One of the first lessons that any student of personal injury law learns is that an owner of a motor vehicle is vicariously liable for the negligence of the vehicle’s operator. This vicarious liability is imposed by s. 192(2) of the Highway Traffic Act, which states:
192 (2) The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur.
Built into the section is a broad exception: the owner is only vicariously liable if the operator had consent to possess the vehicle. This exception has led to a great deal of litigation, culminating in the Ontario Court of Appeal’s decision in Fernandes v. Araujo, 2015 ONCA 571, where it was held that vicarious liability will follow as long as the owner consented to the operator possessing the vehicle, regardless of any conditions that the owner placed on possession.
There is also a less obvious exception built into s. 192(2): the negligence of the operator must have occurred “on a highway”. Where the negligence of the operator does not occur on a highway, s. 192(2) does not apply, and the owner is not vicariously liable. This was most recently affirmed at the Ontario Court of Appeal in Jaffer v. Pardhan, 2017 ONCA 612, where the accident occurred in a laneway in a private parking lot. For further discussion on the definition of a “highway”, Becamon v. Wawanesa Mutual Insurance Company, 2009 ONCA 113, Persaud v. Suedat, 2012 ONSC 5232 (“Persaud”), and Ladouceur v. Zimmerman, [2009] O.J. No. 4777 (“Ladouceur”) are instructive.
From an insurance perspective, this distinction is often irrelevant, as the vehicle owner’s insurer may still be obligated to defend and indemnify the vehicle operator. However, in any case where coverage is being denied to the vehicle operator, the distinction becomes important, as the plaintiff may be forced to look to her OPCF44 carrier for recovery. This was the situation which occurred in both Persaud and Ladouceur.
