The Ontario Court of Appeal has upheld a finding of liability against an Ottawa bus driver for a fatal crash, despite the fact that the driver of the other vehicle was impaired and had entered the intersection on a red light.
The appellate court confirmed the trial judge’s ruling that the the bus driver, Raymond Richer, and the City of Ottawa, were 20-per-cent liable for the crash because Richer was speeding in winter conditions and had taken his eyes off the road momentarily as he approached the intersection.
“In our view, when the trial judge’s reasons are viewed in their entirety, they reveal no error in her articulation of the applicable standard of care or in her application of that standard to the facts as she found them,” said the decision, Gardiner v. MacDonald, by Justices Eleanore Cronk, Russell Juriansz and Lois Roberts.
The 2008 crash killed three people, including the driver of the other car, Mark MacDonald, and left the plaintiff Ben Gardiner with serious injuries.
MacDonald’s estate admitted liability for the accident, as he had been drinking before the crash and entered the intersection on a red light.
But the trial judge, Ontario Superior Court Justice Giovanna Roccamo, determined the City of Ottawa and Richer were also liable for damages.
Roccamo found that Richer could have avoided the collision if he had been driving under the 60-
kilometres-an-hour speed limit.
Even though Richer had the right of way, a professional driver is required to yield when they have the ability to avoid a collision, she said.
David Elman, a partner with Borden Ladner Gervais LLP, says the decision serves as a reminder that right of way does not provide any form of immunity in respect to liability for an accident.
“This case reinforces that a driver who is viewed at least on the facts of the case as having had an opportunity to potentially avoid a collision but because of their actions created circumstances where they were unable to do so, in that type of a circumstance, there may be a finding of liability against that party,” says Elman, who did not act in the case.
The City of Ottawa and Richer argued in their appeal that Roccamo had erred in applying a higher standard of care to Richer as a professional driver, but the Court of Appeal rejected this argument.
The city also argued that it was unfair to find Richer was negligent for looking away from the intersection to check his mirrors, as he had been instructed to do so in a driver’s manual.
The court disagreed, saying the manual “is not a mandatory or absolute requirement.”
The court also said that this was one of a number of factors that included his speed and his failure to adjust to the weather conditions.
Alisa Mazo, of Mazo Chowbay Personal Injury Lawyers, says she found the decision surprising.
Mazo, who did not act in the case, says the decision will be helpful for personal injury lawyers who have clients who may appear to be wholly responsible for their collisions but may actually share responsibility with others.
“Given this new decision, you have something to hang your hat on to say, ‘Well, let’s look at this decision where a bus driver going through a green light is attributed 20-per-cent liability,’” she says.
Mazo says the judge’s finding that Richer and the city were 20-per-cent liable was high.
Peter Cronyn, the lawyer who represented the Gardiners, says it was necessary to sue the city in addition to MacDonald, as the bus driver could have helped avoid the accident if he was meeting the standard of care.
“While Mark MacDonald was wrong, the bus driver was also wrong. He shouldn’t have been doing what he was doing,” he says.
“I think it’s important to hold him accountable for that.”
He added that the city had an uphill battle in its appeal, which was apparent in the way the Court of Appeal upheld the decision.
The court did not even call upon Cronyn to argue, dismissing the appeal from the bench with reasons to follow.
Cronyn says it was also important to bring suit against the city, as Gardiner’s damages would be in the millions and it was clear MacDonald’s insurer would not have to pay enough to cover the damages.
In the original proceedings, the parties agreed on $2.1 million in damages.
Despite the fact that the City of Ottawa was found 20-per-cent liable, it will end up paying the majority of the damages as MacDonald’s insurance policy paid only $200,000, which was split between the Gardiners and another plaintiff.
MacDonald’s insurer will have to pay only $200,000, as he had been drinking with a G2 licence when the crash happened. Insurers can decline coverage in such an instance, but they have to pay the basic minimum coverage, which is $200,000 in Ontario.
Jonathan de Vries, one of the lawyers representing the city and Richer on the appeal, declined to comment.