In Myers-Gordon(Litigation guardian of) v. Martin, 2013 ONSC 5441 (S.C.J.), the defendant’s son drove his mother’s car while impaired and was involved in an accident, killing two pedestrians and injuring two others. Claims were brought against the defendant’s mother, Karen Martin. The parties agreed that the Ms. Martin had not given her son express consent to use her vehicle. The issue before the court on this motion for summary judgement was whether Ms. Martin had given her son implied consent to take her vehicle.
Justice Kent relied on the 2008 decision in Seegmiller v. Langer  O.J. No. 4060 where 8 principles were considered to determine if there was implied consent:
- Whether a motor vehicle is in possession of some person without the consent of the owner is a question of fact determined on the evidence.
- The meaning of possession is a question of law, applying this definition is not a question of law alone.
- Generally, possession means power, control or dominion over property
- Once ownership is established, the onus passes to the owner to establish that another was in possession without consent.
- The owner’s vicarious liability is based on possession, not operation.
- Consent to possession is not synonymous with consent to operate.
- If possession is given, the owner will be liable despite a breach of a condition attached to possession, including that the person in possession not operate the vehicle.
- Breach of the owner’s conditions, does not alter the fact of possession.
Justice Kent considered the above factors and found no implied consent despite the fact that the son had driven the vehicle with permission numerous times in the past, Ms. Martin left the keys at home where they were accessible to her son and Ms. Martin had not brought up the issue (with her son or the police) that her vehicle was taken without consent until a significant time after the accident. The actions were dismissed against Ms. Martin due to Justice Kent’s confidence in the son’s evidence that he never thought he had consent to possess or drive the vehicle.
Consent is fact-driven and the eight-fold test provides a useful framework in which to work.