape liabiliy from a potential offence. Such a consequence indicates the existence of loopholes that may frustrate the purpose and initiative of vicarious liability.

Canada currently does not allow fully driverless cars. However, Edmonton lawyer Sandra Corbett believes that the Canadian government may make policy decisions and impose liability on owners in fully automated vehicle situations.[16] She also noted that the United States had designated different “levels” of automation ranging from level 0 to level 5, where level 4 and 5 vehicles are fully driverless.[17] Such policies could provide Canada with an informative reference when assessing related issues in the future.

Conclusion

In many common-law countries, vehicle owners’ vicarious liability has been a long-standing principle. In Canada, it serves a vital societal role. Such liability usually does not lead to imprisonment. However, it may still result in a summary conviction, which would, in turn, skyrocket insurance rates, let alone the potential for following tort claims. Therefore, vicarious liability urges car owners to pay more attention to safety and think twice before lending their vehicles to others. Moreover, the courts need to apply strict and narrow standards in holding vehicle owners liable to avoid any possible unjust legal outcomes. Faced with challenges from new vehicle technology, vehicle owners’ vicarious liability will still be active in Canada in the foreseeable future.

[1] Highway Traffic Act, CCSM c H60, s 229(2). [2] Highway Traffic Act, RSO 1990, c H8, s 192; Motor Vehicle Act, RSBC 1996, s 86. [3] Canadian Charter of Rights and Freedoms, s 11(d), Part I of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),1982, c 11. [4] R v Bernier, 2021 MBCA 21 at para 3. [5] Ibid at para 11. [6] Ibid at para 18. [7] R v Gray, 1988 CanLII 1374 (MB CA) at 2. [8] Ibid at 16. [9] Bowe (Litigation guardian of) v Bowe, 2019 BCSC 1454 at para 2. [10] Ibid. [11] Ibid at 65. [12] Jeff Buckstein, “B.C. Court of Appeal reverses vicarious liability for auto accident” (15 February 2022), online: LexisNexis Canada <www.thelawyersdaily.ca/articles/33622> [perma.cc/2E7E-CUFX]. [13] Ibid. [14] Canada, Department of Justice, Corporate Criminal Liability – Discussion Paper, March 2002, (modified on 7 January 2015), s 1(a). [15] Bowe (Litigation guardian of) v Bowe, 2022 BCCA 35 at para 58. [16] Greg Meckbach, “Will current auto liability regime apply to driverless cars?” (7 February 2018), online Canadian Underwriter <www.canadianunderwriter.ca/claims/1004127080-1004127080/> [perma.cc/K8NL-C98J]. [17] Ibid.