Gardiner v. MacDonald, 2016 ONCA 968

Court of Appeal upholds trial decision apportioning liability 20% as against City Bus with right-of-way, which collided with a vehicle running a ran light.

Released December 20, 2016 | Full Decision [CanLII]

This case was commenced following an accident between a car and an Ottawa City Bus. The car, driven by the late Mark MacDonald, ran a red light. He and two of his passengers were killed, while the Plaintiff/Respondent Ben Gardiner suffered catastrophic injuries. The trial judge determined that the City of Ottawa and the bus driver were negligent and assigned liability at 20%. The City and driver appealed the decision to the Ontario Court of Appeal.

The Appellants argued that trial judge erred in applying a higher standard of care to a professional bus driver. However, the Court of Appeal disagreed. They saw no error in the trial judge’s consideration of the Appellant driver’s experience or the application of that fact to the applicable standard of care. The Appellants also submitted that the trial judge erred in her causation analysis. They argued that while she determined that the bus driver was speeding she failed to determine the actual rate of speed, which was essential. The Court of Appeal disagreed. The trial judge had made the determination that the bus driver was speeding and had he not been, the accident could have been avoided. She based these determinations on expert evidence, which amply supported her conclusion. For those reasons the appeal was dismissed.


Read the full decision on CanLII
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Jan received her Bachelor of Arts (Honors) in Development Studies from Huron University College at the University of Western Ontario in 2005 and her J.D. from Western's Law School in 2009. While attending law school, Jan volunteered with the school's Community Legal Clinic and Pro-Bono Students Canada. She also participated in an international exchange program at ESADE in Barcelona where she studied both International and European Union law.

Before joining Gluckstein Personal Injury Lawyers, Jan completed her articles at a prominent personal injury firm. She was called to the bar in June 2010.

Jan's personal injury practice is dedicated to medical negligence.

When not practicing law, Jan enjoys travelling, playing soccer and volleyball.