Collusion at Fault Rules

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-26
CLNP Page ID:	1103
Page Categories:	Highway Traffic, Tort Law, Personal Injury
Citation:	Collusion at Fault Rules, CLNP 1103, <7m>, retrieved on 2024-11-26
Editor:	MKent
Last Updated:	2022/07/05

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R.R.O. 1990, Reg. 668: FAULT DETERMINATION RULES

3. The degree of fault of an insured is determined without reference to,

(a) the circumstances in which the incident occurs, including weather conditions, road conditions, visibility or the actions of pedestrians; or

(b) the location on the insured’s automobile of the point of contact with any other automobile involved in the incident. R.R.O. 1990, Reg. 668, s. 3.

4. (1) If more than one rule applies with respect to the insured, the rule that attributes the least degree of fault to the insured shall be deemed to be the only rule that applies in the circumstances.

Sobh v RBC General Ins., 2016 ONSC 7382 (CanLII)

[17] The Fault Determination Rules[6], although not binding on tort actions, apportion liability in a rear-end collision at one-hundred percent (100%) for the driver of the rear vehicle and zero percent (0%) for the driver of the lead vehicle.

[18] Canadian courts have consistently found, generally speaking, the operator of a rear vehicle at fault for rear-end collisions.[7]

[19] The common law principle of fault attribution to the rear vehicle in rear-end collisions is not absolute and is subject to a careful examination of whether the rear-driver and, by necessity, the lead-driver were acting reasonably in the circumstances.[8]

[20] RBC has filed a series of cases where Courts of Appeal have seen fit to apportion liability in rear-end collisions. Examples include: (i) where a truck is parked in the middle of the road because it ran out of gas[9]; (ii) where a vehicle is stopped in the middle of a road in a winter storm to check the brakes[10]; and (iii) where a vehicle comes to an unexplained sudden stop.[11]

[21] RBC argues further that in these circumstances, Middel should be considered the driver of a vehicle who follows another and ought to be held to the standard of care imposed upon such drivers.

[22] More specifically RBC argues that Middel’s vehicle must:

(i) keep a reasonable distance behind the vehicle ahead;

(ii) keep his vehicle in control at all times;

(iii) keep an alert and proper lookout;

(iv) proceed at a reasonable speed relative to the vehicle ahead;

(v) anticipate the vehicle ahead may stop for whatever reason; and

(vi) proceed with care to avoid colliding with the vehicle ahead.[12]

[23] RBC further suggests Middel ought to have been aware that with the impending merging of the two lanes, the unidentified driver would at some point have to merge or lose its lane of travel.

[24] I disagree. When a vehicle takes sudden, abrupt, unlawful and unsafe action and swerves in front of another vehicle, it would be unreasonable and an affront to common sense to expect the vehicle that has been cut off to anticipate this action. The evidence before me is clear that Middel was operating his vehicle at a reasonable speed and had no other reasonable choice when cut off but to slam on the brakes and avoid the collision. Middel ought to have anticipated that the vehicle to his right would either slow down and yield the right of way to Middel or pass only where the movement can be made in safety as required by section 150(1) of the HTA. Simply put, Middel ought to have anticipated that the driver of the unidentified vehicle would operate his vehicle in safety, and in compliance with the rules of the road.

(...)

[33] On the facts before me, and not dissimilar to the Court of Appeal’s analysis in Findlay. I am satisfied that the actions of the unidentified vehicle set in motion an unfortunate chain of events for which only the driver of the rear-vehicle (the plaintiff) and the unidentified vehicle may be found negligent.

[34] In other words, I cannot attribute negligence, not even one percent (1%) in these circumstances, nor could a reasonably and properly instructed jury.