The Right-of-Way Won’t Save You: Ontario Court Reinforces Duty of Care for Drivers
As McFee v. Sutram, 2025 ONSC 5526 shows, following the rules of the road doesn’t automatically mean a driver has met the standard of care or that he does not owe a duty of care to other vehicles that break the rules. The Ontario Superior Court’s decision is a sharp reminder that a lawful driver can still be found negligent when prudence, not compliance, is the issue, and that a driver who has the right-of-way still owes a legal duty to other road users to act prudently and to take steps to avoid foreseeable harm.
The reasons in McFee v. Sutram provide a helpful distinction between a driver’s duty of care and a driver’s standard of care. The decision also clarifies that the Highway Traffic Act (“HTA”) supplements, but does not override, the common law duty of care.
The facts of the motor vehicle accident in this case are straightforward and stark. On April 22, 2016, three vehicles collided at the crest of a hill on Warden Avenue in Stouffville, Ontario. One of the defendant’s vehicles passed the other defendant’s vehicle, the latter driven by Mr. Rae, by crossing a double yellow line while both cars were travelling uphill.
Mr. Rae was in his lane and going the speed limit when he saw the passing vehicle make the illegal maneuver. Since Mr. Rae could not see any other cars approaching from the other side of the hill, he did not slow down to allow the passing vehicle to rejoin his lane.
Unfortunately, neither of the defendants could see the plaintiff vehicle approaching in the opposite direction because of the hill’s crest. The passing vehicle collided head-on with the plaintiffs’ vehicle, resulting in the death of one of the occupants of the passing vehicle. At trial, a jury ultimately found both defendant drivers negligent, apportioning fault 93% to the passing driver and 7% to Mr. Rae.
Mr. Rae argued that he did not owe a duty of care to the plaintiffs because “he was not under a statutory obligation to slow down in circumstances where he was driving on the right side of the road, not speeding and when he did not see any obvious risk of harm to himself.” The trial judge concluded that Mr. Rae did in fact owe a duty of care to the other road users.
Legal Implications
This decision reinforces three important aspects of the analysis of negligence in the motor vehicle accident context. First, the existence of a duty of care owed by motorists on a highway is well established. Canadian jurisprudence recognizes a general duty that drivers owe to all users of the roadway.
The Court in McFee rejected the argument that this particular fact pattern required a fresh Anns/Cooper analysis simply because the alleged breach was grounded in nonfeasance rather than misfeasance. The facts in the case were analogous to previous cases that have recognized a duty of care. Moreover, the Highway Traffic Act and the common law supports recognition of a proximate relationship between drivers that gives rise to a duty.
Second, the decision draws a useful and often overlooked distinction between duty of care and standard of care. A duty of care asks whether a relationship of proximity and reasonable foreseeability exists such that the defendant could be held accountable to the plaintiff. The standard of care asks whether the defendant’s conduct measured up to what a reasonable person in the defendant’s position would have done. The duty of care analysis focuses on the nature of the relationship between the parties, not the conduct of the parties or the specific allegations of wrongdoing.
McFee emphasizes that a finding of a duty of care does not answer the question of negligence. Rather, it sets the stage for the trier of fact to evaluate whether the defendant’s conduct was unreasonable. When evaluating whether a driver met the standard of care, caution should be taken not to conflate having the right of way with having no responsibility to act. The right to proceed does not necessarily absolve a driver of responsibility. The question is whether, in the circumstances, a prudent driver would have taken additional precautions once alerted to a risk.
Third, the HTA does not replace the common law duty of care simply because the HTA does not create a positive duty to act in certain situations. The Court at paragraph 36 made it plain that “the HTA supplements, not overtakes, the common law duty of care owed by one driver to all other users of a road.” The Court further noted that a driver who has the right of way is still obligated to try to avoid an accident with another driver who has breached their statutory duty to yield the right of way. The HTA informs the standard, but it does not displace the common law obligation to exercise reasonable care in all the circumstances.
Practical Takeaways
McFee provides several takeaways for litigating motor vehicle accident claims. A statutory right of way will not always provide a motorist with immunity from liability. Evidence as to what a reasonably cautious driver could or would have done in the circumstances of a given case may help to establish whether a motorist met the standard of care in the circumstances. It is not always sufficient to simply establish that the motorist was in compliance with the rules of the road.
The question of “who had the right of way?” is accordingly sometimes only one piece of the legal puzzle. The more important question is often whether the defendant’s conduct fell short of the standard of a reasonable driver in those circumstances. As seen in McFee, a defendant cannot argue that he did everything right by merely following the rules of the road, in circumstances where a reasonable driver would have done more.