The Ontario Superior Court of Justice recently released its decision in Dove v. Thomas et al. and Cao v. Thomas et al., 2025 ONSC 2802 which addresses the scope of vehicle owner liability under section 192(2) of the Highway Traffic Act (HTA). The case illustrates how courts assess “consent” whether express or implied, when determining whether an owner is vicariously liable for damages caused by someone driving their car.
The facts were straightforward but troubling. The defendant, Robert Thomas was intoxicated. He took his father Floyd Thomas’s pickup truck without permission. The keys had been left hanging on a hook by the door. Within minutes, Robert drove into a passing school bus. Floyd, co-defendant and the owner, moved for summary judgment, arguing he should not be liable because Robert had no consent to possess the truck.
Under section 192(2) HTA, once a plaintiff establishes ownership of the vehicle, the onus shifts to the owner to prove that the driver had possession without consent. Consent can be implied through conduct, patterns of behaviour or tacit permission. Here, the plaintiffs argued that Floyd’s decision to leave the keys easily accessible, coupled with occasional past instances where Robert was permitted to use the truck, amounted to implied consent.
The court disagreed. It found that Floyd had consistently denied Robert access to the truck, only allowing it in exceptional circumstances. Robert himself admitted he knew he had no permission that night and Floyd’s other son confirmed their father’s long-standing restrictions on access to the pickup truck. The judge concluded there was no evidence of implied consent and granted summary judgment in Floyd’s favour on that issue.
However, the ruling did not end the case. The court held that there were other potential bases for liability, such as negligence in failing to secure the keys, or the foreseeability of Robert taking the vehicle, which raised genuine issues requiring a trial. The door remains open for plaintiffs to argue that owners may still be liable in negligence even if consent is absent.
This decision is important for both owners and insurers. It clarifies that implied consent is not lightly inferred. Occasional or exceptional use of a vehicle by a family member will not, on its own, create a pattern of implied permission. At the same time, owners cannot assume that proving lack of consent ends their exposure. Where there are foreseeable risks of theft or misuse, especially involving vulnerable family members, negligence claims may still succeed. In short, Dove v. Thomas et al. and Cao v. Thomas et al., 2025 ONSC 2802reinforces the dual obligations placed on vehicle owners: prove lack of consent to avoid statutory vicarious liability and take reasonable precautions to prevent foreseeable misuse to avoid negligence liability. The
