Ontario Superior Court of Justice

Court File No.: CV-18-4495 / CV-19-4549
Date: 2025-05-08

Between

Michael Joseph Cao, represented by his Litigation Guardian, Joseph Cao
Plaintiff
Counsel: S. Koumarelas

and

Robert Thomas, Floyd Thomas, Chubb Insurance Company of Canada, Kamaljitpal Kaur Sandhu, FirstCanada ULC, and Intact Insurance Company
Defendants
Counsel: L. Kittmer and J. Mangano (for Floyd Terrence Thomas); M. S. Korona (for Intact Insurance Company); A. Bayes (for Sandhu, First Canada ULC, and Chubb Insurance Company of Canada)

and

Amanda Katherine Dove
Plaintiff
Counsel: A. Hillier

and

Robert James Thomas, Floyd Terrence Thomas, Kamaljitpal Kaur Sandhu, First Canada ULC (carrying on business as First Student Canada), Traders General Insurance Company, and Chubb Insurance Company of Canada
Defendants
Counsel: C. Leddy (for Traders General Insurance); A. Bayes (for Sandhu, First Canada ULC, and Chubb Insurance Company of Canada); L. Kittmer and J. Mangano (for Floyd Thomas)

Heard: April 7, 2025

Reasons for Decision
Mirza J.

Overview

[1] Floyd Thomas is a Defendant in two actions: CV-18-00004495-0000, commenced on behalf of Joseph Cao, represented by his Litigation Guardian, Michael Cao (“Cao action”); and CV-19-00004549-0000, commenced on behalf of Amanda Katherine Dove (“Dove action”). Floyd brings a motion for Summary Judgment dismissing both actions against him. I will refer to them by first name going forward to avoid confusion.

[2] Floyd submits that his son (and Co-Defendant), Robert Thomas, knowingly took possession of his 2012 Dodge Ram 1500 on March 18, 2023 (the vehicle), without permission or consent, and got into an accident with the Plaintiffs in both actions.

[3] Both motions were heard together on October 11, 2023, as a long motion. After hearing submissions, the motion was adjourned to permit questioning of Intact Insurance adjusters and Dean Thomas, son of Floyd and brother of Robert, because he may have relevant information material to implied consent and foreseeability of risk. [See: Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19; Grue v. McLellan, 2018 NSSC 69; Johnston v. Day, 2013 ABQB 512; Argante v. Munro, 2014 ONSC 3626.]

[4] The request to cross-examine witnesses was brought by counsel for the Respondents/Defendants, Chubb Insurance Company of Canada, Kamaljitpal Kaur Sandhu, and First Canada ULC in the Cao action, and the Defendants, Kamaljitpal Kaur Sandhu, First Canada ULC as First Student Canada, and Chubb Insurance Company of Canada in the Dove action.

[5] The examination of Dean was conducted on February 6, 2024. The Intact Adjusters were not questioned.

[6] The central questions in this summary judgment motion, asframed by the Moving Party, is whether Floyd gave implied consent to Robert to take his vehicle by leaving the keys in an accessible place. The relief sought in their factum is dismissing the Statement of Claim against Floyd Thomas with costs. [1]

[7] Section 192(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8, imposes liability for loss or damage sustained by any person by reason of the negligence in the operation of the motor vehicle on a highway.

[8] The Responding Parties submit that Floyd is liable for Robert’s negligence under section 192(2) of the HTA and that Intact Insurance owes Robert indemnity for his actions on the date of loss.

[9] This case raises a distinct challenge because Floyd has passed away.

[10] After thoroughly reviewing with all counsel at the hearing whether this issue should be further decided at trial given their written arguments contesting credibility of the central witnesses, they all agreed and insisted that I could decide the issue of implied consent.

[11] In my view, I am able to decide the implied consent issue on this record. This may address the main legal issue in dispute on this motion.

[12] However, I decline to grant relief of dismissing the Statement of Claim against Floyd Thomas, because there are other triable issues related to negligence of Floyd Thomas. Although all counsel eventually indicated that the implied consent issue was the core issue to be decided, it was not made sufficiently clear to me that if I found there was no implied consent, whether the Respondents intended to still advance a claim for negligence outside of section 192 of the HTA.

[13] To the extent it assists the parties going forward, I will provide my decision concerning the implied consent issue since that was the issue raised in the Moving Party’s motion.

Parties’ Positions

[14] The Moving Party submits that Robert’s evidence is clear and unambiguous that he understood that there was no express or implied consent. Floyd’s evidence can be safely assessed and confirms that there was no consent. Dean’s evidence supports that there was no consent.

[15] The Respondents largely adopted each other’s submissions.

[16] They initially submitted before me on October 11, 2023, that this is not an appropriate case for summary judgment. They submitted that there are relevant witnesses to be heard from at trial. They argued that the credibility and reliability of Robert and Floyd’s versions are contested, and that their evidence may play out differently at trial.

[17] However, at the continuation hearing date of April 7, 2025, which took place after Dean had been examined and supplementary materials were filed, all of the Respondents argued that this case is appropriate for Summary Judgment.

[18] That said, as the submissions proceeded, and despite counsel’s collective position the implied consent issue should be decided, it became clearer that there were contested credibility issues about the central witnesses’ evidence relevant to Floyd’s potential negligence beyond the issue of implied consent. Floyd’s negligence is specifically pled in the Statement of Claim.

[19] The Respondent, Chubb Insurance, believes that implied consent existed in this incident. It argues that while Robert can be seen as an “irresponsible member of the family,” Floyd’s inability to control his keys and being aware of both Robert’s intoxication and his long-standing addiction issues, amounts to an inference of implied consent. Chubb Insurance also states that it is irrelevant that Dean, Robert, and Floyd all claim that Robert possessed Floyd’s keys without his consent. In order for Floyd to discharge the burden imposed under s. 192 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 Robert and Dean’s cautionary advice. Chubb Insurance further argues that Robert not having a history of taking vehicles without consent is irrelevant when deciding whether Floyd discharged his onus of exercising appropriate caution under s. 192 of the HTA.

[20] The Respondent, Traders General Insurance, states that in light of the testimony from Dean about warning Floyd to secure his keys, there is a possibility that Floyd may face liability in negligence or via vicarious liability. Alternatively, Traders General argues that even if it is found that Robert subjectively understood that no consent existed, Floyd should still be found vicariously liable for the loss pursuant to s. 192 of the HTA. Finally, Traders General points out that Floyd’s denials, that he had no idea about Robert’s condition and had not been warned to hide his keys, are contradicted by the non-party Dean’s sworn testimony.

[21] On this last point, all the parties jointly submitted at the hearing, that Dean’s evidence that Floyd’s knowledge of Robert’s condition and Dean’s caution to Floyd, should be accepted. It was conceded that Floyd was suffering from dementia at the time of questioning.

[22] The Moving Party, Floyd Thomas, argues that the law of implied consent is meant to establish liability on owners who are dangerously reckless regarding the possession of their vehicles. Floyd contends 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. Floyd further argues that caselaw relied upon by Chubb Insurance is distinguishable.

Background

The Accident

[23] On March 23, 2018, Robert, was driving Floyd’s pick-up truck at a high rate of speed when he ran a stop sign and collided with a Ford CTV short bus operated by the Defendant, Sandhu, owned by the Defendant, First Student, and insured by the Defendant, Chubb.

[24] Immediately prior to the accident, the First Student bus was being driven southbound on Centre Street North in the City of Brampton and was approaching the intersection of McCaul Street, travelling below the speed limit of 50 kilometers per hour.

[25] The Plaintiffs, Cao and Dove, were passengers on the school bus. The Plaintiff, Cao, was a severely disabled autistic and non-verbal minor on the date of loss. The Plaintiff, Dove, was the teaching assistant accompanying him on the bus.

[26] The motion record includes reasons for sentence that indicate that Robert pled guilty to impaired operation of a motor vehicle and other offences, such as offences of refuse, impaired driving, and possession of Oxycodone. Reasons for Sentence, March 18, 2019.

Circumstances Leading to the Accident

[27] The following summary reflects the combined evidence about the events leading to the accident.

[28] On March 23, 2018, Floyd drove his Truck from his home in Owen Sound to his son Dean’s house at 88 McCaul Street, in Brampton, Ontario.

[29] Robert lived in Brampton with his brother Dean. Floyd visited once or twice a year.

[30] After spending the earlier part of the day together where Floyd and Robert visited Robert and Dean’s gravely ill mother at the hospital, they returned to Dean’s house and parked in the driveway. Floyd said that at the hospital, he went inside to visit his former partner, and Robert remained in the truck. Floyd stated that he took his car keys with him.

[31] When Floyd came back to the truck, Robert was drunk. Floyd knew that Robert had a history of substance use problems.

[32] When they got back to Dean’s house, Floyd hung his car keys on the hook on the door and fell asleep. Floyd said that he did not have concerns about leaving his keys on the hook. He explained that this was customary at Dean’s home so that vehicles could be moved within the family for parking due to the shape of driveway. He said that Robert would have seen him place the keys there.

[33] At one point Floyd said Dean had come home after 5 p.m. Later he said he was not sure.

[34] Robert did not ask to take Floyd’s truck out at any time.

[35] Robert said that he knew he was not permitted to take the truck out, stating he knew it was “fully wrong.”

I remember taking my dad's keys without his consent. He was sleeping. I took them off the table. I remember getting in the truck, turning it on, making a right-hand turn and waking up in the hospital being beaten by cops.

[36] Robert took Floyd’s truck without asking and then got into the accident shortly thereafter.

[37] Floyd said that in the five years preceding the accident, he had never let Robert drive his truck before. They also did not see each other often. When they lived together ten years ago, Robert would always ask for permission to use his truck and otherwise would not normally take it without consent.

[38] Robert said that he had not driven his father’s truck since 2011.

[39] Floyd said that he woke up and called the police when he saw his truck was gone. He did not recall the time he woke up or the time he called the police. He was told by dispatch the vehicle was in an accident.

[40] He was asked about the time of the police report being at 5:17 p.m. while having said that he woke up at around 2:30 p.m. Floyd denied there was a gap of this length. He said that Dean had come home from work around 5 p.m.

[41] Floyd did not speak with Robert before he called the police.

[42] Floyd said that he went to the police to report his vehicle was stolen because the insurance company told him to. Initially he did not want to have Robert charged with a crime. He agreed the information from insurance about coverage misled him. (Dean also said he spoke to his father and Floyd did not want to press charges).

[43] Dean said that on March 23, he came home from work early because he had a bad feeling. He said that he told his father to be careful with his belongings because of concerns about Robert stealing. Robert was struggling with his addiction.

[44] The purpose and circumstances of Floyd’s trip to Dean’s home is contested.

[45] Floyd’s counsel submitted in their factum that his trip to Dean’s home was to visit his ex-wife, Donna, who was a patient at Brampton Civic Hospital. Donna, who has now passed away, was the mother of Robert and Dean Thomas.

[46] According to Floyd he arrived at Dean’s house at around 11:15 a.m. He then learned for the first time that Robert was at the house. Floyd did not know Robert was staying at Dean’s, nor did he expect to see him when he arrived. At the time, Floyd did not believe Robert had a permanent address. Robert testified that when he was not at the McCaul Street address, he was homeless.

[47] Floyd invited Robert to come with him to the hospital to see Donna. Robert agreed and accompanied Floyd as a passenger in Floyd’s truck.

[48] That morning, when Robert walked out onto the driveway, was the first time Robert had ever seen Floyd’s current truck. The drive to the hospital was the first time Robert had ever been inside this truck. It was also Robert’s only interaction with Floyd’s truck prior to the theft. Robert was never given permission to possess the vehicle in any way at any time.

[49] The visit to the hospital to see Donna lasted approximately an hour and a half.

[50] Floyd then drove back to Dean’s house with Robert as a passenger. When Floyd arrived at the house, he parked in the front driveway. Floyd and Robert then exited the vehicle and walked to the back door of the house. Floyd hung his keys up on one of the hooks near the back door.

[51] Floyd then went to the living room, laid down on a chesterfield, and took a nap. He woke around 2:30 p.m. and looked out the front window of the living room to notice that his truck was missing. Floyd claims he immediately called 9-1-1 and reported the truck as stolen.

[52] Officers noted that Floyd reported the vehicle as stolen. He came to speak to the police later that day to discuss what happened.

[53] Three days after the accident Floyd called Intact to report the accident and inform them of the theft.

[54] According to counsel for the Respondents, the purpose behind Dean reaching out to Floyd, urging him to come to Brampton, was to “babysit” Robert while Dean was at work. I will address this point further in the analysis.

The Law

Legislation

Highway Traffic Act

[55] Section 192(2) of the HTA imposes vicarious liability on a vehicle owner for damage caused by the negligent operation of the vehicle when it is in the possession of another person with the owner's consent.

Liability for loss or damage
192 (1) The driver of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway.
(2) The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur.

[56] The Respondent Chubb also identifies further bases through automobile policy and the Insurance Act, R.S.O. 1990, c. I.8, for liability. Section 3.2 of the Ontario Automobile Policy (“OAP 1”), which forms the basis of all motor vehicle liability insurance policies in the province of Ontario states:

You are covered when you, or anyone else in possession of a described automobile with your consent, uses or operates it. We will consider these other people insured persons. [Emphasis added].

[57] Finally, the Insurance Act mandates that all policies of motor vehicle insurance extend coverage to other operators of the insured vehicle, s. 239(1):

239 (1) Subject to section 240, 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
(a) Arising from the ownership or directly or indirectly from the use or operation of any such automobile; and
(b) Resulting from bodily injury to or the death of any person and damage to property.

Consent

[58] All of the language in the legislation and case law indicates that when the driver (or user of the vehicle) has the owner’s consent to possess their vehicle, they too are insured, subject to other exclusions in the policy. The Insurance Act extends to operation of the vehicle and being an occupant.

[59] Justice Gillese in Finlayson v. GMAC Leaseco Limited, 2007 ONCA 557, at para. 21, explained the policy reason behind section 192(2) of the HTA. A vehicle owner can be vicariously liable if they do not satisfy the responsibility to carefully manage their vehicle when they grant authorization to another person to possess that vehicle:

[21] As the above-quoted passage makes clear, s. 192(1) is intended to protect the public by imposing, on the owner of a motor vehicle, responsibility for the careful management of the vehicle. Possession is one of the rights of ownership. An owner has the right to give possession of the vehicle to another. But s. 192(1) 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.

[60] To be clear an owner cannot be said to have consented to a third party's possession of a vehicle when the third party has stolen it: Finlayson, at para. 29.

[61] In Fernandes v. Araujo, 2015 ONCA 571, at paras. 25–26, Sharpe J.A. held 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. For example, a driver may believe that they have consent to possess and drive a vehicle, but that is not a factor in determining implied consent since any stolen vehicle could be argued to have been taken with implied consent. On this point, the Court of Appeal stated:

[25] Second, to accept Allstate's argument and essentially base the test on the subjective belief of the person in possession of the vehicle would be inconsistent with the language and purpose of s. 192(2). It cannot be the case that if the person in possession subjectively believes that he or she has the owner's consent, that alone is sufficient determine the liability of the owner. That would allow anyone with actual possession of the vehicle to fix the owner with liability even where the owner had not consented to that person having possession of the vehicle. The focus of the language and purpose of the provision are on the actions of the owner who is charged with the responsibility of exercising appropriate caution when giving another person possession of the vehicle.

[26] In my view, the decision of this court in Myers-Gordon is consistent with that proposition. In that case, the owner left the keys to her vehicle in her bedroom. While she was absent, and without her knowledge, her 17-year-old son took the keys and, while driving the vehicle impaired, was involved in an accident. The son had driven the vehicle on prior occasions, but there was no evidence of any discussion between mother and son on the night in question. The motion judge found that the son knew that he did not have his mother's consent to take the car on the night of the accident. [emphasis added].

See also Azevedo v. Rumball et al., 2024 ONSC 3127.

[62] However, the Court in Fernandes did not comment on the impact of clear evidence of the driver’s subjective awareness of knowingly not having any consent to possess and drive (or use) the vehicle. This may be because the reality is that an admission by the person that took the owner’s vehicle knowing that they did not have consent, in most instances, will be reliable and strong evidence that there was not implied consent to possess the vehicle.

[63] An admission of wrong-doing and a statement against personal penal interest. In R. v. Rojas, 2008 SCC 56, at para. 35, the Supreme Court cited with approval its earlier ruling in R. v. Hodgson, 1998 SCC 27, in the context of considering the admissibility of an accused’s out of court confession as an exception to the hearsay rule because: “what people freely say which is contrary to their interest is probably true.”

[64] Although that case dealt with admissions as an exception to the hearsay rule, the prevailing principle is sound in the context of this case as well. In fact, Robert’s admissions against his own penal interest was given during questioning where motive could be explored, and therefore is even more likely to be true.

[65] 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: Deakins v. Aarsen, at p. 611; see also Watts v. Boyce, Dunham and the Co-Operators of General Insurance Company, 2013 ONSC 6848; Ross v. Vayda, at p. 703.

[66] The onus is on the Moving Party in this case to prove that he did not provide implied consent to his son to possess the vehicle. As stated in McIntyre (Litigation Guardian of) v. Gilmar, [2011] O.J. No. 884 (SC), at para. 20, s. 192(2) of the HTA creates a presumption that the driver was driving with consent and the onus is on the owner to disprove the presumption: “The responding parties have no obligation to put evidence before the court until [the owner] overcomes the presumption.” See also Argante, at para. 26.

[67] As stated by Perell J. in Conners v. D’Angelo, 2017 ONSC 1104, the question of whether a motor vehicle is in the possession of some person without the consent of the owner of the vehicle is a question of fact to be determined by the evidence in a particular case: Barham v. Marsden, [1960] O.J. No. 60 (C.A.); Thorne v. Prets; Henwood v. Coburn, 2007 ONCA 882, at para. 25.

[68] In Deakins, the sole issue for the Supreme Court was whether at the time of the accident, E’s car was “without the owner’s consent in the possession of some person other than the owner or his chauffeur” so as to entitle E to rely on the exception contained in s. 105(1) of the HTA: at p. 611. The Supreme Court upheld the trial judge’s finding based on the particular facts that indicated the owner did not exercise control over her vehicle permitting her son and his girlfriend to drive the vehicle, which the girlfriend got into an accident with, at p. 612:

I am satisfied that the Meteor sedan, although registered in Mrs. Deakins’ name, was for all practical purposes Robert’s car and that his mother exercised no control over who was to drive it. She was well aware that Lois Parker was her son’s constant companion and that she went out with him in the Meteor, and although she did not know that the young girl had a beginner’s permit and had been instructed by Robert as to how to drive the gear shift Meteor, she nevertheless, in my opinion, gave her tacit approval at all times to the car being driven by anyone to whom Robert entrusted it.

[69] In Emond v. Reid, [1993] O.J. No. 1349 (Gen. Div.), Beaulieu J. held that implied consent can be inferred from a failure to take precautions which would be considered as reasonable to avoid the incident from occurring, stating at para. 73:

[73] On the authority of the Donald, Walker, Doherty, Deakins and Usher decisions, supra, the following principles are applicable to the case at bar.

1. The owner of the vehicle must show that the motor vehicle was without his/her consent in the possession of a person other than the owner.
2. It is the possession of the vehicle that is crucial. The owner may be liable despite the fact that the possessor was forbidden from driving. cf. Donald, supra.
3. Permission to have possession of the vehicle may be inferred from acts which fall short of being direct and positive. A person may be said to have permitted possession and use if he/she failed to take precautions which could be considered as reasonable to avoid the incident from occurring, e.g. contravention of a condition. cf. Walker, supra.
4. An express refusal cannot assist the owner, if the owner is aware that a person will probably drive without taking steps to assure such express refusal is carried out. cf. Usher, supra.
5. Possession of the keys to the vehicle or a tolerant, indulgent, or ineffective control over an irresponsible member of the family can lead to an inference of implied consent. [Emphasis added.]

[70] In Joseph v. Coxall-Mejia et al., 2021 ONSC 2508, Belobaba J. held that continuing availability of the owner’s key in the face of the risk may permit a finding of implied consent, at para. 13:

[13] Many of the “implied consent” cases turn on evidence of a preceding course of conduct and the continuing availability of the owner’s car key. For example, if the owner of an automobile refused express consent but, knowing that the driver has taken the car without her consent several times before, still left the car keys in her purse on a doorknob or on a hook by the door, the owner may be found to have provided implied consent. [Emphasis added.]

[71] In Seegmiller v. Langer, at para. 34, Justice Strathy summarized the law as follows:

[34] The following propositions are well-settled:

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: Henwood v. Coburn et al., above, at para. 25; Thorne v. Prets; Barham v. Marsden, [1960] O.J. No. 60; Newman and Newman v. Terdik.
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: Henwood v. Coburn et al., above.
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: see Black’s Law Dictionary, (8th ed., 2004).
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: see Ross v. Vayda, (1990).
5. The owner’s vicarious liability under s. 192 is based on possession, as opposed to operation of the vehicle: see Thompson v. Bourchier; Finlayson v. GMAC Leaseco Ltd.
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.”: Finlayson v. GMAC Leaseco Ltd., at para. 3.
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: Finlayson v. GMAC Leaseco Ltd.; Donald v. Huntley Service Centre Ltd..
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: Thompson v. Bourchier; Finlayson v. GMAC Leaseco Ltd.

Summary Judgment

[72] The Court's jurisdiction to grant summary judgment is set out in Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Pursuant to subrule 20.04(2)(a), the Court shall grant summary judgment where there is "no genuine issue requiring a trial.”

[73] The Supreme Court of Canada in Hyrniak v. Mauldin, 2014 SCC 7, established the test for when summary judgment is appropriate, at paras. 49–50:

[49] 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.

[50] These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principals so as to resolve the dispute. [Emphasis added.]

[74] The interpretation of 20.04(2) is tied to Rule 1.04 which requires that the rule be liberally construed to secure the just, most expeditious and least expensive determination of a proceeding on its merits having regard to the complexity of the issues and the amounts involved.

[75] The motion’s judge must determine whether an understanding of the evidence and issues requires a trial.

[76] Courts have cautioned against awarding partial summary judgement too liberally. For instance, in Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, the Court of Appeal found that the motion judge erred in granting partial summary judgment by dismissing the lender’s claim in negligence against the defendants, where the lender’s surviving claim for misrepresentation would have proceed to trial. The Court of Appeal found that the factual determinations made by the motion judge in dismissing the negligence claim would likely have been at issue again in trial for the claim of misrepresentation. Here, the Court of Appeal cautioned against granting partial summary judgment except where there is “no risk of duplicative or inconsistent findings at trial and [where] granting summary judgment [is] advisable in the context of the litigation as a whole”: at para. 4. A similar caution was made by the Court of Appeal in Toronto-Dominion Bank, N.A. v. Lloyd’s Underwriters, 2017 ONCA 1011, at para. 12, criticizing a partial summary judgment motion because, among other reasons, “no party has been released from the action.” Finally, the Court in Butera v. Chown, Cairns LLP, 2017 ONCA 783, at para. 34, also provided the following warning regarding partial summary judgments:

A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner.

Analysis

[77] After considering the materials filed and the submissions of counsel, I find that there are no genuine issues requiring a trial with respect to central issue of whether there was implied consent.

[78] The issue to be determined is “whether the circumstances were such” as would show that the driver, Robert, a valid G license holder, was, at the time of the accident, in possession of the vehicle with the owner, Floyd’s implied consent. After considering the record and positions, I am satisfied that there is no evidence in this record of express consent.

[79] Counsel for all of the parties (except Dove who did not participate) submit that this Court can decide the issue of whether there was implied consent.

[80] I find that the Moving Party has established on a balance of probabilities that there was no implied consent by Floyd to Robert.

[81] Implied consent requires evidence of permission from the owner to the driver to have possession of the vehicle: Emond at para. 73; Myers-Gordon (Litigation Guardian of) v. Martin, 2013 ONSC 5441, affirmed on appeal at 2014 ONCA 767.

[82] De Sa J. in Michaud-Shields v. Gough, 2018 ONSC 4977, helpfully discussed the meaning of consent in analogous circumstances, at paras. 26–30:

[26] I don’t accept Traders’ proposed interpretation of consent. In my view, the suggested interpretation is far too broad. Traders’ position seems to impose liability on an owner for an accident unless steps are taken to prevent unauthorized use of the vehicle. The approach essentially requires that an owner hide their keys in order to avoid liability. However, in my view, this is hardly what is contemplated by s. 192(2) of the Highway Traffic Act. Nor does Traders’ suggested interpretation accord with the ordinary meaning of “consent”.

[27] Consent connotes permission, or acquiescence. In my view, in the context of s. 192(2) of the Highway Traffic Act, 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. Henwood v. Coburn, 2007 ONCA 882, at para. 12; See also Seegmiller v. Langer, at para. 34.

[28] No doubt permission to use the vehicle need not be express. If there is a general understanding that someone is allowed to use the vehicle, there need not be “express” permission to find liability in a particular case. 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. Indeed, if Traders’ position were accepted, arguably a thief would be found to have the consent of the owner to possess the vehicle.

[29] The position I have taken appears consistent with the prevailing jurisprudence. The seminal case in this area is Palsky (Next friend of) v. Humphrey, [1964] S.C.R. 580, a decision of the Supreme Court of Canada. The driver had been killed in the accident giving rise to the action. The trial judge found that the driver had the implied consent of the owner to have the vehicle. The Alberta Court of Appeal allowed the appeal and criticized the test the trial judge used in coming to that finding. The Supreme Court of Canada allowed the appeal and restored the decision of the trial judge. At page 3, the Court agreed with the test applied by the trial judge, and commented as follows:

What the learned trial judge was doing was putting to himself the question whether all the circumstances were such as would show that the person who was driving had the implied consent of the owner and therefore, of course, whether he would have been justified in deeming that he had that consent. [Emphasis added.]

[30] There must be an understanding between both the owner and the driver (either express or implied) that the driver is authorized by the owner to use the vehicle. [Emphasis added.]

[83] In my view, the authorities support that it is essential to first consider whether the record establishes that the person that 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. See for example, Jaffray v. Gleadall, at paras. 18–19.

[84] Second, the Court must consider the owner’s conduct which would include factors such as:

a. 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.

b. Current or most recent conduct which represents the owner’s present actions which include what they communicated and did in denying access or possession.

[85] First, I accept Robert’s repeated and unequivocal evidence that he knew fully that he was not permitted to possess Floyd’s truck that day. Robert was clear and convincing that he did not have consent of the owner to take the vehicle. Although he was intoxicated that day, he gave his evidence after having reflected on his actions and was clear that he knew there was no indication of even tacit permission based on the total history and applicable circumstances.

[86] Robert’s evidence is corroborated by Floyd and Dean’s evidence who both state that Robert did not have permission to take Floyd’s truck. This finding is also circumstantially supported by Floyd’s immediate reaction to realizing his truck is gone by taking action to notify Dean and calling 9-1-1.

[87] Robert’s knowledge that he did not have consent is also supported by the background of Robert and Floyd’s relationship.

[88] The prior conduct and background to Floyd and Robert’s relationship supports that Robert knew there was no consent on March 23, 2018. It also establishes that there was not implied consent from the total circumstances. During the period from 2011 to 2012, when Robert lived with Floyd, Robert testified that Floyd was aware of his ongoing struggles with drug and alcohol abuse. Consequently, Floyd had developed a consistent practice of safeguarding his car keys from Robert's access. Floyd would grant permission for Robert to drive his vehicle only when it was necessary for medical reasons.

[89] The Respondents argue that this historical pattern demonstrates that Floyd had indeed given consent to Robert in the past to operate his vehicle but took deliberate precautions to secure his keys, given his awareness of Robert's issues with substance abuse. That is true over a decade ago when they lived together. However, this same body of evidence also shows how crystal clear Floyd’s conduct communicated to Robert over the entirety of their relationship, that Floyd did not consent unless there was express permission granted in limited circumstances.

[90] I pause here to note that since Floyd exercised caution in the past and that Dean did as well, including on March 23, Floyd’s error by falling asleep on the couch on that single day, after a stressful morning of travel from Owen Sound to Brampton, then visiting his dying ex-partner and mother of his children, ultimately leaving the truck key accessible, is not reasonably indicative of implied consent when considered with the total evidence. In my view, Floyd had a history of reasonably controlling a son with a serious addiction problem up to that moment on March 23. As Shaughnessy J. said in a somewhat analogous case of Argante, at para. 34:

[34] All the circumstances relating to the events before and after April 25, 2008 on the record before me satisfy me that Lori Anne Munro did not provide implied consent to Glen Munro’s possession of her vehicle on the day of the accident. While I will deal with the issue of negligence in the handling of the keys, I do state that I specifically reject the argument by Waterloo that because the keys were left in an accessible location on one day when the plaintiff could not work because of the sudden onset of illness that this provides evidence of implied consent.

[91] Robert, Floyd, and Dean’s evidence also supports that Floyd did not state or imply consent through his actions proximate and contemporaneous to Robert’s theft.

[92] Understood in context, the evidence is that Dean and Floyd were taking reasonable steps to watch Robert, including Dean seeking Floyd’s help that day, which is consistent with restricting Robert’s access to property, not facilitating it. The fact that Dean asked his father to come and supervise Robert, and Floyd travelled from Owen Sound to Brampton to support Dean, clearly indicates a collective intention to engage in reasonable supervision of Robert. In such circumstances I reasonably infer that Robert knew that he did not have consent. Floyd also drove Robert to see his mother at the hospital. He did not permit Robert to use his truck at all that day before Robert stole it from the driveway.

[93] This total body of evidence meets the statutory criteria in s. 192(2) that Robert knowingly took the truck “without the owner’s consent.”

[94] Counsel for the Respondents were unable to identify in the record any compelling evidence that contradicted that Robert knew that Floyd did not consent, through words or actions or omissions to Robert that he could take his truck. More importantly, there was nothing to challenge that Robert fully understood he did not have consent. The circumstances when considered as a whole also do not support that there was implied consent, even temporarily.

[95] I do not accept the Responding Parties’ position that Robert’s claim that he “knew” he was not supposed to take the keys should be afforded little weight as his memory of the date of loss is hazy. The Responding parties agreed to proceed on this record without the necessity to test the veracity of Robert’s evidence or memory on this point at a trial. Robert’s direct evidence is not contradicted. They are held to that tactical decision. Robert had some memory loss, but recalled with clarity that he had knowledge that he did not have consent to take his father’s truck on March 23, 2018. If counsel wanted to contest that fact, then they should not have been unanimous that a trial was not required on the issue of implied consent. The court canvassed this concern thoroughly with counsel. I also do not accept the Respondents’ position that Robert had a motive to help his father or seek his favour by admitting theft. This theory was not adequately established on the record.

[96] I recognize that in some circumstances, a person may be said to have permitted possession and use if they failed to take precautions or exercise effective control which could be considered as reasonable to avoid the incident from occurring.

[97] However, I do not accept the Responding Parties position that Robert in his intoxicated state, given that keys are typically hidden from him, may have interpreted the temporary access to the keys that day as consent from Floyd to take Floyd’s truck. That is not Robert’s evidence. This suggested interpretation would require the Court to reject Robert’s own clear and convincing evidence that he knew there was no consent from Floyd and then engaged in the theft. To be frank, accepting this position in the face of Robert’s uncontradicted evidence, corroborated by Floyd and Dean, the only witnesses to this issue, would be divorced from the total evidence.

[98] I acknowledge that there is evidence that Dean cautioned Floyd on the same day to secure his keys. This is a relevant factor in the overall analysis for which I have considered with respect to ineffective control of a relative with addiction problems. However, I find that based on the total evidence, this context is insufficient to find that there was implied consent in this case.

[99] In cross-examination on February 8, 2024, Dean was asked about the circumstances that his father, Floyd, came down to visit. In summary, his evidence is that Robert has a long-standing addiction problem. Floyd had knowledge and past experience with Robert’s addiction. Dean was afraid to leave Robert at home alone. Dean did not trust Robert. Dean said that Robert had stolen memorabilia from him, likely to sell to feed his addiction. On March 23, Dean told his father to secure his belongings, including his car keys, so that they were not accessible to Robert to steal. It is not clear if Robert was present for this discussion. Dean’s evidence is contrary to Floyd’s evidence on this point. Floyd said that he was told to keep the keys at the back door for moving cars and had no reason to be concerned about doing so.

[100] Dean explained that in the months leading up to the incident that he had been specifically keeping his valuables and other belongings away from Robert. Dean said that his father was aware of Robert’s continuing addiction problem and theft conduct from their prior conversations.

[101] Dean said that earlier on the day of the incident of March 23, he came home from work because he had a bad feeling. Before going to take a nap, he cautioned his father about leaving out anything of value. He specifically said, “make sure you put away anything of any value, your man bag with his medication, his car keys, his wallet.” Dean said that he took his own belongings with him. He was concerned that Robert would take anything he could put his hands on. He told his father that is why you are here to babysit my brother. He said that unfortunately his father did not adhere to his words.

[102] Floyd’s evidence is that upon returning home from the hospital with Robert, Floyd took a nap, woke up around 2:30 p.m., noticed his truck was missing, and immediately phoned police. He said that Dean came home later. However, the general occurrence report from the Peel Regional Police File notes that Floyd called at 5:17 p.m. The parties submitted that any contradictions were not ultimately material to a determination of the issues. I pause here to note that all counsel said that all three of Floyd, Dean and Robert’s evidence were largely credible, but that Dean’s evidence should be favoured because he was comparatively more independent. This is another reflection that all counsel were jointly asking the court to proceed to decide the issue of implied consent.

[103] First, with Dean’s caution to Floyd accepted as relevant to the issue of controlling a problematic Robert, that does not change the reality that I find that Robert knew that he was specifically prohibited from taking Floyd’s vehicle and engaged in theft. He admitted he did so thereby accepting he was in the wrong. This is true even if it could be said that Floyd should have more promptly secured his car keys in response to Dean’s caution on March 23 in order to address risks posed by Robert. As noted above, in my view, when the court finds an admission of this nature is reliable, that is an important consideration in the s. 192(2) analysis.

[104] I am not persuaded by the Respondent Trader’s argument that if Floyd had a duty to secure his keys because he could foresee the risk Robert may take them, that this means that a failure to do so on a single occasion establishes tacit permission for Robert to take his truck while he was sleeping.

[105] It appears that the Respondents seek an application of the foreseeability and negligence analysis from Rankin (Rankin’s Garage & Sales). However, during argument it also became less than clear if that they are submitting an independent potential path to liability from Floyd’s potential negligence not to secure the keys. Despite their capable submissions overall, there are discrepancies in their written and oral arguments on this point that render it difficult to know exactly where they stand. Ultimately, in oral argument they seemed to settle on the only issue was whether there was implied consent.

[106] 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 is distinguishable.

[107] There is no implied consent because there is no history of similar failures or current evidence indicating implied consent. There was no condoning and no tacit permission.

[108] To the contrary, the history and total context is one of Floyd’s reasonable supervision over his truck in relation to Robert, monitoring and placing restrictions where the net effect was consistent, clear communication and actions, in which Robert states that he understood entirely that there was not consent from his father to take his truck on March 23, 2018.

[109] I do not accept the position that even though Robert had not historically taken a vehicle without consent and knew his father was not consenting on the day in question, that background is not relevant when deciding whether on March 23, 2018, Floyd discharged his onus to exercise appropriate caution as required under s. 192 of the HTA. This approach would ignore the total evidence in this fact specific exercise that establishes that there was no implied consent. Fyfe v. Bassett, 2012 ONSC 5125, at paras. 12–15, 28.

[110] Chubb’s position is that given Floyd was aware that Robert was intoxicated on March 23, 2018, and that he had a history of addiction, Floyd’s failure to properly guard his keys from Robert, especially after Dean told him to, is indicative of the “tolerant, indulgent, or ineffective control over an irresponsible member of the family” that can lead to an inference of implied consent.

[111] In addition to the history of the relationship supporting that there was no implied consent, Floyd’s contemporaneous actions on March 23, supported by Dean’s evidence, are that Floyd was quite upset when he awoke to find his truck gone. Floyd said that he called 9-1-1 to report it being taken without consent. This was the first time Robert had taken his truck without authorization and Floyd’s response was to report it. In my view, it is not critical whether he called right away or within a few hours. Within he made a formal complaint.

[112] Second, there are sound policy reasons to find that there was no implied consent in this case. A parent with a drug or alcohol addicted adult child, that does not live with them, but visits their child occasionally to provide support and supervision on request, cannot be held to an unreasonable standard in having to always secure their car keys from their child, because of the possibility that their child may steal their car. Stated differently, 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. Further, although not determinative, on this record there is some reason to be cautious that Floyd may not have been himself that day from a combination of the travel, stress, and looming mental deterioration issues.

[113] Although Dean’s evidence suggested he was very vigilant with his own keys, that is not the legal standard. This is not a case, like others cited by the parties, where it could be found that there is a history of prohibitive words by a parent not matching their actions, which in effect imply permission or acquiescence that can be interpreted by the person that takes the vehicle as consent. To the contrary, on this record, Floyd acted responsibly towards Robert over the long-term. The fact that on a single day, under distinct circumstances, Floyd fell asleep with the keys accessible after being cautioned by Dean, does not mean the court should rely on that discrete sequence in this case at the expense of all of the other corroborative evidence.

[114] Third, I accept the parties’ submissions that Floyd’s evidence in examination and cross-examination must be filtered through the recognition that he had early onset dementia when answering questions. His condition meant that he had challenges recalling and did not believe Robert was still addicted but when prompted remembered helping him to attend rehab and medical appointments in the past. Despite these frailties, his evidence on the central issue is convincing, and corroborated that his words and actions made it clear that there was no consent, even by implication at any time.

[115] In my view, this case is akin to the decision in Myers-Gordon, where Justice Kent heard a motion for summary judgment to dismiss the action against the owner of a 2005 Dodge Durango. The vehicle had been taken by the owner’s son and involved in a motor vehicle accident resulting in the tragic death of two young persons and causing serious injury of two others. On the application of the principles set out in Seegmiller and on the evidence before him in Myers-Gordon, Justice Kent concluded that there was no implied consent from Ms. Martin’s conduct while also finding that she arguably could have done more to exert control over her vehicle; she could have taken safeguards with the keys, and could have said “don’t drive the Durango while I’m away.” Justice Kent found that a trial was unnecessary to determine that Ms. Martin had not given implied consent to her son to drive the motor vehicle at the time of the accident to make her liable.

[116] With respect to the broader issues of foreseeability, I am not satisfied that I am able to decide additional issues at this motion about different paths to negligence which are not fully developed in the record, questioning or parties’ materials. To grant summary judgment, the Court must be satisfied that there is no genuine issue for trial and these issues can be justly decided on this record: Hyrniak, at paras. 49–50.

[117] For example, the foreseeability issue (beyond implied consent) was not addressed in Chubb’s materials.

[118] Any other potential negligence issues are not before me. As a result, the relief sought of dismissing the Statement of Claim against Floyd will not be granted, given the absence of clarity. However, I expect counsel to continue to confer given their position at the hearing that this was really about implied consent.

[119] Part of the problem is that beyond the issue of implied consent, in the face of conflicting theories, the witnesses did not get to respond fully. This can be due to the timing of witness examinations. It can also be impacted by the nature of the cross-examination/discovery process where questions are exploratory or intended to pin down on an issue at that time and not necessarily designed with the same intention as those crafted for trial. As a result, the record does not provide the same degree of clarity or fullness to confront additional issues as they would before the trier of fact.

[120] For example, Floyd was questioned on October 14, 2021. He was experiencing early onset dementia. Floyd was not asked about some of the circumstances raised by Dean’s evidence concerning what Dean purportedly told him about safeguarding his belongings. Floyd obviously was not given a chance to address the contradictory evidence given by Dean, as Dean had not been questioned until February 8, 2024. Robert was cross-examined on July 28, 2023.

[121] In my view, Robert and Dean were not asked sufficient questions in regard to Floyd’s duty of care as a visitor, foreseeability of Robert stealing Floyd’s car on March 23, 2018, and risk of personal injury.

[122] Despite counsel submitting credibility was not an issue, counsel still argued credibility on these points such that I find if they wish to litigate other paths to negligence or liability beyond implied consent, it 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. For example, they disagreed in the interpretation of the evidence about whether Dean’s examination established that the focus of Dean’s caution to his father had to do specifically with the risk of Robert taking Floyd’s truck. This is reflected in their written materials. In contrast, the Moving Party says Dean was being general to Floyd about protecting belongings of value, not the truck per se. The Respondents say that Dean was being specific to the risk of taking a vehicle by mentioning keys amongst other items.

[123] Other examples exist. For instance, the record reflects that Dean was not asked if he was concerned specifically that Robert may take Floyd’s truck that day and operate it while impaired posing a risk to others safety. Dean had concerns about Robert stealing property for money. Robert stated that he was explicitly told by Dean not to drive his truck, and he knew not to drive his father’s as well. Robert was not asked if he was present for Dean’s caution to Floyd and how Floyd responded. Floyd did not say he was cautioned by Dean and stated he put the keys on the hook because it made sense to him to do so at that time, given the need for the cars to be moved around for parking and accessibility.

[124] Should the parties wish to litigate other issues in relation to Floyd’s liability, a trial record is required. To find a duty, there must be some circumstance or evidence to suggest that a person in the position of the defendant Floyd ought to have reasonably foreseen the theft; and the risk of injury — that the stolen vehicle could be operated unsafely. The court must determine whether reasonable foreseeability of the risk of injury was established on the evidence before it. Rankin (Rankin’s Garage & Sales), at paras. 44–46. For harm to be reasonably foreseeable, a higher threshold than mere possibility must be met: Childs v. Desormeaux, 2006 SCC 18, at para. 29.

Conclusion

[125] Floyd Thomas has discharged the onus to prove on a balance of probabilities that he did not provide implied consent to Robert Thomas to have possession of or operate his motor vehicle on March 23, 2018.

[126] However, due to other negligence issues not being the focus of this hearing while being raised as viable, I decline to dismiss entirely the Statement of Claim against Floyd Thomas.

[127] My finding that there is no implied consent may assist the parties in narrowing the issues for trial or settlement, given the parties joint position that this was a central issue that could be decided on this record.

[128] Counsel are encouraged to confer and submit a consent draft order.

[129] With respect to costs, at the hearing the parties advised that they were confident that they could agree about costs for the litigation pertaining to the implied consent issue. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the submissions of Mr. Kittmer within 20 days of the release of these Reasons for Decision followed by the Respondents within a further 20 days.

Mirza, J.

Released: May 8, 2025

[1] In the notice of motion, the Moving Party sought dismissal of the action.