In a recent decision, Dove v. Thomas et al. and Cao v. Thomas et al., 2025 ONSC 2802, the Ontario Superior Court of Justice offered important guidance on the application of “implied consent” under section 192(2) of the Highway Traffic Act (HTA). The ruling reinforces the importance of context when assessing vicarious liability for motor vehicle accidents involving unauthorized drivers, particularly in cases involving family members and personal relationships.
BACKGROUND
The case stemmed from a serious motor vehicle accident that occurred in March 2018. Robert Thomas, who had a well-documented history of substance abuse, took his father Floyd Thomas’s Dodge Ram pickup truck without permission, while intoxicated. Robert ran a stop sign and collided with a school bus, injuring both a teaching assistant (Amanda Dove) and a severely disabled child (Michael Cao) who were passengers on the bus. Robert later pled guilty to impaired driving and related criminal charges.
Two civil actions were commenced against multiple parties, including Floyd Thomas, who was the registered owner of the vehicle. Floyd brought a motion for summary judgment, arguing that he had not given Robert consent, express or implied, to drive his vehicle, and therefore could not be held vicariously liable under s. 192(2) of the HTA.
Under s. 192(2), a vehicle owner can be held liable for the negligent operation of their vehicle by another person, unless the vehicle was in that person’s possession “without the owner’s consent.” The legislation creates a rebuttable presumption that the driver had consent, placing the burden on the owner to prove otherwise.
THE COURT’S FINDINGS
Justice Mirza found that Floyd had successfully rebutted the presumption of consent. The Court concluded that there was no implied consent in this case, based on the totality of the evidence, including:
- Robert’s admission: Robert unequivocally stated that he knew he was not permitted to take the truck and did so while Floyd was asleep. His admission was treated as a compelling admission against penal interest.
- Floyd’s past conduct: Floyd had a long-standing practice of keeping his keys away from Robert and only permitted him to use the vehicle under rare and controlled circumstances over a decade prior.
- Immediate response: Upon waking and discovering the vehicle was missing, Floyd immediately contacted police to report the truck stolen, further supporting the absence of consent.
- Family context: Floyd had travelled from Owen Sound to Brampton that day to assist in supervising Robert at the request of his other son, Dean. While Floyd did leave his keys on a hook in the house, standard practice in the family home, this was not enough, in the Court’s view, to infer implied consent, particularly in light of the family’s efforts to manage Robert’s addiction.
Justice Mirza noted that the doctrine of implied consent requires more than a single lapse or act of carelessness. There must be some conduct or course of dealings that could reasonably suggest the owner had acquiesced to the vehicle’s use. In this case, there was none.
NO FULL DISMISSAL OF CLAIMS
While the Court granted summary judgment on the implied consent issue, it declined to dismiss the action against Floyd in full. The Court held that broader issues of potential negligence, such as whether Floyd failed to take reasonable precautions with the keys. had not been sufficiently developed on the motion record. As such, these issues remain to be determined at trial.
This approach reflects the Court’s recognition that summary judgment should be used to resolve clear-cut legal issues but should not preclude trial on matters that require further evidentiary development or credibility assessments.
KEY TAKEAWAYS
This decision is a noteworthy addition to Ontario’s case law on motor vehicle liability and the interpretation of section 192(2) of the HTA. It reaffirms that:
- The presumption of consent under the HTA can be rebutted with clear, credible evidence of non-consent.
- Implied consent must be grounded in the owner’s conduct, not simply the accessibility of keys or a familial relationship.
- A single act of forgetfulness or poor judgment does not override a consistent history of restricting access.
- Courts will assess implied consent based on the totality of the relationship and surrounding circumstances.
- Summary judgment may be granted on discrete issues, but where broader negligence theories remain, a full trial may still be warranted.