As was alluded to earlier, the aforementioned problems with res ipsa loquitur were finally laid to rest in the 1998 Supreme Court of Canada case entitled Fontaine v. Insurance Corporation of British Columbia  1 S.C.R. 424. This was a case where a widow claimed damages for the untimely death of her late husband, who died as a passenger in a motor vehicle accident during a hunting trip. The driver died in the accident too, plus there were no witnesses, the scintilla of direct or positive evidence had negligible persuasive value, and the circumstantial evidence was weak because the circumstances of the accident, such as the date, time and precise location, were all unknown. Once this case reached the Supreme Court of Canada, one of the primary issues that was addressed at the highest court in the country, was “When does res ipsa loquitur apply?”.
The Supreme Court of Canada confirmed that res ipsa loquitur is a doctrine that’s no longer relied upon as a distinct and separate component in tort actions of negligence. It also confirmed that historically it was just used as a means to deal with circumstantial evidence, which can be better assessed by the trier-of-fact – a judge, if it’s a judge-alone trial, or the jury, if it’s a judge-and-jury trial – upon carefully weighing the direct or positive evidence with the circumstantial evidence. Furthermore, it confirmed that in any negligence case, even in cases that have traditionally invoked the doctrine of res ipsa loquitur, the burden of proof doesn’t shift to the defendant, but rather remains with the plaintiff, whom must first provide affirmative proof on a balance of probabilities that negligence on the part of the defendant caused his or her accident-related injuries and impairments. In the book entitled The Law of Evidence in Canada (1992) by John Sopinka et al. they described at pg. 81 the effect of the application of res ipsa loquitur, which was adopted by the Supreme Court of Canada in Fontaine v. Insurance Corporation of British Columbia supra, as follows:
Res ipsa loquitur, correctly understood, means that circumstantial evidence constitutes reasonable evidence of negligence. Accordingly, the plaintiff is able to overcome a motion for a non-suit and the trial judge is required to instruct the jury on the issue of negligence. The jury may, but need not, find negligence: a permissible fact inference. If, at the conclusion of the case, it would be equally reasonable to infer negligence, the plaintiff will lose since he or she bears the legal burden on this issue. Under this construction, the maxim is superfluous. It can be treated simply as a case of circumstantial evidence.
Therefore, the Supreme Court of Canada has confirmed that all res ipsa loquitur means is that circumstantial evidence, even in the absence of direct or positive evidence, is admissible and can constitute reasonable evidence to support a cause of action for negligence against the defendant. Therefore, if you, as the plaintiff:
- (1) don’t have any direct or positive evidence to establish affirmative proof that the accident, which severely injured you was caused by the defendant’s negligence;
- (2) the thing that caused the accident was under the management of the defendant, or his or her employees, and;
- (3) there is no other reasonable explanation of the cause of the accident,
then there isn’t an automatic prima facie presumption of negligence on the defendant, which shifts the legal burden of proof to the defendant to prove he or she wasn’t negligent. Rather, the effect of the modern application of res ipsa loquitur is that the burden of proof still remains with you, the plaintiff, where in the absence of direct or positive evidence, you’ll have to introduce circumstantial evidence, which, again, can constitute a reasonable evidentiary basis for establishing the defendant’s negligence.
If, however, the defendant were to bring forth a non-suit motion on the basis that you don’t have a cause of action for negligence due to the absence of direct or positive evidence, then a judge in the Superior Court of Justice would have to determine whether a reasonable trier-of-fact would, from the circumstantial evidence you provided, be able to find an inference of the defendant’s negligence, or put in another way, it wouldn’t be an error in law for a trier-of-fact to find for you – the plaintiff – based on the circumstantial evidence you provided. If the trier-of-fact can find it, then the non-suit motion would be dismissed. So, the trial can proceed, as the matter of law, concerning whether an inference can be drawn from the circumstantial evidence, has been determined by a judge in the affirmative. However, the question of fact, concerning whether the inference of the defendant’s negligence should be drawn, will ultimately be determined by the trier-of-fact at the end of the trial, after all of the circumstantial evidence you provided is properly weighed.
Therefore, the law in Canada as it relates to the modern application of the doctrine of res ipsa loquitur, is clear. In cases where an inference of negligence could potentially be drawn from the scintilla of evidence available to the the plaintiff, the burden of proof still rests with the plaintiff to present either the direct or circumstantial evidence, or both, to establish on a balance of probabilities that the accident occurred as a result of negligence attributable to the defendant.
I hope you found this information valuable. Rudder Law Group’s website is your one-stop source for answers to all of your legal questions concerning catastrophic impairment law and personal injury law.