Implied Consent is More Than Subjective Belief
Watts v Bowman, 2016 ONSC 3994 arose after the Defendant, Ms. Amanda Bowman, was involved in a motor vehicle accident with the Plaintiff, while driving her mother’s car. Liability and damages were not dispute. However, as the owner of a vehicle is liable for loss or damage sustained by any negligent driver of their vehicle under 192(2) of the Highway Traffic Act, unless the vehicle was used without the owner’s consent, the sole issue was whether the Defendant had her mother`s implied consent to drive the car.
The facts of the case were straightforward. At the time of the accident, the Defendant’s mother was receiving chemotherapy treatment. The Defendant would drop in to her mother’s home occasionally to borrow her mother’s vehicle, namely to refill her methadone prescription. The Defendant would ask for permission, explain where she was going, and estimate how long she would be gone, before her mother made the decision. While the Defendant had never been refused, on two occasions, her mother had opted to drive her directly in lieu of loaning the Defendant the car.
On the day of the accident, the Defendant’s mother was at home sleeping. The mother testifies she was aware the Defendant had tried unsuccessfully to wake her to ask permission to borrow the vehicle. It was her other daughter, Tabitha, who woke her to say the Defendant had been in an accident. No theft charges were laid. The mother explained she felt her daughter had simply mistakenly taken the car without permission.
After reviewing all the evidence, Corkery J. found that the Defendant did not have implied consent to drive the vehicle meaning the accident was caused by an uninsured driver. As a result, the $35,000 of damages the parties had agreed to, were the responsibility of the Plaintiff’s Insurer, pursuant to the uninsured provisions of the Plaintiff’s policy. Once that payment was made, the Insurer would remain entitled to seek judgment against the Defendant, pursuant to its statutory subrogation rights under Section 265(7) of the Insurance Act.
Corkery J. affirmed the Supreme Court of Canada`s test for implied consent as set out in Palsky (Next friend of) v Humphrey,  SCR 580, wherein the question was not whether the driver thought she had the implied consent, but whether all of the circumstances show the driver actually had the owner’s implied consent. Citing the Court of Appeal`s reasoning in Fernandes v Araujo, 2015 ONCA 571, the court agreed that implied consent cannot turn on the subjective belief of the party in possession of the vehicle. The court explained that while there is a subjective component to the test, subjective belief is but one factor. All of the evidence and circumstances of a given case must be taken into account to determine whether the owner has established that the driver did not have implied consent.
In the case at bar, while Corkery J. made no findings about the subjective belief of either the Defendant or her mother, he explained the Palsky test is not about what an owner might have done under different circumstances, but about the actual circumstances during the relevant time. It was material that the Defendant was regularly required to seek permission, had never previously used the car without permission, and had tried to seek permission on the day of the accident. Despite never having been refused access to the vehicle, the fact that there had been occasions where the mother had opted to drive her daughter directly in lieu of loaning the vehicle was also relevant. The court pointed out that even the Defendant had confirmed she was uncertain if she would be permitted to use the car or not; it was not a given. No implied consent could thus be found.
What the Insurer Should Know
Implied consent is determined after the court has considered all circumstances surrounding the possession of the motor vehicle by the driver. The court does not consider what the owner would have done in other circumstances, it must focus on the facts in each particular case.
|Mitch Kitagawa||Kate Agyemang, Summer Student|