When “Doing Nothing Wrong” Isn’t Enough: What McFee v. Sutram Means for Defendants

By: Celine Tuncertan, Associate Lawyer

Imagine you’re driving north on a quiet two-lane road that rises and falls with steep hills, your view ahead hidden by the crest in front of you. You’re following the law and staying in your lane when a car behind suddenly swerves across the double yellow line to pass, despite the blind hill ahead. You hold your speed; there’s no sign of oncoming traffic and nowhere to go. Then, out of nowhere, another vehicle appears from the opposite direction. The two cars collide head-on at the crest, and before you can react, you’re caught in a crash you never saw coming.

In McFee v. Sutram et al., 2025 ONSC 5526, this was the situation faced by Mr. Rae, at first glance, an innocent motorist suddenly caught in someone else’s dangerous maneuver. The facts raised a compelling question: can a driver who obeys the law, maintains control of their vehicle, and commits no overt wrongdoing nonetheless be found liable for failing to take evasive action that might have prevented an accident?

The court’s answer was yes: a driver’s duty of care encompasses not only avoiding negligent acts but also taking reasonable steps to prevent foreseeable harm, even when another road user is the primary wrongdoer. What does this mean for Drivers and other Defendant parties?

The Core Issue: Can a Blameless Driver Still Bear Liability?

At trial, the Defendant, Mr. Rae, contended that he owed no duty of care in the circumstances because he engaged in nonfeasance (an omission) rather than malfeasance (a wrongful act). He emphasized that the Highway Traffic Act (HTA) did not impose a positive duty to slow down to allow another driver to pass unlawfully.

The plaintiffs countered that the duty of care owed by a motorist extends beyond statutory obligations. This duty encompasses the broader common law responsibility to act reasonably to prevent foreseeable harm to others.

The court agreed with the Plaintiffs, concluding that the duty of care between drivers is a well-established category under the Anns/Cooper framework, requiring no fresh analysis. It reaffirmed that the duty of care owed between motorists extends beyond the letter of the law. A driver’s duty is not only to refrain from negligence but also to act reasonably in the face of foreseeable danger, even when that danger is created by someone else.

 

The Court’s Message: Reasonableness Over Compliance

The court emphasized three key principles that reshape how Defendants should think about their obligations behind the wheel:

1. Established Category of Duty       
   The relationship between drivers and other road users has long been recognized as one giving rise to a duty of care (Hill v. Hamilton-Wentworth Police Services Board, 2007 SCC 41; Walker v. Brownlee, [1952] 2 DLR 450). Because driving is a heavily regulated and inherently dangerous activity, the law imposes a general expectation that motorists must take reasonable precautions to prevent harm to others.
2. Nonfeasance vs. Misfeasance     
   While the distinction between omissions and affirmative acts has traditionally mattered in negligence law (Childs v. Desormeaux, 2006 SCC 18), the court held that it has limited relevance in the driving context. Motorists are engaged in a highly regulated activity that carries foreseeable risks of serious injury. Accordingly, the duty to act reasonably may require affirmative steps, such as slowing down or taking evasive action, to avoid foreseeable collisions.
3. The Duty to Avoid, Even When You Have the Right-of-Way        
   The court cited numerous case law to affirm that even a driver with the right-of-way must attempt to avoid an accident if it becomes apparent that another driver is acting negligently. A driver’s statutory right does not absolve them of the obligation to act reasonably to prevent foreseeable harm.

As the Supreme Court held in Walker v. Brownlee, “a driver having the right-of-way must still take reasonable steps to avoid a collision once it becomes apparent that another driver is not going to yield.”

 

What This Means for Defendants

McFee v. Sutram serves as a clear reaffirmation of existing principles: a driver’s duty of care extends beyond mere legal compliance to include taking reasonable steps to avoid foreseeable harm. The case underscores that fault can arise from inaction where a reasonable driver would have acted to prevent an accident, even if another party’s negligence set the chain of events in motion.

This has several implications:

• Legal compliance is a floor, not a shield. Following the Highway Traffic Act may not protect you from liability if a reasonable driver in the same position would have acted differently.
• Partial liability can attach even without wrongdoing. Courts may apportion fault to drivers whose inaction contributes to the outcome, even if another driver’s negligence was the main cause.
• The standard is active vigilance. The modern duty of care demands attentiveness. Not just safe driving, but readiness to respond.

From a litigation strategy perspective, McFee reinforces the importance of reasonableness and foreseeability in defending motor vehicle claims. It signals that defendants cannot rely solely on statutory compliance or right-of-way arguments as a complete shield from liability. While the decision does not shift the legal landscape, it clarifies the evidentiary and tactical focus that counsel should adopt:

• Early Evaluation: Counsel should carefully assess whether the defendant’s actions, or omissions, could be construed as unreasonable once another driver’s negligence became apparent.
• Summary Judgment Considerations: Parties may be more inclined to pursue or resist summary judgment applications where the facts clearly support (or negate) a reasonable opportunity to avoid harm.
• Resolution Strategy: Where some measure of shared fault is reasonably foreseeable, parties may wish to consider early settlement discussions to mitigate costs and uncertainty, particularly when surveillance or witness evidence may portray a passive response by the defendant.

Ultimately, McFee reminds defence counsel that “doing nothing wrong” may not always equate to “doing enough.” The case reinforces that the standard of care on the road (and in the courtroom) demands active vigilance and strategic foresight.