Court File and Parties

COURT FILE NO.: CV-12-111676-00 DATE: 20160615 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Barbara Watts, Plaintiff

– and –

Amanda Bowman, Christina Bowman, Western Assurance Company, Defendants

COUNSEL: William Doodnauth, for the Plaintiff Eli Pullan, for the Defendant Christina Bowman Ryan Coughlin, for the Defendant Western Assurance Company

HEARD: 18-20 November 2015

Reasons for Judgment

J.C. Corkery J.

[1] On October 14, 2011, Amanda Bowman was driving her mother’s car when she was involved in a motor vehicle accident with the Plaintiff. Liability and damages are not dispute. The only issue in this trial was whether Amanda Bowman had implied consent to possess her mother’s vehicle.

A. The Factual Background

[2] Most of the facts of this case are not in dispute. The parties filed an Agreed Statement of Facts and a Request to Admit with a Response.

[3] In an Agreed Statement of Facts, the parties have agreed to the following (paragraph numbers are those used in the document filed):

1. On October 14, 2011, the plaintiff was injured in a car accident when she was struck by a vehicle driven by the defendant, Amanda Bowman.
2. Amanda Bowman was driving a 2006 red Kia Rio with license plate no. BFXC129 (the “Car”).
3. Defendant, Christina Bowman, owned the Car.
4. Amanda Bowman has been noted in default.
5. Christina Bowman and the Car were insured by Optimum Insurance Company Inc.
6. The plaintiff had an insurance policy with Western Assurance Company.
7. The plaintiff fractured her wrist in the accident and has ongoing limitations.
8. Christina Bowman, Western Assurance Company and the plaintiff have agreed that: a. Amanda Bowman caused the accident and is liable for the plaintiff’s injuries and damages; b. The plaintiff’s damages are agreed to be $30,000, plus costs and disbursements of $4,964.33; and c. The issue of implied consent will proceed to trial, which is the matter before this court.
9. Christina Bowman admits that she was not scheduled to work on the day of the accident.
10. Amanda Bowman had a valid driver’s license at the time of the accident.

[4] Certain additional facts have been admitted pursuant to a Request to Admit and a Response to the Request to Admit:

4. Christina Bowman is Amanda Bowman’s mother.
5. At the time of the collision on October 14, 2011, Christina Bowman resided at 10 Oakwood Drive in Fenelon Falls, Ontario.
6. Christina Bowman had no events or activities planned on October 14, 2011, for which she would have required the use of the 2006 Kia Rio.
7. Amanda Bowman had operated the 2006 Kia Rio on other dates before the October 14, 2011 collision.
8. Amanda Bowman had operated the 2006 Kia Rio on other dates before the October 14, 2011, including dates when Christina Bowman lived at 10 Oakwood Drive in Fenelon Falls, Ontario.
9. On October 14, 2011, when Amanda Bowman attended at 10 Fenelon Falls to borrow the 2006 Kia Rio Christina Bowman was asleep.
10. Around October 14, 2011 Christina Bowman was attending chemotherapy treatments.
11. Amanda Bowman was not charged with theft for taking the 2006 Kia Rio at the time of the October 14, 2011 collision. Christina Bowman never pursued charges against her daughter.

[5] Christina Bowman and Amanda Bowman were the only witnesses in this trial.

[6] At the time of the accident Christina had been living with her daughter Tabitha since March 2008. Prior to March 2008, Christina lived with her husband, Amanda, Tabatha and a son. Amanda borrowed her car infrequently. Christina agreed with Amanda’s evidence, that Amanda borrowed her car about five times when they lived together, before March 2008, and twice after, to attend medical appointments to receive her methadone prescription.

[7] When asked what the procedure was for Amanda taking her car, Christina stated that she would have to be asked. She would want to know where she was going, how long she was going to be, what was happening. On occasion, when Amanda asked to borrow her mother’s car, Christina would drive Amanda if she was not busy. Christina could remember a couple of times she said no when Amanda asked to borrow her car.

[8] Christina testified that on the day of the accident she was at home sleeping, having worked until 10:00 pm the night before. She was feeling nauseous and tired from the chemotherapy treatment she was receiving. Tabitha woke her up. She told her Amanda had been in an accident and that she was driving Christina’s car. Christina was relieved that Amanda was alive. She did not charge Amanda with theft. Amanda had just made a mistake, taking the car without asking her. Amanda apologized and gave Christina her own car.

[9] Christina was not sure she would have let Amanda borrow her car had she been asked that day. Christina was aware that Amanda had tried to wake her to ask permission to borrow the car to go to the methadone clinic. On her examination for discovery, Christina stated she probably would have let Amanda use her car.

[10] Amanda testified that on the day of the accident her boyfriend dropped her off at her mother’s before she knew if she could use her mother’s car. She did not anticipate any problem with borrowing the car. She had used the car twice since 2008 to go to her medical appointments without making any pre-arrangement with her mother. On both occasions her mother let her use the car. She knew her mother had worked the night before and was feeling ill due to the cancer treatment. Amanda tried to ask her mother for permission to use the car. When she found her mother asleep she tried, but was unable, to wake her.

[11] Amanda stated that she did not get her mother’s permission on the day of the accident. Amanda had not previously taken her mother’s car without getting permission. Although she admitted she did not know for a fact that she would be getting her mother’s car that day, she stated that she assumed she would. However, it could have gone either way; her mother may or may not have let her take the car. Amanda agreed with her mother’s evidence the sometimes her mother would drive her when she asked to use the car. Amanda agreed that it was a possibility and would not have been surprised if her mother drove her on that day instead of loaning the car.

[12] Amanda stated that she had never taken her mother’s car without asking permission of her mother and stated that she was supposed to get permission that day. It was important that she secure her mother’s permission to take the car. She took the car without her mother’s explicit permission because she had an appointment that she knew her mother would want her to keep, because she is always allowed permission when she asks and she assumed that if she did wake her mother and ask, her mother would have said yes. Amanda thought her mother would let her use the car and the only reason she did not ask was because her mother was asleep from her treatment. She assumed her mother would be not need the car and would be asleep for some hours. She did not think her mother would mind.

B. Issue

[13] The parties have agreed that the sole issue in this trial is whether or not Amanda Bowman had the implied consent of her mother to drive her mother’s car.

C. The Law

[14] Section 192(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8 states:

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.

[15] The owner bears the burden of proving the vehicle was in the possession of the driver without the owner’s consent.

[16] The test for determining implied consent is found in the Supreme Court of Canada decision Palsky (Next friend of) v. Humphrey, 1964 SCC 96, [1964] S.C.R. 580. Restoring the decision of the trial judge, the Court states (beginning at the bottom of page 583):

What the learned trial judge was doing was putting to himself the question whether all the circumstances were such as would show that the person who was driving had the implied consent of the owner and therefore, of course, whether he would have been justified in deeming that he had such consent . In fact, the learned trial judge did examine with very considerable detail all of the circumstances which go to show whether the driver Harvie had the implied consent of the owner Humphrey to drive the vehicle in question. … After having carefully considered all of the evidence, I find that I am in agreement with the view of Porter J.A. that the learned trial judge did not clearly draw the wrong inferences or act upon an erroneous principle of law. [Emphasis added.]

[17] 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?

[18] This approach is consistent with that adopted in the recent decision of the Ontario Court of Appeal in Fernandes v. Araujo, 2015 ONCA 571. Writing for the five-judge panel, Sharpe J.A. rejects the argument that the “test for consent essentially turns on the subjective belief of the party in possession of the vehicle”:

[25] Second, to accept Allstate’s argument and essentially base the test on the subjective belief of the person in possession of the vehicle would be inconsistent with the language and purpose of s. 192(2). It cannot be the case that if the person in possession subjectively believes that he or she has the owner’s consent, that alone is sufficient determine the liability of the owner. That would allow anyone with actual possession of the vehicle to fix the owner with liability even where the owner had not consented to that person having possession of the vehicle. The focus of the language and purpose of the provision are on the actions of the owner who is charged with the responsibility of exercising appropriate caution when giving another person possession of the vehicle.

[26] In my view, the decision of this court in Myers-Gordon is consistent with that proposition. In that case, the owner left the keys to her vehicle in her bedroom. While she was absent, and without her knowledge, her 17-year-old son took the keys and, while driving the vehicle impaired, was involved in an accident. The son had driven the vehicle on prior occasions, but there was no evidence of any discussion between mother and son on the night in question. The motion judge found that the son knew that he did not have his mother’s consent to take the car on the night of the accident.

[27] As Allstate points out, at para. 33 of his reasons, the motion judge in Myers-Gordon described the test as “subjective” and rejected the contention that the mother’s consent could be implied from her conduct and her failure to report her son to the police.

[28] However, I do not agree that on appeal, this court endorsed the notion that the test is subjective in nature. The court accepted that there was a subjective component to the test, but observed that the motion judge had properly given careful consideration to all the evidence , and noted that both the son and the mother stated that the son did not have the mother’s consent: para. 12. There was no evidence to challenge the credibility of either the mother or her son. Thus, this court concluded, at para. 13, that the mother “had met the onus and satisfied the court that, on the evening of the accident, [her son] did not have her consent to have her automobile”. This does not amount to an endorsement of the view that the son’s subjective belief was the determining factor.

[19] 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.

D. Analysis

[20] In this case, I make the following findings:

1. Christina required Amanda to ask permission to use her car and to tell her: where she was going, how long she would be and what she was doing.
2. In the past, upon being asked by Amanda, Christina allowed Amanda to use her vehicle on two occasions and decided to drive Amanda herself on others. I make no finding as to whether Amanda was otherwise refused permission in the past.
3. Amanda was dropped off at her mother’s on the day of the accident not knowing is she could use her car.
4. Amanda had never used her mother’s car without first obtaining permission from her mother.
5. Amanda tried to ask for her mother’s permission to use her car on the day of the accident, but did not ask her.

[21] I make no findings about what Christina or Amanda thought about what might have happened if Amanda had, in fact, asked her mother permission. This is speculative. The task for the trial judge in applying the Palsky test is not to try to ascertain what an owner might have done under different circumstances, but to consider the actual circumstances.

[22] Furthermore, that Amanda 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 Amanda’s assumption. Amanda says it was because she had always been given permission in the past. However, Amanda and Christine agreed that over the previous three-and-a-half years permission was given on only two occasions. On other occasions when Amanda asked to use her mother’s car, Christine drove.

[23] Given my findings and considering all of the circumstances of this case, Christina Bowman has satisfied me that Amanda Bowman did not have her implied consent to driver her car on the day of the accident.

E. Conclusion

[24] Given my findings and considering all of the circumstances of this case, Christina Bowman has satisfied me that Amanda Bowman did not have her implied consent to drive her car on the day of the accident.

[25] The parties have agreed that if there is a finding of no implied consent, then the accident was caused by an uninsured vehicle and Western Assurance Company will pay the plaintiff the agreed damages and costs of $34,964.33, pursuant to the uninsured provisions of her policy and the Insurance Act.

[26] Upon paying the plaintiff’s agreed damages and costs, Western Assurance Company shall be entitled to judgment against Amanda Bowman pursuant to its statutory subrogation rights under Section 265(7) of the Insurance Act.

J. C. Corkery J.

Date: June 15, 2016

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Barbara Watts, Plaintiff – and – Amanda Bowman, Christina Bowman, Western Assurance Company, Defendant REASONS FOR JUDGMENT J.C. Corkery J.

**Released:** June 15, 2016