Watts v. Bowman, 2016 ONSC 3994

Watts is an illustrative case dealing with implied consent.  Watts restates the current test for whether implied consent has been granted.

Released June 15, 2016 | Full Decision [CanLII] | Further Analysis

This is a case about implied consent under s.192 of the Highway Traffic Act. The Defendant Driver caused an accident while driving a vehicle owned by her mother. On the occasion in question, she had not asked for her mother’s permission prior to borrowing the vehicle. On the day of the accident, the Defendant Driver’s mother had received chemotherapy. When the Defendant Driver went to ask her mother for permission, she found her mother sleeping. Rather than waking her mother, the Defendant Driver decided to take the vehicle.

Prior to the accident, the Defendant Driver had driven her mother’s car on two occasions. However, she had never taken the car without asking for permission. Often, when the Defendant Driver asked to borrow the car, her mother would drive instead of lending the vehicle.

The Court held that the test for implied consent is not subjective. It is not whether the driver thought it had implied consent, but whether the driver actually had implied consent. The Court wrote:

The question, as I understand it, is not whether the driver thinks she or he has the implied consent of the owner, but do all of the circumstances show that the driver had the implied consent?

…

While there is a subjective component to the test, the trial or motion judge must consider all of the evidence, all of the circumstances, to determine whether the owner has established that the driver did not have implied consent.

The Defendant Driver had only driven the car twice after asking for permission. On all other occasions, when the Defendant Drive asked for permission, her mother drove instead. The Court wrote:

I make no findings about what [the owner] or [Defendant Driver] thought about what might have happened if [the Defendant Driver] had, in fact, asked [the Owner’s] permission. This is speculative. The task for the trial judge…is not to try to ascertain what an owner might have done under different circumstances, but to consider the actual circumstances.

Furthermore, that [the Defendant Driver] thought her mother would grant her permission had she asked her is but one of the circumstances I must consider. I must also consider the circumstances that gave rise to [the Defendant Driver’s] assumption. [The Defendant Driver] says it was because she had always been given permission in the past. However, [the Defendant Driver] and [Owner] agreed that over the previous three-and-a-half years permission was given on only two occasions. On other occasions when [the Defendant Driver] asked to use her mother’s car, [the owner] drove.

The Court ultimately held that there was no implied consent.