IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110601

Docket: 06 5549

Registry:
Victoria

Between:

Jennifer Aroha
Green

Plaintiff

And:

Alvin Dean Pelley,
also known as Dean Alvin Pelley,

Jill Marie McIvor
and Robert Mitchell McIvor

Defendants

And:

Alvin Dean Pelley,
also known as Dean Alvin Pelley

And Jennifer Aroha
Green

Third
Parties

AND

Date: 20110601

Docket: 06 5550

Registry:
Victoria

Between:

Jeffrey Patrick
Green

Plaintiff

And:

Alvin Dean Pelley,
also known as Dean Alvin Pelley,

Jill Marie McIvor
and Robert Mitchell McIvor

Defendants

And:

Alvin Dean Pelley,
also known as Dean Alvin Pelley

and Jennifer Aroha
Green

Third
Parties

Before:
The Honourable Mr. Justice A. Saunders

Oral Reasons for Judgment

[1]            
THE COURT: The plaintiffs in these two actions, Jennifer and Jeffery
Green, were occupants of a motor vehicle involved in a serious collision with a
Ford pickup truck owned by the defendant Robert McIvor.  Mr. McIvor had
given possession of the truck to his daughter, the defendant Jill McIvor, who,
for the sake of convenience, I will refer to her by her first name largely
throughout these reasons.

[2]            
At the time of the accident the pickup truck was being driven by the
defendant Pelley, who was, for want of a better word, Jill’s companion.  The
nature of their relationship is germane and will be discussed in further detail
as I proceed.

[3]            
Pelley, as a result of this accident, was convicted of dangerous driving
causing bodily harm.  The plaintiffs sustained very serious injuries.  A 25-day
trial of the liability and damages issues is set to be heard in May 2012.

[4]            
The issue being tried before me, pursuant to an order made at a Case
Planning Conference, is whether at the time of the accident Pelley was driving
the pickup with the express or implied consent of Mr. McIvor, so as to
make Mr. McIvor vicariously liable for any negligence on the part of
Pelley pursuant to s. 86 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318.

[5]            
Pelley has not participated in these proceedings.  The claims against
Jill McIvor were resolved by consent and orders dismissing the main action
against her and her third party claims were pronounced at the outset of this
trial.

[6]            
At the close of the plaintiffs’ case, the defendant Mr. McIvor
moved to dismiss the claim on the grounds of no evidence under Rule 12-5(4).

[7]            
The evidence at this point consists of facts agreed to pursuant to
notices to admit; the viva voce testimony of Constable Jefferson, who
investigated the accident, and of a probation officer, Mr. Whitehead, who had
become Jill McIvor’s CSO supervisor on September 23, 2005, two days before the
accident; documents from the files of both of those witnesses; and read-ins
from examinations for discovery of Mr. McIvor, which were conducted in
March of this year.  There is no evidence from Jill McIvor, nor from Pelley.

[8]            
There is a distinction between a no evidence motion and a motion to
dismiss for insufficient evidence.  On a no evidence motion, the court must
restrict its inquiry to a determination of whether there is any evidence
capable of supporting the plaintiffs’ claim or, to put it another way, whether
there is some evidence on each element of the cause of action.  The
reasonableness of the evidence in terms of its weight or quality is not to be
considered: 317159 B.C. Ltd. v. C.A. Boom Engineering (1985) Ltd.,
[1990] B.C.J. No. 2699 (C.A.); Roberge v. Huberman, 1999 BCCA 196.

[9]            
Thus, for example, on a no evidence motion, the trial judge may not make
findings of credibility, may not choose which of any possible valid but competing
and mutually inconsistent inferences to be drawn from the facts is more
probable, and may not engage in weighing pieces of circumstantial evidence
against each other.  The court’s only function is to determine whether evidence
has been adduced that is probative of the claim.

[10]        
The evidence before me is as follows.

[11]        
Mr. McIvor and his wife reside in Nanaimo.  He owns an automobile
financing business.  In the fall of 2000 their daughter, Jill, was a college
student.  Mr. McIvor testified that in November of that year he dropped
Jill off at a SkyTrain station and she was about to go and write some midterm
exams.  Mr. McIvor did not see his daughter again for more than three
years.  She disappeared into the drug subculture.  He and his wife filed a “Missing
Persons Report” with the police, but had no knowledge of her whereabouts until
sometime in the spring of 2004 when they received a phone call from Pelley.  Pelley
explained that Jill was living on Lake Cowichan and that he had been
encouraging her to reconcile with her family.  Mr. McIvor arranged to meet
Jill the next day in Lake Cowichan.  On that occasion he did briefly meet
Pelley, but spent most of his time talking with Jill.

[12]        
There is no evidence as to what transpired between Mr. and Mrs. McIvor
on the one hand and their daughter and Mr. Pelley on the other over the next
year or so.  At some point in time Mr. McIvor decided to employ Jill in
his business.  For the six months or so leading up to the September 2005
accident, he gave discovery evidence that he would see her virtually every day
at work.  Initially she was driving a vehicle belonging to a friend.  But when
that vehicle broke down, she began to drive the subject pickup truck, which her
father owned, to and from work.

[13]        
Jill continued to spend some time in Lake Cowichan, but by the late
summer of 2005 she was also often staying with her parents and was gradually
moving her things to their home with the intention of moving back in with
them.  When at their house, she would use the pickup to go out and to run
errands.

[14]        
Mr. McIvor’s evidence of the date of acquisition of the pickup was
vague.  He said on discovery that he thought he had bought it not long before
the accident, perhaps in June, which I take to be June 2005.  I was told by
counsel for Mr. McIvor during the process of read-ins that there is, in
fact, a transfer document dated August 2005, but that is not in evidence at
this point and I disregard that comment from counsel completely.  Nothing,
however, in the end result turns on whether Jill had been using the truck for
months, as opposed to weeks, prior to the accident.

[15]        
Mr. McIvor said that Jill did speak to him a little bit about her
time in the drug culture and her time living in the East Hastings Street area
of Vancouver.  Through the 2004 to 2005 time period, during which she was
attempting to rebuild her relationship with her parents, he never understood it
to be the case that Pelley was out of her life completely.  She had been
involved with drugs and he assumed that Pelley was involved with drugs as well.

[16]        
On one occasion, Pelley and Jill together came over to his house to
attend a barbecue, which Mr. McIvor was holding for a business associate. 
There is no other evidence before me of any other interactions between Mr. McIvor
and Pelley.

[17]        
On July 21, 2005, Jill appeared in Provincial Court in Victoria and
pleaded guilty to a number of criminal charges.  These included several
allegations of possession of stolen property, possession of a stolen credit
card, and fraud, which dated back to 2004, and some of which possibly, though
this is not entirely clear, may have predated Jill’s reunification with her
parents.  There were other charges, however, which dated from after that
reunion.  Jill and Pelley had been charged with three offences alleged to have
occurred on or about February 24, 2005:  Pelley with driving a motor vehicle
while under suspension; Jill with having been an occupant of a stolen vehicle;
and Jill and Pelley together with being in possession of a stolen vehicle.  It
is a possible inference, indeed a reasonable inference, from these February
2005 charges that the facts underlying the allegations were that Jill had been a
passenger in a stolen vehicle being driving by Pelley on that date.

[18]        
In a further charge which had been laid in May 2005, Jill had been
charged with having been, on or about March 7, 2005, in possession of a stolen
motor vehicle.

[19]        
Jill pleaded guilty to a number of these charges on July 21, 2005. 
Asked on discovery about his knowledge of the charges, Mr. McIvor gave
evidence that he "more or less knew about them."  For the purposes of
this motion, I am prepared to assume that Mr. McIvor may have had a
specific knowledge of the charges to which Jill had pleaded guilty.  There is
some evidence which could lead to that conclusion.

[20]        
I will recount shortly Mr. McIvor’s knowledge of Pelley’s criminal
activity.  To complete the chronology of Jill’s involvement with the criminal
justice system up to the date of the accident, on July 21st, following her
guilty pleas, she was, with respect to the charge involving the credit card,
sentenced to time served and placed on 18 months probation.  None of the
probation terms dealt with Pelley or with operation of a motor vehicle.  With
respect to the other charges, she was released on her own recognizance.  The
bail conditions included her having no contact with Pelley and a condition that
she not be found in any motor vehicle without the registered owner being
present.

[21]        
On August 2, 2005, Jill filed an application to vary the bail conditions
to allow her to drive her father’s personal vehicle without him being present. 
The reasons on which the application was based read as follows:

Ms. McIvor lives and works with
her father, Robert McIvor.  Her family and work obligations require her to
drive from time to time.  It is a great inconvenience to Mr. McIvor to
have to be with Jill in the vehicle.  He wants to be able to consent to her
driving alone in his vehicle.  Mr. McIvor will attend court to further
support this application.

[22]        
The application was heard and granted on August 5, 2005.  The condition
was varied to provide that Ms. McIvor not be found in a private motor vehicle
without the express written consent of the registered owner.

[23]        
A transcript of the August 5th hearing is in evidence.  It indicates
that Mr. McIvor was present at the hearing.  I accept for the purpose of
this no evidence motion that Mr. McIvor was aware of the terms of the
original condition and the amended condition respecting use of vehicles.  Those
are fair inferences to draw from the evidence before me.  However, I cannot
find or infer that he was aware of any of the other conditions, including the
no contact order with respect to Pelley.  The other bail conditions are not
referred to in the transcript of the proceedings from August 5th.

[24]        
On September 20, 2005, Jill McIvor was given a one year conditional
sentence.  The conditions included observing a curfew by remaining in her residence
from 9:00 p.m. to 7:00 a.m. and not to be in the direct company of Pelley
without written permission of her CSO supervisor.

[25]        
There is no evidence that Mr. McIvor was aware of these conditions
prior to the accident.  As I will describe shortly in more detail, Mr. McIvor
had seen his daughter two days previously on September 18th.  She was driving
the truck on that occasion and Pelley was with her.  He knew that she was going
to be taking the truck to Victoria for a court appearance.  He knew that she was
intending to go camping with friends after the hearing.  Mr. McIvor then
left to go out of town for a week.

[26]        
To say that Mr. McIvor knew or ought to have known by September
25th of the curfew or of the no contact order respecting Pelley would be
conjecture.  There is no basis on the evidence for any such findings.

[27]        
Mr. McIvor, however, did admit on discovery to having learned some
details of Pelley’s criminal history.  He said that Jill had told him some
things.  At one point he was told by a police officer that Pelley had been
breaking and entering into cars.  On another occasion, perhaps in April or May
2005, he accompanied Jill to an interview with the police in Ladysmith.  They
were then told that Pelley had been involved or was suspected of being involved
in a bank robbery and the police wanted to know whether Jill had been the
getaway driver.  Mr. McIvor deposed that the officer "listed off a
whole big long list of stuff that Dean," that is Dean Pelley, "had
been involved in."

[28]        
He also deposed that with every policeman he talked to, at the mention
of Pelley’s name, "They would right away speak up and say, ‘This guy has
got a rap sheet 10 feet long.’"  He knew Pelley had been in and out of
jail.  At one point, he acknowledged, he didn’t really want to know a lot about
Pelley.

[29]        
On September 17th, Mr. McIvor had a phone call from a police
officer.  His pickup truck had been identified in connection with a break and
enter at Spider Lake in the vicinity of Parksville.  The officer said that
Pelley was with the vehicle and Jill had been in his company.  The next day,
September 18th, Jill came to his house and he confronted Jill about the phone
call from the police.  Pelley, during this conversation, remained outside in
the truck.  Jill denied having been in Parksville.  She said she had been in
Victoria.

[30]        
Mr. McIvor acknowledged that there had been times when he had been
skeptical of his daughter’s truthfulness.  To him his daughter’s denial of the
police officer’s story did not add up.  He believed the officer’s story was
true.  He gave the following evidence on examination for discovery:

Q         When you had learned from the police about
your truck being where it shouldn’t have been, namely in Parksville —

A          Yes.

Q         — that was a red flag for you that things
perhaps weren’t going as well as you hoped?

A          Yes.  Unfortunately we had words about it
that night and then I had to go out of town on business for a week, and when I
came back the next day it happened.

Q         Did you consider in that short time you had
before you went on business to revoke the permission you had given your
daughter to drive the vehicle?

A          Yes.

Q         So you considered that, but you didn’t, in
fact, take the keys back?

A          No.  Of course, I wish I would have. 
Obviously something wasn’t adding up there, and I didn’t know what the
situation was.  Of course, you get busy doing things.

Q         So is it fair to say you did take a risk at
that point knowing what you knew in allowing her to continue with the keys?

A          That’s a hard thing to say.  I — there was
no evidence anywhere that she had handled the vehicle improperly or anything
like that.  That wasn’t an issue.  She hadn’t had an accident or, you know, got
a ticket or anything like that.  It was just her behaviour was — you know,
that guy was still in the picture, which wasn’t what we wanted to see.  That’s
for sure.

Q         Do you feel perhaps that you didn’t have
enough time to really think it through because you had this business trip to go
on?

A          No.  I don’t think I would have done anything
different.  You know, I was, of course, away on business, but even if I wasn’t,
it probably would have been more along the lines of a conversation, let’s keep
an eye on things and make sure nothing gets out of whack here.  You know, as
far as we knew it wasn’t.

Q         If you hadn’t gone away perhaps you would have
taken — you would have done more or had more discussions?

A          Possibly had more
discussions, but I don’t think we would have done anything differently.  I
don’t think we would have.  There was no evidence that there was a problem with
the vehicle or that she was not driving it properly or anything like that.  It
was more along the lines of who she was hanging out with.

[31]        
Mr. McIvor also said on discovery that it had seemed that Jill was
trying to come away from "that world," which I took to be either the
drug world or Pelley’s world, or both.  He said, in respect of the September
18th confrontation, that he and his wife "were very concerned that Jill
was being controlled by Dean Pelley."

[32]        
The accident happened a week later on September 25th.  Pelley was
driving.  Jill was a passenger.  There was a stolen licence plate from another
vehicle on the back of the pickup truck.  The pickup truck was full of personal
items, such as clothing, and credit cards that belonged to other people.

[33]        
Blood and urine samples taken from Pelley indicated the presence of
cocaine, cocaine metabolites, and various sedatives.  It is admitted by Mr. McIvor
that at the time of the accident Pelley was under a driving prohibition for
having been convicted of evading a police officer and that he was wanted on a
Canada-wide warrant for breach of release conditions and on an outstanding
arrest warrant from the Calgary Police for assault with a weapon.  However,
there is no evidence that any of these factors regarding Mr. Pelley’s actual
status in terms of his warrants was ever known to Mr. McIvor.

[34]        
There is also evidence that Pelley had a tattoo reading "Jill’s Bad
Boy", but there is no evidence that this was known to Mr. McIvor
either.

[35]        
Section 86 of the B.C. Motor Vehicle Act provides as follows,
under subsection (1):

In the case of a motor vehicle that is in the possession of
its owner, in an action to recover for loss or damage to persons or property
arising out of the use or operation of the motor vehicle on a highway, a person
driving or operating the motor vehicle who

(a) is living with, and as a member of the family of, the
owner, or

And I interject.  This is the germane portion of section
86:

(b) acquired possession of the
motor vehicle with the consent, express or implied, of the owner,

is deemed to be the agent or
servant of, and employed as such by, that owner and to be driving or operating
the motor vehicle in the course of his or her employment with that owner.

[36]        
There is no case to be made here of express consent.  The plaintiffs on
this application must be able to show some evidence that Mr. McIvor, on an
objective view of the circumstances, can be taken to have consented by
implication to Pelley operating the vehicle.  The plaintiffs’ position is that Mr. McIvor
knew of his daughter’s involvement with a criminal, knew that they had both
been involved with drugs, and, therefore, ought to have known of the possibility
of "trouble".

[37]        
Mr. McIvor’s concerns, it is argued, were strong enough that he
considered taking the keys to the pickup back from his daughter.  He knew that
his daughter was still in the company of Pelley.  He was concerned with the
degree of control Pelley had over his daughter.

[38]        
The plaintiffs say that in these circumstances Mr. McIvor’s failure
to confront Pelley with what he had learned from the RCMP and his failure to
take back the keys from Jill amounts to tacit approval of Pelley’s operation of
the motor vehicle.  With two such irresponsible persons, it is said, the risk
of Pelley driving and the risk of Pelley being involved in an accident while
operating the vehicle under the influence of drugs was an obvious risk, which Mr. McIvor
ought to have apprehended and his failure to do so, it is argued, makes him,
under the statute, vicariously liable for any negligence on the part of Pelley.

[39]        
The test for a finding of implied consent under s. 86, in situations
where consent has been given to one person but the vehicle ends up being driven
by a third party, is as set out in Hartley v. Saunders (1962), 33 D.L.R.
(2d) 638 (B.C.S.C.), and in Godsman v. Peck (1997), 29 B.C.L.R. (3d) 37
(C.A.). The evidence must establish that the vehicle owner had both an
expectation and willingness that a third party would drive the vehicle.  Both
an expectation and willingness must be shown.  One without the other will not
suffice: L’Heureux v. Eustache, 2003 BCSC 347 at para. 9.

[40]        
The requirement that an owner have an actual expectation of a third
party driving the vehicle is relaxed, where it is clear from the circumstances
that consent would have been given, if sought, as a matter of course in the
particular circumstances confronting the person who is in possession by consent:
dissenting judgment of Porter J.A. in Palsky v. Humphrey (1963), [1964]
41 D.L.R. (2d) 156 (Alta. S.C. (A.D.)), as approved of and adopted by the
Supreme Court of Canada on appeal, [1964] S.C.R. 580 at 662.

[41]        
There is no evidence in the present case to support a finding that Mr. McIvor,
if asked to consent to Pelley’s operation of the pickup, would have consented
as a matter of course.  There is no evidence that he ever let Jill lend the car
to others and no evidence that he was aware of Pelley ever having previously
driven the vehicle.

[42]        
In Godsman, the B.C. Court of Appeal analysed this line of cases
in terms of the owner’s general willingness to grant consent in particular
circumstances.  Commenting on the two-pronged requirement for both willingness
and expectation under s. 79(1), the predecessor to s. 86, the court said:

28.  There should be evidence to show, or support the
inference, that the owner turned his mind to the likelihood of that further
transfer of possession.  If there is no such evidence, a court finding
liability on the owner’s part is not implying consent so much as deeming it. 
One of the commendable goals of s. 79(1) may be to induce owners of motor
vehicles to exercise discretion when transferring control of them to others,
but to impose liability in a case where such a transfer was not within the
contemplation of the owner would do nothing to further that goal, and simply
goes too far.

29.  The concept of consent, even
though it be implied, is not satisfied by general evidence of willingness that
another may drive.  Willingness is an attitude that must be crystallized by an
expectation that another will drive.  For general willingness to amount
to consent, certain specific circumstances must be within the owner’s
contemplation.  These are the circumstances expected to arise in which
possession may be transferred to a third person, and in which the owner would
be willing for such a transfer to occur.  This willingness and expectation must
be in the owner’s mind at the time when the vehicle is transferred to the
original borrower.

[43]        
With respect to deeming consent, as opposed to implying consent, the
same point was made in Snow v. Saul, 2010 BCCA 416 at para. 20, where
Newbury J.A. said:

Does the fact that we are here
concerned with the application of a statutory provision change this
common-sense conclusion?  Again, in my view, the answer is no.  Section 86 does
not on its face "deem" one to have the owner’s consent when he or she
does not have it in fact; nor does it impose a "legal" definition of
consent that is at variance with the ordinary and natural meaning of the word.
…

[44]        
The plaintiffs in the case before me say that paragraph 28 of the Godsman
decision means that in cases where the expectation that a third party will
drive is strong enough, willingness will be found, particularly in situations
where the owner knows of the possibility of the driver’s illegal or dangerous
use of the vehicle and takes no positive measures to prevent the vehicle being
operated.  Thus, the plaintiffs rely upon the decision of this court in Bareham
(Guardian ad litem of) v. Desrochers (1994), 97 B.C.L.R. (2d) 186 (S.C.),
in which Macdonell J. said at para. 29:

It is my opinion, once an owner
has an indication that an authorized driver has committed some kind of motor
vehicle offence, it would only be reasonable and prudent for the owner to
investigate more fully before allowing further use of the vehicle.  If the
owner fails to do so, he or she should have to accept responsibility for such
failure, and liability for the consequences of the driver’s continued use of the
vehicle.  Unlike the facts in Gosal, here there were circumstances which
should have caused Joan Desrochers to question her son more closely about his
admitted motor vehicle infraction.  If she had done so, she would likely have
denied her son use of the car, and the plaintiffs’ injuries could have been
prevented.

[45]        
Likewise, I observe in Usher v. Goncalves (1969), [1970] 9 D.L.R.
(3d) 15 (B.C.S.C.), Ruttan J., of this court, said:

There is one comment I should
make on a suggestion by Mr. MacDonald that "express refusal cannot
assist the owner," and I agree, if the owner is aware someone else is
going to probably drive the car, the mere fact that the owner expressly refused
consent to drive without taking steps to assure such express refusal is carried
out, and with the knowledge that consent, or the actual driving by some third
person will probably take place, then the express refusal to allow that or any
other act connected with the driving is no defence. …

[46]        
The plaintiffs say that these cases stand for the proposition that a due
diligence test is a component of the willingness test.  Mr. McIvor, it is
argued, appears, through his inaction, to have been indifferent to his
daughter’s continuing association with Pelley and, therefore, must be taken to
have been willing to let Pelley drive.

[47]        
There are two problems with this argument.  The first is that in both Bareham
and Usher the owner had actual knowledge of the probability of the
vehicle being driven by someone whose conduct was questionable.  Mr. McIvor,
in contrast, did not know that Pelley was going to drive his truck, or there is
no evidence that he had such knowledge, and there were no circumstances that
pointed to this being a probable event.  This situation before me is not one of
a strong expectation amounting to willingness.  There is no evidence at all of
any expectation on Mr. McIvor’s part, nor can I find any evidence of
implied willingness on Mr. McIvor’s part.  Even given his knowledge of
Pelley’s and his daughter’s crimes and past drug use, his apparent
indifference, if it could be called that, to his daughter’s conduct, when he
confronted her on September 18th, as evidenced by his failure to act, might
fairly be construed as evidence of his willingness for his daughter to be in
Pelley’s company, and his willingness for Pelley to be a passenger in his
vehicle, but it does not lead to the inference that he was willing to have
Pelley become the driver.

[48]        
The second problem with this argument advanced by the plaintiffs is that
it amounts to an argument that Mr. McIvor should, through his failure to
exercise due diligence, be deemed to have given consent, but this is the very
approach to s. 86 which the Court of Appeal in both Godsman and Snow
warned was incorrect.  In the absence of evidence of actual consent or evidence
from which I can infer consent, I cannot deem consent to have taken place.

[49]        
The plaintiffs place a great deal of reliance upon the Supreme Court of
Canada’s decision in Deakins v. Aarsen et al., [1971] S.C.R. 609, an
appeal, ultimately unsuccessful before the Supreme Court of Canada, from a
judgment of the Ontario Court of Appeal, which, without written reasons, had
dismissed an unreported trial judgment.  In that case the defendant, Ms. Elaine
Deakins, owner of a motor vehicle involved in a collision with the plaintiff,
was found vicariously liable for the negligent operation of the vehicle by her
son’s girlfriend, who, by the time of the trial, apparently had become her
daughter-in-law.

[50]        
At the time of the accident, the girlfriend had taken the keys from the
son to drive a friend home.  Ritchie J., delivering the judgment of the Supreme
Court of Canada, described the evidence as disclosing that the son, Robert, was
an irresponsible young man who was frequently intoxicated.  The mother was
tolerant, if not indulgent, knew that Robert was drinking in the evenings when
he had the car and did not object to her son’s friends driving him home when he
was too far gone to drive himself.  Ritchie J. said that he was satisfied that
the car was the son’s car for all practical purposes and that the mother
exercised no control over who was to drive it.  In his opinion, the mother had
given her tacit approval to the car being driven by anyone to whom the son
entrusted it.

[51]        
The plaintiffs argue by analogy that Mr. McIvor, with his knowledge
of Jill’s history of drug abuse and with his failure to take away the keys on
September 18th, was just as tolerant and indulgent a parent as Ms. Deakins had
been found to be.

[52]        
But this analogy breaks down quickly when the other elements of the Deakins
decision are scrutinized.  Mr. McIvor, unlike Ms. Deakins, had no
knowledge of his daughter ever operating the vehicle while using drugs or ever
letting anyone else drive the truck.  Moreover, Deakins was a reverse
onus case.  Under s. 105 of the Ontario Highway Traffic Act, R.S.O.
1960, c. 172, an owner was deemed liable for a driver’s negligence unless it
was proven that the vehicle was in another person’s possession without the
owner’s consent.  The ratio of the decision is that the trial judge had been
correct in concluding that the owner had not satisfied her onus of proving that
the car had been in the girlfriend’s possession without the owner’s consent.  I
cannot find any element of the Deakins decision that would justify
inferring consent from the evidence before me in the present case.

[53]        
The plaintiffs urge me to take a broad view of the concept of consent in
light of the legislative intent behind s. 86, which is said to be that of maximizing
the availability of compensation for injured parties.  Indeed, Macdonell J. stated
in the Bareham decision, at para. 27, that the only public policy
reasons to be considered in interpreting s. 86:

. . . are those in favour of
protecting innocent third parties seeking compensation for injuries suffered at
the hands of negligent automobile drivers and, vicariously, owners.  . . .

Bareham, as I have noted, is a case in which consent
was found.  In Bareham, the public policy argument addresses the subject
of whether the consent had been vitiated by the driver’s illegal use of the
vehicle.

[54]        
The same public policy considerations were cited by the B.C. Court of
Appeal in Morrison (Committee of) v. Cormier Vegetation Control Ltd. (1996),
[1997] 28 B.C.L.R. (3d) 280 (C.A.), at para. 24, as justifying the
legislation’s departure from the common law’s strict approach to vicarious
liability.  These same considerations were also cited in Barreiro v. Arana,
2003 BCCA 58, as justifying the statute’s modification of the law of agency.

[55]        
Godsman, in which the Court of Appeal approved of and restated
the “willingness and expectation” test, was decided after Morrison and Bareham. 
I do not read Barreiro as having modified the Godsman test in any
way.

[56]        
I find that there is no evidence of Mr. McIvor having consented by
implication to Pelley’s operation of the vehicle.  Therefore, as I understand
the issue before me, the claim of the plaintiffs against Mr. McIvor based
on vicarious liability is to be dismissed.

[SUBMISSIONS OF COUNSEL AS TO COSTS]

[57]        
THE COURT:  I think it is appropriate that I make the order as to costs
here and not that the order be left entirely to the disposition of any other
trial judge.  Mr. McIvor should have his costs of this proceeding. I
cannot pronounce generally on his costs of defending the action because there
are still outstanding matters.  And if those matters are to be resolved, then
his entitlement to the costs in the action generally is something for negotiation
perhaps between counsel.  But as respects his costs in particular for
preparation and attendance at this hearing, he ought to be and is entitled to
those costs.  And the only question is whether that entitlement is in the
cause.  That is, whether it is dependent upon the outcome of the other claims
against him or whether that it be in any event of the cause.

[58]        
In the normal course when a trial is only held as to one discrete issue,
my approach would be to rule that only the costs are to be granted in the
cause.  However, in this particular case, with the parties having been ordered
to undergo a discrete trial of this particular issue, it is a fair assumption
for these purposes that this issue of consent is really the dominant or the
salient issue between the plaintiffs and Mr. McIvor.  For that reason and
for the reason that an offer to settle in advance of the hearing was delivered
by counsel for Mr. McIvor on May 18th, I rule that, as it respects the
costs of preparation and attendance at this hearing, Mr. McIvor is
entitled to his costs in any event of the cause.

[FURTHER SUBMISSIONS]

[59]        
THE COURT:  All right.  So I will then supplement my order to that
effect then, that Mr. McIvor’s ability to execute on any costs award,
without further leave of the court, is suspended until the conclusion of the
plaintiffs’ proceedings against the defendants and until the conclusion of any
other proceedings which the Greens have at present or which may be contemplated
in terms of insurance.  And that the award of costs is without prejudice to any
right the Greens may have to seek indemnity from any insurer.

“A. Saunders J.”