The Ontario Superior Court’s ruling in Dove v. Thomas et al. and Cao v. Thomas et al., 2025 ONSC 2802, provides significant clarification on the test for vehicle owner liability under section 192(2) of the Highway Traffic Act (HTA), particularly regarding the scope of “consent” for possession. This decision is instructive for insurers and defence counsel handling claims involving the statutory vicarious liability of owners for damages caused by unauthorized drivers.
The facts involved an intoxicated driver, Robert Thomas, who took his father Floyd Thomas’s pickup truck without express permission. Keys were left accessible inside the home, and shortly thereafter, Robert collided with a school bus. Floyd, the truck owner, successfully moved for summary judgment on the consent issue, arguing his son lacked both express and implied consent to possess the vehicle.
Section 192(2) of the HTA mandates that once vehicle ownership is established, the onus shifts to the owner to demonstrate that the driver lacked consent. While consent can be implied through prior use or conduct, the court found that the father had consistently denied his son access, permitting use only under exceptional circumstances. The evidence showed Robert knew he did not have permission the night of the incident, and other family testimony corroborated Floyd’s longstanding restrictions. The court therefore concluded that no implied consent existed.
Importantly, the court did not end the inquiry with consent. It identified unresolved issues of fact concerning potential negligence by Floyd, specifically regarding the foreseeability of Robert taking the vehicle and whether the owner took reasonable precautions to secure the keys. Those matters remain for trial, illustrating that owners may still face liability in the absence of consent where negligence can be established.
For insurers and defence lawyers, this case reinforces key strategic points: implied consent must be clearly demonstrated and is not presumed from occasional or exceptional vehicle use by family members. At the same time, defence should remain vigilant about potential owner negligence claims predicated on failure to secure the vehicle or foresee misuse. Proving lack of consent is necessary but not always sufficient to avoid liability.
This decision is a critical reference for insurance defence in motor vehicle tort claims involving unauthorized use. It highlights the necessity of thorough factual investigations into owner behaviours, permissions, and security measures to anticipate and counter multiple avenues of claimant liability. It also underscores the importance of a comprehensive defence strategy that addresses both statutory consent defences under the HTA and ancillary negligence allegations.
For further information or to discuss how this decision may impact your insurance defence strategies, please contact our experienced team. We provide tailored legal advice and representation in motor vehicle liability and statutory accident benefits litigation.
