Garraway v. Rattlesnake et al., (2013) 551 A.R. 221 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 04, 2013
• Citations: (2013), 551 A.R. 221 (QB);2013 ABQB 10

Garraway v. Rattlesnake (2013), 551 A.R. 221 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JA.151

Patrick Garraway (appellant) v. Enterprise Rent-A-Car Canada Ltd. (respondent)

(1203 00122; 2013 ABQB 10)

Indexed As: Garraway v. Rattlesnake et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

January 4, 2013.

Summary:

The defendant Rattlesnake was the operator of a Mazda vehicle which collided with the plaintiff's vehicle. The Mazda had been rented by the defendant Stamp from the defendant Enterprise Rent-A-Car Canada Ltd. At issue was whether Enterprise was vicariously liable for Rattlesnake's negligence under s. 187(2) of the Traffic Safety Act (Alta.), as owner of the Mazda. Both Stamp and Rattlesnake had been noted in default and did not participate at trial.

The Alberta Provincial Court, in a decision reported at 530 A.R. 140, rejected the plaintiff's claim that Rattlesnake had Enterprise's implied consent to drive. Thus, Enterprise was not vicariously liable under s. 187(2) and the claim against it was dismissed. The court granted judgment against Rattlesnake in the agreed upon amount of $8,210.34, plus prejudgment interest, $820 costs, court costs, $200 in filing fees, and an additional $200 in ex parte orders obtained (total $1,220). The court dismissed the action against Stamp where no allegations of negligence had been made against her and she was not an owner as defined under s. 1(1)(ee) of the Act; and therefore could not be found vicariously liable for Rattlesnake's negligence. The court dismissed Enterprise's third party claim against Stamp and Rattlesnake as it was an indemnity claim contingent upon a finding of liability against Enterprise. Enterprise was granted $820 costs against the plaintiff. The plaintiff appealed.

The Alberta Court of Queen's Bench allowed the appeal, holding that the trial judge erred in law: in stating that there was no evidence of implied consent, when he himself observed that foreseeability was some evidence of implied consent; in concluding that foreseeability was never a factor in considering implied consent; in considering hearsay evidence on the crucial issue of whether there was implied consent (evidence regarding the transfer of control); and in failing to determine whether the limited, but uncontradicted, evidence of implied consent (that Enterprise could foresee that, every time it leased a vehicle, an unapproved driver could drive it) was sufficient evidence on which to find implied consent. Where Enterprise had not asked for a new trial if the appeal was granted, the court granted the relief requested by the plaintiff, and held that Enterprise was liable for Rattlesnake's conduct. The court also granted Enterprise's request that, if judgment was entered against it, the third party notice actions by Enterprise against Stamp and Rattlesnake would be reinstated.

Evidence - Topic 1500

Hearsay rule - General principles and definitions - Definition and general rule - [See Torts - Topic 309 ].

Torts - Topic 309

Negligence - Motor vehicle - Liability of owner for negligence of driver of owner's vehicle - Meaning of "consent" or "gives or furnishes" - The defendant Stamp rented a Mazda from the defendant Enterprise Rent-A-Car - Stamp's friend, the defendant Rattlesnake, was operating the Mazda when it collided with the plaintiff's vehicle - At issue was whether Enterprise was vicariously liable for Rattlesnake's negligence under s. 187(2) of the Traffic Safety Act as the Mazda's owner - The trial judge rejected the plaintiff's claim that Rattlesnake had Enterprise's implied consent to drive - Thus, Enterprise was not vicariously liable under s. 187(2) and the claim against it was dismissed - The plaintiff appealed - The Alberta Court of Queen's Bench allowed the appeal - The trial judge erred in law: in stating that there was no evidence of implied consent, when he himself observed that foreseeability was some evidence of implied consent; in concluding that foreseeability was never a factor in considering implied consent; in considering hearsay evidence on the crucial issue of whether there was implied consent (evidence regarding the transfer of control); and in failing to determine whether the limited, but uncontradicted, evidence of implied consent (that Enterprise could foresee that, every time it leased a vehicle, an unapproved driver could drive it), was sufficient to find implied consent.

Torts - Topic 2644

Vicarious liability - Particular persons - Motor vehicle owner - [See Torts - Topic 309 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 8].

Mugford v. Weber et al. (2004), 348 A.R. 332; 321 W.A.C. 332; 2004 ABCA 145, dist. [para. 8].

Ireland v. Perez et al. (2007), 409 A.R. 125; 402 W.A.C. 125; 2007 ABCA 12, refd to. [para. 8].

Baumann v. Springer Construction Ltd. (1967), 58 W.W.R. 592 (Alta. T.D.), refd to. [para. 8].

Fontaine v. Loewen Estate, [1998] 1 S.C.R. 424; 223 N.R. 161; 103 B.C.A.C. 118; 169 W.A.C. 118, refd to. [para. 8].

Ezzedine v. Dalgard et al. (2006), 405 A.R. 296; 2006 ABQB 826, refd to. [para. 8].

Schoff v. Royal Insurance Co. of Canada et al. (2004), 348 A.R. 366; 321 W.A.C. 366; 2004 ABCA 180, refd to. [para. 9].

Morris v. Morris et al., [2009] B.C.T.C. Uned. 1567; 2009 BCSC 1567, refd to. [para. 9].

Robinson v. Flahr et al. (2000), 269 A.R. 188; 2000 ABQB 508, refd to. [para. 9].

E.T. Estate v. Tran et al. (2007), 409 A.R. 116; 402 W.A.C. 116; 2007 ABCA 13, refd to. [para. 9].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 9].

Yoc v. Crazy Bull et al., [2007] A.R. Uned. 709; 2007 ABPC 172, refd to. [para 9].

Thorne et al. v. Prets et al. (2003), 180 O.A.C. 41; 45 M.V.R.(4th) 69 (C.A.), refd to. [para. 9].

Henwood v. Coburn et al. (2007), 232 O.A.C. 31; 2007 ONCA 882, refd to. [para. 9].

Schoff v. Royal Insurance Co. of Canada et al. (2002), 326 A.R. 154; 2002 ABQB 881, revd. in part (2004), 348 A.R. 366; 321 W.A.C. 366; 2004 ABCA 180, refd to. [para. 9].

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 9].

Kwawukumey v. R., [2001] O.R. C.T.C. 2566, refd to. [para. 9].

CanZinco Ltd. v. Canada (Minister of Indian Affairs and Northern Development) (2004), 260 F.T.R. 105; 2004 FC 1264, refd to. [para. 9].

Antilla v Majeau, [1954] A.J. No. 59 (C.A.), refd to. [para. 10].

Parris v. Laidley et al., [2012] O.A.C. Uned. 617; 2012 ONCA 755, refd to. [para. 10].

Statutes Noticed:

Traffic Safety Act, R.S.A. 2000, c. T-6, sect. 187 [Appendix].

Counsel:

Damian Shepherd (Chatwin LLP), for the appellant, Garraway;

Colin C. Neal (Dean Duckett Carlson LLP), for the respondent, Enterprise Rent-A-Car.

This appeal was heard on September 13, 19 and 27, and October 4 and 5, 2012, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on January 4, 2013.