The Superior Court recently tackled a fundamental question in negligence law: Do all drivers have a positive obligation to avoid an accident? The Court’s answer was clear: They do. Every motorist on the Ontario roads owes a duty of care to take reasonable steps to avoid accidents and minimize danger to others. It is not enough to say that you were driving safely. You must also be aware of road conditions and the actions of drivers around you.
The Case that Reaffirmed a Driver’s Legal Duty of Care
McFee v. Sutram arose from a tragic three-vehicle collision near Stouffville, Ontario. On April 22, 2016, Mr. Rae was travelling northbound towards a hill, when another driver, Mr. Sutram, also heading northbound, attempted to illegally pass him by crossing over a double yellow line into the southbound lane. Neither driver could see past the crest of the hill, and neither slowed down. As a result, Mr. Sutram’s vehicle collided head-on with a southbound vehicle approaching from the other side of the hill and with Mr. Rae’s vehicle, causing serious injuries and a fatality.
At trial, Mr. Rae argued that he had no legal obligation to slow down because he had complied with the Highway Traffic Act, which did not require him to yield or respond to another driver making an unsafe maneuver. In his view, since the statute did not impose a positive duty on him, he bore no legal responsibility for what happened. Essentially, Mr. Rae’s position was that his inaction, or nonfeasance, could not amount to negligence.
What the Court Was Asked to Decide
The core issue before the Court was whether a new Anns/Cooper analysis was required to determine if a duty of care existed between Mr. Rae and the other motorists involved. The Anns/Cooper framework is a two-step test used to determine whether a novel duty of care should be recognized in negligence law. Justice Mathai was asked to decide whether the situation presented a new legal category or fell within an already established one.
The Court’s Answer — Every Driver Has a Positive Duty to Avoid Harm
Justice Mathai concluded that no new analysis was required. Canadian courts have consistently recognized that drivers owe a duty of care to other users of the road, a relationship that has been firmly established in case law for nearly a century. This duty is not limited by statutory language or by whether a driver actively causes harm. Rather, it reflects a broader societal expectation that all motorists share responsibility for road safety and have a duty to avoid accidents.
The Court also rejected Mr. Rae’s reliance on Childs v Desormeaux, a case concerning social host liability. Unlike social hosts, Justice Mathai emphasized, drivers operate in a heavily regulated and inherently risky environment, where failure to act prudently can have catastrophic results. Driving is a communal activity governed by shared expectations of safety and caution. Therefore, the duty of care among drivers is well within an established category and does not require re-litigation under Anns/Cooper.
Duty of Care vs. Standard of Care — What’s the Difference?
One of the most significant contributions of the McFee decision lies in Justice Mathai’s clear articulation of the distinction between the duty of care and the standard of care.
The duty of care is a legal relationship that arises automatically between drivers and all other road users. It is the fundamental obligation to take reasonable care to avoid causing harm. This duty is the baseline responsibility shared by all who operate vehicles on public roads and exists independently of any particular conduct or circumstance.
The standard of care, by contrast, concerns how that duty must be met. It asks whether a driver’s specific actions (or inactions) met the level of care expected of a reasonable and prudent driver in similar circumstances.
Justice Mathai noted that Mr. Rae’s argument improperly conflated these two concepts. Whether Mr. Rae should have slowed down to allow Mr. Sutram to re-enter the northbound lane was not a question of duty but of standard — a factual issue for the jury to decide. In reaffirming this distinction, the Court echoed the Supreme Court of Canada’s direction in Ryan v Victoria (City) that “a duty of care either exists or it does not.” The content or degree of care — whether slowing down, braking, or taking evasive action — is not about whether a duty exists, but whether it has been fulfilled. This clarification ensures that courts do not undermine long-established duties simply because a defendant’s conduct might appear passive rather than active.
Why Following the Highway Traffic Act Isn’t Always Enough
Justice Mathai’s analysis was rooted in both legal precedent and practical reasoning. He confirmed that driving is an inherently dangerous and highly regulated activity, which naturally creates proximity among all road users. The HTA does not define or limit these duties but merely provides a framework of rules to guide conduct, while the common law fills the gaps where the statute is silent, ensuring that drivers remain accountable for reasonable action or inaction when safety is at risk.
Justice Mathai also relied on a line of cases dating back to Brownlee v The Queen and Gellie v Naylor Reflex, which held that even drivers with the right of way must take reasonable steps to avoid foreseeable harm. These decisions recognize that negligence can arise not just from reckless conduct but also from failing to respond when danger becomes apparent. As Justice Mathai put it, “a driver’s decisions, while appearing benign, can have tragic consequences for others,” and this is why the duty of care among drivers is framed so broadly.
Lessons from McFee v. Sutram for Ontario Drivers and Insurers
The McFee decision provides valuable guidance for both drivers and practitioners in negligence law. It reaffirms that the duty of care among motorists is universal, while clarifying that the standard of care is the context-specific measure of how that duty must be met.
Key Takeaways from McFee v. Sutram
All drivers have a positive obligation to take reasonable steps to avoid accidents and minimize danger on the road. This obligation extends beyond the literal wording of the HTA, as statutory compliance alone does not guarantee that a driver has met their legal responsibility. Indeed, inaction, or “nonfeasance,” can still amount to a breach of duty when reasonable care requires intervention.
Ultimately, the Court’s message is straightforward: road safety is a shared responsibility. The duty of care exists for every driver, every day, on every road. What varies is how that duty must be carried out in each unique situation. Whether it means slowing down, anticipating another driver’s mistake, or taking precautionary action, the law expects all drivers to act in a way that prevents foreseeable harm.
See McFee v. Sutram et al., 2025 ONSC 5526 (CanLII)