[2011] A.J. No. 421

2011 ABPC 118

Alberta Provincial Court

D.G. Ingram Prov. Ct. J.

April 5, 2011

Subrogated action for damages caused to the insured’s vehicle was dismissed on the basis that the defendant had implied consent to use the vehicle and, as a result, was an un-named insured.

The plaintiff owner and the defendant worked together. They were building a house and were staying on site in a camper. The defendant had previously operated the plaintiff’s vehicle on several occasions but on each previous occasion had specific permission from the plaintiff. On the night of the accident, the plaintiff fell asleep and left his keys on a ledge in the camper. The defendant took the keys to drive the plaintiff’s vehicle to a nearby store and on the way crashed the vehicle into a ditch.

The defendant reported to police that he had taken the vehicle without consent while the plaintiff owner was sleeping. However, the defendant testified at trial that he “thought it would be all right” to take the plaintiff’s vehicle.

Section C(1)(b) of the Alberta standard automobile policy, SPF No. 1, states that the “insurer agrees to waive subrogation against every person who, with the insured’s consent, has care, custody or control of the automobile”, with some exceptions which were not applicable.

The court found that the authorities that analyze “consent” in the context of whether an owner is vicariously liable for damages caused by an operator of his or her motor vehicle were applicable to this situation. After reviewing these authorities, the court concluded that express consent was not required and implied consent was sufficient to make the defendant driver an un-named insured under the policy. Consent is implied if the operator of a vehicle has a reasonable (objective) and honest (subjective) belief that consent has been given or would be given if requested.

The court concluded that while it was clear the defendant did not have express consent, he did have implied consent. The defendant driver had an honest and reasonable belief that consent would have been given had it been requested. As a result, the defendant was an un-named insured and the insurer had agreed to waive subrogation under section C(1)(b).