The driver of a vehicle did not have implied consent to drive her mother's vehicle. The daughter was required to ask for permission to use the vehicle and tell her mother where she was going, how long she would be, and what she was doing and the daughter failed to obtain permission on this occasion.
 O.J. No. 3154
2016 ONSC 3994
Ontario Superior Court of Justice
June 15, 2016
J.C. Corkery J.
On October 14, 2011, Amanda Brown was driving her mother's vehicle and she struck a vehicle driven by the plaintiff. The plaintiff was injured and she commenced an action against the driver and the owner of the motor vehicle. The sole issue at trial was whether or not the driver had the implied consent of her mother to drive the vehicle.
The owner bears the burden of proving the vehicle was in the possession of the driver without the owner's consent. The test for determining implied consent is found in Palsky (Next friend of) v. Humphrey,  S.C.R. 580:
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….
The question for consideration is not whether the driver thinks he or she has the implied consent of the owner, but rather do all the circumstances show that the driver had implied consent.
Amanda and her mother both testified that Amanda was not allowed to take the car without obtaining permission from her mother. Amanda was required to ask her mother for permission to use her car and tell her where she was going, how long she would be, and what she was doing. Amanda's mother occasionally allowed Amanda to take her vehicle and occasionally decided to drive Amanda herself. Prior to March 2008, Amanda lived with her mother and borrowed her car approximately five times. Between March 2008 and October 2011, Amanda borrowed her mother's car twice.
On October 14, 2011, Amanda was dropped off at her mother's home by her boyfriend not knowing if she could use her mother's car. Amanda tried to ask her mother for permission to use her car but her mother was asleep and she was unable to wake her. Amanda took her mother's car because she assumed that if she did wake her mother, her mother would have allowed her to use the car. Amanda had never previously taken her mother's car without obtaining her permission.
Amanda's mother did not charge Amanda with theft after the accident.
The Court noted that it was speculative to determine what Amanda or her mother thought about what might have happened if Amanda had in fact asked her mother for permission. The task for the Court is not to try to ascertain what an owner might have done under different circumstances, but to consider the actual circumstances. The Court noted that on some occasions over the previous three-and-a-half years Amanda's mother had not given Amanda permission to drive her car and Amanda's mother drove Amanda herself. In all of the circumstances, the Court concluded that Amanda's mother had demonstrated that Amanda did not have her implied consent to drive the car on the day of the accident.