COURT FILE NO.: CV-16-00000264-0000
DATE: 2022-09-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Megan Desrochers by her litigation guardian Shawn Desrochers,
Shawn Desrochers and
Rose Desrochers
Plaintiffs
– and –
Grant McGinnis,
Catherina McGinnis and
Patrick McGinnis
Defendants
Kristian Bonn and Ryan Alkenbrack, for the Plaintiffs
Steven Baldwin, for the Defendants
HEARD: November 30,
December 1, 2, 3, 6, 7, 8, 2021
Written submissions: January 11 and 18, 2022
reasons for decision
HURLEY, J
Introduction
[1] Megan Desrochers suffered a severe brain injury when the all-terrain vehicle (“ATV”) she was riding left the roadway and struck a tree on July 29, 2014. At the time of the accident, she was travelling on Young Road in Prince Edward County enroute to the home of Grant and Catherine McGinnis.
[2] Patrick McGinnis, who was Megan’s boyfriend at the time, was following her in a truck but did not see the accident happen. His father Grant owned the ATV. Catherine is his mother and was at home the night of Ms. Desrochers’ fateful trip on the ATV.
[3] This trial dealt only with the issue of liability.[^1]
[4] Ms. Desrochers alleges that all three defendants were negligent because they permitted her to ride the ATV alone on a public road when they knew or should have known that it was unsafe for her to do so.
[5] The defendants contend that she was the author of her own misfortune. They did not owe her a duty of care and, even if they did, Ms. Desrochers did not prove, on the balance of probabilities, that any breach caused or contributed to the accident. The action should therefore be dismissed.
[6] Because they have surnames in common, I will refer to the parties by their first names in this decision or collectively as the plaintiffs and defendants.
The issues and positions of the parties
[7] The elements of a cause of action in negligence are well known: the defendant owed the plaintiff a duty of care; the defendant’s behaviour breached the standard of care; the plaintiff sustained damage; and the damage was caused, in fact and law, by the defendant’s breach. The central issues in this case are duty of care and causation.
[8] Did any of the defendants owe a duty of care to Megan? Whether or not a duty of care exists is a question of law. In the absence of a previous case that has decided that such a duty of care exists, the plaintiff must establish the existence of a prima facie duty of care. This means that she must “provide a sufficient factual basis to establish that the harm was a reasonably foreseeable consequence of the defendants’ conduct in the context of a proximate relationship”: Rankin (Rankin’s Garage and Sales) v. J. J., 2018 SCC 19 at para. 19. In short, was there a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to her? If she is able to demonstrate this, the evidentiary burden then shifts to the defendant to establish that there are residual policy reasons why this duty should not be recognized: Rankin at para. 20.
[9] Megan submits that she met her burden – before meeting Patrick she did not have any experience in operating a motorized vehicle; an ATV is a high-powered machine which requires skill and training to ride safely; she received nominal instruction in its operation from the defendants; they knew of her inexperience with respect to motorized vehicles; they also knew of her mental instability and substance abuse, both of which could have a negative impact on her ability to operate the ATV safely; they could control her access to the ATV; and, given their knowledge of the road where the accident happened, the time of day and Megan’s inexperience in riding the ATV, they knew or should have known it was unsafe to permit her to operate it alone on Young Road.
[10] The defendants say that by July 29, Megan had ridden the ATV for several months, in the company of Patrick and Catherine and also by herself. They had instructed her on how to operate it. They had seen her ride it around the property without any difficulty. She was an adult who lived independently and, on the night of the accident, was not under the influence of drugs or alcohol nor did she suffer from any mental health issues that impaired her ability to operate the ATV safely. It was her choice to ride alone that night. To impose a duty of care on the defendants in the circumstances would be contrary to public policy because it would be an unjustifiable infringement of personal autonomy and result in defendants being held civilly liable for the voluntary decision of a legally competent adult to engage in an activity of their choice.
[11] If the defendants owed a duty of care, did any breach of it cause or materially contribute to the accident? The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Put another way, the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. The court should approach the issue of causation in a “robust common sense fashion”; there does not have to be “scientific evidence of the precise contribution the defendant’s negligence made to the injury”: Clements v. Clements, 2012 SCC 32 at paras. 8-9. In exceptional cases, the plaintiff may succeed on the basis of “material contribution to risk of injury” where it is impossible to determine which of a number of negligent acts by multiple actors caused the injury, but it is established that one or more of them did in fact cause it: Clements at para. 13. The trier of fact should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established, on a balance of probabilities, a prima facie case of negligence against the defendant. If the plaintiff does so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed: Fontaine v. B.C (Official Administrator) 1998 814 at para. 27. Whether an inference of negligence can be drawn is highly dependent on the circumstances of each case whenever it involves a vehicle that leaves the roadway in a single-vehicle accident: Fontaine at para. 53.
[12] Megan has no memory of the accident but submits that she established, on a balance of probabilities, a prima facie case of negligence based on circumstantial evidence which included her inexperience and lack of training in the safe operation of the ATV; the condition and physical layout of the road; her ongoing mental health issues; testimony about what a rider of an ATV must do to successfully negotiate a curve in their path of travel; and the opinion of an accident reconstruction expert. The defendants did not negate this evidence as they were required to do.
[13] The defendants assert that Megan’s case rests on speculation only. It does not rise to the level of proof on a balance of probabilities. Based on the evidence at trial, she had ridden the ATV numerous times and demonstrated her ability to safely operate it. On the night in question, she was travelling at a slow rate of speed and there is nothing to explain her departure from the roadway that is attributable to any negligent act on the part of the defendants. There are many possible causes for the accident – inattention or distraction to name two - and a possible cause does not equal a probable one.
[14] There are other legal issues of less significance which I will identify and discuss after my review of the evidence.
The agreed facts
[15] The parties agreed on a number of facts before the trial commenced and filed an agreed statement of facts which I reproduce verbatim with two minor typographical corrections:
At all material times, Grant McGinnis was the registered owner of the 2010 Polaris Sportsman 500 H. O. (The “ATV”) that Megan Desrochers was operating on July 29, 2014
H. O. in the model description of the ATV stands for “hi output”.
Grant McGinnis purchased the ATV new in 2010 from Deerhaven Farm Garden (“Deerhaven”) where Grant McGinnis worked.
Catherine McGinnis is Grant McGinnis’s wife.
At all material times, Grant McGinnis and Catherine McGinnis lived at 241 Young Road in Prince Edward County.
Patrick McGinnis is the son of Grant McGinnis and Catherine McGinnis.
Patrick McGinnis was born on October 27, 1985.
Megan Desrochers was born on July 5, 1990
Shawn Desrochers and Rose Desrochers are Megan Desrochers’s parents.
Megan Desrochers and Patrick McGinnis began dating each other as boyfriend and girlfriend in or around the last two weeks of February 2014.
In or about March 2014, Patrick McGinnis start living with Megan Desrochers at their apartment at 123 Lingham Street in Belleville.
In or about March or April 2014, Megan Desrochers started spending some weekends with Patrick McGinnis at the McGinnis residence at 241 Young Road.
In or about June 2014, Megan Desrochers started working at Outerbanks Deli.
In the early afternoon of July 29, 2014, Patrick McGinnis and Megan Desrochers travelled to Kingston together. They left from the McGinnis residence at 241 Young Road.
Patrick McGinnis drove to Kingston using Catherine McGinnis’ car
Patrick McGinnis drove back to the McGinnis residence from Kingston with Megan Desrochers and his son Chase.
On July 29, 2014, Patrick McGinnis drove the ATV from the McGinnis residence at 241 Young Road and Prince Edward County to the intersection with County Road 503 [Note: It should be “County Road 11”].
Megan Desrochers was a passenger on the ATV that Patrick McGinnis was operating.
On July 29, 2014 when Patrick McGinnis and Megan Desrochers left the McGinnis residence on ATV, neither of them were wearing helmets. Catherine McGinnis saw that when Patrick McGinnis and Megan Desrochers left the McGinnis residence on the ATV with Patrick driving that neither Patrick McGinnis nor Megan Desrochers were wearing helmets.
Patrick McGinnis was driving the ATV to pick-up his Uncle’s pickup truck that had been left at the intersection of Young Road and County Road 11.
The McGinnis’ left the pick-up truck at the intersection of Young Road and County Road 11 with firewood in the back that was being sold on a self-serve basis.
The distance from the McGinnis residence where the truck was parked at the intersection with County Road 11 is approximately 1.4 kilometres.
Patrick McGinnis got into his Uncle’s pick-up truck that had been left at the intersection of Young Road and County Road 11 with the intention to drive it back to the McGinnis property.
Megan Desrochers began driving ATV on Young Road back to the McGinnis property.
After Megan Desrochers had left on ATV, Patrick Desrochers [Note: it should be “McGinnis”] began driving his Uncle’s pickup truck back towards the McGinnis residence on Young Road. Megan Desrochers started driving back towards the McGinnis residence ahead of Patrick McGinnis.
Patrick McGinnis was following Megan Desrochers in his Uncle’s truck on the return trip back to the McGinnis residence. Patrick McGinnis was approximately 500 feet behind Megan Desrochers. He lost sight of Megan Desrochers when she went up and over a hill on Young Road.
There is no evidence that Megan Desrochers was speeding or driving too fast when she was driving the ATV back from County Road 11 to the McGinnis residence before she left the travelled portion of the road.
The paramedics received a call from 911 dispatch about the collision at 21:05:00 hours (9:05 p.m.).
Grant McGinnis was not at the McGinnis residence located at 241 Young Road on July 29, 2014 when Patrick McGinnis and Megan Desrochers left on the ATV or at the time of the collision.
On July 29, 2014, Young Road was a public highway as defined by the Ontario Highway Traffic Act.
The speed limit on Young Road on July 29, 2014 was 50 km/hour.
[16] During the course of the trial, the parties agreed to following:
a. Megan has no memory of the accident and, based on the report of a treating physician, Dr. Duncan Day, she is, because of her brain injury, incapable of giving reliable testimony about the accident. As a result, the defendants did not read in any of her discovery evidence and stipulated that no adverse inference should be drawn from her failure to testify.
b. The ATV was in mechanically fit condition. Because of this agreement, the defendants did not call a professional engineer, Sam Kodsi, to testify at trial.
The accident
[17] On Friday, July 29, 2014, Patrick and Megan drove to Kingston to watch Patrick’s son, Chase, play soccer.[^2] They had stayed overnight at the McGinnis residence. Patrick could not remember when they left for Kingston. Neither Catherine nor Grant were at home when they departed; Catherine was working and Grant was at a friend’s house.
[18] They drove back from Kingston with Chase after the soccer game. He lived with his mother but Patrick had weekend access which was usually spent at his parents’ home. Patrick thought they arrived at his parents’ home between 7:30 and 8 p.m. Catherine, who was at the house, thought it was around 8:15 – 8:30 p.m.
[19] Patrick spoke briefly with his mother while Megan went to the washroom. He wanted to retrieve his uncle’s truck which was parked near the intersection of Young Road and County Road 11. The McGinnis’ sold firewood from this truck on the honour system – a customer left money in a secure box in the truck for the wood they took.
[20] According to Patrick and Catherine, Megan was in the washroom for only a short period of time and they left the residence together within minutes. Catherine, who knew that they were going to take the ATV, told them to wear helmets. Neither did. She said they were both “excited”.
[21] County Road 11 runs in an east-west direction. Young Road runs north from the intersection. It is a two-way unpaved dirt road with gravel shoulders. The distance from the intersection to the McGinnis residence at 241 Young Rd. is 1.4 km.
[22] The road is straight for much of this distance but there is a sharp curve to the southwest, in excess of 90°, in close proximity to a driveway for a residence at 168 Young Road. Thick underbrush and trees line the roadway in this area.
[23] There are only a few houses on Young Road. There were no street lights or any other source of artificial light that illuminated the roadway.
[24] The precise location of the ATV when Patrick and Megan got on it was not identified during the evidence but it was likely close to the house. Patrick drove it with Megan sitting behind him.
[25] The McGinnis property is 900 acres in size and they own land that extends to County Road 11. Patrick McGinnis testified that he drove across fields from the residence to a point south of the curve before going onto Young Road.
[26] Patrick was not sure if the truck would start. Once it did, he gave a “thumbs up” to Megan and she left on ATV, heading northbound on Young Road. Before she left, they did not have any discussion about her route of travel.
[27] He followed her, travelling about 500 feet behind her. His speed was 25 km/h. He did not know how fast she was going but they remained equidistant as they both drove north on Young Road.
[28] There is a rise in the road south of the curve. Patrick identified its location on an aerial map of the area. It appears to be about halfway between County Road 11 and the curve on Young Road. When Megan went over this rise, he lost sight of her. Once he reached the same point, he saw the lights on the back of the ATV which was off the roadway. It was not moving. He did not see it leave the roadway.
[29] Patrick described Young Road as poorly maintained with the gravel pushed off to the sides of the travelled portion of the roadway. His mother agreed that it was not well maintained. Grant testified at his examination for discovery that the corner was “irregular, uneven, poorly maintained”. He confirmed that he went to the accident scene the same night and when asked about the condition of the road stated: “Kind of loose, loose and somewhat rutted on the corner. Not ideal”.
[30] Once Patrick arrived at the accident scene, he got out of the truck. He could tell that Megan was badly hurt. He removed her from the seat of the ATV and laid her on the ground. He did not move the ATV. He went to a neighbour’s home to get help. The name and address of this neighbour was not identified in the evidence but because the accident occurred near the driveway for 168 Young Road, I can reasonably infer that Patrick went to this house. The neighbour called 911. Megan was taken by ambulance to the Kingston General Hospital. Based on the time of the 911 call, I find that the accident likely occurred at 9 p.m. or close to it.
The police investigation
[31] Sgt. Jeremy Doolan, a collision analyst with the Ontario Provincial Police, arrived at the scene at 11:20 p.m. He took numerous photographs and measurements and prepared a diagram of the accident scene.
[32] Other officers had arrived at the scene before him. He testified that he could see what he believed to be the tire marks of the ATV but only for a short distance from the point of impact with the tree. He described them as “rolling” marks.
[33] According to the diagram he prepared, the width of the roadway was 5.7 metres south of the curve. There was a tire mark which he ascribed to the right wheel of the ATV which was 5 metres on the road and 4 metres on the grass leading to where the ATV came to rest. He could not distinguish a tire mark on the roadway attributable to the left tire but identified a mark of 2.5 metres that began at the road’s edge.
[34] He confirmed with the other officers that the ATV had not been moved. He thought it may have rebounded slightly away from the tree upon impact.
[35] He walked along Young Road and did not observe any potholes or other noticeable defects in the road surface.
[36] Although he testified that the posted speed limit was 50 km/h, he took a photograph of a speed sign south of the curve which stated 30 km/h. Immediately above it was a warning sign with a symbol that I associate with a winding road and not one that contains a sharp bend or turn in the road ahead. It is impossible to tell from the photograph how far that sign was from the curve. Sgt. Doolan was not asked any questions about this particular sign nor did counsel make any submissions about it.
[37] Based on the photographs of the ATV and the tree, it appears that the point of impact was in the centre of the ATV, between the handlebars and immediately below the headlight. Blood is visible on the front of the ATV, the handlebars and foliage on and around the ATV.
[38] There is thick underbrush surrounding the tree which obscures its visibility from the travelled portion of the roadway.
[39] Sgt. Doolan took a series of photographs from a point south of the accident scene which captured the straight line of the road preceding the curve, the curve and the ATV off the roadway. A reasonable interpretation of these photographs when combined with the diagram is that Megan negotiated part of the curve before leaving the roadway and striking the tree.
The expert evidence
[40] The plaintiffs called two experts, Craig Wilkinson and Robert Island. The former is a professional engineer who was qualified to provide expert opinion evidence with respect to the technical analysis and investigation of the collision including impact engagement and travel path, the severity of the collision, the speed of the ATV during the collision sequence, the timing of the ATV’s departure from the road during the collision sequence and the physics and dynamics of cornering and turning an ATV. The latter does not have any academic credentials but has substantial experience in the operation and use of ATVs, including the one that Megan was on the night of the accident and has provided instruction and training in the proper operation and use of ATVs. He was qualified to provide expert opinion evidence with respect to the areas of instruction, training and operation of ATVs, including the instruction and training in the operation of ATVs to beginner and new riders.[^3]
i. Mr. Wilkinson’s testimony
[41] He did not attend at the accident scene. Instead, he based his opinion on information contained in Sgt. Doolan’s report and the photographs. The officer’s report was not filed as an exhibit but three excerpts from it, a document entitled “Technical Collision Field Notes”, a record of the scene survey measurements and his diagram were introduced on consent.
[42] Mr. Wilkinson testified that it was not clear from the photographs if the tire marks which Sgt. Doolan described as “rolling” indicated some degree of braking on the part of Megan. However, the straightness of the tire marks led him to conclude that there was no significant pre-impact steering or aggressive braking from the start of the tire marks to the point of impact. This meant, in turn, that the ATV did not slide off the road due to excessive speed or locked wheels.
[43] He opined that the marks were consistent with Megan not detecting the approaching left corner or the degree of it (which he said was in excess of 90°) or not espying it in sufficient time to negotiate the curve.
[44] He explained how turning an ATV is much different than a car due to its suspension, the narrower width between the right and left tires, the rider mass and the size of the ATV.[^4] It requires active weight shifting by the rider to turn. The rider needs to shift their weight forward and to the inside of the turn. If a rider does not do this properly, the turn may be started but not successfully completed.
[45] He described the dynamics of turning an ATV. As an ATV travels a curved path, centripetal acceleration pushes the vehicle towards the outside of the corner. This is similar to the force that a driver of a car would feel in executing a turn. But, unlike in a car, the rider of an ATV needs to actively shift their weight and move their body in a certain direction. If this is not done, it would be difficult to steer as effectively. This is especially true with a sharp curve. Thus, without the proper steering technique being employed, the ATV would not make the turn.
[46] If the tire marks were accurately characterized as “rolling”, that would indicate the ATV was driven to impact or that it coasted over the length of the tire marks without braking. He estimated that the ATV was travelling at least 15 to 18 km/h at the start of the tire marks. He acknowledged that, because of the limited data for ATV collisions, the impact speed cannot be determined with certainty, stating that if it was greater than 10 km/h, the speed at the start of the tire marks could range from approximately 20 to slightly over 30 km/h if the impact speed was higher. At this range of speed, the ATV left the road between 0.6 and 0.9 seconds before entering the ditch and would have impacted the tree about 1.1 to1.6 seconds after first leaving the road.
[47] He testified that the survey measurements indicated that there was a downward cross slope of 2 to 3° at the bend in the road which would make it more difficult to successfully manage the curve.
[48] He concluded that Megan had negotiated part of the curve but left the roadway at a sharp point of it. He was pressed in cross-examination on this conclusion but remained firm in his opinion that Megan had started the necessary turn but was unable to complete it.
[49] It was pointed out in cross-examination that he had not expressed a definite opinion in his reports or testimony about the cause of the accident. He testified that he was not asked to do so, which in his experience was not uncommon. He agreed that there could be many possible explanations for why Megan left the roadway, including inattention or distraction, stating that “anything is possible”.
ii. Mr. Island’s testimony
[50] Mr. Island is a retired schoolteacher. He has been involved in what is colloquially referred to as the “powersports industry”, as an instructor and participant, for many years. His experience includes motorcycles, snowmobiles and ATVs. He has written articles about ATVs in various publications. He has ridden them recreationally since about 1979 and for the past two decades has instructed guests in their operation at two well-known resorts in Ontario, Horseshoe and Deerhurst. Both offer supervised excursions to guests, most of whom have no previous experience in riding ATVs.
[51] His responsibilities at the resorts have included developing a curriculum for the instruction of guests, supervising the staff involved in the tours and personally instructing novice riders. In his testimony, he described the fundamentals of operating an ATV (i.e. starting it, the different gears, acceleration, braking and steering), the recommended safety equipment and the instruction a rider should receive in order to safely operate the ATV. This usually took about 45 minutes, following which the guest would go on a two-hour guided tour.
[52] In his view, the most important aspect of the safe operation of an ATV is proper turning or cornering technique. Like Mr. Wilkinson, he testified that a rider must know how to shift their weight and lean in the right direction in order to execute a turn successfully. He told beginner riders that this particular maneuver was the most common cause of accidents and that they needed to pay particular attention to both their lower and upper body positions when turning.
[53] He was familiar with the 2010 Polaris Sportsman HO. He has ridden and written about it. He described it as a high performance off-road vehicle. It is designed for a single rider. It has a 500cc engine and weighs a little more than 700 pounds. Although the speedometer indicates the top speed is 70 mph, he said it would not likely exceed 100 km/h.[^5] The gearshift is on the right handlebar. The gears are reverse, neutral, low and high. The transmission gear is on the right side below the handlebars. Low gear is also known as the utility gear and would limit the speed to about 11 km/h. Any speed above that requires high gear. A rider operates the throttle with their right thumb. The brakes are on left handlebar. The rider’s weight also has an impact on their ability to effectively and safely turn the ATV; for this particular machine, he believed that a rider should be at least 150 pounds and ideally 175 – 200 pounds.[^6] Because the ATV does not have power steering, more steering effort through upper body movement is required to get the handlebars turned in the proper direction.
[54] He agreed in cross-examination that there is no legally mandated instruction or training program in Ontario for ATV riders and there is no licence qualification. His experience in training and instruction has been limited to commercial resorts. He acknowledged that the average duration of the initial instructions was about 45 minutes for each guest which would include an explanation of the safety equipment and how to operate the ATV. This period could be extended depending on the instructor’s assessment of the guest’s understanding and their response to the instructions.
The manufacturer’s recommended safety precautions
[55] Grant was unable to locate the owner’s manual but agreed that he had received one when he purchased the ATV. Both he and a representative of Deerhaven testified that the one which the plaintiffs’ counsel had obtained was the manual for the 2010 model. The third page of the manual was entitled “WARNING” which, in bold type, contained a list of safety precautions. These were reproduced on a sticker attached to the ATV below the left handlebar. These stated that an approved helmet and protective gear should always be used and the ATV should never be used on public roads, to carry passengers, or following the consumption of drugs or alcohol. It also stated that the ATV should not be operated without proper training or instruction; at speeds too fast for the rider’s skills or the conditions; to avoid paved surfaces; and that a rider should always use proper riding techniques to avoid vehicle overturns on hills, rough terrain and in turns.
Megan’s personal circumstances at the time of the accident
[56] Megan dropped out of high school in grade 11. She moved out of the family home shortly before she turned 19. Her parents testified about the mental health issues she had experienced as a child and how they affected her behaviour, which included outbursts of anger, acts of self-harm, impulsivity and running away from home. She underwent counselling at the Belleville hospital and a local organization known as Youth Hab. When she was about 18, a psychiatrist, Dr. Duncan Scott, diagnosed her as suffering from a borderline personality disorder and ADHD. She was prescribed three different medications for her mental health problems which she was still taking in the period leading up to the accident.[^7]
[57] Megan lived independently after she moved out, but her parents continued to help her financially, assisting her with banking, groceries and rent. She worked at a Tim Hortons for 3 ½ years before her employment was terminated. She also received benefits through Ontario Works.
[58] She had a daughter, Paige, who was born in February 2013. Patrick is not the father of her child. The nature and extent of the Children’s Aid Society’s involvement was not reviewed in any detail at trial but, in April 2014, Shawn and Rose formally adopted Paige. Megan’s access to Paige was at the discretion of her parents.
[59] This generated conflict between Megan and her parents. By this point in time, Megan and Patrick were living together. Shawn testified that he and his wife were concerned about what they believed was Megan’s excessive use of marijuana and forbade access when Megan appeared to be under the influence of it.
[60] There was some dispute in the evidence about the contact between Megan and her parents in 2014 before the accident. According to Patrick, Megan was not getting along with her parents and rarely communicated with them, except when she wanted to see Paige. Shawn and Rose acknowledged that their relationship with their daughter was strained during this period of time but they continued to regularly talk to her in person or through social media and maintained the same level of financial assistance as before.
[61] At some point in late May or early June, Megan told her parents that she had driven a car when she visited Patrick’s parents. Shawn and Rose were very concerned about this because Megan did not have a driver’s licence, had shown no previous interest in learning to drive and they believed she was incapable of properly operating a motorized vehicle due to her mental health problems.
[62] This led to three phone calls between her parents and Catherine in May and June. Their testimony conflicted to a certain degree on the exact dates and contents of these calls.
[63] Shawn testified that the first call took place in early June after Megan told her parents that she parked cars one weekend when visiting the McGinnis home. Shawn called and spoke to Catherine, telling her that Megan did not have a license and should not be driving a car. He claimed that he said to her that Megan had been diagnosed with a borderline personality disorder and, in his words, was in “no shape to drive” because this condition affected her ability to process information and maintain her focus on tasks like driving. Catherine agreed that they spoke about Megan driving a car but that she explained to Shawn that Megan did not do so but was only involved in supervising the parking of some cars. She thought that the call happened in April or May and that Shawn was satisfied with this explanation. She did not recall any discussion about Megan’s mental health with him.
[64] Shawn testified that the second call was made in early June after Megan had told her parents during an access visit with Paige that she was riding an ATV at the McGinnis property. Shawn said that he spoke to Catherine again and told her that Megan should not be operating an ATV because of her mental instability and use of marijuana. He told her that he was concerned about Megan being in an accident and hurting herself or others. According to him, Catherine dismissed his concerns, stating that Megan was riding the ATV on private property and, if he called again, she would contact the police. Catherine agreed that the second call happened in June. She recalled that they could have possibly spoken about Megan operating an ATV. His main complaint, however, was that Megan was smoking marijuana at the house and mixing it with her prescription medication. She told Shawn that she had not seen this and would not allow it at her home. She claimed that Shawn was very rude with her and agreed that she told him that, if he called again, she would notify the police.
[65] The third and final call was either in late June or early July. Shawn and Rose testified that they remained concerned about Megan operating a motorized vehicle and decided that Rose would call in order to have a “mom to mom” conversation with Catherine. Rose spoke to Catherine and told her she was concerned about Megan operating a vehicle without a license. She asked her not to let Megan ride the ATV. She claimed that Catherine would not listen to her and, because Rose was upset and crying, Shawn got on the phone. Shawn testified that, when he got on the phone, he reiterated the same concerns expressed before and Catherine told him not to call again. Catherine believed that this call took place in early July. She agreed that Rose spoke to her first and told her that Megan was not capable of operating an ATV, saying something to the effect that Megan could not “walk and chew gum at the same time”. Catherine recalled that the call did not end well because Shawn started talking and was very belligerent, complaining that they should not allow Megan to drive the ATV. Catherine said that she was deeply offended that the Desrochers did not trust her and that, in her opinion, Megan was an independent adult who could make her own choices about what to do. It was not clear to me if Catherine was relating what she said to Rose and Shawn or rather what she thought at the time.
[66] In cross-examination, Catherine confirmed that both Shawn and Rose had told her in these telephone calls they believed Megan was mentally incapable of driving the ATV and that they were concerned about Megan mixing her prescription medicine with marijuana while in Patrick’s company.
[67] I pause here to note that Mr. Baldwin objected to Shawn and Rose testifying about their daughter’s mental health diagnoses and the impact her condition might have had on her ability to safely operate an ATV. I will have more to say about this evidence and what conclusions I can draw from it but it was admissible for the purpose of narrative and that Megan’s parents expressed their concerns about her driving the ATV before the accident. There was no evidence that Catherine told either her husband or Patrick about the details of the calls.
[68] As stated in the agreed facts, Megan started working at the Outerbanks Deli in June 2014 on a part-time basis as a clerk. Catherine knew the owners and had helped get her the job. She was fired in mid-July because of her behaviour one day at work.
[69] Patrick testified that she was “staggering around” that day at work which he said was due to her consumption of Tylenol. He picked her up and took her back to his parents’ home. At his examination for discovery, he said that she had tried to intentionally hurt herself by taking too many pills. Both Catherine and Grant were at home. Catherine testified that Megan had been “mumbling” and “stumbling” at work but declined to go to the hospital and, after laying down, appeared fine a few hours later. She considered this behaviour out of character for Megan.
[70] Patrick knew that Megan had serious mental health issues. She had overdosed on her prescription medication in March 2014. He kept both his and her prescription medication in separate locked boxes and, according to him, ensured that Megan only took the medication as directed by her doctor. Grant testified that he had “some awareness” of Megan’s mental health issues before the accident and knew that Patrick controlled her access to the medication to a certain extent. Catherine knew that Megan suffered from anxiety for which she took medication and had attended counselling appointments at the Belleville General Hospital in 2014. She knew about the March overdose and understood that Patrick kept Megan’s medication “under lock and key” because of it.
[71] Catherine and Grant liked Megan and thought she and Patrick had a good relationship. When she came to their house, she helped out with tasks such as cleaning and cooking. They saw her as a responsible adult. Catherine, in particular, considered her parents overprotective.
Megan’s operation of the ATV before the accident
[72] Megan had never been on an ATV before meeting Patrick. She first went to the McGinnis property in March or April 2014. They went there on an occasional basis, usually on the weekend. They went more often after school ended because Patrick would take Chase there during his access visits.
[73] Grant worked full-time at Deerhaven in Belleville. He never saw Megan on the ATV. He was aware through his wife and Patrick that she rode it and assumed that they would have taught her how to operate it properly. He knew, before the accident, that she did not have a driver’s license and that a person could not operate an ATV on a public road without one.
[74] Catherine was employed at the Merrill Inn in Picton. She worked on a full-time basis, from Tuesday to Saturday or Sunday. She saw Megan on the ATV with Patrick, sometimes driving it. She did not know if Patrick had given her any instruction about its operation. Catherine did – she testified that she showed Megan how to turn the ATV on and off and told her not to take it out of low gear. They would take turns as passenger and driver. They drove it at a slow or “putt putt” speed around the property. They did not go on any trails. She recalled taking Megan with her as a passenger when she drove the ATV from the farmhouse to what she called the “roadstand” on County Road 11, going to and back from it across a field. They never drove the ATV on Young Road. She did not know how many times Megan had been on the ATV before the accident but last saw her on it on July 1 during a family barbecue. She did not observe Megan have any problems operating the ATV.
[75] Patrick testified in chief that, soon after he moved in with Megan in early 2014, they started to go to his parents’ home every weekend. He was very experienced in riding ATVs, having done so since he was a young boy. He saw his son every weekend at the property and, after finishing chores, they would go for an ATV ride. He testified that he instructed Megan on its proper use, including teaching her how to start it and also how to use the controls. After a period of time in which she was only a passenger, she started to drive the ATV by herself. He claimed that she drove it at least twice a weekend for four months before the accident. He stated confidently that she had driven it by herself at least 30 times. He let her take Chase for “joy rides.” He described a wide variety of the places they went in the ATV including trails on the property, by a pond and in what he called “mud bogs”. He did not mention if they travelled on Young Road other than the date of the accident.
[76] In cross-examination, Patrick became argumentative and evasive, particularly when confronted with contradictory evidence he had given at his examination for discovery. His disregard for truthful testimony became evident. By way of examples, he had testified that he only consumed one beer a year but at discovery said he drank a lot of beer but did not get drunk; he did not consume marijuana daily but said he did at discovery; after then conceding that he smoked marijuana on daily basis, he claimed that he did not get high but only used it for pain and anxiety; and that he had a valid driver’s licence in July 2014 but at his examination said “I’m just going to say, I don’t know any more…fucking honestly like no”. He defended his inaccurate answers by asserting that Mr. Bonn had “wound him up” at the examination. Although he testified that he had a good memory of what took place in 2014, he said at the examination in 2017 that he could not remember what he did three weeks ago.
[77] He was confrontational during his testimony at trial, seeming to treat the cross-examination as an opportunity to engage in disputes with Mr. Bonn instead of answering his questions. Although it was an agreed fact that Young Road was a public road, he denied that it was, stating it was only counsel’s “opinion”. When asked if he was legally required to wear a helmet while operating an ATV on a public road, he claimed it was only required on a main highway, “not a dirt cow lane”. When it was put to him that his father had told him he could not ride the ATV on a public road, he claimed that he did not do so on July 29, 2014 because his parents’ property extended to County Road 11.
[78] It became apparent to me that his primary objective was to tell a story that put him (and, by extension, his parents) in the most favourable light especially when it came to a central issue in the case – Megan’s experience and skill in driving an ATV before the accident. One of the most glaring instances in this regard was his avowal of a months-long process of instructing Megan in its safe operation when, at his examination for discovery, he testified that he showed her how to drive it only once at a family barbecue.
Analysis
[79] Before I turn to the legal issues, I wish to comment on the credibility of the witnesses and the reliability of their testimony. I found Shawn, Rose, Catherine and Grant to be honest witnesses who did their best to accurately recount the events of 2014, including not only what happened on July 29 but also what transpired before that date. Their interpretations of certain incidents or conversations may have been influenced by the opposing interests they have in the outcome of this lawsuit but that did not detract from their overall credibility. They were truthful witnesses. I cannot say the same of Patrick. He clearly had an agenda, at least at the time of trial: to absolve himself of any potential legal responsibility and to misrepresent the level of Megan’s ability and skill to drive the ATV as of July 29, 2014.
[80] The expert witnesses complied with their obligation to provide opinion evidence that was fair, objective and non-partisan. Although ATVs may now be a common sight, especially in rural Ontario, their evidence about the mechanics of operating this type of motorized vehicle was necessary and important; the former because, as the trier of fact, I did not have the requisite knowledge of their proper operation and the latter because this was a single vehicle accident in which the driver had no memory of what happened and the only other potential witness, Patrick, testified that he did not see the ATV leave the roadway.
The applicable legal principles
[81] I outlined the two main legal issues in my review of the parties’ positions. Framed as questions, they are: Did any of the defendants owe a duty of care to Megan? If so, did a breach of the duty of care cause or materially contribute to the accident? For Grant, because he owned the ATV, the plaintiffs argue that he can also be held liable under s. 192(2) of the Highway Traffic Act, R.S.O. 1990, c.H.8 (“HTA”) even in the absence of any negligence on his part. The remaining issue is the contributory negligence of Megan. I will first review the general legal principles and then apply those to each defendant.
Duty of care
[82] As I explained at the outset, the plaintiffs bear the legal burden of establishing a cause of action, and thus the existence of a prima facie duty of care. If the plaintiffs establish this, the evidentiary burden then shifts to the defendants to establish that there are residual policy reasons why this duty should not be recognized.
[83] In Childs v. Desormaux, 2006 SCC 18, Chief Justice McLachlin explained how a trial judge should determine if a duty of care exists at paras. 11-12:
In Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), Lord Wilberforce proposed a two-part test for determining whether a duty of care arises. The first stage focuses on the relationship between the plaintiff and the defendant, and asks whether it is close or “proximate” enough to give rise to a duty of care (p. 742). The second stage asks whether there are countervailing policy considerations that negative the duty of care. The two-stage approach of Anns was adopted by this Court in Kamloops (City of) v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2, at pp. 10-11, and recast as follows:
(1) is there “a sufficiently close relationship between the parties” or “proximity” to justify imposition of a duty and, if so,
(2) are there policy considerations which ought to negative or limit the scope of the duty, the class of persons to whom it is owed or the damages to which breach may give rise?
In Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69, the Court affirmed the Anns test and spoke, per Iacobucci J., of three requirements: reasonable foreseeability; sufficient proximity; and the absence of overriding policy considerations which negate a prima facie duty established by foreseeability and proximity: para. 52. Some cases speak of foreseeability being an element of proximity where “proximity” is used in the sense of establishing a relationship sufficient to give rise to a duty of care: see, e.g., Kamloops. Odhavji, by contrast, sees foreseeability and proximity as separate elements at the first stage; “proximity” is here used in the narrower sense of features of the relationship other than foreseeability. There is no suggestion that Odhavji was intended to change the Anns test; rather, it merely clarified that proximity will not always be satisfied by reasonable foreseeability. What is clear is that at stage one, foreseeability and factors going to the relationship between the parties must be considered with a view to determining whether a prima facie duty of care arises. At stage two, the issue is whether this duty is negated by other, broader policy considerations.
[84] It is not always necessary to undertake the Anns analysis. Categories of relationships, once judicially recognized, have precedential value: “where cases like another case where a duty has been recognized, one may usually infer that sufficient proximity is present and that if the risk of injury was foreseeable, a prima facie duty of care will arise” but if the proposed duty is novel, “it is necessary to carefully consider whether proximity is established”: Childs at para. 16.
[85] The plaintiffs submit courts have recognized a duty of care whenever a person allows another to operate a motorized vehicle in circumstances where they knew or should have known that the person was unfit or otherwise unable to operate it safely: Crocker v. Sundance Northwest Resorts Ltd, 1988 45 (SCC) at pg. 1197 and Hall v. Hebert, 1993 141 (SCC) at pg. 162. This includes off-road vehicles such as ATVs and snowmobiles: Gibson v. Haggith, 1994 9105 (AB QB); J. G. (Dependent Adult) v. Strathcona (County of), 2004 ABQB 378.
[86] The defendants contend that a duty of care did not arise in the particular circumstances of this case. They cite Garratt v. Orillia Power Distribution Corp., 2008 ONCA 422 where Watt, J. A. stated at paras. 46 – 48:
A duty of care only arises where the circumstances of time, place and person would create in the mind of a reasonable person in those circumstances such a probability of harm resulting to other persons as to require him or her to take care to avert that probable result.
In other words, a duty of care is established only where it is reasonably foreseeable that carelessness might cause harm. A determination of whether the harm caused was or ought to have been reasonably foreseeable commands an examination of the proximity of the relationship between the parties, the tortfeasor and the person claiming damages, and the probability of the harm actually occurring.
Foreseeability of the possibility of resultant harm is inadequate to establish a duty of care. We do not expect omniscience, prescience or clairvoyance, or impose a duty of care on all who fall short of any such standard. Foreseeability of the probability of resultant harm involves the likelihood that such harm will result from the alleged wrongdoer's conduct. Said in different words, a duty of care is established only where what happened was a natural and probable result of what the alleged wrongdoer did or failed to do [Citations omitted].
[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.
[88] As Watt, J. A. noted in Garratt, establishing a duty of care is a “low threshold” legal requirement. The real issue in this case, in my view, is whether any of the defendants breached the standard of care. The general approach to determining the appropriate standard of care is found in Ryan v. Victoria (City), 1999 706 (SCC) 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.
[89] Patrick had many years of experience in operating the ATV, apparently without any accidents or careless operation of it. There was no evidence that either Grant or Catherine knew or should have known that he would not operate it safely. They impressed me as parents who, if they were aware that Patrick could not do so, they would not have permitted him to use it, alone or with friends. Although Grant had not personally observed Megan on the ATV, he understood that she had ridden it while at the property and received instruction in its operation. Catherine had ridden the ATV with Megan as a passenger, observed Megan drive it without incident and had given her some instruction in operating it. In her experience, the ATV was only driven around the property, not on a public road, and always at low speeds. Grant was not at home on July 29, 2014 and had no knowledge, before the accident, about Megan riding the ATV that night or planning to do so. 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 field. She told both Patrick and Megan to wear helmets. Megan was an adult, not under the apparent influence of drugs or alcohol or otherwise incapacitated that evening and she was a visitor, who would be riding the ATV in the company of Catherine’s adult son. Catherine did not have a positive duty, on these facts, to prevent Megan from getting on the ATV, to compel her to wear a helmet or specifically instruct her not to drive back on Young Road. I find that neither Grant nor Catherine breached the standard of care.
[90] I accept that Megan had mental health issues that deeply concerned her parents and that they honestly believed she was, as a result, incapable of safely operating a motorized vehicle. But there was no independent, objective evidence that her mental health adversely affected her ability to drive an ATV safely that night or that she was unable to learn how to drive it safely. She lived independently as an adult, had in the past been gainfully employed and had demonstrated an ability to drive the ATV without apparent difficulties on the normal terrain for such off-road vehicles. There was no evidence that she was under the influence of any drug when Catherine saw her on July 29. Her mental health condition does not change my conclusion on the standard of care.
[91] Nor does s. 32(10) of the HTA which states that the owner or person who is in possession or control of a motor vehicle shall not permit any person to drive the motor vehicle on a highway unless that person holds a driver’s licence. To the same effect is s.18 of Ontario Regulation 316/03 “Operation of Off-Road Vehicles on Highways”. Young Road is a highway as that term is defined under the HTA. I agree with the plaintiffs’ submission that the breach of a statute or regulation can be a factor in determining the negligence of a defendant. But, as I will explain when discussing Patrick’s liability, the legal status of Young Road and the absence of a driver’s licence are not the material issues in this case; rather, it is the road’s condition and layout and Megan’s known lack of ability and skill in operating an ATV which are important.
[92] The plaintiffs say that, even if Grant was not negligent, he is, as the registered owner of the ATV, statutorily liability because of s. 192 (2) of the HTA which 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.
[93] The plaintiffs rely on the New Brunswick Court of Appeal decision in Dionne v. Desjardins et autres, 1999 32902. In that case, the brother of the registered owner of the vehicle, who had been driving it with the consent of the owner, allowed a friend to drive the vehicle knowing that he was intoxicated. The friend was fatally injured in an accident and his surviving spouse and children sued the registered owner. S. 267(1) of the New Brunswick Motor Vehicle Act provided: “The owner of a motor vehicle, or farm tractor is liable as well as the driver thereof to an action for toward as a result of negligence in the operation of the motor vehicle or farm tractor unless the motor vehicle or farm tractor was at the time of the negligent operation thereof in the possession of some person other than the owner without the owner’s consent.”
[94] In overturning the trial judge’s dismissal of the action as against the defendant owner, Drapeau, J. A. found that, although the defendant brother was a passenger at the time of the accident, the transfer by the driver of the care and control of the vehicle to another person was part of the “operation” of a vehicle.
[95] Counsel were unable to find any case law from Ontario which followed Dionne. I am not bound by this decision and, in any event, have concluded that it is distinguishable because in that case the Court accepted that the defendant passenger was operating the vehicle at the time of the negligent act. The Court took an expansive view of the term “operation” that conflicts with the more restrictive interpretation of the vicarious liability provision in the HTA in Schuster v. Whitehead, 1959 138 (ON CA). I find, in accordance with the Ontario jurisprudence, that Patrick had ceased operating the ATV before Megan started driving it. As a result, Grant is not statutorily liable for Patrick’s negligence.
[96] Patrick is in a different position than his parents. First, I find that Megan had received minimal instruction from him in the operation of the ATV and that she had only driven it in an open field under his direct supervision or when he was a passenger. She had little experience in turning the ATV and none with sharp turns. She had no familiarity with riding the ATV on Young Road. I can infer from the evidence that Megan had been a passenger in a car or truck on occasion on Young Road and, because of that experience, may have had some general knowledge of its physical layout. But that is a far cry from driving an ATV alone on a roadway that does not have any artificial illumination when it would be semi-dark out.[^8]He gave her no warning or caution about driving on Young Road or how to negotiate the sharp turn. He 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. Based on the evidence of the experts, an experienced ATV rider like Patrick would know the effort and level of skill that is necessary to successfully negotiate such a sharp curve. Patrick would have also known that the safe route for person with Megan’s experience would have been through the field, not on the road, but said nothing to her. He could have driven Megan back in the truck and retrieved the ATV later. There were no urgent circumstances that required Patrick to check the lockbox in the truck that night or even drive the truck back to the house. His relationship to Megan and intimate knowledge of her mental health frailties are also relevant – 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 in her driving a motorized vehicle alone, helmetless, on an unlit rural roadway, with an unmarked curve of more than 90° and with only limited experience in the operation of that vehicle. I find, on these facts, that he breached the standard of care. By his acts and omissions, he 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.
Causation
[97] I summarized the applicable principles, drawn from the Supreme Court of Canada’s decision in Clements at the outset of this decision. In Sacks v. Ross, 2017 ONCA 773, Lauwers, J. A. describe the reasoning process in a negligence case in these terms at paras. 47-48:
Regardless of whether the defendant’s breach of the standard of care is an act or an omission, the trier of fact’s cognitive process in determining causation has three basic steps. The first is to determine what likely happened in actuality. The second is to consider what would likely have happened had the defendant not breached the standard of care. The third step is to allocate fault among the negligent defendants.
There are two possible outcomes to the trier of fact’s imaginative reconstruction of reality at the second step. On the one hand, if the trier of fact draws the inference from the evidence that the plaintiff would likely have been injured in any event, regardless of what the defendant did or failed to do in breach of the standard of care, then the defendant did not cause the injury. On the other hand, if the trier of fact infers from the evidence that the plaintiff would not likely have been injured without the defendant’s act or failure to act, then the “but for” test for causation is satisfied: but for the defendant’s act or omission, the plaintiff would not have been injured. The defendant’s fault, which justifies liability, has been established.
[98] 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.
[99] 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.
[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, 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. His management of Megan’s medication is also indicative of the dynamic of their relationship: She was someone who would listen to and abide by any instruction he gave her. She would not have ridden the ATV that night or on Young Road or without a helmet if he had told her not to. I find, on the totality of the evidence, that it was Patrick’s negligence that caused or materially contributed to the accident and but for that negligence, the accident would not have happened and Megan would not have been injured. As a result of this conclusion, it is not necessary for me to deal with the plaintiffs’ alternate submission on the “material contribution” test. In any event, there are no exceptional circumstances that would support the application of that legal principle in this case.
[101] The defendants argue the evidence precludes a finding on the balance of probabilities. They submit that there are other explanations of how the accident may have occurred without negligence on their part. In most, if not all, unwitnessed single motor vehicle accidents there are possible explanations that do not involve any negligence by the defendant. But, as Fontaine makes clear, I can infer negligence from circumstantial evidence and determine that the plaintiffs have established on a balance of probabilities a prima facie case of negligence. That is what I have done in this case. The defendants did not present evidence that would negate this finding.
Contributory negligence
[102] In Snushall v. Fulsang, 2005 34 561 (ON CA), Jurianz, J. A. stated at para. 26: “The plaintiffs contributory negligence is a failure to take a reasonably prudent steps to protect herself from injuries that might result from an accident caused by another’s negligence.”
[103] Mr. Bonn acknowledged that I could make a finding of contributory negligence. Mr. Baldwin did not make any specific submission on this issue. 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%.
Disposition
[104] For these reasons, I dismiss the action as against the defendants Grant and Catherine McGinnis. I find that the plaintiffs have established liability as against Patrick. The endorsement of Kershman, J. did not refer to the procedure for the damages trial. Counsel shall schedule a case conference under rule 50.13 with the trial coordinator to discuss the next steps in the litigation.
[105] If the parties cannot agree on costs, the plaintiffs shall deliver written submissions not to exceed five pages exclusive of a costs outline and dockets within 30 days of the release of this decision. The defendants have 20 days from receipt of the plaintiffs’ submissions to deliver a reply of an equal length. The plaintiffs’ counsel shall send copies of both sets of submissions by email to my judicial assistant at tia.phillips@ontario.ca after they have been filed.
HURLEY, J
Released: September 2, 2022
SUPERIOR COURT OF JUSTICE
MEGAN DESROCHERS,
SHAWN DESROCHERS and
ROSE DESROCHERS
– and –
GRANT MCGINNIS,
CATHERINE MCGINNIS and
PATRICK MCGINNIS
REASONS FOR DECISION
HURLEY, J
Released: 2022-09-02
[^1]: Kershman, J. made an order on consent dated October 20, 2020 bifurcating the proceeding, directing that the issue of liability be tried by a Judge alone.
[^2]: At trial Patrick said they met Chase in Kingston but at his examination for discovery testified that he went with them. He testified that his mother possibly came with them but she testified that she did not. Nothing turns on these discrepancies except to the extent they demonstrate the unreliability of his memory about the events of that day.
[^3]: Counsel disagreed over the admissibility of the written reports. In an oral ruling at trial, I decided that Mr. Wilkinson’s reports could be made exhibits but not Mr. Island’s. My consideration of Mr. Wilkinson’s evidence is based on his testimony but the reports did provide me with a better understanding of the viva voce evidence.
[^4]: As explained in his report dated October 15, 2021, the suspension causes the ATV to have a more pronounced role or rotation sideways while cornering; the track width makes it easier for an ATV to tip up on two wheels or rollover compared to a car; the lower total mass of an ATV means the mass of the rider is more significant than a car and because the effective mass of the system is higher off the ground, the ATV is easier to rollover than a car; and, if the ATV is too large for a rider, they cannot apply as much force to the inside tires, reducing the cornering ability of it.
[^5]: Mr. Island used both imperial and metric measurements in his testimony when describing the top speeds of the ATV.
[^6]: There was no evidence of Megan’s exact weight at the time of the accident but Shawn testified that when he saw her in June 2014 it appeared that she had recently lost a substantial amount of weight and he estimated her to be around 150 pounds .
[^7]: The specific medications, along with their purpose and effects would likely have been easy to establish through the pharmacy’s records but instead witnesses testified about what they believed she was prescribed. Shawn testified that they were supposed to control her mood swings and identified them as Celexa, Citalopropram and Citilipam. Patrick said that both of them were prescribed Clonazepam for their anxiety. As there was no evidence about Megan’s consumption of her medication on July 29, 2014 or the presence of any substances in her blood after the accident (which would have been identified in the hospital records), the only finding I can make in this case is that Megan had been prescribed psychotropic medication and was taking it in the months leading up to the date of the accident.
[^8]: I can take judicial notice of when it would be light or dark out: R v. Willis, 2003 MBCA 54 at para. 26. The plaintiffs did not lead any evidence of the exact time of the sunset on July 29, 2014 but I do not need to know it to find that the time of day, the rural character of the road (especially the underbrush and trees along the roadway) and the absence of any artificial lighting would have made the curve more difficult to perceive.