Implied Consent: Vicarious Liability of Vehicle Owners by Virtue of Legislation

By Farid Mahdi

Automobile insurance is compulsory in Ontario.[1] The purpose of this legislation is to protect innocent victims of automobile accidents “from having no means of seeking damages from persons who might have caused those damages without having the protection of automobile insurance.”[2]

Fault for the negligent operation of a motor vehicle in Ontario is not always limited to the driver. In circumstances where the driver of an at-fault motor vehicle did not own the vehicle involved in a motor vehicle accident, the owner(s) of the vehicle could be found vicariously liable and obligated to respond to the plaintiff’s alleged losses in a lawsuit. 

To escape this vicarious liability, the vehicle owner has the burden of proving, on a balance of probabilities, that the vehicle was in the possession of another person without the owner’s consent. Consent to operate a motor vehicle can be express or implied.[3] If there is no consent (either express or implied), the owner is not held liable for the actions of the unauthorized driver. The vehicle is treated as an uninsured vehicle.[4]

In a recent decision, the Ontario Superior Court of Justice revisited the issue of implied consent in the context of a summary judgment motion pursuant to Rule 20 of the Ontario Rules of Civil Procedure (“Rules”).[5]

In Dove v. Thomas et al. and Cao v. Thomas et al. (“Dove v. Thomas”),[6] the owner of a vehicle involved in a 2018 motor vehicle accident and named as a defendant in two lawsuits stemming from said accident, brought a motion to dismiss the lawsuits against him. The owner asserted that his son (a co-defendant in the two lawsuits), knowingly took his vehicle without permission or consent. The responding parties argued that he had given his son implied consent.

The Law – Consent To Operate a Motor Vehicle 

Subsection 192(2) of the Highway Traffic Act (“HTA”)[7]provides that:

The owner of a motor vehicle… is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle…, unless the motor vehicle… was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur. [emphasis added]

Subject to certain exceptions, subsection 239(1) of the Insurance Act[8] mandates that every contract evidenced by an owner’s policy insures the person named therein, and every other person who with the named person’s consent drives, or is an occupant of, an automobile owned by the insured named in the contract and within the description or definition thereof in the contract, against liability imposed by law upon the insured named in the contract or that other person for loss or damage,

1. arising from the ownership or directly or indirectly from the use or operation of any such automobile; and,
2. resulting from bodily injury to or the death of any person and damage to property. 

Section 3 of the Ontario Automobile Policy (OAP 1) Owner’s Policy addresses liability coverage. If a motor vehicle is operated by a person who has the owner’s consent and is involved in an accident, the OAP 1 provides coverage. Section 3.2, in particular, states that the person or organization shown on the Certificate of Automobile Insurance as the named insured is covered when said person or organization or anyone else in possession of a described automobile, with that person or organization’s consent, uses or operates the automobile. Persons using or operating an automobile with consent are therefore considered insured persons for the purpose of liability coverage.

The purpose of subsection 192(2) was highlighted in the seminal Ontario Court of Appeal decision of Fernandes v. Araujo:[9]

…[T]he purpose of this provision is ‘to protect the public by imposing, on the owner of a motor vehicle, responsibility for the careful management of the vehicle.’ The provision is an integral element of the HTA’s mandatory licensing and insurance scheme to ensure the public safety. The owner has the right to give possession of the vehicle to another person, but this provision ‘encourages owners to be careful when exercising that right by placing legal responsibility on them for loss to others caused by the negligent operation of the vehicle on a highway.’

[emphasis added]

The Law – Summary Judgment Motions

The court’s jurisdiction to grant summary judgment is set out in rule 20 of the Rules.

Under subrule 20.04(2) of the Rules, the court must grant summary judgment if,

1. the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
2. the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. 

In determining under clause 20.04(2)(a) whether there is a genuine issue requiring a trial, subrule 20.04(2.1) provides that the court must consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. 

On a motion for summary judgment, the moving party bears the evidentiary burden of showing that there is no genuine issue requiring a trial. If the moving party discharges that burden, the onus then shifts to the responding party to prove that its claim or defence has a real chance of success. If the responding party to the motion can show that there is a genuine issue to be tried, the motion will fail and the lawsuit will continue.[10] Each party must put its best foot forward to show whether there is an issue for trial.[11]

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.[12]

The Case at Bar

On the day of the accident, the vehicle owner had driven his car from his residence in Owen Sound to his other son’s house in Brampton. The two sons lived together – although, the owner claimed that he did not know this until his visit. The vehicle owner knew his son/the at-fault driver had a history of substance use problems. While visiting, the owner had hung his keys on the hook on the door and fell asleep. The vehicle owner’s son took the vehicle without asking and got into the accident shortly after.

The son had last operated a vehicle of his dad back in 2011 when he lived with his father. Aware of his ongoing struggles with drug and alcohol abuse, the father (back in 2011/2012) had developed a consistent practice of safeguarding his car keys from the son’s access. The father would grant permission for his son to drive his vehicle only when it was necessary for medical reasons.

The central issue for this motion was whether the owner had given implied consent to his son to take his vehicle by leaving the keys in an accessible place.

As a result of the accident, the at-fault driver had pled guilty to impaired operation of a motor vehicle and other offences, such as offences of refuse, impaired driving, and possession of Oxycodone. The driver had given evidence that he understood there was no express or implied consent by his father. Additionally, the driver’s brother/the owner’s other son had given evidence in the lawsuits (as a non-party) which supported that there was no consent from the father.

The respondents to the motion argued that the owner’s inability to control his car keys and being aware of both his son’s intoxication and his long-standing addiction issues, amounted to an inference of implied consent. They argued that it was irrelevant that the driver, his brother, and the owner had all claimed that the driver possessed the keys without consent and that in order for the owner to discharge his onus under subsection 192(2) of the HTA, he must prove on a balance of probabilities that, he exercised appropriate caution regarding the location of his keys in the context of an intoxicated son who was driving and his other son’s cautionary advice.

The respondents further argued that in light of the one son’s testimony about warning his father to secure the car keys, there was possibility at trial that the owner may be found liable in negligence or via vicarious liability. 

In turn, the owner argued that that the law of implied consent is meant to establish liability on owners who are dangerously reckless regarding the possession of their vehicles. He argued that this can either be owners who carelessly lend their vehicles to others, or owners who are willfully blind to others taking their vehicles against the owner’s consent.

Analysis

Citing Fernandes, above, the court reiterated that the focus is on the actions of the owner. The subjective belief of the driver that they did have consent to possess the vehicle is not a determinative factor.

The court added that the burden of proving the vehicle was being driven or was in the possession of the driver without the owner’s consent rests on the owner.[13] The opposing parties have no obligation to put evidence before the court until the owner overcomes the presumption. [14] Implied consent, or lack of implied consent, is not to be determined solely at the specific time of the accident. It is necessary to examine what the courts have found to be indicia of implied consent.[15]  

The court noted that in Seegmiller v. Langer,[16] Strathy J., as he was then, reviewed the case law and distilled from it the following eight principles:

1. The question of whether a motor vehicle is in the possession of some person without the consent of the owner is a question of fact to be determined by the evidence in a particular case.
2. The meaning of possession is a question of law but the application of that definition to any particular set of facts is not a question of law alone.
3. Possession is a concept capable of different meanings and there are different types of possession. The primary definition of possession contemplates power, control or dominion over property.
4. Once ownership of a vehicle is established, the onus passes to the owner to establish that the vehicle was, without the consent of the owner, in the possession of some person other than the owner.
5. The owner’s vicarious liability under s. 192 is based on possession, as opposed to operation of the vehicle.
6. “[C]onsent to possession of a vehicle is not synonymous with consent to operate it. Public policy considerations reinforce the importance of maintaining that distinction.”
7. If possession is given, the owner will be liable even if there is a breach of a condition attached to that possession, including a condition that the person in possession will not operate the vehicle
8. Breach of conditions placed by the owner on a person’s possession of the vehicle, including conditions as to who may operate the vehicle, do not alter the fact of possession.

The court noted that consent connotes permission, or acquiescence. In the context of subsection 192(2) of the HTA, the courts have held that consent means permission or authorization to “possess” the vehicle. It is a positive conferral of the right to possess the vehicle understanding that the vehicle may be driven.

Once permission to use the vehicle is granted, the grantee’s non-compliance with the specific terms of use is not a basis for the grantor to escape liability.It is sufficient that the vehicle be entrusted for use. However, to import a notion of liability on the basis of a lack of appropriate diligence to prevent use is to take the meaning of consent much too far.[17]

Disposition

The court was of the view that, it is essential to first consider whether the record establishes that the person who took the vehicle knew that they did not have consent. If they admit that they did not have consent at any time, and based on the record and after submissions, that admission is accepted by the court, then the admission will be compelling evidence that there was no implied consent from the owner.

Second, the court must consider the owner’s conduct which would include factors such as:

1. an owner’s prior course of conduct which includes, but is not limited to, past restrictions on the driver, history of the driver’s possession, whether there were restrictive terms or prohibitions on the driver regarding possession, and enforcement or structure that gave force to the prohibitions to the driver; and
2. current or most recent conduct which represents the owner’s present actions which include what they communicated and did in denying access or possession.

The court held that while the need of an owner to reasonably safeguard their keys is a relevant consideration in cases about whether consent should be implied such that vicarious liability should attach, this case was distinguishable. There was no implied consent because there was no history of similar failures or current evidence indicating implied consent. There was no condoning and no tacit permission.

The court was of the view that a parent should not be held to an unreasonable standard especially when there is a history of proper supervision. Error by a parent on a single occasion, even if cautioned or reminded by a relative, is not implied consent. The fact that on a single day, under distinct circumstances, the owner fell asleep with the keys accessible after being cautioned by his other son to protect his valuables from the driver (including his car keys), in the court’s opinion, did not mean that the court should rely on that discrete sequence in this case at the expense of all of the other corroborative evidence.

That said, while the court agreed that there were no genuine issues requiring a trial with respect to central issue of whether there was implied consent, it was reluctant to dismiss the lawsuits against the owner. With respect to the broader issues of foreseeability, the court was not satisfied that it was able to decide additional issues at this motion about different paths to negligence which were not fully developed in the record, questioning or parties’ materials. In the court’s view, the two sons were not asked sufficient questions in regard to the owner’s duty of care as a visitor, foreseeability of the driver stealing the car on the day of the accident, and risk of personal injury.

Given that the responding parties to the motion had asserted that they wished to litigate other paths to negligence or liability beyond implied consent, the court held that this issue must be dealt with a trial with viva voce testimony before the trier of fact to fill in gaps for a fair determination on the merits (echoing the language in Hryniak, above). The court held that to find a duty of care, there must be some circumstance or evidence to suggest that a person in the position of the owner in this case ought to have reasonably foreseen the theft, and the risk of injury — that the stolen vehicle could be operated unsafely. And that the court must determine whether reasonable foreseeability of the risk of injury was established on the evidence before it.

The Takeway

In circumstances where a defendant owner of a motor vehicle discharges their onus disproving implied consent in a summary judgment motion, the lawsuit as against the owner may nonetheless proceed if there are prospects of liability on the owner at trial beyond the issue of implied consent and under other legal doctrines/avenues of negligence.  

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[1] Compulsory Automobile Insurance Act, RSO 1990, c C. 25.

[2] Matheson v Lewis, 2014 ONCA 542 (CanLII) at para 36.

[3] Michaud-Shields v Gough, 2018 ONSC 4977 (CanLII) at para 23 [Michaud-Shields].

[4] Ibid at para 18.

[5] RRO 1990, Reg 194: Rules of Civil Procedure.

[6] 2025 ONSC 2802 (CanLII).

[7] RSO 1990, c H.8.

[8] RSO 1990, c I.8.

[9] 2015 ONCA 571 (CanLII), at para 20; see also Finlayson v GMAC Leaseco Limited, 2007 ONCA 557 (CanLII), at para 21.

[10] Sanzone v Schechter, 2016 ONCA 566, at para 30, leave to appeal refused, [2016] SCCA No 443 (SCC); New Solutions Extrusion Corp v Gauthier, 2010 ONSC 1037, at para 12, aff’d 2010 ONCA 348

[11] Toronto-Dominion Bank v Hylton, 2012 ONCA 614, at para 5.

[12] Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87 at paras 49-50, 2014 SCC 7 (CanLII) at paras 49–50.

[13] Deakins v  Aarsen (1970), [1971] SCR 609, at p 611,  1970 CanLII 27 (SCC).

[14] McIntyre v Gilmar, 2011 ONSC 1301 (CanLII) at para 20.

[15] Myers-Gordon (Litigation Guardian of) v Martin, 2013 ONSC 5441 (CanLII), at paras 15–16, aff’d 2014 ONCA 767 (CanLII).

[16] 2008 CanLII 53138 (ON SC) at para 34 [Seegmiller]; see also Leigh v Clement, 2018 ONSC 4508 (CanLII) at para 16.

[17] Henwood v Coburn, 2007 ONCA 882 (CanLII), at para 12; See also Seegmiller, supra note XX at para 34  and Michaud-Shields, supra note XX at paras 27–28.