Court File and Parties
COURT OF APPEAL FOR ONTARIO
DATE: 20240130 DOCKET: COA-22-CV-0180 & COA-22-CV-0198
Brown, George and Monahan JJ.A.
BETWEEN
Megan Desrochers by her litigation guardian Shawn Desrochers, Shawn Desrochers and Rose Desrochers Plaintiffs (Respondents/ Appellants by way of cross-appeal)
and
Grant McGinnis, Catherine McGinnis and Patrick McGinnis Defendants (Appellant/ Respondents by way of cross-appeal)
Counsel: R. Steven Baldwin, for the appellant, Patrick McGinnis, and respondents by way of cross-appeal, Grant McGinnis and Catherine McGinnis Kristian Bonn and Allan Rouben, for the respondents and appellants by way of cross-appeal, Megan Desrochers, Shawn Desrochers and Rose Desrochers
Heard: November 29, 2023
On appeal from the judgment of Justice Patrick Hurley of the Superior Court of Justice, dated September 2, 2022, with reasons reported at 2022 ONSC 5050.
Brown J.A.:
I. Overview
[1] On the evening of July 29, 2014, the respondent Megan Desrochers suffered a severe brain injury when the powerful all-terrain vehicle she was driving left Young Road, an unpaved public dirt road with gravel shoulders in Prince Edward County, and hit a tree.
[2] At the time, Megan was the girlfriend of the appellant, Patrick McGinnis. Patrick’s father, the respondent Grant McGinnis, owned the all-terrain vehicle, a 2010 Polaris Sportsman 500 H.O. (the “ATV”). The “H.O.” in the model description stands for “High Output”. Grant and his wife, the respondent Catherine McGinnis, lived on a farm located on Young Road slightly north of the accident site.
[3] Acting through her litigation guardian, Megan sued Patrick, Grant, and Catherine McGinnis seeking damages for the injuries she suffered. In the lawsuit, Megan’s parents, Shawn and Rose Desrochers, advanced claims for damages pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.3.
[4] A seven-day trial was held on the issue of liability only. The trial judge held that the plaintiffs had established liability against Patrick and assessed Megan’s contributory negligence at 10 per cent. The trial judge held that both Grant and Catherine owed Megan a duty of care but concluded that they had not breached the applicable standard of care. He dismissed the action against Catherine, as well as against Grant. The action against Grant contained not only a tort-based claim, but also one against Grant as owner of the ATV pursuant to s. 192(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), which provides:
192 (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.
[5] Patrick appeals the finding of liability against him, arguing that the trial judge erred in concluding that (i) he owed Megan a duty of care, (ii) he breached the standard of care, and (iii) his breach caused Megan’s injuries.
[6] The Desrochers cross-appeal, contending that the trial judge erred in failing to find that Grant and Catherine breached the applicable standard of care. They submit further that the trial judge erred in failing to find Grant liable for the injuries Megan sustained pursuant to HTA s. 192(2).
[7] For the reasons that follow, I would dismiss Patrick’s appeal from liability, as well as the Desrochers’ cross-appeal from the trial judge’s holding that Grant and Catherine did not breach the standard of care. However, I would allow their cross‑appeal from the dismissal of the claim against Grant under s. 192(2) of the HTA.
II. Megan’s Collision with a Tree
[8] Megan was unable to testify at the trial and, on the agreement of the parties, her discovery evidence was not read in. As a result, the trial judge did not have the benefit of her recollection of how the collision came about. The evidence of Patrick and Catherine described the following sequence of events:
- Patrick and Megan had been living together in Belleville since early 2014. Patrick and Megan often spent the weekend at the McGinnis farmhouse on Young Road, which runs north off County Road 11. Only three or four families live on the road, including Patrick’s uncle, who farmed most of the land surrounding Young Road;
- Grant owned the ATV, which he kept at the farmhouse. Prior to her visits to the farmhouse, Megan had not operated an ATV. She did not have a driver’s licence. Patrick took the lead in teaching Megan how to operate the ATV. Catherine also provided Megan with some instruction and “hands-on” learning;
- Patrick and Megan stayed at the McGinnis farmhouse on the night of July 28-29, 2014. At the time, Megan was 24 years old; Patrick was 28;
- Sometime on Friday, July 29, Patrick and Megan left the farmhouse and drove to Kingston to watch Patrick’s son play a soccer game. Patrick, Megan, and Patrick’s son returned to the McGinnis farmhouse after the soccer game, around dusk;
- Patrick’s uncle often left a pick-up truck at the foot of Young Road, where it joined County Road 11. Bundles of wood were left in the back of the truck for sale on a self-serve, honour payment system basis;
- Upon returning from the soccer game, Patrick wanted to check the cash can at the truck as some thefts had occurred in previous weeks. Shortly after their arrival at the farmhouse, Patrick and Megan rode the ATV south to the intersection of Young Road and County Road 11. Patrick drove. Neither Patrick nor Megan wore a helmet;
- As it proceeds south from the McGinnis farmhouse Young Road makes a sharp S-curve before continuing to County Road 11;
- To reach the truck Patrick drove the ATV across fields to a point south of the sharp curve on Young Road before proceeding the rest of the way along Young Road;
- According to Patrick, when they reached the pick-up truck he got off the ATV and went to check the cash can in the truck. Patrick gave Megan a “thumbs up” signal, indicating she could drive the ATV back to the farmhouse and he would follow. Megan thereupon began to drive the ATV back to the farmhouse, north along Young Road. Patrick followed in the truck, about 500 feet behind the ATV, driving at about 25 km/hr. The ATV remained equidistant ahead of him while it remained in his sight;
- As it proceeds north, Young Road ascends a rise, shortly after which it takes a very sharp 90-degree turn to the left. Patrick lost sight of the ATV when Megan drove up and over the rise. When Patrick crested the rise, he saw that the ATV had left the road at the turn and collided with a tree. He discovered that Megan was seriously injured. Emergency aid was called, and Megan was taken to a Kingston hospital. Her injuries were very serious, although evidence of the specifics was not led at the liability trial.
III. Patrick’s Appeal from Liability
[9] Patrick submits the trial judge erred in finding that (i) he owed Megan a duty of care in respect of her operation of the ATV, (ii) he breached the applicable standard of care, and (iii) his breach caused Megan’s injuries.
A. Duty of care
The trial judge’s reasons
[10] The trial judge correctly identified the method he was required to follow to determine whether Patrick owed Megan a duty of care in the circumstances:
- First, ascertain if the case law already has established that the duty of care in question, or an analogous duty, exists;
- If the case law has not, then apply the two-stage analysis known as the Anns/Cooper test [1] under which one first asks whether there is a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff and, if there is, then it is open to the defendant to establish that there are residual policy reasons why this duty should not be recognized: Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, 422 D.L.R. (4th) 317, at paras. 18-20.
[11] As I read his reasons, the trial judge appeared to conclude that the principles articulated in the following four cases, taken together, established an analogous duty of care in the circumstances of this case:
- The promoter and organizer of an inherently dangerous sport must take all reasonable steps to prevent a visibly incapacitated person from participating: Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186, at paras. 21-24;
- A person who has the care and control of a motor vehicle should not permit another person that he or she knows or should know is unfit to drive to take over the control of the vehicle, particularly where the vehicle is high powered, the driving conditions are difficult, and the proposed driver is clearly impaired: Hall v. Hebert, [1993] 2 S.C.R. 159, at p. 223, per Cory J. (concurring);
- An all-terrain vehicle is a dangerous machine, and its owners owe a duty of care to those who may use the machine, particularly minors, to receive instruction in its use, to provide safety helmets, and to lay down reasonable and safe rules for the machine’s use: Gibson v. Haggith (1994), 156 A.R. 229 (Q.B.), at para. 16; and
- Finally, in J.G. (Dependent Adult) v. Strathcona (County of), 2004 ABQB 378, 356 A.R. 140 – a case that involved a teenaged minor visiting a friend’s house to use a snowmobile – a duty of care was found to exist that required the friend’s parents who owned the snowmobile to take reasonable steps to satisfy themselves that the minor was capable of operating a snowmobile safely and that he or she would do so: at para. 143.
[12] After citing the portion of this court’s decision in Garratt v. Orillia Power Distribution Corp., 2008 ONCA 422, 90 O.R. (3d) 161 that summarized the standard principles regarding the existence of a duty of care, the trial judge stated, at para. 87:
I find that the plaintiffs established a prima facie duty of care for all defendants. An ATV is a popular motorized vehicle and, to date, there is no legally mandated instruction or training nor license qualification. The owner of an ATV or a person who can control access to it owes a duty of care to a person, like Megan, who they know has had little or no experience or instruction in operating one. It is a powerful machine which can result in serious injuries to a driver or passenger, whether child or adult, if it is not operated properly. A reasonable person would know this; the probability of harm in these circumstances is clearly foreseeable. There is a similar legal obligation if they have particular knowledge that the person cannot safely operate the ATV due to their physical or mental condition. There are no policy considerations which would negative or limit the duty. [Emphasis added.]
Analysis of Patrick’s grounds of appeal
[13] Patrick advances three main grounds of appeal challenging the trial judge’s finding that he owed Megan a duty of care in the circumstances.
[14] First, Patrick submits that the trial judge decided that no analogous duty of care cases existed and then proceeded to err in his application of the Anns/Cooper test. That is not the way I read the trial judge’s reasons. As I have stated, to my eye the trial judge accepted that the principles enunciated in the four cases I summarized in para. 11 above combined to apply by analogy to the present case. I see no error in the trial judge so concluding.
[15] It is true, as Patrick points out, that at the time of the collision Megan was an adult and there was no evidence she was under the influence of drugs or alcohol or was experiencing an episode of some mental illness. However, Megan was a guest of the McGinnis family, with whom Patrick evidently wanted to operate the ATV when they made their weekend visits to the farmhouse. Megan had no previous experience operating an all-terrain vehicle, yet was permitted to drive the McGinnis ATV, which Grant acknowledged was a “dangerous” machine. [2] Megan was completely dependent on the instruction and training provided by Patrick and his mother, as well as their directions regarding the appropriate terrain on which to operate the machine given her limited skills.
[16] As I read the trial judge’s reasons, he simply applied the commonsense principle articulated by Cory J. in Hall, at p. 223, that “one who has the care and control of a vehicle should not permit another person that he or she knows or should know is unfit to drive to take over the control of his or her vehicle.” While Cory J. made those remarks in a case involving an automobile, they apply equally to the circumstances involving the ATV.
[17] Second, Patrick argues that the trial judge erred in recognizing a duty of care in the circumstances because he applied inconsistent reasoning. As I understand the argument, Patrick contends that since the trial judge found that Megan “showed herself able to safely operate the ATV”, he erred in imposing a duty of care that was premised on the supposition that Megan would not properly operate the ATV.
[18] With respect, that submission mischaracterizes what the trial judge found. At para. 87 of his reasons, the trial judge expressly found that Megan had “little or no experience or instruction” in operating an ATV. That finding of fact was firmly anchored in the evidence; it was not the result of palpable and overriding error.
[19] Finally, Patrick contends the trial judge erred in his reasonable foreseeability analysis as “[t]here was no evidence on which the trial judge could conclude that Patrick, Catherine or Grant knew or ought to have known that Megan, on the evening of collision, would injure herself in the operation of the ATV.” I see no such error by the trial judge.
[20] In Rankin, at para. 24, the Supreme Court framed the proper question to ask when determining whether reasonable foreseeability is established as: “whether the plaintiff has ‘offer[ed] facts to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged’”. In the causation section of his reasons, the trial judge made additional comments on the issue of reasonable foreseeability, writing at para. 100:
In addition to the lack of instruction or training in what is, based on the evidence, the most important skill a rider must have to safely operate an ATV [i.e., knowing how to navigate turns], Patrick also knew that Megan had never ridden the ATV on Young Road (or, for that matter, any road), either with him or alone. The one exception appears to have been on July 29, 2014 and it is notable that when Patrick drove the ATV on Young Road that evening, he started in the field and it was not until a point well south of the curve that he drove onto Young Road. He knew that Megan was headed to a dangerous spot on the road. The peril was twofold: a sharp curve that required a level of skill to negotiate which Megan did not possess and an obstacle (the tree) a few metres off the roadway that would cause serious injuries if the ATV collided with it. It is probable that Megan did not realize that she was at a sharp curve until moments before she was at the start of the bend in the roadway. By then, it was too late for a person with her skill level and experience to make the turn or stop the vehicle before it went off the roadway and struck the tree. All of this was foreseeable to Patrick, as was the result.
[21] It is obvious that those facts offered by Megan persuaded the trial judge that “the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged”. I see no error in the trial judge so concluding.
[22] Consequently, I am not persuaded the trial judge erred in concluding that Patrick owed Megan a duty of care in the circumstances.
B. Breach of the standard of care and causation
The trial judge’s reasons
[23] The trial judge applied the correct approach to determining the appropriate standard of care as set out in Ryan v. Victoria (City), [1999] 1 S.C.R. 201, at para. 28:
Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.
[24] After noting that Patrick had many years of experience operating the ATV, without any accidents or instances of careless operation, the trial judge explained at length at para. 96 why he concluded that Patrick had breached the standard of care:
- Megan received minimal instruction from Patrick in the operation of the ATV, and she had only driven it in an open field under his direct supervision or when he was a passenger;
- Megan had little experience in turning the ATV and none with sharp turns;
- Megan had no familiarity with riding the ATV on Young Road, in particular driving an ATV alone on a roadway that did not have any artificial illumination when it would be semi-dark out;
- Patrick gave Megan no warning or caution about driving on Young Road or how to negotiate the sharp turn;
- Patrick took no steps to drive in front of her, as he could have, to ensure that she either slowed down or stopped before arriving at the curve. An experienced ATV rider like Patrick would know the effort and level of skill that was necessary to successfully negotiate such a sharp curve;
- Patrick would have also known that the safe route for a person with Megan’s experience would have been through the field, not on the road, but said nothing to her;
- Patrick could have driven Megan back in the truck and retrieved the ATV later;
- Also relevant were Patrick’s relationship to Megan and his intimate knowledge of her mental health frailties: if he thought it was important to her safety and health to control her consumption of prescription medicine, he should have exhibited a similar level of concern with her driving a motorized vehicle alone, helmetless, on an unlit rural roadway, with an unmarked curve of more than 90 degrees, and with only limited experience in the operation of that vehicle.
Based on those factors, the trial judge concluded that Patrick “failed to exercise the care of an ordinary, reasonable and prudent person taking into account the likelihood of a known or foreseeable harm, the potential for Megan to suffer serious injury and when he could have taken simple steps to prevent that harm from occurring.”
[25] On the issue of whether Patrick’s breach of the standard of care caused Megan’s injuries, the trial judge applied the principles set out in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181 and the practical methodology suggested by this court in Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387. The trial judge concluded, at paras. 98-99:
Applying this analytical framework, I find that the probable explanation for Megan’s departure from the travelled portion of Young Road was her inability to turn, or corner, the ATV at this sharp curve. I accept Mr. Wilkinson’s estimate of her speed and his interpretation of the angle of her travel and the tire marks which support the conclusion that Megan started to make the turn and she either failed to appreciate the sharpness of the curve or, due to her inexperience and skill level, did not shift her weight sufficiently to turn the ATV and avoid leaving the roadway.
I further find that her failure to steer the ATV adequately and thus avoid leaving the roadway is attributable to Patrick’s negligence. Patrick knew that she had only a minimal level of instruction in operating the ATV and none when it came to turning it effectively in situations which required that skill. She may have had a rudimentary understanding of how an ATV could move to the left or right through manipulation of the handlebars, but not what was needed to be done to turn it on a sharp corner. Without this necessary skill to manoeuvre the ATV, it would continue in the same path of travel or close to it; and, in this case, that meant it left the roadway and struck a tree in a matter of seconds.
Analysis of Patrick’s grounds of appeal
[26] I do not accept Patrick’s submission that the trial judge’s conclusions on his breach of the standard of care and causation were tainted, in large part, by flawed factual findings. That submission is unsupported by the record and relies on mischaracterizations of the trial judge’s findings of fact. I will address each of the five components of Patrick’s submission.
[27] First, Patrick contends that the trial judge erred in stating Megan received minimal instruction from him in the operation of the ATV which was “contrary to his own finding that Megan had earlier demonstrated her safe operation of the ATV.” I do not accept this submission; it mischaracterizes the evidence, as well as the trial judge’s findings. The record shows, and the trial judge concluded, that Megan’s instruction by Patrick and his mother was limited to operating the ATV in low gear in the yard of the McGinnis farmhouse and the surrounding fields, either under their direct supervision or with Patrick or his mother riding as a passenger while Megan drove: Reasons, at paras. 89 and 96.
[28] Second, Patrick’s contention that Megan had experience operating the ATV on Young Road is incorrect. That is not what the evidence showed. Catherine testified that Megan’s only experience on Young Road involved riding on the ATV with either Patrick or his mother when it crossed the road, from one side to the other, to access the uncle’s fields or when it drove down the side of the road to the wood stand, with one wheel on the grass and the other “barely touching the gravel on the side of the road.” Catherine testified that Megan never drove down to the main road by herself. [3] There was no evidence that Megan had operated the ATV independently or unsupervised along the length of Young Road, particularly in the area of the sharp turn where the collision occurred.
[29] Third, contrary to Patrick’s submission, the trial judge’s finding that Megan had no experience making sharp turns with the ATV was supported by the evidence. Catherine testified that she never saw Megan turn. [4] As well, in the course of describing the instruction they gave Megan, neither Patrick nor his mother mentioned providing her with instruction about how to make sharp turns or shift one’s body weight into a turn.
[30] Fourth, Patrick misconstrues the evidence given at trial by Robert Island, the organizer of all-terrain vehicle instruction lessons at the Deerhurst resort. Patrick submits Mr. Island’s evidence established that an inexperienced person with 30 minutes of instruction could independently operate an ATV, yet the trial judge wrongly held Patrick to a higher standard of care than that applicable to a commercial instruction venture. Patrick’s submission disregards a critical part of Mr. Island’s evidence. Mr. Island testified that a morning of instruction would enable a starter to learn to operate an ATV independently, in the sense that another person would not have to sit on the ATV while it was operated. However, Mr. Island emphasized that the morning of instruction his courses provided to beginners merely equipped them to take trips along trails guided and supervised by experienced instructors. In contrast, the evidence showed that on the evening of the collision Patrick left Megan to her own devices, allowing her to drive the ATV unsupervised north up Young Road, a road on which she had not driven the ATV before.
[31] Finally, Patrick submits the trial judge’s finding that he breached the standard of care was flawed because the evidence at trial provided no explanation for why Megan left Young Road and collided with the tree “beyond speculation”. This submission is also central to Patrick’s attack on the trial judge’s conclusion that Patrick’s breach of the standard of care caused Megan’s injuries.
[32] Once again, Patrick’s submission ignores the evidentiary record. At trial the plaintiff called a forensic engineer, Craig Wilkinson, who was qualified to give opinion evidence; the defendants did not call any expert evidence. Mr. Wilkinson opined that Megan’s collision with the tree probably resulted from her failure to navigate the sharp left turn as she proceeded north on Young Road. [5] Mr. Wilkinson disagreed with the suggestion put to him on cross-examination that he had not offered any opinion on the possible cause of the accident, and he explained why he considered the evidence to be consistent with his opinion. [6] It was open to the trial judge to accept Mr. Wilkinson’s opinion about the cause of the collision. The trial judge committed no error in so doing.
[33] For these reasons, I do not accept Patrick’s submissions that the trial judge erred in finding that Patrick breached the standard of care and that his wrongful acts and omissions caused Megan’s injuries.
C. Apportionment of liability
[34] In his reasons, the trial judge noted that the defendants’ counsel did not make any specific submission on the issue of contributory negligence. However, the trial judge considered the issue and assessed Megan’s contributory negligence at 10 per cent. He explained his reasoning at para. 103:
Megan should have worn a helmet. There was no medical evidence that her brain injury would have been less severe even if she was wearing a helmet but, based on testimony at trial about the importance of helmets and the common sense inference that a helmet would likely offer some protection, it would have been a reasonably prudent step to take. So too would have been returning to the house by way of the field, a route she was familiar with, rather than on the road. In these circumstances, I assess the contributory negligence at 10%.
[35] Patrick contends the trial judge erred in assessing Megan’s contributory negligence at only 10 per cent. As Patrick states in his factum: “If there is fault to be found that fault rests wholly on Megan.”
[36] Given my conclusions that the trial judge did not commit a reversible error in finding that Patrick breached the standard of care and that his negligence caused Megan’s injuries, it follows that I do not accept Patrick’s extreme submission that Megan was wholly at fault. As Patrick makes no other submission regarding the allocation of fault, this ground of appeal fails on his “all or nothing approach”.
[37] In any event, the jurisprudence makes clear that in the absence of palpable and overriding error, an appellate court cannot interfere with a trial judge’s finding with respect to negligence where the only point at issue is the interpretation of the evidence as a whole: Waldick v. Malcolm (1991), 70 O.R. (2d) 717 (C.A.), at paras. 45-46; affirmed Waldick v. Malcolm, [1991] 2 S.C.R. 456, at pp. 479-80. Patrick has not demonstrated that the trial judge made any palpable and overriding error in his analysis of the issue of Megan’s contributory negligence that would justify appellate interference.
D. Conclusion on Patrick’s appeal
[38] For the reasons set out above, I would dismiss Patrick’s appeal.
IV. Cross-Appeal: Dismissal of the Claims Against Catherine and Grant McGinnis Based in Tort
[39] On their cross-appeal, the Desrochers challenge the dismissal of their action against Patrick’s mother and father, Catherine and Grant McGinnis:
- In respect of the trial judge’s findings that neither Grant nor Catherine breached the applicable standard of care, the Desrochers contend the trial judge (i) failed to apply his findings of fact to the applicable standard of care; (ii) focused too narrowly on their conduct on the evening of the collision; and (iii) failed to appreciate the totality of the evidence;
- In respect of the dismissal of their claim against Grant, they also contend the trial judge erred in his interpretation and application of the owner’s liability provision contained in HTA s. 192(2).
[40] This part of my reasons will consider the Desrochers’s tort-related grounds of appeal; the subsequent part will deal with their HTA-based ground of appeal.
[41] The Desrochers submit that the correctness standard of review applies to their ground of appeal that the trial judge misapplied his findings of fact to the standard of care analysis. I disagree.
[42] As explained by the Supreme Court in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235:
- The application of a legal standard to a set of facts is a question of mixed fact and law: at para. 26;
- A finding of negligence involves weighing the underlying facts, making factual conclusions therefrom, and drawing an inference as to whether or not the defendant failed to exercise the legal standard of reasonable care and therefore was negligent: at para. 26;
- When the question of mixed fact and law at issue is a finding of negligence, an appellate court should accord deference to that finding absent a palpable and overriding error and where the only point at issue is the interpretation of the evidence as a whole: at para. 29;
- However, where an erroneous finding of negligence of the trial judge rests on an incorrect statement of the legal standard, this can amount to an error of law that attracts a correctness standard of review: at para. 31.
[43] As I read their submissions, the Desrochers essentially take issue with how the trial judge interpreted the evidence as a whole as it related to the conduct of Grant and Catherine. In those circumstances, the applicable standard of review is the stricter one of palpable and overriding error.
[44] I see no such error in the trial judge’s analysis of whether Grant or Catherine breached the standard of care. At para. 89 of his reasons, the trial judge explained why he concluded that neither Grant nor Catherine had breached the applicable standard of care:
- There was no evidence that either knew or should have known that Patrick would not operate the ATV safely with Megan;
- Grant understood that Megan had ridden the ATV while at the property and received instruction in its operation;
- Grant was not at home at the time of the collision and had no knowledge, before the accident, about Megan riding the ATV that night or about plans to do so;
- Catherine had driven the ATV with Megan as a passenger, observed Megan drive it without incident, and had given her some instruction in how to operate it. In her experience, Megan only drove the ATV around the property, not on the public road, and always at low speeds;
- Catherine assumed that Megan would be driving the ATV back to the house but there was no evidence that she knew or should have known that Megan would drive on Young Road instead of across the fields;
- Catherine told both Patrick and Megan to wear helmets. In the result, neither did. But the trial judge found that since Megan was an adult, not under the apparent influence of drugs or alcohol or otherwise incapacitated that evening and would be riding the ATV in the company of Catherine’s adult son, Catherine did not have a positive duty to prevent Megan from getting on the ATV, to compel her to wear a helmet, or to specifically instruct her not to drive back on Young Road.
[45] Whether other judges might have reached different conclusions on those facts is not relevant to the analysis. There was ample evidence to support the trial judge’s findings of fact and the Desrochers have not demonstrated that he made any palpable or overriding error in his assessment of the evidence. Accordingly, they have not established this ground of their cross-appeal.
[46] It follows that I would dismiss that portion of the Desrochers’s cross-appeal that seeks to set aside the dismissal of their tort-based claims against Catherine and Grant McGinnis. That leaves for consideration their cross-appeal regarding Grant’s liability under HTA s. 192(2).
V. Cross-Appeal: Dismissal of the Claim Against Grant McGinnis Based on HTA s. 192(2)
A. The issue summarized
[47] The Desrochers submit the trial judge erred in dismissing their claim against Grant that, as the owner of the ATV, he should be liable for Megan’s damages by virtue of HTA s. 192(2) which, to repeat, provides:
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.
[48] This issue concerns Grant’s responsibility for the negligence of Patrick, which the trial judge found primarily consisted of permitting Megan to drive the ATV back to the McGinnis farmhouse along Young Road as dusk fell, without supervision, when Patrick knew, or should have known, that the instruction and training Megan had received from Patrick and his mother did not equip Megan with the necessary skill and experience to manoeuvre the ATV through the road’s sharp curve in those circumstances.
[49] Whether Grant is liable for such negligence by Patrick turns on the proper interpretation of the phrase “negligence in the operation of a motor vehicle” used in HTA s. 192(2). Does that statutory language capture Patrick’s acts and omissions in turning the ATV over to Megan that evening, as the Desrochers submit? Or, does “negligence in the operation of a motor vehicle” only capture the acts or omissions of a wrongdoer, such as Patrick, when he is physically engaged with the functioning of the vehicle – that is, who is in charge or control of the actual operation or driving of a motor vehicle – as Grant submits? Framed differently, does “negligence in the operation of a motor vehicle” include negligence in turning over a vehicle to a person who is not fit or equipped to drive it in the circumstances?
[50] At trial, the Desrochers argued the trial judge should apply the reasoning of the New Brunswick Court of Appeal (“NBCA”) in Dionne v. Desjardins (1999), 214 N.B.R. (2d) 380 (C.A.). That case had interpreted similar, but not identical, language in the New Brunswick Motor Vehicle Act, R.S.N.B. 1973, c. M-17 to include within the meaning of the “operation” of a vehicle the transfer by a driver of the care and control of a vehicle to another person.
[51] The trial judge was not prepared to follow Dionne because “the expansive view of the term ‘operation’” taken by the NBCA “conflicts with the more restrictive interpretation of the vicarious liability provision in the HTA in Schuster v. Whitehead, [1960] O.R. 125 (C.A.).” Applying Schuster’s more restrictive interpretative approach, the trial judge concluded that since Patrick had stopped driving and gotten off the ATV before Megan started driving it, Grant was not statutorily liable for Patrick’s negligence: Reasons, at para. 95.
[52] With respect, the trial judge erred in law by regarding the 1959 decision in Schuster as setting out the proper interpretative approach to apply in assessing Grant’s liability under HTA s. 192(2). The proper approach is found in other decisions of this court, including the decision of a five‑judge panel in Fernandes v. Araujo, 2015 ONCA 571, 127 O.R. (3d) 115. When the proper approach is applied to the trial judge’s findings of fact, Grant should be held liable for Megan’s “loss or damage” pursuant to HTA s. 192(2).
[53] To explain this result, I will first review the relevant jurisprudence regarding HTA s. 192(2) to identify the guiding interpretative approach and then apply that approach to the facts as found by the trial judge.
B. The jurisprudence
The Schuster decision
[54] I shall start with the decision in Schuster, as the trial judge felt bound to follow its narrow interpretative approach to HTA s.192(2).
[55] The facts in Schuster were simple. One Hurley owned a car which, on the day in question, he drove along a Hamilton street and then parked on one side of the street, with the driver’s door beside the sidewalk. His passenger then opened the passenger-side door into the traffic. At that moment, a motorcycle was passing the car on the passenger side. The motorcycle hit the opened passenger-side door and the driver of the motorcycle suffered injuries. The sole question was whether Hurley, as the owner of the car, was liable under what is now HTA s. 192(2) [7] for the admitted negligence of his passenger in opening his door into traffic.
[56] The trial judge found that the passenger’s opening of the door constituted “negligence in the operation of the motor vehicle” within the meaning of the section and held Hurley liable for the motorcyclist’s damages. This court reversed. Drawing on the principles for construing exclusions from coverage in insurance policies, this court interpreted the word “operation” in the statutory provision by using a rule of construction that “those who stipulate for an exception should be limited to the narrowest significance of the words used”: at p. 129. Applying that narrow rule of contractual interpretation led this court to conclude, at p. 130, that the word “operation” in HTA s. 192(2) should not extend “beyond the acts or omissions of a person having charge or control of the actual operation or driving of a motor car.” As a result, the passenger’s negligence in opening the car door into traffic did not amount to “negligence in the operation of the motor vehicle.” [8]
The other Ontario Court of Appeal jurisprudence
[57] Schuster acknowledged that an earlier decision of this court, Thompson v. Bourchier, [1933] O.R. 525 (C.A.), had grappled with the meaning of other language used in what is now HTA s. 192(2): namely, the meaning of the exception to owner’s statutory liability where the car was “without the owner’s consent in the possession of some person other than the owner”. However, the Schuster decision did not advert to Thompson’s statement, at pp. 527-28, about the purpose of the predecessor section to HTA s. 192(2). [9] Thompson explained the object of the section as follows:
I think it must be conceded that the object of the Legislature in enacting secs. 41 and 41 (a) of the Highway Traffic Act was to protect the public by imposing upon the owner of a motor vehicle the responsibility of the careful management thereof and of assuming the risk of those to whom he entrusted possession that they would observe the law, and that if they failed in the discharge of that duty the owner – using the words of the statute – would be responsible "for all loss and damage sustained in the operation thereof." [Emphasis added.]
[58] Thompson applied that statutory purpose to a common fact situation: the lessee of a rental car (Lupson) permitted another person (Brown) to take over driving the car (contrary to a condition in the car rental agreement) and Brown drove the car in a way that injured a pedestrian. Was the car rental agency, as owner of the car, liable for the pedestrian’s damages under the 1930 equivalent to HTA s. 192(2)? This court broadly interpreted the word “possession” in the statutory provision to hold that the lessee, Lupson, was in possession of the car at the time of the accident with the owner’s consent, with the result that the owner/car rental agency was liable under the statutory provision: at pp. 529-30. [10]
[59] Thompson’s statement of the statutory purpose of what is now HTA s. 192(2) has been reiterated by this court on several subsequent occasions:
- In Cummings v. Budget Car Rentals Toronto Ltd. (1996), 29 O.R. (3d) 1 (C.A.), leave to appeal to S.C.C. refused, 25530 (February 20, 1997), [11] where the court also noted that “the wide interpretation that the courts have given to s. 192 is for the purpose of broadening the vicarious liability of the owner, since it is the owner who is more likely to have assets and insurance to which the innocent victims can look”: at p. 20;
- A decade later in Finlayson v. GMAC Leasco Limited, 2007 ONCA 557, 86 O.R. (3d) 481, [12] this court repeated, at para. 21, that s. 192(2) is intended to protect the public by imposing on the owner of a motor vehicle responsibility for the careful management of the vehicle. While an owner has the right to give possession of the vehicle to another, the section 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; and
- Finally, the decision of the five-judge panel of this court in Fernandes v. Araujo, 2015 ONCA 571, 127 O.R. (3d) 115, at para. 20, adopted the purpose of HTA s. 192(2) articulated in both the Thompson and Finlayson decisions.
[60] These cases describe the proper interpretative approach to HTA s. 192(2):
- Courts should give the section a wide interpretation;
- The section broadens the liability of the owner, since it is the owner who is more likely to have assets and insurance to which the innocent victims can look;
- The section seeks to protect the public by imposing on the owner of a motor vehicle responsibility for the careful management of the vehicle; and
- While an owner has the right to give possession of the vehicle to another, the section 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.
[61] Given this jurisprudence, the trial judge erred in bringing a restrictive approach to interpreting and applying HTA s. 192(2). Had he applied the proper approach, the reasoning of the NBCA in Dionne would have provided guidance for the present case.
The Dionne decision
[63] At trial, there was no dispute that both Onil and Guilman had possession of the truck with the consent of Denis, the truck’s owner. As well, the parties agreed that Onil had breached his duty of care by allowing Guilman to drive the truck while intoxicated. However, the trial judge held that Denis was not liable under the statute for Onil’s negligence toward Guilman and dismissed the action against Denis. That judgment was reversed on appeal, with the NBCA allowing the family’s claim against Denis.
[64] The NBCA observed, at para. 27, that “there has been a significant evolution in the approach courts have taken in interpreting legislative provisions” such as those similar to the New Brunswick statute and s. 192(2) of the Ontario HTA. The NBCA continued: “The strict interpretation favoured in the period following the enactment of these provisions has, in the more recent past, been replaced by a large and liberal interpretation”, citing the decision of this court in Cummings as an example of the shift. [14] The NBCA further noted that contributory negligence on the part of the victim would not deprive her of the status of “innocent victim” to whom the Cummings principle applies: at para. 27.
[65] Applying the modern approach to statutory interpretation spelled out in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, [15] including taking into account the definitions of “driver” and “operation” in the New Brunswick statute, the court in Dionne concluded, at para. 36, that “the transfer by the driver of the care and control of a vehicle to another person is part of the ‘operation’ of a vehicle, in a broad sense, at least when this transfer is made for the purpose of moving the vehicle on the highway.” The NBCA concluded, at paras. 37-38:
When Onil Desjardins transferred the care and control of the truck to Mr. Dionne, he was in actual physical control of it with the consent of the owner, Denis Desjardins, and the vehicle was using the highway by reason of its being stopped on it. Onil Desjardins was therefore the "driver" of the truck and he was "operating" it when he breached his duty of care by allowing Mr. Dionne to drive. This breach on Onil Desjardins' part is inextricably linked to the "operation" of the truck in its strictest sense. Indeed, it is as a result of this breach that Mr. Dionne in effect took over the truck's controls with the intent to move it. Finally, it must be remembered that the causal link between Onil Desjardins' breach of his duty of care and the accident which resulted in Mr. Dionne's death is admitted.
Under these circumstances and given not only the definitions mentioned earlier but also s. 17 of the Interpretation Act, I must conclude that Onil Desjardins' breach of his duty of care constitutes "negligence in the operation of the motor vehicle" as this phrase is used in s. 267(1) of the Act and that Denis Desjardins is liable for this negligence. Any other conclusion would be inconsistent with relevant current case law, in addition to being out of synch with the express intent of the Legislature.
C. Application of the proper interpretative approach to this case
[66] Against this jurisprudential background, one must return to the key question regarding whether Grant is liable for Megan’s “loss or damage” under HTA s. 192(2): Do Patrick’s negligent acts and omissions in turning the driving of the ATV over to Megan that evening constitute “negligence in the operation of a motor vehicle” within the meaning of HTA s. 192(2)?
[67] I conclude that they do, for two main reasons.
[68] First, in my view that conclusion follows from an application of the modern approach to statutory interpretation to the statutory language “negligence in the operation of a motor vehicle”. The decisions of this court in Cummings, Finlayson, and the five-judge panel in Fernandes, drawing on the earlier decision in Thompson, have uniformly identified the object of HTA s. 192(2) as protecting the public by imposing on the owner of a motor vehicle responsibility for the careful management of the vehicle. As a consequence, under the statute the owner assumes the risk of those to whom the owner entrusts possession of the vehicle that they will observe the law and, if they fail to discharge that duty, the owner then bears responsibility for all “loss or damage” sustained by a person.
[69] In the present case, both Patrick and Megan were in possession of the ATV with the consent of its owner, Grant. [16] On the evening of the collision, Patrick drove the ATV to the intersection of Young Road and County Road 11. At that point, he transferred the care and control of the ATV to Megan and, through his “thumbs up” signal, indicated that she could drive the ATV back up Young Road, which is a public road.
[70] The trial judge held that Patrick breached his lawful duty by so transferring the ATV to Megan and his negligence caused her injuries. As I read his reasons, the negligence found by the trial judge contained two elements: (1) transferring management of the ATV – a dangerous machine – to a person whom Patrick knew, or should have known, lacked adequate training and experience to drive the ATV independently, and without supervision, on a public road; and (2) transferring management of the ATV to a person whom Patrick knew had no experience in driving the vehicle in the particular circumstances: on a dirt/gravel public road; that required navigating a sharp S-curve; at dusk; with no street lighting along the road. Given the objects of the statutory provision identified by this court, that negligence by Patrick constituted “negligence in the operation of the motor vehicle.”
[71] Second, whereas the NBCA in Dionne and the BCCA in Bowe were required to take into account definitions of “operate” in those provincial highway traffic acts, the Ontario HTA does not contain a definition of “operate” or “operation”. [17] Consequently, interpreting the statutory phrase “negligence in the operation of a motor vehicle” to include the negligent transfer by a driver of the care and control of a vehicle to another person for the purpose of moving the vehicle on a highway does not undermine any statutory definition of “operation”, as none exists.
[72] Consequently, I conclude that the Desrochers have established that Grant is liable for Megan’s “loss or damage”, adjusted to take into account the trial judge’s finding of her contributory negligence.
VI. Disposition
[73] For the reasons set out above, I would dismiss Patrick’s appeal and dismiss the Desrochers’ cross-appeal in respect of Catherine’s liability. However, I would allow their cross-appeal in respect of Grant’s liability under HTA s. 192(2).
[74] As to the costs of the appeal and cross-appeal, at the hearing the parties agreed that the winner of each appeal should be entitled to costs in the amount of $25,000.
[75] In the result, the Desrochers successfully resisted Patrick’s appeal and were partially successful on their cross-appeal. In those circumstances, I would award the Desrochers costs of the appeal and cross-appeal jointly against Patrick and Grant, fixed in the amount of $37,500, inclusive of disbursements and applicable taxes.
Released: January 30, 2024 “D.B.” “David Brown J.A.” “I agree. J. George J.A.” “I agree. P.J. Monahan J.A.”
Footnotes
[1] Anns v. Merton London Borough Council, [1978] A.C. 728 (U.K.H.L.); Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537.
[2] Robert Island, an experienced all-terrain vehicle instructor who was qualified as an expert, also testified that the ATV was an inherently dangerous machine. As he stated at Transcript p. 236: “They’re an off-road vehicle that’s high performance and a new – a new rider needs some instruction to keep them safe is the bottom line.” And again, at Transcript p. 322: “[I]t is inherently dangerous so without proper training and instructions on operation … and without the appropriate safety equipment, operating an ATV is inherently a dangerous activity. That’s why we do what we do to keep people safe.”
[3] Transcript, at pp. 611-13.
[4] Transcript, at p. 615.
[5] Transcript, at p. 179.
[6] Transcript, at p. 197.
[7] Then, s. 50(1) of the Highway Traffic Act, R.S.O. 1950, c. 167.
[8] A decade after Schuster, the Supreme Court of Canada cautioned in F.W. Argue Ltd. et al. v. Howe, [1969] S.C.R. 354, at pp. 364-65, against using principles of construing insurance contracts to interpret the meaning of non-insurance statutory provisions.
[9] Then, s. 41(a) of the Highway Traffic Act, 20 Geo. V. 1930, c. 48.
[10] Section 192(4) of the HTA now addresses the situation of the owner lessor of a vehicle: “Where a motor vehicle is leased, the consent of the lessee to the operation or possession of the motor vehicle by some person other than the lessee shall, for the purposes of subsection (2), be deemed to be the consent of the owner of the motor vehicle.”
[11] At issue in Cummings was whether an insurer owed a duty to defend where the lessee of a car had consented to the car being driven by an underage driver, contrary to the car rental agreement.
[12] Finlayson involved a situation where a truck rental agreement prohibited the lessee from driving the truck. The lessee breached that condition, causing a collision that injured two passengers in the truck. The truck’s owner/lessor was held liable for their injuries under what is now HTA s. 192(2).
[13] At the time, s. 267(1) of the Motor Vehicle Act.
[14] Not all provincial appellate courts have made such a shift. In Bowe v. Bowe, 2022 BCCA 35, the British Columbia Court of Appeal (“BCCA”) noted, but rejected, Dionne’s critique of an overly strict approach to interpreting words such as “operating” in motor vehicle owner vicarious liability statutory provisions. The BCCA declined to depart from its established jurisprudence that in the context of the specific language of the British Columbia statute, the word “operating” connotes “engagement with the functioning of the vehicle”: at para. 89. As a result, in Bowe that court concluded that a passenger who neither directs nor counsels the driver to operate the vehicle in a negligent manner is not “operating” the vehicle within the meaning of the provincial statute: at para. 89.
[15] “[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”
[16] Although Grant testified that he had not been asked specifically whether Megan could operate the ATV that evening, he conceded that – had he been asked – he “would have no problem with her operating it”: Transcript, p. 589.
[17] The New Brunswick act contained definitions of “driver” and “operate”. Contrasting the New Brunswick and Ontario acts, the New Brunswick act defines “driver” as “every person who drives or is in actual physical control of a vehicle”, whereas the Ontario HTA defines “driver” as meaning “a person who drives a vehicle on a highway”. Under the New Brunswick act, “operate” with “reference to a vehicle means and includes any use of a highway by the vehicle”: Dionne, at para. 35. By contrast, the Ontario HTA does not contain a definition of “operate”. Part XI of the HTA, which includes s. 192, does define “operator” as having the same meaning as in s. 16(1), that is a “person directly or indirectly responsible for the operation of a commercial motor vehicle including the conduct of the driver of … the vehicle”. However, that definition does not act to identify uses of a vehicle that may amount to negligence but, instead, to identify a class of owners to whom liability may attach. As HTA s. 192(5) provides: “In addition to any liability of an owner or lessee incurred under subsection (2) or (3), the operator of a commercial motor vehicle is liable for loss or damage sustained by any person by reason of negligence in the operation of the commercial motor vehicle on a highway.”