The Court of Appeal for Ontario recently expanded the applicability of the vicarious liability provision outlined in s. 192(2) of the Highway Traffic Act in Desrochers v. McGinnis, 2024 ONCA 63.
The case involved an accident whereby the plaintiff, Megan, was operating an ATV on a dirt road when she lost control of the vehicle, striking a tree. Megan sustained a severe brain injury.
The ATV was owned by the defendant, Grant, who had entrusted the vehicle to his son, Patrick, who then gave Megan permission to drive the ATV.
At trial, the trial judge found Patrick negligent in permitting Megan to drive the ATV when he knew, or should have known, Megan did not have the necessary training or skill to do so. However, the trial judge dismissed the claims as against Grant for vicarious liability under s. 192(2) of the Highway Traffic Act having found that once Patrick had stopped driving the ATV, Grant was no longer statutorily liable for Patrick’s negligence.
One of the issues on appeal was whether the trial judge was correct in dismissing the claim as against Grant under s. 192(2) of the Highway Traffic Act, which 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.
The issue of Grant’s liability turned on the correct interpretation of the phrase “negligence in the operation of a motor vehicle” and whether these words captured Patrick’s acts and omissions in allowing Megan to drive the ATV. In essence, the question before the court was: 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?
The Court of Appeal considered the statutory purpose of s. 192(2) of the Highway Traffic Act, as established by the jurisprudence as follows:
- 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 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.
The Court of Appeal held that Patrick’s acts and omissions in turning the vehicle over to Megan did constitute “negligence in the operation of a motor vehicle” for two reasons.
First, the Court found that Patrick’s negligence had two components: 1) transferring management of the ATV, a dangerous machine, to a person he should have known lacked adequate training, and 2) transferring the management of the ATV to a person whom Partick knew had no experience in driving the vehicle in the particular circumstances (a sharp turn in the road, with no street lighting). These actions fell within the intended objects of the statutory provision.
Second, distinguishable from New Brunswick jurisprudence cited by the trial judge, there was no concern regarding the definition of “operation” under the Highway Traffic Act, which would have conflicted with this interpretation in the Ontario context.
Accordingly, the Court of Appeal allowed the appeal with respect to the finding of liability on Grant and found him to be vicariously liable for Patrick’s negligence.
The key takeaway from this decision is that vicarious liability for owners under the Highway Traffic Act encompasses the liability of the driver in transferring control or management of the vehicle to someone else, potentially a stranger to the owner. This, in this writer’s view, significantly expands the scope of vicarious liability under s. 192(2) the Highway Traffic Act.