Is there a Different Standard of Care for “Professional” Drivers?

Written by: Jennifer Reid

The recent decision of the Ontario Court of Appeal in Gardiner et al. v. MacDonald et al. (“Gardiner”)[1] upheld the lower court’s decision which found, in part, that the standard of care for a “professional” driver is different than that of the average motorist when assessing liability in a motor vehicle accident case.

The case also reaffirms that a driver with the statutory right-of-way will not always escape a finding of negligence if it is found that the right-of-way should not have been exercised or was exercised in an unsafe manner.


This case stems from a tragic motor vehicle accident that occurred in Ottawa at the intersection of Heron Road and Riverside Drive between a passenger vehicle and an Ottawa city bus.

In the early hours of January 23, 2008, the late Mark Macdonald was driving himself and three passengers home. The accident led to the deaths of Mr. Macdonald and two of his passengers. A third passenger, Ben Gardiner, survived but was left catastrophically injured. There was evidence that alcohol was involved and that Mr. Macdonald had entered the intersection on a red light. The Estate of Mr. Macdonald, a defendant in the various actions relating to the accident, admitted he was liable for the accident and an agreement on the quantum of damages had been reached in all the actions. The only question for the court was to what degree, if any, were the driver of the bus, Raymond Richer, and his employer, the City of Ottawa, at fault.

Ontario Superior Court of Justice

The trial was heard at the lower court by Justice Toscano Roccamo.[2]

As stated, the accident occurred at the intersection of Heron Road and Riverside Drive in Ottawa. Mr. Macdonald was operating his SUV westbound on Heron Road and Mr. Richer was operating his vehicle northbound on Riverside Drive. As he approached the intersection, the traffic light for Mr. Richer’s turned green. Mr. Richer testified to seeing the SUV prior to him entering the intersection on his green light, but assessed it to be slowing down and presumably stopping. As he entered the intersection, Mr. Richer looked in his left and right mirrors, as was his common practice, before looking forward. After crossing into the intersection, Mr. Richer noted the SUV at the right corner of the bus. Mr. Richer attempted an evasive movement including braking and steering to the left, but struck the middle of the SUV. The weather was snowy and the roads were noted by the police to be snow covered.

At trial, the plaintiffs’ position was that Mr. Richer was negligent in driving faster than the posted speed limit and failing to take into account the weather and road conditions in the operation of his bus. The plaintiffs also submitted that Mr. Richer, as a professional driver operating a city bus, was obligated to meet a higher standard of care. The defendants, Mr. Richer and the City of Ottawa, took the position that Mr. Macdonald was entirely responsible for the action and for creating a hazard to which Mr. Richer had to respond. They argued that no reasonably prudent driver operating his or her vehicle with the right-of-way could have avoided the hazard created by Mr. MacDonald.

Mr. Richer confirmed that at the time of the accident he had been an Ottawa city bus driver for approximately 27 years. He further confirmed that he received special training as required by the Ontario Ministry of Transportation (“MTO”) to obtain a class “C” license to drive a bus. To obtain and renew this license, Mr. Richer had to “pass rigorous medical, visual, knowledge and driving tests”. Mr. Richer admitted that as a commercial driver and as part of his job responsibilities he was to observe the procedures outlined in the Official Bus Handbook, a handbook published by the MTO and the City of Ottawa Transit Operations Handbook. Both handbooks contained various safety and driving protocols that were to be taken into account by commercial drivers. Mr. Richer agreed that the excepts produced at trial from these handbooks were “all things a reasonable prudent bus driver should do as a professional driver.”

After finding that Mr. Richer owed a duty of care to the Macdonald vehicle, even as the vehicle with the statutory right-of-way, Justice Toscano Roccamo moved on to address the standard of care. Mr. Richer was labelled the dominant driver, as the driver with the right-of-way, and Mr. Macdonald was labelled the servient driver. According to Justice Toscano Roccamo, the dominant driver “will be held to a standard of care of a reasonable and skillful driver in the same circumstances”. Justice Toscano Roccamo went on to state:

The ‘relevant circumstances’ may take into account the expertise of the driver. Professionals can be held to a higher standard than the general public when performing their professional duties. A professional “must live up to the accepted standards of professional conduct to the extent that it is reasonable to do so in the circumstances”. Though this is a heightened standard, it is not a standard of perfection. [Citations omitted]

Ultimately, Justice Toscano Roccamo found, based on GPS data and expert evidence, that Mr. Richer was speeding and was driving in a manner that failed to take into account the weather and traffic conditions at the time. In judging his conduct against that of a bus driver in similar circumstances, she concluded that he failed to meet the elevated standard of care. Mr. Richer was assessed to be 20% at fault for the accident.

Ontario Court of Appeal

The defendants, Mr. Richer and the City of Ottawa, appealed Justice Toscano Roccamo’s decision and the appeal was heard on December 15, 2016. One of the grounds for appeal was that the trial judge had erred by imposing a higher standard of care on Mr. Richer, as a professional driver.

The Court of Appeal disagreed with the argument that Justice Toscano Roccamo erred in addressing the standard of care stating that there was no error in considering Mr. Richer’s status as a bus driver when considering the applicable standard of care. The Court of Appeal also noted that Mr. Richer himself had conceded that his status as a professional bus driver was relevant when he admitted that on the night of the collision he was bound to observe his duties as a professional bus driver.

The appeal was dismissed.


While taking into account the individual factors of a driver had been in practice before this decision when addressing the applicable standard of care in a motor vehicle accident case, Justice Toscano Roccamo’s decision appears to be one of the first where a “heightened standard” for what are called “professional” drivers is discussed.

Clearly, in this case, Justice Toscano Roccamo found that a city bus driver would fall under the classification of “professional” driver but there is no guidance provided as to what other types of drivers would be included and thus potentially subjected to an elevated standard of care. It seems likely that school bus drivers and TTC streetcar operators would be classified as “professional” but what about taxi drivers? Until May 2016, the City of Toronto required new taxi drivers to attend a 17-day taxi school. In May 2016, the taxi industry implemented a mandatory requirement for new taxi drivers or taxi drivers with poor complaint history to attend 18 hours of driver training. Will this training be taken into account when addressing the standard of care of a taxi driver? And if so, how much training does a driver need to be considered “professional”? Further, in the day of Uber drivers, how close does experience get a driver to the “professional” designation? These are questions that remain unanswered but should be considered depending on the facts.

Another important takeaway from this decision is a reminder that cases, where one driver had a right-of-way, are not open and shut. While the tragic outcome of this accident likely played a role, a court will review if the “dominant” driver was exercising his or her right-of-way appropriately given the competing duty of care on a driver to take reasonable care to prevent a collision.

[1] 2016 ONSC 968

[2] 2016 ONSC 601

This article was originally published in the October 2017 CDL HEARSAY Newsletter

Jennifer Reid has been practising in the areas of insurance defence litigation and civil litigation since 2008. Representing insurer clients in civil litigation and insurance matters, Jennifer is a highly-skilled negotiator and litigator when it comes to third-party tort claims, first party Statutory Accident Benefits claims, property/commercial general liability claims, professional negligence claims, and product liability claims. Do you have questions about this topic? Email Jennifer at or call her at 416-306-1719.

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