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Insurance - Auto - Tort

. Desrochers v. McGinnis

In Desrochers v. McGinnis (Ont CA, 2023) the Court of Appeal considered the negligence 'standard of care', here in a serious ATV accident:
B. Breach of the standard of care and causation

The trial judge’s reasons

[23] The trial judge applied the correct approach to determining the appropriate standard of care as set out in Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, at para. 28:
Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.
. Desrochers v. McGinnis

In Desrochers v. McGinnis (Ont CA, 2023) the Court of Appeal considered an appeal against a trial finding that the defendant owed a 'duty of care', here in a case involving a serious ATV accident:
A. Duty of care

The trial judge’s reasons

[10] The trial judge correctly identified the method he was required to follow to determine whether Patrick owed Megan a duty of care in the circumstances:
. First, ascertain if the case law already has established that the duty of care in question, or an analogous duty, exists;

. If the case law has not, then apply the two-stage analysis known as the Anns/Cooper test[1] under which one first 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 and, if there is, then it is open to the defendant to establish that there are residual policy reasons why this duty should not be recognized: Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, 422 D.L.R. (4th) 317, at paras. 18-20.
[11] As I read his reasons, the trial judge appeared to conclude that the principles articulated in the following four cases, taken together, established an analogous duty of care in the circumstances of this case:
. The promoter and organizer of an inherently dangerous sport must take all reasonable steps to prevent a visibly incapacitated person from participating: Crocker v. Sundance Northwest Resorts Ltd., 1988 CanLII 45 (SCC), [1988] 1 S.C.R. 1186, at paras. 21-24;

. A person who has the care and control of a motor vehicle should not permit another person that he or she knows or should know is unfit to drive to take over the control of the vehicle, particularly where the vehicle is high powered, the driving conditions are difficult, and the proposed driver is clearly impaired: Hall v. Hebert, 1993 CanLII 141 (SCC), [1993] 2 S.C.R. 159, at p. 223, per Cory J. (concurring);

. An all-terrain vehicle is a dangerous machine, and its owners owe a duty of care to those who may use the machine, particularly minors, to receive instruction in its use, to provide safety helmets, and to lay down reasonable and safe rules for the machine’s use: Gibson v. Haggith (1994), 1994 CanLII 9105 (AB KB), 156 A.R. 229 (Q.B.), at para. 16; and

. Finally, in J.G. (Dependent Adult) v. Strathcona (County of), 2004 ABQB 378, 356 A.R. 140 – a case that involved a teenaged minor visiting a friend’s house to use a snowmobile – a duty of care was found to exist that required the friend’s parents who owned the snowmobile to take reasonable steps to satisfy themselves that the minor was capable of operating a snowmobile safely and that he or she would do so: at para. 143.
[12] After citing the portion of this court’s decision in Garratt v. Orillia Power Distribution Corp., 2008 ONCA 422, 90 O.R. (3d) 161 that summarized the standard principles regarding the existence of a duty of care, the trial judge stated, at para. 87:
I find that the plaintiffs established a prima facie duty of care for all defendants. An ATV is a popular motorized vehicle and, to date, there is no legally mandated instruction or training nor license qualification. The owner of an ATV or a person who can control access to it owes a duty of care to a person, like Megan, who they know has had little or no experience or instruction in operating one. It is a powerful machine which can result in serious injuries to a driver or passenger, whether child or adult, if it is not operated properly. A reasonable person would know this; the probability of harm in these circumstances is clearly foreseeable. There is a similar legal obligation if they have particular knowledge that the person cannot safely operate the ATV due to their physical or mental condition. There are no policy considerations which would negative or limit the duty. [Emphasis added.]

[14] First, Patrick submits that the trial judge decided that no analogous duty of care cases existed and then proceeded to err in his application of the Anns/Cooper test. That is not the way I read the trial judge’s reasons. As I have stated, to my eye the trial judge accepted that the principles enunciated in the four cases I summarized in para. 11 above combined to apply by analogy to the present case. I see no error in the trial judge so concluding.


[16] As I read the trial judge’s reasons, he simply applied the commonsense principle articulated by Cory J. in Hall, at p. 223, that “one who has the care and control of a vehicle should not permit another person that he or she knows or should know is unfit to drive to take over the control of his or her vehicle.” While Cory J. made those remarks in a case involving an automobile, they apply equally to the circumstances involving the ATV.


[19] Finally, Patrick contends the trial judge erred in his reasonable foreseeability analysis as “[t]here was no evidence on which the trial judge could conclude that Patrick, Catherine or Grant knew or ought to have known that Megan, on the evening of collision, would injure herself in the operation of the ATV.” I see no such error by the trial judge.

[20] In Rankin, at para. 24, the Supreme Court framed the proper question to ask when determining whether reasonable foreseeability is established as: “whether the plaintiff has ‘offer[ed] facts to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged’”. In the causation section of his reasons, the trial judge made additional comments on the issue of reasonable foreseeability, writing at para. 100:
In addition to the lack of instruction or training in what is, based on the evidence, the most important skill a rider must have to safely operate an ATV [i.e., knowing how to navigate turns], Patrick also knew that Megan had never ridden the ATV on Young Road (or, for that matter, any road), either with him or alone. The one exception appears to have been on July 29, 2014 and it is notable that when Patrick drove the ATV on Young Road that evening, he started in the field and it was not until a point well south of the curve that he drove onto Young Road. He knew that Megan was headed to a dangerous spot on the road. The peril was twofold: a sharp curve that required a level of skill to negotiate which Megan did not possess and an obstacle (the tree) a few metres off the roadway that would cause serious injuries if the ATV collided with it. It is probable that Megan did not realize that she was at a sharp curve until moments before she was at the start of the bend in the roadway. By then, it was too late for a person with her skill level and experience to make the turn or stop the vehicle before it went off the roadway and struck the tree. All of this was foreseeable to Patrick, as was the result.
. El-Khodr v. Northbridge Commercial Insurance Company

In El-Khodr v. Northbridge Commercial Insurance Company (Ont CA, 2021) the Court of Appeal reviews some aspects of the auto insurance SABS system:
[1] In Ontario, parties injured in an automobile accident can receive “no fault” first-party benefits through receipt of statutory accident benefits (“SABs”). SABs are required by statute to be included in all automobile insurance policies. They provide a person injured in an accident, whether or not they are at fault, access to medical, rehabilitation, and other benefits to assist with their recovery.

[2] An injured person may also bring a legal action against the “at fault” driver in tort (“the tort defendant”). There is often overlap between the compensation provided pursuant to the SABs and the award of damages in a civil proceeding.

[3] Section 267.8 of the Insurance Act, R.S.O. 1990, c. I.8, therefore provides that tort awards must be reduced by corresponding categories of SABs received. This is accomplished by deducting those SABs received before trial from the damages awarded and by either holding in trust those SABs received after trial or by assigning the SABs benefits payable after trial to the tortfeasor or his insurer.

[4] The appellant, Kossay El-Khodr, suffered catastrophic injuries in a motor vehicle accident. Royal & Sun Alliance Insurance Company of Canada (“Royal”) is Mr. El-Khodr’s SABs insurer. The respondent, Northbridge Commercial Insurance Company (“Northbridge”), is the insurer for the tort defendant and conducted the defence on the tortfeasor’s behalf.


A. The Available Approaches to the Assignment of Sabs

[14] In Ontario, Statutory Accident Benefits Schedule, O. Reg. 34/10, under the Insurance Act, enables parties injured in an automobile accident to receive no-fault first-party benefits while at the same time suing the at-fault driver in tort.

[15] Because of the overlap between the compensation provided pursuant to the SABs and the damage awards, s. 267.8 of the Insurance Act provides that the tort award must be reduced by corresponding categories of SABs received. Section 278.8(12) addresses the assignment of SABs payable after trial and provides as follows:
Assignment of future collateral benefits

(12) The court that heard and determined the action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of the automobile, on motion, may order that, subject to any conditions the court considers just,
(a) the plaintiff who recovered damages in the action assign to the defendants or the defendants’ insurers all rights in respect of all payments to which the plaintiff who recovered damages is entitled in respect of the incident after the trial of the action,

(i) for statutory accident benefits in respect of income loss or loss of earning capacity,

(ii) for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan,

(iii) under a sick leave plan arising by reason of the plaintiff’s occupation or employment,

(iv) for statutory accident benefits in respect of expenses for health care,

(v) under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law, and

(vi) for statutory accident benefits in respect of pecuniary loss, other than income loss, loss of earning capacity and expenses for health care….
[16] As noted above, the benefits to be assigned are described in the Act only in broad categories: income loss, loss of earning capacity, and expenses that have been or will be incurred for health care or other pecuniary loss.

[17] Until the decisions in Carroll v. McEwen, 2018 ONCA 902, 143 O.R. (3d) 641, and Cadieux v. Cloutier, 2018 ONCA 903, 143 O.R. (3d) 545, leave to appeal to refused, [2019] S.C.C.A. No. 63, courts applied two different methods to address the overlap between damages awarded and SABs received: (a) the “apples-to-apples” or “strict matching” approach, which required temporal and qualitative matching of SABs to specific heads of tort damages; and, (b) the “silo” approach, which only includes three broad categories of SABs under the Insurance Act: income replacement benefits, health care benefits, and other pecuniary losses. Under the “silo” approach, tort damages are only required to match generally with a corresponding SABs category.

[18] In Carroll and Cadieux, companion appeals, a five-member panel of this court adopted the “silo” approach to the treatment and matching of SABs to tort damages under section 267.8 of the Insurance Act. The panel held that the “strict matching” approach, developed in Bannon v. McNeely (1998), 1998 CanLII 4486 (ON CA), 38 O.R. (3d) 659 (C.A.), was no longer to be followed. One of the stated benefits of the silo approach was that it would promote greater efficiency in motor vehicle accident litigation.

[19] Carroll and Cadieux were rendered after the Assignment Appeal was decided in September 2017.


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Last modified: 03-02-24
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