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Superior Court Re-Affirms that Bus Drivers are Held to a Higher Standard of Care

David Elmaleh
David Elmaleh
Partner

February 2016

by David Elmaleh

In the recently decided case of Gardiner v. MacDonald, 2016 ONSC 602, Madame Justice Roccamo presided over a trial arising from a brutal collision where a public transit bus T-boned an SUV at 1:54 a.m., on a cold, January morning, in Ottawa.

The public transit bus was travelling northbound on a well-travelled road in the "bus lane", and entered the intersection on a green light. The SUV was travelling westbound and entered the same intersection on a red light when it was struck by the bus, and propelled in a northerly direction until it came to a rest in the snowy and slushy street. The collision was so bad that the bus crossed a snow-covered median before coming to rest in a ditch.

Alcohol use by the driver of the SUV was a factor in the collision; no charges were laid against the bus driver as a result of the accident, but tragically, 3 of the occupants of the SUV, including the driver, were fatally injured. A fourth occupant sustained catastrophic injuries.

The only issue at trial was whether the bus driver (and by extension the municipality) was partially liable for the collision.

Justice Roccamo heard detailed evidence regarding the weather and road conditions (snowy, slushy and slippery). She concluded with the assistance of experts that a lower rate of speed would have given the bus driver time to evade the SUV.

Even though the trial judge noted that speeding does not in itself constitute negligence, she found that the bus driver’s slightly excessive speed in the particular road and weather conditions was unwarranted. She held that the bus driver breached the standard of care in the circumstances, and that the breach contributed to the collision. Had the bus been operating at a slower speed, the trial judge found, the bus driver may have recognized and reacted to the clear hazard of the oncoming SUV.

Justice Roccamo ruled that professional drivers... will be held to a higher standard of care than the general public.

Significantly, in assessing the appropriate standard of care, Justice Roccamo ruled that professional drivers — such as bus drivers — will be held to a higher standard of care than the general public. The standard in this particular case was whether the bus driver met the standard of a ‘reasonable bus driver in like circumstance.’

It is noteworthy that the trial judge did not receive expert evidence defining the standard of care applicable to a bus driver in the circumstances faced in this accident. Nevertheless, the trial judge relied on the well-settled appellate authority that expert evidence is not required for “non-technical matters or those of which an ordinary person may be expected to have knowledge.” The trial judge found the standard of care in this case does not give rise to considerations beyond common understanding. She apportioned liability on the bus driver (and by extension the municipality) at a whopping 20%.

There are many instructive aspects of this well-reasoned 197 paragraph decision. At first blush, it was certainly surprising that a vehicle operating with the clear right of way through an intersection could be conceivably found to be 20% liable, especially when the other driver was intoxicated and egregiously ran a red light. However, this case is a cautionary tale that professional drivers will be held to a high standard of care, arguably much higher. The focus in this trial was on the (un)reasonable driving of the bus driver, not the conduct of the admitted at-fault driver of the SUV.

Read the complete decision on the Can LII Website.


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