



COURT OF APPEAL FOR ONTARIO

CITATION: Gardiner v. MacDonald, 2016 ONCA 968

DATE: 20161220

DOCKET: C61788

Cronk, Juriansz and Roberts JJ.A.

BETWEEN

Ben Gardiner and Samantha Gardiner

Plaintiffs (Respondents)

and

Andrew
    MacDonald, as Litigation Administrator for the Estate of

Mark
    MacDonald,
The City of Ottawa
,
Raymond Richer
,

1292002
    Ontario Ltd., (o/a Grace OMalleys), Peter Hamilton,

Geoffrey
    Garrett, Sean Hilliker, Tucker McCabe,

The
    Clocktower Brew Pub Ltd., Jane Doe, John Doe,

Carleton
    University Students Association Inc., (o/a Olivers Pub),

GSA
    Carleton Inc., (o/a Mikes Place) and

Intact
    Insurance Company (formerly known as ING Insurance

Company
    of Canada)

Defendants (
Appellants
)

and

State
    Farm Mutual Automobile Insurance Company,

Added by
    Order pursuant to Section 258(14) of the

Insurance
    Act
, R.S.O. 1990 C.1.8

Third Party

Jonathan de Vries and Patrick W. Brennan, for the
    appellants, the City of Ottawa and Raymond Richer

Peter J.E. Cronyn, for the respondents

Paul Muirhead, for Intact Insurance Company

No one appearing for State Farm Mutual Automobile
    Insurance Company and Andrew MacDonald, as Litigation Administrator for the
    Estate of Mark MacDonald, although duly served.

Heard: December 15, 2016

On appeal from the judgment of Justice Giovanna Toscano
    Roccamo of the Superior Court of Justice, sitting without a jury, dated January
    26, 2016, with reasons reported at 2016 ONSC 602, 95 M.V.R. (6th) 299, and, if
    leave be granted, from the costs order of Justice Giovanna Toscano Roccamo,
    dated April 29, 2016, with reasons reported at 2016 ONSC 2770.

By the Court:

Introduction

[1]

The appellants, the City of Ottawa and Raymond Richer, appeal from the
    trial judgment assigning 20% liability to them for a serious motor vehicle
    accident that occurred in Ottawa on January 23, 2008 at the intersection of
    Heron Road and Riverside Drive.  If leave be granted, they also appeal from the
    trial judges costs award.

[2]

Tragically, the accident in this case resulted in three fatalities and
    catastrophic injuries for a fourth individual, the respondent Ben Gardiner.  In
    brief, in the early hours of January 23, 2008, the late Mark Macdonald was
    driving himself and four passengers, including Mr. Gardiner, home after having
    spent the evening at various pubs.  Mr. MacDonalds car entered the
    intersection on a red light and collided with an OC Transpo bus driven by the
    appellant, Raymond Richer, an employee of the City of Ottawa.  Mr. Richer was
    driving through the intersection on a green light.

[3]

Mr. MacDonalds estate admitted liability for the accident and the
    parties eventually agreed on the respondents damages.  The issues at trial
    were whether Mr. Richer was negligent in his operation of the City bus and, if
    so, whether his negligence caused or contributed to the accident and the
    respondents damages.

[4]

The trial judge concluded that Mr. Richer was negligent in his operation
    of the City bus.  Among other things, she found that he was travelling at an
    excessive rate of speed and that he was looking from left to right, rather than
    in front of him, when he approached and then entered the intersection.  She
    concluded that, but for his negligent acts, Mr. Richer could have avoided the
    collision with Mr. MacDonalds car.  She assessed Mr. Richer and the City of
    Ottawa as 20% liable for the respondents damages.

Main Appeal

[5]

The appellants advance two main arguments in support of their appeal
    from the trial judges liability finding.

(1)

Standard of Care

[6]

First, the appellants argue that the trial judge erred in her
    articulation of the standard of care applicable to Mr. Richer in the
    circumstances.

[7]

We disagree.

[8]

The trial judge expressly held that Mr. Richer was obliged to observe
    the standard of care of a reasonably prudent driver in like circumstances.  She
    also stated, at para. 147 of her reasons:

The duty of care of a dominant driver entering an intersection
    on a green light vis-à-vis a servient driver required to stop on the red is
    clearly delineated by long-standing legal authority.  Despite having the
    statutory right-of-way, a driver in the shoes of Mr. Richer is required to
    yield the right-of-way where, exercising proper care, circumstances dictate he
    ought not to exercise the statutory right-of-way.  The statutory right-of-way
    ought not to be exercised in circumstances where:

1.     The driver becomes aware or
    ought to have been aware that the driver without the right-of-way is proceeding
    through the intersection on a red [light]; and

2.     If circumstances are such that
    the driver with the right-of-way has the opportunity to avoid a collision.
    [Citation omitted.]

[9]

The appellants do not challenge this description of the applicable duty
    of care.  However, they rely on paragraph 154 of the trial judges reasons to
    argue that the trial judge erred by imposing a higher standard of care  that
    governing a professional driver  on Mr. Richer.  Paragraph 154 reads:

The requirement that Mr. Richer observe the standard of care of
    a reasonably prudent driver in like circumstances does not preclude a finding
    that as a professional driver, he should be held to a higher standard.  Indeed,
    the Ontario Court of Appeal has recognized that: the general standard of care
    of a professional  is a question of law, but the content of the standard of
    care in a particular case is a question of fact  In other words, Mr. Richers
    conduct may be judged through the lens of the reasonable bus driver in like
    circumstances.  [Citations omitted.]

[10]

The trial judges comments arose from the fact that Mr. Richer is a
    trained bus driver in the long-time employ of the City of Ottawa.  At the time
    of the accident, he was driving an off-line bus in which his only passenger
    was another bus driver.  The appellants acknowledge that, in driving the City
    bus on the morning in question, Mr. Richer was acting within the scope of his
    duties with the City.

[11]

We see no error in the trial judges consideration of Mr. Richers
    status as an experienced bus driver or in her treatment of this fact as relevant
    to the determination of the applicable standard of care to which Mr. Richer was
    bound at the time of the accident.  Nor do we accept the appellants contention
    that the trial judge erred by relying on Mr. Richers status as a professional
    driver to improperly impose an inappropriate, elevated standard of care.

[12]

Mr. Richer himself conceded the relevance of his status as a
    professional bus driver.  As the trial judge stated, at para. 152:

Mr. Richer admitted that the duties he was bound to observe as a
    professional driver applied on the night of the collision.  He admitted these
    duties applied even though he was driving a work bus, out-of-service to the
    regular public, transporting other bus drivers.


[13]

Moreover, as explained by the trial judge at para. 151 of her reasons:

Mr. Richer admitted that according to the training and
    experience he acquired in the course of employment and pursuant to the Ministry
    of Transportation and Official Bus Handbook policies, there was a duty upon him
    to:

1)

respect the provisions of the
Highway Traffic Act
by observing
    the posted speed limit;

2)

drive defensively by giving up the right-of-way if by doing so he could
    avoid possible collision with other vehicles;

3)

make allowances for conditions of the road, by driving in such a way and
    at such a speed as to maintain vehicle control; and

4)

manoeuvre at a distance and in such a way so as not to preclude safe
    stopping or averting of a collision.

[14]

In this context, the trial judge held, at para. 156:

On the facts of this case, including the documentary record, I
    find that Mr. Richer was obliged to drive with due regard to the posted speed
    limit, while alive to the weather and road conditions, with attention to the
    traffic, sparse or otherwise, before him as he approached and subsequently entered
    the intersection at Riverside Dr. and Heron Rd.  In addition, as he quite
    properly conceded, these collective responsibilities were to be carried out in
    such a manner as not to lose sight of the fact that he, alone, controlled the
    manoeuvrability and capacity of a vehicle that weighed in excess of 12,000
    kilograms.  The training he was required to pursue to obtain and maintain his
    class C licence, and the experience that he acquired over 27 years of driving
    prior to the date of the accident, obliged him to consider all of these factors
    and to act in such a way while driving defensively that would not invite risk
    and/or preclude his ability to stop or steer the mass and weight of a city bus
    away from the hazard presented by Mr. MacDonalds SUV.

[15]

These findings detail the content of the standard of care applicable in
    the circumstances of this case.  The appellants do not attack these findings,
    which were amply supported by the evidence at trial.

[16]

The appellants also argue that the trial judge erred by holding that Mr.
    Richers momentary inattention to the intersection, when he looked right and
    left and into the mirrors of the bus, constituted negligence.  They say this
    finding was unfair as the relevant bus drivers manual directed him to take
    these actions and they reflected common practice among bus drivers on approach
    to an intersection.

[17]

We disagree.  The manuals direction, like any other best practice, is
    not a mandatory or absolute requirement.  Its application depends on all the
    surrounding circumstances.  More importantly, the trial judge did not look at
    this factor in isolation but as only one of the constellation of relevant
    factors that she was obliged to consider.  The following passage from her
    reasons, at para. 192, demonstrates that she took all the relevant evidence
    into account, as she was required to do:

I have considered a submission on behalf of Mr. Richer and the
    City to the effect that neither Mr. Williamson nor Mr. Catania conclusively
    stated that Mr. Richer did not take reasonable steps to avoid collision when
    confronted with the sudden hazard.  I accept that Mr. Williamson admitted in
    cross-examination that he never suggested Mr. Richer did not act in a timely
    manner.  On the other hand, this evidence must be considered in the context of
    all of the evidence received, and with due regard to the fact that Mr. Richer
    drove in a manner that did not adjust for weather and road conditions, and
    involved speeding and momentary inattention to the intersection ahead of him,
    when Mr. Richer chose to look left, then into his mirrors, and right before
    returning his attention to the front of his bus.  After that, Mr. Richer had
    time to comment to Mr. Moran that the SUV was not stopping, steer to the left
    and brake.  Moreover, Mr. Moran, after seeing the emergency himself, had time
    to move across the bus to another stanchion and crouch down before the impact.

[18]

In other words, Mr. Richers momentary inattention to the front of the
    road was only one of several factors that, together, made out his negligence on
    the morning in question.  Those other factors included, for example, his speed
    of travel and his failure to adjust his manner of driving for the prevailing
    winter road and weather conditions.

[19]

In our view, when the trial judges 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. 
    She made no finding that Mr. Richer was bound, on the morning in question, by
    the standard of care governing a common carrier.  Rather, she considered all
    the applicable circumstances, as she was obliged to do, in determining the
    standard engaged in this case.  She made no error in so doing.  As we have
    said, the standard applied to Mr. Richer was one that even he acknowledged
    governed his conduct as a driver at the time of the accident.

[20]

This ground of appeal is dismissed.

(2)

Causation

[21]

The appellants next submit that the trial judge erred in her causation
    analysis.  Specifically, they say that the trial judge erred by failing to make
    the factual findings necessary to ground her conclusions on causation.  For
    example, although they do not take issue with the trial judges finding that
    Mr. Richer was speeding, they say that she erred by failing to determine the
    actual rate of speed at which the bus was travelling when it entered the
    intersection, which was essential to the evidence of the expert witnesses that
    Mr. Richer could have avoided the accident had he been travelling at or under
    the posted speed limit of 60 kilometres per hour.

[22]

We do not accept this submission.

[23]

As the trial judge noted, it was not necessary for her to determine,
    with scientific precision, the exact speed at which the City bus was travelling
    at the time of impact.  Based on the evidence given by Mr. Richer and that of
    his passenger Mr. Moran, the GPS evidence, and the expert accident
    reconstruction evidence that she accepted, the trial judge found that: i) Mr.
    Richer was operating the bus at a rate of speed in excess of the posted speed
    limit, namely, at a speed of 65.6 kilometres per hour at a distance of 180
    meters south of the intersection; ii) critically, Mr. Richer did not decelerate
    on his approach to the intersection; iii) the pre-impact speed of the bus
    exceeded 65.6 kilometres per hour after it entered the intersection; and iv)
    Mr. Richer was momentarily inattentive to the road ahead when he glanced left
    and then right, into the side mirrors of the City bus.

[24]

These findings were open to the trial judge on the evidentiary record. 
    They amply support her conclusion that Mr. Richer was travelling at an
    excessive rate of speed at the time of the accident and her acceptance of the
    expert evidence that, had he not been doing so, the accident could have been
    avoided.

Costs Appeal

[25]

The appellants also seek leave to appeal the trial judges costs award
    of $670,596.50.

[26]

The trial judge arrived at her costs award after reducing the amount
    sought for various reasons by $130,000.  This was a complicated, multi-party
    case.  The issues in dispute were many and they were narrowed only shortly
    before trial, after extensive investigation and preparation had been undertaken
    and numerous expert witnesses had been briefed to testify at trial.  The
    quantum of the costs reductions allowed by the trial judge was squarely within
    her domain.  Although the appellants seek a further reduction, they failed to
    persuade us either that there was an error in principle or that the award was
    plainly wrong.  As a result, there is no reason to interfere with the trial
    judges broad discretion in setting costs.

Disposition

[27]

For these reasons, the main appeal is dismissed, leave to appeal costs
    is granted and the costs appeal is also dismissed.  The respondents are
    entitled to their costs, fixed in the agreed total amount of $25,000, inclusive
    of disbursements and all applicable taxes, to be divided among the respondents,
    as also agreed, as they may determine.

Released:

DEC 20 2016                                              E.A.
    Cronk J.A.

RGF                                                            R.G.
    Juriansz J.A.

L.B.
    Roberts J.A.


