The City of Ottawa is held jointly and severally liable in car / bus accident

February 04, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

From the Ottawa Citizen, January 29, 2016

The City of Ottawa will have to pay more than $2 million in damages for a 2008 crash in which an OC Transpo bus T-boned an SUV, killing three people.

The SUV driver, Mark MacDonald, had been drinking and ran a red light, which led Judge Giovanna Toscano Roccamo to find him 80-per-cent responsible for the crash.

But he and two of his friends, 19-year-olds Brianne Deschamps and Vanessa Crawford, were killed and MacDonald’s drinking largely invalidated his insurance policy.

Two other passengers, Ben Gardiner, then 20, and Monica Neacsu, then 19, were injured.

After the collision, Neacsu told the Citizen that the five friends had gone to the Carleton University graduate student bar, Mike’s Place, for karaoke, then to Grace O’Malley’s on Merivale Road.

Gardiner and his family sued the city, four pubs and MacDonald’s estate. Deschamps’ family also sued.

Because of how the law works in Ontario, if you’re partially responsible for damages, you can be forced to pay the full amount if all the other responsible parties are unable to pay anything. Toscano Roccamo found the city 20-per-cent responsible because the bus was going 66.5 km/h in a 60 zone and the bus driver had “a moment of inattention.”

Cities in Ontario have complained about this for years because they’re often held responsible in cases like this, paying millions in damages when others are mostly at fault.

Toxicology reports confirmed that MacDonald, 20, had been drinking that night. Witnesses reported seeing an SUV travelling southbound on Bank Street, running red lights and driving erratically, before colliding with a bus at the intersection of Heron Road and Riverside Drive just before 2 a.m.

The nine-day trial heard evidence from numerous witnesses, including three experts in accident reconstruction.

Reconstruction of the accident was slightly hampered by a number of factors, most notably the lack of evidence as to the exact point of impact.

The city will be required to pay approximately $2.1 million in damages awarded in the Gardiner case and $200,000 awarded in the Deschamps case due to the application of a principle known as joint and several liability.

While most automobile insurance policies in Ontario provide for $1 million in third-party liability coverage, the insurance for the SUV was reduced to $200,000 because MacDonald had a blood-alcohol level nearly three times the legal limit for a fully licensed driver. This was contrary to the requirements of his G2 licence, which prohibit driving after the consumption of any alcohol.

The bus driver, Raymond Richer, had been driving buses for approximately 27 years at the time of the crash.

The judge didn’t find his testimony credible or reliable, and noted that he didn’t fare well under cross-examination with respect to the data recorded by the GPS equipment on the bus, which showed he had been speeding at earlier points in the night by as much as 20 km/h over the limit.

Richer challenged the GPS-recorded data as “hokus pokus.”

The judge also found he didn’t adjust his speed to account for weather and road conditions, which were snowy and slushy, and that he looked away briefly, checking his mirrors, when he reached the intersection.

The city’s legal department will consult with outside lawyers and its liability insurer to review the court decision and consider whether to appeal it, city solicitor Rick O’Connor told councillors in a memo Friday.

Matthew Pearson, Ottawa Citizen

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

The opinions expressed here, while intended to provide useful information, should not be interpreted as legal recommendations or advice.