|
Highways - Liability Allocation [HTA s.192]. Desrochers v. McGinnis
In Desrochers v. McGinnis (Ont CA, 2023) the Court of Appeal considered the application of HTA 192(2) ['Liability for loss or damage'], which locates liability on the owner for "negligence in the operation of a motor vehicle", here where such negligence was not committed by the driver:V. CROSS-APPEAL: DISMISSAL OF THE CLAIM AGAINST GRANT MCGINNIS BASED ON HTA S. 192(2)
A. The issue summarized
[47] The Desrochers submit the trial judge erred in dismissing their claim against Grant that, as the owner of the ATV, he should be liable for Megan’s damages by virtue of HTA s. 192(2) which, to repeat, 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. [48] This issue concerns Grant’s responsibility for the negligence of Patrick, which the trial judge found primarily consisted of permitting Megan to drive the ATV back to the McGinnis farmhouse along Young Road as dusk fell, without supervision, when Patrick knew, or should have known, that the instruction and training Megan had received from Patrick and his mother did not equip Megan with the necessary skill and experience to manoeuvre the ATV through the road’s sharp curve in those circumstances.
[49] Whether Grant is liable for such negligence by Patrick turns on the proper interpretation of the phrase “negligence in the operation of a motor vehicle” used in HTA s. 192(2). Does that statutory language capture Patrick’s acts and omissions in turning the ATV over to Megan that evening, as the Desrochers submit? Or, does “negligence in the operation of a motor vehicle” only capture the acts or omissions of a wrongdoer, such as Patrick, when he is physically engaged with the functioning of the vehicle – that is, who is in charge or control of the actual operation or driving of a motor vehicle – as Grant submits? Framed differently, does “negligence in the operation of a motor vehicle” include negligence in turning over a vehicle to a person who is not fit or equipped to drive it in the circumstances?
[50] At trial, the Desrochers argued the trial judge should apply the reasoning of the New Brunswick Court of Appeal (“NBCA”) in Dionne v. Desjardins (1999), 1999 CanLII 32902 (NB CA), 214 N.B.R. (2d) 380 (C.A.). That case had interpreted similar, but not identical, language in the New Brunswick Motor Vehicle Act, R.S.N.B. 1973, c. M-17 to include within the meaning of the “operation” of a vehicle the transfer by a driver of the care and control of a vehicle to another person.
[51] The trial judge was not prepared to follow Dionne because “the expansive view of the term ‘operation’” taken by the NBCA “conflicts with the more restrictive interpretation of the vicarious liability provision in the HTA in [Schuster v. Whitehead, 1959 CanLII 138 (ON CA), [1960] O.R. 125 (C.A.)].” Applying Schuster’s more restrictive interpretative approach, the trial judge concluded that since Patrick had stopped driving and gotten off the ATV before Megan started driving it, Grant was not statutorily liable for Patrick’s negligence: Reasons, at para. 95.
[52] With respect, the trial judge erred in law by regarding the 1959 decision in Schuster as setting out the proper interpretative approach to apply in assessing Grant’s liability under HTA s. 192(2). The proper approach is found in other decisions of this court, including the decision of a five‑judge panel in Fernandes v. Araujo, 2015 ONCA 571, 127 O.R. (3d) 115. When the proper approach is applied to the trial judge’s findings of fact, Grant should be held liable for Megan’s “loss or damage” pursuant to HTA s. 192(2).
[53] To explain this result, I will first review the relevant jurisprudence regarding HTA s. 192(2) to identify the guiding interpretative approach and then apply that approach to the facts as found by the trial judge.
B. The jurisprudence
The Schuster decision
[54] I shall start with the decision in Schuster, as the trial judge felt bound to follow its narrow interpretative approach to HTA s.192(2).
[55] The facts in Schuster were simple. One Hurley owned a car which, on the day in question, he drove along a Hamilton street and then parked on one side of the street, with the driver’s door beside the sidewalk. His passenger then opened the passenger-side door into the traffic. At that moment, a motorcycle was passing the car on the passenger side. The motorcycle hit the opened passenger-side door and the driver of the motorcycle suffered injuries. The sole question was whether Hurley, as the owner of the car, was liable under what is now HTA s. 192(2)[7] for the admitted negligence of his passenger in opening his door into traffic.
[56] The trial judge found that the passenger’s opening of the door constituted “negligence in the operation of the motor vehicle” within the meaning of the section and held Hurley liable for the motorcyclist’s damages. This court reversed. Drawing on the principles for construing exclusions from coverage in insurance policies, this court interpreted the word “operation” in the statutory provision by using a rule of construction that “those who stipulate for an exception should be limited to the narrowest significance of the words used”: at p. 129. Applying that narrow rule of contractual interpretation led this court to conclude, at p. 130, that the word “operation” in HTA s. 192(2) should not extend “beyond the acts or omissions of a person having charge or control of the actual operation or driving of a motor car.” As a result, the passenger’s negligence in opening the car door into traffic did not amount to “negligence in the operation of the motor vehicle.”[8]
The other Ontario Court of Appeal jurisprudence
[57] Schuster acknowledged that an earlier decision of this court, Thompson v. Bourchier, 1933 CanLII 106 (ON CA), [1933] O.R. 525 (C.A.), had grappled with the meaning of other language used in what is now HTA s. 192(2): namely, the meaning of the exception to owner’s statutory liability where the car was “without the owner’s consent in the possession of some person other than the owner”. However, the Schuster decision did not advert to Thompson’s statement, at pp. 527-28, about the purpose of the predecessor section to HTA s. 192(2).[9] Thompson explained the object of the section as follows:I think it must be conceded that the object of the Legislature in enacting secs. 41 and 41 (a) of the Highway Traffic Act was to protect the public by imposing upon the owner of a motor vehicle the responsibility of the careful management thereof and of assuming the risk of those to whom he entrusted possession that they would observe the law, and that if they failed in the discharge of that duty the owner – using the words of the statute – would be responsible "for all loss and damage sustained in the operation thereof." [Emphasis added.] [58] Thompson applied that statutory purpose to a common fact situation: the lessee of a rental car (Lupson) permitted another person (Brown) to take over driving the car (contrary to a condition in the car rental agreement) and Brown drove the car in a way that injured a pedestrian. Was the car rental agency, as owner of the car, liable for the pedestrian’s damages under the 1930 equivalent to HTA s. 192(2)? This court broadly interpreted the word “possession” in the statutory provision to hold that the lessee, Lupson, was in possession of the car at the time of the accident with the owner’s consent, with the result that the owner/car rental agency was liable under the statutory provision: at pp. 529-30.[10]
[59] Thompson’s statement of the statutory purpose of what is now HTA s. 192(2) has been reiterated by this court on several subsequent occasions:. In Cummings v. Budget Car Rentals Toronto Ltd. (1996), 1996 CanLII 1629 (ON CA), 29 O.R. (3d) 1 (C.A.), leave to appeal to S.C.C. refused, 25530 (February 20, 1997),[11] where the court also noted that “the wide interpretation that the courts have given to s. 192 is for the purpose of broadening the vicarious liability of the owner, since it is the owner who is more likely to have assets and insurance to which the innocent victims can look”: at p. 20;
. A decade later in Finlayson v. GMAC Leasco Limited, 2007 ONCA 557, 86 O.R. (3d) 481,[12] this court repeated, at para. 21, that s. 192(2) is intended to protect the public by imposing on the owner of a motor vehicle responsibility for the careful management of the vehicle. While an owner has the right to give possession of the vehicle to another, the section encourages owners to be careful when exercising that right by placing legal responsibility on them for loss to others caused by the negligent operation of the vehicle on a highway; and
. Finally, the decision of the five-judge panel of this court in Fernandes v. Araujo, 2015 ONCA 571, 127 O.R. (3d) 115, at para. 20, adopted the purpose of HTA s. 192(2) articulated in both the Thompson and Finlayson decisions. [60] These cases describe the proper interpretative approach to HTA s. 192(2):. Courts should give the section a wide interpretation;
. The section broadens the liability of the owner, since it is the owner who is more likely to have assets and insurance to which the innocent victims can look;
. The section seeks to protect the public by imposing on the owner of a motor vehicle responsibility for the careful management of the vehicle; and
. While an owner has the right to give possession of the vehicle to another, the section encourages owners to be careful when exercising that right by placing legal responsibility on them for loss to others caused by the negligent operation of the vehicle on a highway. [61] Given this jurisprudence, the trial judge erred in bringing a restrictive approach to interpreting and applying HTA s. 192(2). Had he applied the proper approach, the reasoning of the NBCA in Dionne would have provided guidance for the present case.
|
