The Ontario Court of Appeal recently released its decision in Desrochers v. McGinnis,**
Facts
The plaintiff, Megan Desrochers, suffered a severe injury when the ATV she was driving left the unpaved road she was on and struck a tree.
At the time, Megan was dating Patrick McGinnis. Patrick’s parents owned a farm near the collision site. Patrick’s father, Grant McGinnis, owned the ATV and kept it at his farm.
Megan was a young adult (24 years old). She did not have a driver’s licence. She had never operated an ATV before she started going to the McGinnis farm. Her boyfriend, Patrick, took the lead in teaching her how to drive it. Patrick’s mother also provided Megan with some instruction and hands-on learning.
On the day in question, Patrick and Megan rode the ATV to a pickup truck parked on a dirt roadway. Patrick drove. Neither of them was wearing a helmet. Patrick got off the ATV and then gave Megan the “thumbs up” to drive the ATV back to the farm. Patrick followed her in the pickup truck. Megan had never driven on this road before. There was a sharp 90 degree turn just after a rise in the road with a nearby tree just a few meters off the roadway. Patrick and Megan avoided the 90-degree turn on the way to the truck because they took an alternate route through a field. Tragically, Megan went over the rise in the road, did not negotiate the sharp turn, and drove into the nearby tree.
The matter proceeded to a liability-only trial. Megan was unable to testify. Plaintiff’s counsel called a forensic engineer who concluded that Megan probably hit the tree because she failed to navigate the sharp left turn.
At the conclusion of the trial, the Judge held that Patrick McGinnis and his parents owed a duty of care to Megan, Patrick was negligent and liable for the collision, and Megan was 10% responsible for the incident. The Trial Judge also held that neither of Patrick’s parents (Grant and Catherine McGinnis) were negligent and that Grant McGinnis, as the owner of the ATV, was not vicariously liable for his son’s negligence under s. 192(2) of the Highway Traffic Act (“HTA”).
The defendant, Patrick McGinnis, appealed the finding that (a) he owed a duty of care, (b) he breached the standard of care and (c) his negligence caused the collision. He also appealed the apportionment of liability.
Megan Desrochers as plaintiff cross appealed. She appealed the ruling that (a) the McGinnis parents did not breach the standard of care and (b) the ATV owner (Grant McGinnis) was not vicariously liable under s. 192(2) of the HTA.
The Ontario Court of Appeal (“ONCA”) upheld the Judge’s findings in all aspects but one: the ONCA also found that Grant McGinnis as owner of the ATV was vicariously liable for the collision.
Duty of Care
Following the trial, Justice Hurley held that all the defendants owed a duty of care to Megan. An ATV is a popular motorized vehicle. No instruction, training, or licensing is required to drive it. It is a powerful machine that can cause serious injuries if it is not operated properly. Therefore, the owners of an ATV, or persons who can control access to it, owe a duty of care to someone they let operate it if they know that person has little to no experience or training in operating an ATV.[1]
The ONCA upheld this ruling.
Negligence of the Initial ATV Operator
The ONCA also found that Patrick McGinnis as the initial operator of the ATV was negligent based on the principle in the SCC case Hall v. Hebert. The principle is as follows: If you have care and control of a vehicle, you should not permit another person that you know or ought to know is unfit to drive to take control of your vehicle.
In this case, Patrick McGinnis should have known that Megan was unfit to drive the ATV on her own under the circumstances. Among other things (a) he had provided Megan with minimal driving lessons, (b) he knew that she had only driven the ATV in an open field under his supervision or when he was a passenger, (c) there was no artificial lighting for her and it was dusk outside, (d) he knew she was unfamiliar with roadway in question, (e) he did not warn her about the sharp turn, (f) he knew she had never taken a sharp turn driving an ATV, (g) he did not drive in front of her to guide her and (g) he did not advise her to drive through the nearby field. As a result, he was negligent in handing over control to her.
Vicarious Liability of the ATV Owner
Subsection 192(2) of the HTA states:
The owner of a motor vehicle…is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle…unless the motor vehicle…was without the owner’s consent in the possession of some person other than the owner…
The issue on appeal was what is meant by “negligence in the operation of the motor vehicle”. Grant McGinnis argued that the negligence must take place when the person in possession of the vehicle (with the owner’s consent) is physically engaged with the functioning of that vehicle. If there is no negligence at that time, then there is no vicarious liability.
The ONCA disagreed. It concluded that negligence in the operation of a motor vehicle includes a driver negligently transferring care and control over that vehicle to someone else.
Patrick McGinnis was driving the ATV. He breached the standard of care by giving care and control to Megan Desrochers – a known inexperienced driver in the general sense and in the particular circumstances. Grant McGinnis, as owner of the ATV, was vicariously liable for that negligence.
**Congratulations to OTLA members Kris Bonn and Allan Rouben for, what I can only assume, was a monumental victory for their clients.**
[1] Justice Hurley also held that the owners of an ATV, or persons who can control access to it, owe a duty of care to the person they let drive the ATV if they know that person cannot safely drive it due to a physical or mental condition. The ONCA upheld this ruling as well.
