Stewart v. The Corporation of the Township of Douro-Dummer, 2018 ONSC 4009 (CanLII)

No duty of care on taxi driver to ensure inebriated passenger is wearing seat belt.  

Date Heard: May 7-14, 2018 | Full Decision [PDF]

In this judge-alone trial brought by the OPCF44 insurer against a named defendant, the sole issue to be tried was whether a taxi driver had any joint and several liability for the plaintiff’s injuries as a result of the plaintiff’s failure to wear a seatbelt.  The insurer, Novex, argued that the driver had a positive duty to ensure the intoxicated passenger was wearing a seat belt.

The plaintiff was the front seat passenger of a taxi.  He was intoxicated, as were the other passengers.  The taxi driver was aware the passengers were intoxicated.  He did not take steps to ensure any of the passengers were wearing their seatbelts.  During the trip, the plaintiff fell in and out of consciousness/sleep. While on route to the destination, the taxi was traveling through an intersection with the right of way when another vehicle drove through a stop sign, hitting the taxi.  The taxi driver was not at fault for the collision.

The OPCF44 insurer argued that the taxi driver owed a duty of care to the plaintiff because it was apparent that he was intoxicated and was, therefore, a vulnerable individual who could not care for himself:

[87]  Novex submits there is a recognized duty of care on a driver to ensure that adult passengers are seat belted when there is a special relationship and vulnerability on the part of the adult passenger. Novex suggests this “special relationship” arises from the fact that the defendants are the driver and owner of a taxi cab and the vulnerability arises because the adult passenger, Mr. Stewart, was visibly intoxicated.

The OPCF44 insurer relied on Galaske v. O’Donnell, [1994] 1 SCR 670 (a case dealing with the duty of adults to ensure minors are wearing seat belts) for authority that a driver owes a duty to a vulnerable passenger to ensure that passenger is seat belted.  The Court also considered authorities from the United Kingdom, United States of America and Australia.

Justice Ricchetti rejected Novex’s argument and distinguished the case from Galaske, which considered the duty owed to a minor passenger; neither a taxi nor vulnerability from intoxication were at issue in Galaske. Galaske also specifically provides that every passenger has a duty to buckle his or her own seat belt.

Justice Ricchetti determined that the duty did not presently exist in Canadian law and that Novex was suggesting a positive duty, which the Court rejected:

[113]  Imposing a positive duty to ensure adult intoxicated passengers are and remain buckled in a taxi cab, in light of existing legal responsibilities for all adults to buckle their seat belts in vehicles and the voluntary creation of the risk by the adult becoming intoxicated, is an unnecessary and unprincipled extension of the scope of any duty which a taxi driver owes to adult intoxicated passengers.

Justice Ricchetti found that there was no sufficiently proximate relationship between taxi driver and passenger.  There was no evidence of any expectation by the plaintiff that the taxi driver would protect him from injury by ensuring he was and would remain buckled during the fare.  The taxi driver did not assume responsibility for whether an adult passenger wore a seat belt, simply by accepting the fare.  There was no evidence of a representation on the part of the taxi driver that he would take steps to ensure his intoxicated passenger was protected from injury by ensuring he wore a seat belt.  There was similarly no evidence of reasonable reliance by the plaintiff.  Lastly, Justice Ricchetti noted that an adult passenger has the right to buckle or not buckle his seat belt and a taxi driver cannot “force” or “ensure” the passenger is wearing his seat belt.

Justice Ricchetti concluded there were several residual policy considerations negating the imposition of the new duty – including the fact that the law already imposed a duty on adults to wear their seat belts and imposing a common law duty would be inconsistent with what the legislature had imposed.  Other policy considerations were that there was no valid societal reason to transfer the duty of care from the adult passenger to the driver, a remedy already existed for the plaintiff’s injuries, the taxi driver had committed no moral wrong, carrying out the suggested duty would be unmanageable for taxi drivers and the proposed duty could create a disincentive for taxi drivers to accept fares from vulnerable passengers.


Read the full decision [PDF]
Lara Fitzgerald-Husek
Written by

Lara completed her undergraduate degree at the University of Toronto in Ethics, Society, and Law and International Relations. She obtained her Juris Doctor and Master of Public Administration at Queen’s University and also completed the International Business Law program at the Bader International Study Centre in England. Lara was called to the bar in 2013.

Lara joined Oatley Vigmond after practicing insurance defence at a leading national firm. The experience of representing many of Canada’s largest insurers has provided Lara with valuable insight into personal injury claims, allowing her to better serve her clients.