Whether you are in a densely populated urban centre such as Toronto, Mississauga, or Brampton, or in a more rural town such as Erin or Caledon, ride sharing programs such as Uber, Lyft, or even the taxicab, are convenient methods of travel. The number of ridesharing vehicles continues to climb year after year. With that comes the increasing risk of injury as a passenger in a rideshare vehicle or taxicab.
The City of Toronto adopted a mandatory training requirement for ridesharing vehicle drivers in 2019 following the death of Nicholas Cameron on March 21, 2018. Nicholas, who was 28 at the time of his death, hired an Uber to take him to the airport. His Uber driver pulled onto the left shoulder of the Gardiner Expressway to pick up his cell phone from the floor of the car, before merging back into traffic. While the vehicle was stopped, it was struck from behind by a vehicle driving a full speed. Nicholas passed away the following day.
Due to the COVID-19 pandemic, the implementation of the mandatory training program was extraordinarily delayed. In response, the City of Toronto halted the issuance of new ridesharing licences in the fall of 2021 until this program was in place.
Despite this new program, the question for Torontonians and Ontarians remains: what do I do if my Uber, Lyft, or taxicab is involved in an Accident?
Step 1: your right to apply for Accident Benefits
First, apply for accident benefits. Do you have your own automobile insurance? If you do, you should apply for accident benefits through your own insurance. If you do not have your own insurance, you should apply for accident benefits under the insurance policy of the Uber or Lyft driver. However, if an Uber/Lyft driver does not hold commercial insurance and does not advise their automobile insurer that they are operating as a ridesharing vehicle, the insurance company might deny coverage. If that happens, you should apply for accident benefits under the insurance policy of any other vehicles involved in the accident. Lastly, if there is no other vehicle, or that vehicle does not have insurance, you have recourse against the Motor Vehicle Accident Claims Fund.
Step 2: speak with an experienced personal injury lawyer
Second, speak with an experienced personal injury lawyer. An experienced personal injury lawyer will be able to guide you through the nuanced law of any potential lawsuit against your Uber or Lyft driver, or even against Uber or Lyft corporate.
Your right to sue a taxicab driver
Lawsuits against taxicabs are less nuanced than rideshares because taxicabs are common carriers. This means taxicabs use commercial vehicles with the sole purpose of carrying passengers safely from one destination to another. So, if you are injured as a passenger while in a taxicab, the corporation that owns that vehicle will be liable for any damages suffered by its passengers, and is required to have a policy of insurance to respond to any lawsuit brought on your behalf for personal injuries.
Your right to sue a rideshare driver
Lawsuits against Uber, Lyft or other ridesharing corporations and their drivers are a relatively newer concept within the law. Since Uber and Lyft drivers use their personal vehicles, and are not employed through the ridesharing company directly, their drivers are considered independent contractors.
As of September 2020, Uber offers a commercial automobile insurance policy via Economical Insurance for their drivers which is in effect while providing a rideshare trip within Ontario. Similarly, Lyft also provides a commercial automobile insurance policy via Allstate for their drivers which is in effect while providing a rideshare trip within Ontario. Therefore, your Uber or Lyft driver should have a valid policy of insurance to respond to any lawsuit that you may bring.
Your right to sue a rideshare company
The law with respect to suing the Uber and Lyft corporations is not as well established. However, application of foundational caselaw suggests these companies may owe a duty of care to passengers who use their services.
To establish that a ridesharing company such as Uber or Lyft owe a duty of care to their passengers, a plaintiff must meet the two stage “Anns/Cooper test”. This test has two stages:
- The court will consider whether there is a prima facie duty of care, which turns on both proximity and reasonable foreseeability of the harm; and
- The court will consider whether there are residual policy reasons for rejecting that duty of care based on “the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally.”[1]
A plaintiff will likely succeed on the first stage, proving there is a prima facie duty of care, based on a finding of proximity upon a previously established or analogous category. The most obvious analogous category is the duty between taxicab companies, and their passengers.[2] The court has also stated that “putting aside the disputed issue of whether Uber is an employer, the Uber App for ridesharing replicates the operation of a taxi company.[3]
A plaintiff will likely succeed on the second stage, proving there are no policy reasons for rejecting the duty. Indeed, policy reasons are in fact clearly favouring recognizing this duty of care, otherwise ridesharing corporations will essentially defeat a duty quite clearly established and expected for taxicab corporations.
As accidents happen and lawsuits proceed, we hope to see the caselaw establish this duty of care between passengers of a rideshare vehicle, and the overhead ridesharing company itself.
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your motor vehicle accident or medical malpractice claim to settlement or trial while helping you navigate the complex medical, legal, and insurance issues.
Our experience, commitment to excellence, and reputation have long been recognized. Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada. The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer rating publications.
If you or your loved one has been injured in an accident or believes that you are a victim of malpractice or negligence, reach out to a personal injury or medical malpractice lawyer to understand if you too have a claim. Please contact any of our personal injury lawyers at Bogoroch & Associates LLP for a free consultation.
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[1] Florence at ¶107, citing Edwards v Law Society of Upper Canada, 2001 SCC 80 at ¶10; Cooper at ¶37.
[2] Mizenchuk v Thompson, 1947 CanLII 483 (MB CA) at pp 394, 399, citing Huddy on Automobiles, 8th ed at p 192.
[3] Heller v Uber Technologies Inc, 2021 ONSC 5518 [Heller] at ¶89.
