2025 ONSC 5526 (CanLII) | McFee v. Sutram et al. | CanLII
A recent Ontario Superior Court decision, McFee v. Sutram et al., has broadened how negligence law applies to drivers. Having the right-of-way does not always insulate a driver from liability.
Mr. Sutram admitted some but not all liability before trial. Along with the plaintiff, he argued that co-defendant Rae owed a duty of care to the plaintiff and should share in liability. The issue of whether the driver of the vehicle being passed owed a duty of care to take reasonable steps – such as slowing doing to allow the pass – to assist Mr. Sutram avoid the collision was put before the Court.
Justice Mathai found that even a driver who does “nothing wrong” in the conventional sense may still owe a duty of care to others on the road — including those affected by another driver’s reckless actions, as is the case here. Ultimately, the jury found the co-defendant 7% liable for the accident, thereby exposing his policy limits to the claim.
Ms. McFee, the Plaintiff, was struck by Mr. Sutram in a head-on collision when he illegally crossed a double yellow line to pass a vehicle ahead being operated by co-defendant Mr. Rae. Mr. Rae failed to slow down to allow Sutram back in the lane prior to arriving at the crest of a hill. The Plaintiff alleged that Rae’s failure to reduce his speed contributed to the collision. The question was whether Rae owed any duty of care to the Plaintiff, when he was traveling in the opposite direction and was not directly involved in the accident.
Justice Mathai held that he did. The Court rejected the argument that Rae’s conduct amounted to “nonfeasance” — a mere failure to act — and instead emphasized that this relationship fell within an established duty of care where drivers owe a duty to all other users of the road to drive in a prudent and safe manner. Every decision on the road has the potential to carry significant consequences for others.
Here, the Court said the duty was clear, and the focus shifted to whether Rae’s inaction met the standard of care expected of a reasonable driver in that moment. Driving is not a passive activity – maintaining speed in the face of danger is still a conscious decision. Once a danger becomes apparent, doing nothing can still amount to negligence. The Court drew on jurisprudence such as Walker v. Brownlee, 1952 CanLII 328 (SCC), [1952] 2 DLR 450 (S.C.C.) and Ashim v. Zia, 2014 ONSC 6460, 123 O.R. (3d) 355, at para. 33 to reinforce the notion that right-of-way does not excuse a driver from the obligation to act reasonably.
This case demonstrates that the duty of care is not confined to those who cause collisions directly. It extends to those who, through inaction in the face of known danger, contribute to the risk. Justice Mathai’s reasoning emphasizes shared responsibility on the road and rejects strict reliance on right-of-way as a defence. It illustrates the importance of analyzing not just causation, but foreseeability and reasonable response in driving conduct. This decision expands the scope of potential liability and reinforces that “doing nothing” can still breach the standard of care.
Partner, Jonathan Schrieder, was counsel on this decision. Elisa Prezzano is the author of the blog. If you have a question about a similar decision or file, please contact Jonathan at 416-777-5237 or Elisa at 437-562-2529.
