More On Reasonable Care Analysis In All-terrain Vehicle Accident Case

• Law Firm: Siskinds LLP
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Author: Ms Victoria Edwards
• Published date: 05 January 2023

A recent Ontario Superior Court of Justice case, Desrochers (Litigation guardian of) v. McGinnis [2022] O.J. No. 3891, revisited the principles of proving negligence in a case where the plaintiff, Megan Desrochers, was injured while operating the defendants' all-terrain vehicle (ATV). (For link to part one of this series, see below).

Standard of care

The real issue in this case is whether any of the defendants breached the standard of care. The general approach to determining the appropriate standard of care is found in Ryan v. Victoria (City) [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.

With respect to each defendant:

Grant McGinnis, the father of Patrick McGinnis (Desrochers' then-boyfriend) and the owner of the ATV, had not personally observed Desrochers on the ATV, but he understood that she had ridden on the property and had received instructions on how to operate it safely. Grant knew that Patrick was experienced in operating the ATV and had no reason to think that he would not operate it safely. Justice Patrick Hurley found that Grant had not breached the standard of care.

The plaintiffs, Desrochers and her parents, then argued that even if Grant was not negligent, as the registered owner of the ATV he would be statutorily liable due to s. 192(2) of the Highway Traffic Act:

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.

Justice Hurley concluded that Grant McGinnis had consented to Patrick operating the ATV. His consent did not carry over to Desrochers when she started driving it. Therefore, Grant was not liable for Patrick's negligence.

Catherine McGinnis, Patrick's mother, had...