Court File and Parties
Citation: McFee v. Sutram et al., 2025 ONSC 5526
Court File Nos.: CV-17-133462; CV-17-133972; CV-16-00128083
Date: October 2, 2025
Superior Court of Justice
Court File No.: CV-17-133462
Between:
Samantha McFee and James McFee, Plaintiffs
– and –
Bharrat Sutram, John G. Rae and Lakeview Elevator Inc. (Corporation Number 1286550), Defendants
Counsel:
- D. Romaine, T. Boland and M. Connolly, for the Plaintiff, Samantha McFee
- J. Schrieder, for Mr. Sutram
- A. Rachlin and C. Painter, for Mr. Rae and Lakeview
Court File No.: CV-17-133972
Between:
Janki Sutram, by her litigation guardian, Samantha Sutram Khaja
Eshaan Khaja, by his litigation guardian, Samantha Sutram Khaja
Amrita Prakash
Samantha Sutram Khaja, personally
Meran Khaja
Sabrina Sutram
Radha Sutram, by her litigation guardian, Samantha Sutram Khaja
Archanie Sutram, by her litigation guardian, Samantha Sutram Khaja
Plaintiffs
– and –
Bharrat Sutram, Samantha C. McFee, James I. McFee, John G. Rae and Lakeview Elevator Inc., Defendants
Counsel:
- F. Chiu, for the Plaintiffs
- J. Schrieder, for Mr. Sutram
- A. Rachlin and C. Painter, for Mr. Rae and Lakeview
Court File No.: CV-16-00128083
Between:
Oomah Roopnaraine, Plaintiff
– and –
Bharrat Sutram, Samantha McFee, John G. Rae and Lakeview Elevator Inc., Defendants
Counsel:
- J. Schneider, for the Plaintiff
- J. Schrieder, for Mr. Sutram
- A. Rachlin and C. Painter, for Mr. Rae and Lakeview
Heard: September 22, 2025
Ruling on Duty of Care
The Honourable Justice Sunil S. Mathai
Introduction
[1] On April 22, 2016, there was a car accident near the crest of a hill on Warden Avenue near Vivian Road in Stouffville, Ontario. Three cars were involved. One car was driven by the plaintiff, Samantha McFee. Another car was driven by the defendant, Bharrat Sutram. The final car was driven by the defendant, John G. Rae. Mr. Rae's car was owned by his employer, Lakeview Elevators Inc., who is also a defendant.
[2] Three civil claims arose out of the car accident. Mr. Sutram, Mr. Rae and Lakeview are defendants in each action. Two of the actions were commenced by occupants of Mr. Sutram's vehicle. The third action was commenced by Ms. McFee. All three actions claim negligence against Mr. Rae and Mr. Sutram. The trial of the three actions began on September 15, 2025. I was the trial judge sitting with a jury.[1]
[3] Prior to the start of trial, Mr. Rae advised that he was taking the position that he did not owe a duty of care to any of the plaintiffs. The parties agreed to argue this issue at the close of the evidence. At the close of the plaintiffs' case, the defendants advised that they were not calling evidence. As a result, I heard argument on the duty of care issue on September 22, 2025. On the same day, I advised the parties of my ruling: Mr. Rae owed a duty of care to the plaintiffs. I advised the parties that I would provide written reasons on a later date. These are my reasons.
Facts
[4] To give context to my ruling, I will briefly summarize the uncontested facts of what occurred on the night of the accident.
[5] On the evening of April 22, 2016, Mr. Rae was travelling northbound on Warden Avenue from St. Johns Side Road. This area of Warden Avenue has undulating hills, two of which are relevant to what occurred on the evening of April 22, 2016.
[6] The accident occurred near the crest of the second hill, which is approximately 300–350 meters away from the first hill. This stretch of Warden Avenue is a two-lane highway with one lane going northbound and a second lane going southbound. The two lanes are separated by a double yellow solid line.
[7] As Mr. Rae was travelling northbound towards the hill where the accident occurred (the "accident hill"), he observed a car behind him that was attempting to pass him. This car was driven by the defendant, Mr. Sutram. Pursuant to s. 149(1)(a) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA), Mr. Sutram was not permitted to engage in a passing maneuver.
[8] Mr. Sutram attempted to pass Mr. Rae by crossing the double yellow solid line and entering the southbound lane. As they approached the crest of the accident hill, the two vehicles were nearly side by side. Mr. Sutram was in the southbound lane and Mr. Rae was in the northbound lane. Neither Mr. Sutram nor Mr. Rae could see past the crest of the accident hill. Mr. Rae maintained his speed during Mr. Sutram's pass and made no attempt to slow down because Mr. Rae did not see any oncoming traffic.
[9] At the same time, Ms. McFee was travelling southbound on the other side of the accident hill. She too was driving toward the crest of the accident hill (from the other side of the hill) and could not see over the crest of the hill. Ms. McFee and Mr. Sutram saw each other at the last moment and collided head-on at the crest of the accident hill. There was no time for either party to avoid the collision. Mr. Sutram's vehicle also hit Mr. Rae's vehicle. Tragically, the accident resulted in the death of one of the occupants of Mr. Sutram's vehicle.
Analysis and Findings
[10] The foundation of the law of negligence is built on the existence of a relationship that involves a duty of care. To determine whether a duty of care exists, the Anns/Cooper framework applies. The framework inquires into whether the plaintiff's claim: (a) falls within or is analogous to an established duty of care, or (b) is based on a novel duty (see Price v. Smith & Wesson Corporation, 2025 ONCA 452, at para. 21; Rankin (Rankin's Garage & Sales) v. J.J., 2018 SCC 19, at paras. 17–18).
[11] In some cases, a relationship will fall within, or be analogous to, a category that has already been recognized, by past precedent, as giving rise to a duty of care (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, at para. 5; Price, at para. 21). In other cases, there will be no established or analogous category, so the court must undertake a full duty of care analysis (see Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, at para. 29). The full duty of care analysis considers three elements: proximity, reasonable foreseeability of harm and the absence of countervailing public policy considerations that would negate a prima facie duty of care (see Nelson (City) v. Marchi, 2021 SCC 41, at para. 16).
[12] Canadian courts have long recognized the duty of care owed by a driver to other users of a roadway. For example, in Carter v. Van Campe et al., Duff J. (as he then was), in dissent, found at p. 167, that a driver owed a "duty not only to persons using the carriage way, but to a person on the sidewalk as well". This passage in Duff J.'s dissent was later cited with approval by the Supreme Court of Canada in Adam v. Campbell, at p. 459. In Sinclair v. Nyehold, the British Columbia Court of Appeal relied upon Carter to find that there is a duty that, "rests upon a driver so to conduct himself as not to expose other users of the highway to unnecessary risk of harm" (Sinclair, at p. 618).
[13] Nearly 77 years after Carter, in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, McLachlin C.J.C. found that the relationship between a driver and other users of a highway was recognized as giving rise to a duty of care (Hill, at para. 25).
[14] This court has also routinely found that drivers owe a duty of care to other users of the road (see Boudreau v. Hiltz, 2018 ONSC 694, at para. 32; Allied Systems Co. v. Sullivan Estate, at para. 27). As will be explained further below, a driver owes a duty of care to other users of the road, even in situations where the presumption of a right-of-way favours the driver (see Walker v. Brownlee; Ashim v. Zia, 2014 ONSC 6460, at para. 33).
[15] Courts across this country have long recognized that a driver owes a duty of care to other users of a road. As a result, the central question that I must answer is as follows: Is a fresh Anns/Cooper analysis required on the facts of this case?
[16] Both the Supreme Court of Canada and the Court of Appeal for Ontario have signalled that a cautious approach should be taken when a plaintiff is relying on a previously recognized duty of care category to anchor a finding of the requisite proximity in a novel duty of care analysis. In Livent, Gascon and Brown JJ., at paras. 26–28, discussed the approach to be taken when the plaintiff relies on a previously established relationship to meet the proximity requirement:
If a relationship falls within a previously established category, or is analogous to one, then the requisite close and direct relationship is shown. So long, then, as a risk of reasonably foreseeable injury can also be shown — or has already been shown through an analogous precedent — the first stage of the Anns/Cooper framework is complete and a duty of care may be identified (ibid., at para. 36). In such circumstances, the second stage of the Anns/Cooper framework will seldom be engaged because any residual policy considerations will have already been taken into account when the proximate relationship was first identified (ibid., at para. 39; Edwards, at para. 10).
This Court has on occasion defined previously established categories of proximity in broad terms. In Hill, for example, the Court listed "[t]he duty of care of the motorist to other users of the highway; the duty of care of the doctor to his patient; the duty of care of the solicitor to her client" (para. 25). Proximate relationships will not always, however, be identified so generally. In particular, whether proximity exists between two parties at large, or whether it inheres only for particular purposes or in relation to particular actions, will depend upon the nature of the particular relationship at issue (ibid., at para. 27; Haig, at p. 479). Indeed, and as we explain below, factors which support recognizing "novel" proximate relationships do so based upon the characteristics of the parties' relationship and the circumstances of each particular case (Cooper, at paras. 34-35).
It follows that, where a party seeks to base a finding of proximity upon a previously established or analogous category, a court should be attentive to the particular factors which justified recognizing that prior category in order to determine whether the relationship at issue is, in fact, truly the same as or analogous to that which was previously recognized. And, by corollary, courts should avoid identifying established categories in an overly broad manner because, again, residual policy considerations are not considered where proximity is found on the basis of an established category (Cooper, at para. 39). Analytically, this makes sense. For a court to have previously recognized a proximate relationship, second-stage residual policy considerations must already have been taken into account. When, therefore, a court relies on an established category of proximity, it follows "that there are no overriding policy considerations that would [negate] the duty of care" (ibid.). A consequence of this approach, however, is that a finding of proximity based upon a previously established or analogous category must be grounded not merely upon the identity of the parties, but upon examination of the particular relationship at issue in each case. Otherwise, courts risk recognizing prima facie duties of care without any examination of pertinent second-stage residual policy considerations.
[17] While Livent involved a question of pure economic loss, the Supreme Court confirmed in Rankin, a personal injury case, that it is not necessary to conduct a full Anns/Cooper analysis if a previous precedent has established that the duty of care in question exists. At para. 18 of Rankin, Karakatsanis J. held as follows:
It is not necessary to conduct a full Anns/Cooper analysis if a previous case has already established that the duty of care in question (or an analogous duty) exists: Cooper, at para. 36; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at paras. 5-6; Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855, at para. 26. If it is necessary to determine whether a novel duty exists, the first stage of the Anns/Cooper test 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: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 39; see also Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, at para. 12; Cooper, at para. 30. Once foreseeability and proximity are made out, a prima facie duty of care is established.
[18] More recently, the Court of Appeal for Ontario, in Price, cautioned against trying to fit a new set of facts into an established category. In doing so, Wilson J.A. confirmed that courts need not conduct a full Anns/Cooper analysis in the context of motor vehicle accidents because drivers owe a duty of care to other users of the road. At para. 39 of Price, Wilson J.A. held:
Livent and Rankin suggest that when in doubt, courts should answer Lord Atkin's question by conducting the full Anns/Cooper analysis, not by trying to fit a new set of facts into an established category. Still, the category-based approach should not be abandoned, because sometimes there is no need to turn to first principles. Drivers, for example, owe other road users a duty of care, as doctors do their patients, and lawyers do their clients: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 25. But when an established category fits a new set of facts imperfectly, the court should undertake a full Anns/Cooper analysis, not try to awkwardly force the two together.
[19] There are three core principles that I derive from the decisions noted above: (1) where an established category or analogous category fits a new set of facts imperfectly, the court should conduct a full Anns/Cooper analysis; (2) past jurisprudence establishes that drivers owe a duty of care to other users of the road; and (3) despite the general wording of the duty of care owed by a driver to other users of the road, the Supreme Court and the Court of Appeal have found that a fresh Anns/Cooper analysis is not necessary in a situation where it is alleged that a driver owes a duty of care to other users of the road.
[20] While not explicitly presented this way, Mr. Rae is effectively arguing that the facts of this case fit imperfectly with the generally worded duty of care that has been routinely found to exist between drivers. In support of this argument, Mr. Rae relies on the Supreme Court's decision in Childs v. Desormeaux, 2006 SCC 18, and the distinction between nonfeasance and misfeasance. Relying on Childs, Mr. Rae contends that in cases of nonfeasance, foreseeability, without more, is not sufficient to establish proximity (Childs, at para. 31). Based on this submission, it appears that Mr. Rae concedes that the April 22, 2016, accident was foreseeable, but he takes issue with whether something "more" has been established.
[21] Mr. Rae submits that liability is sought against him for nonfeasance as the plaintiffs allege that Mr. Rae fell below the standard of care by not slowing down to allow Mr. Sutram to re-enter the northbound lane prior to arriving at the crest of the accident hill. In this regard, Mr. Rae argues that the HTA did not obligate him to slow down to permit Mr. Sutram to pass. According to Mr. Rae, the distinction between nonfeasance and malfeasance requires me to conduct a full Anns/Cooper analysis.
[22] Mr. Rae goes on to argue that if a full Anns/Cooper analysis is conducted, then the level of proximity necessary to establish a duty of care has not been met. In support of his position, Mr. Rae relies on paragraphs 34–37 of Childs, where the Supreme Court identified three situations where a relationship will meet the proximity requirement in cases involving allegations of nonfeasance. Those situations are as follows:
(1) Defendants that intentionally attract and invite third parties into an inherent and obvious risk that he or she has created or controls;
(2) Paternalistic relationships of supervision and control; and
(3) Defendants who exercise a public function or engage in a commercial enterprise that includes responsibilities to the public at large.
[23] I reject Mr. Rae's argument for two reasons.
[24] First, the facts of Childs make it wholly distinguishable from the case at hand. In Childs, the Supreme Court was asked to determine, for the first time, whether a social host owes a duty of care to a person who was injured by a guest who consumed alcohol at the host's party and then drove while intoxicated. The Court answered this question in the negative. Importantly, the court conducted a full Anns/Cooper analysis because it found that commercial host liability was not an analogous category that would establish the necessary proximity between social hosts and third parties.
[25] In coming to this conclusion, the Court confirmed that a full Anns/Cooper analysis is not necessary where previous jurisprudence has established an existing duty of care. At para. 15 of Childs, McLachlin C.J.C. stated:
A preliminary point arises from a nuance on the Anns test developed in Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79. The Court in Cooper introduced the idea that as the case law develops, categories of relationships giving rise to a duty of care may be recognized, making it unnecessary to go through the Anns/Cooper analysis. The reference to categories simply captures the basic notion of precedent: where a case is 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. On the other hand, if a case does not clearly fall within a relationship previously recognized as giving rise to a duty of care, it is necessary to carefully consider whether proximity is established. Following Cooper, the first issue raised in this case is whether claims against private hosts for alcohol-related injuries caused by a guest constitute a new category of claim. Like the courts below, I conclude that it does.
[26] Since Childs, both the Supreme Court and the Court of Appeal for Ontario have found that a fresh Anns/Cooper analysis is not required when the relationship at issue is a driver and other users of the road (see Hill, at para. 25; Livent, at para. 27; Price, at para. 39). This makes analytical sense.
[27] At the duty of care stage, the analysis is focused on the nature of the relationship at issue, not the specific allegations of wrongdoing. Certainly, when examining the nature of the relationship at issue, any legislative and regulatory scheme that creates positive obligations on a defendant is important to the proximity analysis. Where such statutory obligations exist, it is not the alleged breach of a positive statutory obligation that grounds proximity (i.e., a malfeasant act). Rather, the fact that the conduct at issue is highly regulated is what anchors a finding of proximity. At paras. 17–23 of Childs, McLachlin C.J.C. relied, in part, on the legislative regime applicable to commercial hosts as a reason for finding that commercial host liability is not analogous to the social host liability, which is not highly regulated:
The situation of commercial hosts, however, differs from that of social hosts. As discussed, in determining whether a duty of care arises, the focus is on the nature of the relationship between the parties. Three differences in the plaintiff-defendant relationship suggest that the possibility of a duty of care on commercial hosts does not automatically translate into a duty of care for social hosts.
Second, the sale and consumption of alcohol is strictly regulated by legislatures, and the rules applying to commercial establishments suggest that they operate in a very different context than private-party hosts. This regulation is driven by public expectations and attitudes towards intoxicants, but also serves, in turn, to shape those expectations and attitudes. In Ontario, where these facts occurred, the production, sale and use of alcohol is regulated principally by the regimes established by the Liquor Control Act, R.S.O. 1990, c. L.18, and the Liquor Licence Act, R.S.O. 1990, c. L.19. The latter Act is wide-ranging and regulates how, where, by and to whom alcohol can be sold or supplied, where and by whom it can be consumed and where intoxication is permitted and where it is not.
These regulations impose special responsibilities on those who would profit from the supply of alcohol. This is clear by the very existence of a licensing scheme, but also by special rules governing the service of alcohol and, as noted above, special training that may be required. Clearly, the sale of alcohol to the general public is understood as including attendant responsibilities to reduce the risk associated with that trade.
The importance of this regulatory environment does not relate to the statutory requirements per se, but what they demonstrate about the nature of commercial alcohol sales and about the expectations of purveyors, patrons and the public. Selling alcohol is a carefully regulated industry. The dangers of over-consumption, or of consumption by young or otherwise vulnerable persons, means that its sale and service in commercial settings is controlled. It is not treated like an ordinary commodity sold in retail stores. The public expects that in addition to adherence to regulatory standards, those who sell alcohol to the general public take additional steps to reduce the associated risks. Furthermore, patrons are aware that these special responsibilities have very real and visible manifestations. The imposition of a "cut-off" at the bar is understood, and expected, as part of the institutionalization of these responsibilities. Similarly, in many establishments, "bouncers" both enforce admission and assist other members of the staff who might have to deal with patrons who may have become intoxicated. These features have no equivalent in the non-commercial context. A party host has neither an institutionalized method of monitoring alcohol consumption and enforcing limits, nor a set of expectations that would permit him or her to easily do so.
[28] In my view, the fact that the HTA does not impose a positive obligation on Mr. Rae to slow down to permit the pass is not a relevant distinction that necessitates a full Anns/Cooper analysis.[2] I arrive at this conclusion because driving is a heavily regulated activity. It is regulated in Ontario by the HTA and the common law (see British Columbia Electric Railway Co. v. Farrer; Salaam v. Abramovic, 2010 BCCA 212, at paras. 18–21).
[29] The HTA is not an exhaustive code of duties because it is not possible for the Legislature to contemplate the myriad of ways in which an accident may occur. This point was made by Groberman J.A. in Salaam, where the British Columbia Court of Appeal overturned a summary judgment motion dismissing a plaintiff's claim arising from a motor vehicle accident. In that case, the motion judge dismissed the claim, in part, because the defendant had not breached any provisions of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. While Groberman J.A. accepted that the defendant had not breached any provisions of the statute, he went on to consider whether the common law standard of care had been breached, at para. 21:
In the end, a court must determine whether, and to what extent, each of the players in an accident met their common law duties of care to other users of the road. In making that determination, a court will be informed by the rules of the road, but those rules do not eliminate the need to consider the reasonableness of the actions of the parties. This is both because the rules of the road cannot comprehensively cover all possible scenarios, and because users of the road are expected to exercise reasonable care, even when others have failed to respect their right of way. While s. 175 of the Motor Vehicle Act and other rules of the road are important in determining whether the standard of care was met, they are not the exclusive measures of that standard.
[30] Driving is a heavily regulated activity because of the inherent dangers that exist when someone gets behind the wheel of a car. One small mistake can lead to catastrophic injuries. In the context of a heavily regulated activity like driving, it makes little sense to evaluate the proximity between drivers under the themes of autonomy, a defendant's material implication in the creation and control of risk and reasonable reliance. These are the themes that run through the three situations described by Childs (see Childs, at paras. 38–40).
[31] Second, the difference between malfeasance and nonfeasance has been addressed in a variety of cases where courts have found a motorist to be liable to another user of the road in circumstances where the driver alleged to have breached the standard of care had the legal right-of-way. As far back as 1951, the Supreme Court of Canada has recognized that a driver who has the right-of-way is still obligated to try to avoid an accident with another driver who has breached their statutory duty to yield the right-of-way. In Brownlee, at p. 461, Cartwright J. described this obligation as follows:
While the decision of every motor vehicle collision case must depend on its particular facts, I am of the opinion that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A's disregard of the law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful skillful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origio mali.
[32] Similarly, in Gellie v. Naylor Reflex, Lacourciere J.A. held, at pp. 4–5, that the standard of care expected of a motorist includes an obligation to act to prevent injury when a driver recognizes that another user of the roadway is acting, "unreasonably and foolishly":
A motorist need not anticipate that pedestrians will unexpectedly dash from a safe position on the curb into the path of his moving vehicle. He may assume that pedestrians as well as other motorists will not act unreasonably and foolishly. However, if the motorist is alerted, by the previously observed conduct of another person that there is a distinct possibility the other person may act negligently and expose himself to danger, then the assumption loses its justification. The anticipation of negligent conduct renders such conduct foreseeable and makes it incumbent on the motorist to take additional precautions: see generally Fleming, The Law of Torts, 6th ed. (1983), at pp. 115:
Liberty to act on an expectation of non-negligence in others ceases as soon as there are indications that they are, or are likely to be, acting imprudently. The ever-present possibility of negligent behaviour demands constant scrutiny in every direction whence danger may loom, and the greater the risk the more tentative must be the assumption that others will conduct themselves with reasonable care. [Footnote omitted]
[33] Sant (Litigation guardian of) v. Sekhon, 2014 ONCA 623 ("Sant (ONCA)"), is a more recent example of this principle. In Sant, the Court of Appeal upheld a jury verdict that found a defendant negligent, even though the plaintiff was in a vehicle that had gone through a red light and collided with the defendant who had the right of way:
The jurisprudence on the standard of care of a driver with a green light is not in dispute. A driver with a green light is free to go through the intersection assuming that drivers approaching the intersection from other directions and who necessarily are being shown a red light will stop. However, a statutory right of way does not absolve a driver from exercising proper care. A driver should not exercise his or her right of way 1) if the driver becomes aware or should become aware that the driver without the right of way is going to go through the intersection and 2) if the circumstances are such that the driver with the right of way had the opportunity to avoid the collision: Behmanesh v. Yokhana, 2011 ONSC 4950, at para. 15; Goodwin v. Wrycraft, at para. 16; Vertulia v. Kratz, at para. 18.
(see Sant, at para. 4; Gardiner v. MacDonald, 2016 ONCA 968, at para. 8; Thiruchelvam v. Sohal, 2019 ONSC 7405, at paras. 29–33; Raber v. Romero, 2022 BCSC 748, at paras. 112–113; Doyle v. Hubick, 2022 BCSC 309, at para. 70; Turchak v. Tarczali, at paras. 12–14)
[34] To be clear, none of the above noted cases explicitly address whether a duty of care exists. That, however, is not a reason to dismiss the applicability of these decisions. A standard of care only requires action where a duty of care exists. These decisions confirm that a duty of care exists between a driver and other drivers on the road, even when the alleged breach of the standard of care is anchored in nonfeasance.
[35] In response to this well-established body of law, Mr. Rae argues that some of these decisions can be explained by Part X of the HTA which imposes a positive duty to act under many, but not every, circumstance (see for example ss. 135(1), 136(1), 138(1), 141(5)). This argument overlooks two important features of the law of negligence in motor vehicle accidents.
[36] First, the HTA supplements, not overtakes, the common law duty of care owed by one driver to all other users of a road (see Electric Railway Co., at pp. 763, 771; Salaam, at para. 21; Sant v. Sekhon, 2013 ONSC 2982, at para. 17, aff'd Sant (ONCA)). Second, the common law imposes a duty of care on drivers in a parking lot, where the HTA does not apply (see Delfino v. Martin; Ashim, at paras. 33–34). This demonstrates that whether the HTA imposes specific obligations is not determinative of whether a common law duty of care exists.
[37] Mr. Rae also distinguishes the right-of-way cases on the basis that they all involve a situation where the "innocent" driver knows of a risk to him or herself. Mr. Rae argues that there was no risk of harm to him because he was travelling on the northbound lane and at the speed limit.[3] I reject this argument for three reasons.
[38] First, Mr. Rae's argument ignores the fact that appellate courts and this court have repeatedly found that a driver owes a duty of care to other users of the road to drive in a prudent and safe manner. Again, despite this general formulation of the duty of care, the Supreme Court and the Court of Appeal for Ontario have found that a fresh Anns/Cooper analysis is not required when the relationship at issue involves a driver and another user of the road (see Hill, at para. 25; Livent, at para. 27; Price, at para. 39).
[39] Second, Mr. Rae's argument takes a myopic view of the risks inherent with driving. Motor vehicle accidents are not predictable and can unfold in a variety of ways. While falling below the standard of care expected of a reasonable and prudent driver might not cause any risk to the defendant driver, it could have calamitous results for other drivers. This case demonstrates that point.
[40] In his discovery evidence, Mr. Rae agreed that had he slowed down, Mr. Sutram could have re-entered the northbound lane. Mr. Rae went on to explain that there was no reason to slow down because there were no cars coming from the opposite direction. With the benefit of hindsight, it is clear that Mr. Rae engaged in the wrong calculus. What the facts of this case demonstrate is that a driver's decisions, while appearing benign, can have tragic consequences for others. It is for this reason that the duty of care imposed on drivers to other users of the road is cast so generally.
[41] Third, it appears to me that Mr. Rae's argument confuses duty of care with whether he fell below the standard of care. Drivers owe other users of the road a legal duty to take care in the use and operation of their vehicles and to avoid causing harm to others. A duty of care is not a duty to take any specific act (see Rausch v. Pickering (City), 2013 ONCA 740, at paras. 37–39). On the other hand, a standard of care may require a defendant to take specific action. The precise scope of reasonable and unreasonable conduct in the context of a specific set of facts is an issue for the trier of fact.
[42] The Supreme Court of Canada has warned against confusing the duty of care analysis with the standard of care analysis. For example, in Ryan v. Victoria (City), the Supreme Court cautioned against confusing a duty of care with the content of the standard of care:
The purpose of the Anns/Kamloops test is to establish the existence of a legal duty, not to determine the standard of care required to establish liability. Policy considerations do not give rise to "greater" or "lesser" duties in different cases. A duty of care either exists or it does not. As discussed below, when the language of "duty" is framed in terms of its degree or content, what is really at issue is not the duty but the applicable standard of care. While the distinction is obvious, courts from time to time seem to lose sight of that principle.
(see Ryan, at para. 25; Galaske v. O'Donnell, at pp. 697–99)
[43] Similarly, in Stewart v. Pettie, Major J. rejected an argument that a commercial host owed multiple duties of care based on what actions it was required to take. In arriving at this conclusion, Major J. held that the argument, "confuses the existence of a duty of care with the standard of care required of [the commercial host]". Justice Major went on to find that the question of whether a duty of care exists is a question of the relationship between the parties, not a question of conduct. The latter of which is a question of the appropriate standard of care (see Stewart, at paras. 31–33).
[44] Mr. Rae's argument boils down to one central proposition: he did not owe the plaintiffs a duty of care because he was not under a statutory obligation to slow down in circumstances where he was driving on the right side of the road, not speeding and when he did not see any obvious risk of harm to himself. Mr. Rae relies on this central proposition in arguing that the reams of jurisprudence that have found that a driver owes a duty of care to other users of a roadway is not applicable. The problem with this argument is that it is focused on Mr. Rae's conduct, not the relationship that users of the road have with each other. Mr. Rae's conduct is highly relevant to whether he breached the standard of care of a reasonable and prudent driver. Mr. Rae's conduct does not, however, change the nature of his relationship with other users of the road.
[45] In his written submissions, Mr. Rae relies on Irvine v. Smith, 2008, to illustrate the use of the Childs framework in motor vehicle accidents. Mr. Rae's reliance on this decision is misplaced.
[46] In Irvine, Rady J. struck a negligence claim commenced by a driver against a person who was not a user of the road. In that case, Dr. Irvine was alerted to the fact that his son may have been suffering from an acute psychotic episode. Rather than take his son to the hospital for immediate assessment in the middle of the night, Dr. Irvine and his wife decided to take turns watching over him. Unfortunately, his son left the house and later ran onto the road where he was hit by a passing vehicle. The Irvines sued the driver of the vehicle who counterclaimed in negligence, alleging that Dr. Irvine owed the driver a duty of care and had breached the duty of care by not taking his son to the hospital for an assessment.
[47] In striking the counterclaim, Rady J. rightly found that the established duty of care owed by drivers to other users of the road did not apply and a fresh Anns/Cooper analysis was required (see Irvine, at para. 25). Relying on Childs, Rady J. found that no duty of care existed between Dr. Irvine and the driver (see Irvine, at para. 30). As can be immediately seen from my summary of the decision, Irvine is clearly distinguishable. In Irvine, the recognized duty of care did not apply because the relationship at issue was between Dr. Irvine, as the father of a pedestrian adult son who was possibly unwell, and another user of the highway. The relationship at issue in Irvine is very different from the case before me which involves the relationship between a driver and other users of the road.
[48] Based on the above, I find it unnecessary to conduct a full Anns/Cooper analysis. The jurisprudence from this court, the Court of Appeal for Ontario and the Supreme Court of Canada overwhelmingly supports the existence of a duty of care in the context of a relationship between one or many drivers on a roadway. Mr. Rae's arguments do not convince me that this well-established category does not fit the relationship at issue in this case. Mr. Rae owed a duty of care to the plaintiffs.
[49] Finally, and as a matter of completeness, I note that there are at least two decisions where this court has found that s. 192 of the HTA imposes a duty of care on drivers to all other users of the road (see Morales et al. v. Laguardia et al., 2024 ONSC 1533, at para. 32; Persaud v. Suedat, 2012 ONSC 5232, at para. 51). In Morales, at para. 32, Akazaki J. found that s. 192 of the HTA imposes a duty of care on all motorists to all other users and occupants of the public highway:
In Ontario, the starting point for liability arising from highway accidents is s. 192 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA). I will discuss the wording of it in more detail in the discussion of causation. For now, this section of the HTA simplifies the negligence analysis compared to some other tort law paradigms. All motorists are deemed to owe duties of care to other users and occupants of the public highway. The legal analysis of this action therefore focuses on two elements of negligence: breach of the standard of care and legal causation.
[50] It appears that Akazaki J. found that s. 192 imposes a statutory duty of care on all drivers to all other users of the road, obviating the need for engaging in the Anns/Cooper analysis. While I have not relied on this part of Morales in support of my conclusion, the principles of horizontal stare decisis would, in the normal course, require me to apply this part of Morales because: (a) I have not been pointed to any subsequent decision which has found the contrary; (b) it does not appear that the decision was reached per incuriam; and (c) the decision was not taken in exigent circumstances (R. v. Sullivan, 2022 SCC 19, at paras. 73–75).
The Honourable Justice Sunil S. Mathai
Released: October 2, 2025
Footnotes
[1] The jury was charged on September 26 and 29, 2025. On September 29, 2025, the jury returned a verdict finding that both Mr. Rae and Mr. Sutram negligent and apportioning fault as follows: Mr. Rae: 7% and Mr. Sutram: 93%.
[2] The Plaintiffs argue that ss. 148(2) and (7) of the HTA required Mr. Rae to turn to the right or stop when he observed Mr. Sutram trying to pass him. It is not clear to me that ss. 148(2) or (7) applies in a scenario where the passing vehicle is engaging in an unlawful pass (see s. 149(1)(a) of the HTA). The section appears to be premised on the passing vehicle making a lawful passing maneuver. For example, s. 148(5) requires the passing vehicle to move to the left to pass. Surely this section is not intended to encourage a passing vehicle to move to the left of the passed vehicle in circumstances where doing so would be a violation of the HTA and cause obvious dangers. Such an interpretation would lead to a clear absurdity. The plaintiffs have subsequently abandoned any reliance on s. 148(2) and (7).
[3] I note that Mr. Rae's vehicle was also damaged during the accident.