Desrochers v. McGinnis, 2024 ONCA 63: Expanding liability on owners of vehicles

Desrochers v. McGinnis, 2024 ONCA 63

By Kris Bonn

On July 29, 2014, 24-year-old Megan Desrochers suffered a severe brain injury when the all- terrain vehicle (ATV) she was driving left the roadway and struck a tree. At the time of the collision, she was travelling on Young Road in Prince Edward County en route to the home of Grant and Catherine McGinnis. The collision occurred less than one kilometre from the McGinnis home.

Patrick McGinnis, Grant and Catherine’s son and Megan’s boyfriend at the time, was following her in a truck but did not see the collision happen. Grant owned the ATV. He was away from the home that night and did not know that Megan would be driving the ATV. Catherine was at home the night of Megan’s fateful trip on the ATV.

Megan sued Patrick, Grant and Catherine for her injuries. Megan’s parents, Rose and Shawn Desrochers, advanced claims pursuant to s. 61 of the Family Law Act, R.S.O., c. F.3. A liability-only trial was heard in November and December 2021. In his decision in Desrochers et al v. McGinnis et al, 2022 ONSC 5050, the trial judge held that the plaintiffs had established liability against Patrick and assessed Megan’s contributory negligence at 10 per cent. The trial judge held that all three defendants owed Megan a duty of care but concluded that Grant and Catherine had not breached the applicable standard of care. The trial judge dismissed the plaintiffs’ claim against Grant for his vicarious liability as the owner of the ATV under s. 192(2) of Ontario’s Highway Traffic Act (HTA), 1990, c. H.8.

Patrick appealed the trial judge’s decision, arguing that the trial judge erred in concluding that (i) he owed Megan a duty of care, (ii) he breached the standard of care and (iii) his breach caused Megan’s injuries. The plaintiffs appealed the trial judge’s decision, contending that the trial judge erred in failing to find that Grant and Catherine breached the applicable standard of care. They further appealed the finding that Grant was not vicariously liable for Patrick’s negligence pursuant to s. 192(2) of the HTA.

The Court of Appeal dismissed Patrick’s appeal, the appeal in respect of Catherine’s liability and Grant’s breach of the standard of care. However, the Court of Appeal granted the plaintiffs’ appeal in respect of Grant’s vicarious liability under s. 192(2), Desrochers v. McGinnis, 2024 ONCA 63. The Court of Appeal held that the purpose of s. 192(2) is to protect the public. At paragraph 60, the court ruled:

  • 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 the 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 the loss to others caused by the negligent operation of the vehicle on the highway

 At paragraph 70, the court noted that Patrick’s negligence contained two elements: (1) transferring management of the ATV — a dangerous machine — to a person that Patrick knew or should have known lacked adequate training and experience to drive the ATV independently, and without supervision, on a public road; (2) transferring management of the ATV to a person whom Patrick knew had no experience in driving the vehicle in the particular circumstances. The court held that given the objects of s. 192(2) of the HTA, negligence by Patrick constituted “negligence in the operation of the motor vehicle.”

The court noted in paragraph 71 that unlike the appellate courts in New Brunswick, Dionne v. Desjardins, [1999] N.B.J. No. 264 (NB CA), and British Columbia, Bowe v. Bowe, 2022 BCCA 35, that looked at what constitutes “operation of a vehicle” in similar vicarious liability provisions in those provincial highway traffic acts, the Ontario HTA does not contain a definition of “operate” or “operation.” As a result, the court held that interpreting the statutory phrase “negligence in the operation of a motor vehicle” to include the negligent transfer by a driver of the care and control of a vehicle to another person for the purpose of moving the vehicle on a highway does not undermine any statutory definition of “operation” as none exists.

The main takeaway from this important case is the significant expansion of the liability of vehicle owners pursuant to s. 192(2) of the HTA. Vehicle owners can now be held liable if the person that they give permission to possess their vehicle negligently transfers that vehicle to someone who is not competent or safe to operate that vehicle. If that person crashes the vehicle and suffers injuries, the owner can be held liable to the injured person for the negligent transfer of the vehicle.

Note: The author was co-counsel for the respondents and appellants by way of cross-appeal.

Kris Bonn is the managing partner at Bonn Law, a firm with offices in Belleville and Trenton that focuses on helping people with personal injury cases, medical malpractice and long-term disability denials. Bonn is the president of the Brain Injury Association Quinte District and the past president of the Ontario Trial Lawyers Association.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.