The defendant rental vehicle company was found to be the proper defendant in an action involving one of its vehicles driven by an unidentified motorist.

[2011] B.C.J. No. 1646

2011 BCSC 1173

British Columbia Supreme Court

N. Affleck J.

August 30, 2011

The plaintiff was involved in a single vehicle accident when she swerved to avoid a vehicle driving the wrong way on the highway. The plaintiff did not obtain the licence plate number of the vehicle but was 80-90% certain it was a U-Haul vehicle. The defendants in the action were John Doe, the Insurance Corporation of British Columbia ("ICBC"), pursuant to the unidentified motorist provisions of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231, and U-Haul Co. (Canada) Ltd. ("U-Haul") pursuant s. 86 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, which provides for vicarious liability against the owner of a vehicle if the vehicle is driven with the consent of the owner. This was an application brought by ICBC to determine whether it or U-Haul was the proper defendant.

The application was decided on an agreed statement of facts. U-Haul agreed that the facts could reasonably lead the Court to draw an inference that it owned the vehicle. The only issue to be decided was whether the driver of the U-Haul had acquired possession of the vehicle with U-Haul's consent.

The accident occurred at approximately 5:15 a.m. in the westbound lanes of Highway 1 near the Horseshoe Bay Ferry Terminal in West Vancouver. At approximately 5:00 a.m., two employees at the Horseshoe Bay Ferry Terminal both spoke with the driver of a U-Haul vehicle and advised him that he was travelling the wrong way to get to his destination. The driver returned to the U-Haul vehicle and exited the ferry terminal, driving westbound on Highway 1 on the wrong side of the median. The driver was a man in his mid-50s.

Based on the agreed facts, the motions judge held that it was probable the U-Haul vehicle was not stolen. This suggested that it was either driven by the person who rented the vehicle or by someone who was at least 18 years of age and was driving with the consent of the rental customer. The judge took notice that a driver in British Columbia must have a driver's licence and therefore concluded it was probable the driver in question did have a driver's licence. Based on these facts, the judge determined he could safely draw inference that it was more likely than not that the driver had U-Haul's consent to drive the vehicle. In the result, it was determined that U-Haul was the proper defendant in the action.