In this blog I’ll discuss the purpose and procedural effect of section 193 of Ontario’s Highway Traffic Act, R.S.O. 1990, c. H.8, which is used primarily by pedestrians who are hit by motor vehicles. It is nominally known as the “reverse onus” section, because it shifts the onus away from the plaintiff (pedestrian) to the driver, who has to disprove negligence. Section 193 of Ontario’s Highway Traffic Act, R.S.O. 1990, c. H.8, reads as follows:

Onus of disproving negligence

193 (1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.  2005, c. 31, Sched. 10, s. 3.

Application

(2) This section does not apply in cases of a collision between motor vehicles or to an action brought by a passenger in a motor vehicle in respect of any injuries sustained while a passenger.  2005, c. 31, Sched. 10, s. 3.

Like the legal doctrine nominally known as res ipsa loquitur – “the thing speaks for itself” –, which was finally laid to rest by the Supreme Court of Canada in 1998, the reverse onus section flies in the face of how a plaintiff proves his or her tort lawsuit. Typically, if you’ve sustained injuries and impairments for which you want to commence a tort lawsuit to claim compensatory damages, the burden of introducing affirmative proof of negligence is on you to marshall the supportive evidence to prove your case. The burden of proof is whether on a balance of probabilities – 50% + 1 – the defendant caused your injuries and impairments, and it’s on you to establish the evidentiary basis, which includes proving that the six elements of a cause of action for negligence are present.

If you want to learn more about the six elements of a cause of action for negligence, then please click the “link” to read my blog entitled “What is the Cause of Action for a Negligence Action in Tort?”.

If you want to learn more about the legal doctrine nominally known as res ipsa loquitur, then please click the “link” to read my blog entitled “The Modern Application of Res Ipsa Loquitur”.

However, pursuant to section 193 of Ontario’s Highway Traffic Act, R.S.O. 1990, c. H.8, in a case such as one where a pedestrian is run down by a motor vehicle, the pedestrian plaintiff doesn’t have the initial onus of proving that the defendant driver and owner of the motor vehicle was negligent, as the statute creates a rebuttable presumption of negligence, where the defendant has the onus of disproving this presumption of negligence.

The purpose of the aforementioned reverse onus section was articulated in the case entitled MacDonald v. Woodard (1973), 2 O.R. (2d) 438, 43 D.L.R. (3d) 182 (Co. Ct.), where prior to commenting on the testimony respecting negligence in the case, the Honourable Matheson CO. CT. J., first ascertained the nature of the statutory onus which is cast upon the owner or driver of disproving his or her negligence, as follows:

This section was enacted in order to overcome difficulties experienced by plaintiffs in obtaining and presenting sufficient evidence of a motorist’s negligence to avoid a non-suit at the close of their case. Knowledge of relevant acts and circumstances leading up to an accident might be in the possession only of the defendant and injustice might result if a plaintiff was unable to overcome the initial obstacle of a prima facie case and to avoid having his case determined before all the evidence was before the Court. Hence the introduction of a type of statutory res ipsa loquitor doctrine under which the owner or driver is prima facie liable for damage caused by his motor vehicle unless he satisfied the Court on a preponderance of evidence that he was not in fact negligent.

A plaintiff must therefore show, in order that the section may apply, that his damages were occasioned by the presence of a motor vehicle on the highway.

This does not mean that before the onus begins to operate, the plaintiff must first prove that the effective cause of the collision was the conduct of the driver; he need only show that the collision – not the conduct of the driver – was the cause of the damage: Stewart v. Ottawa Electric R. Co. and Hollis, 1945 CanLII 368 (ON CA), [1945] O.W.N. 639, [1945] 4 D.L.R. 400; affirmed 1947 CanLII 358 (SCC), [1948] 2 D.L.R. 800, 62 C.R.T.C. 272; Mann v. Hilton, [1953] O.W.N. 908.

Therefore, the purpose of the reverse onus section is to assist you – the pedestrian plaintiff – in obtaining sufficient evidence of the driver’s negligence, which might be in the sole possession of the defendant, in order to avoid a non-suit at the close of your case.

In the aforementioned case entitled MacDonald v. Woodard, supra, the Honourable Matheson CO. CT. J. quoted from the leading authority on the interpretation of this section, the case entitled Winnipeg Electric Co. v. Geel, 1932 CanLII 318 (UK JCPC), [1932] 4 D.L.R. 51, [1932] A.C. 690, [1932] 3 W.W.R. 49, as well as the Supreme Court of Canada (1931 CanLII 69 (SCC), [1931] S.C.R. 443 at p. 446, [1931] 3 D.L.R. 737 at p. 740, 38 C.R.C. 142) via Duff, J., who commented on the procedural effect of the reverse onus section, as follows:

The statute creates, as against the owners and drivers of motor vehicles … a rebuttable presumption of negligence. The onus of disproving negligence remains throughout the proceedings. If, at the conclusion of the evidence, it is too meagre or too evenly balanced to enable the tribunal to determine this issue, as a question of fact, then, by force of the statute, the plaintiff is entitled to succeed.

This statement was approved by the Privy Council where Lord Wright further said at pp. 55-6:

But the onus which the section places on the defendant is not in law a shifting or transitory onus: it cannot be displaced merely by the defendant giving some evidence that he was not negligent, if that evidence however credible is not sufficient reasonably to satisfy the jury that he was not negligent: the burden remains on the defendant until the very end of the case, when the question must be determined whether or not the defendant has sufficiently shown that he did not in fact cause the accident by his negligence.

Thus, the procedural effect of the reverse onus is that it acts accordingly upon the whole of the evidence submitted at your trial, including all of the circumstances and inferences to be drawn therefrom that the defendant must satisfy the jury that the accident was not in fact caused by his negligence. This was confirmed in the following two cases: Bronson v. Evans and Evans, 1943 CanLII 75 (ON CA), [1943] O.R. 248, [1943] 2 D.L.R. 371 and Long v. Registrar of Motor Vehicles, 1950 CanLII 223 (MB CA), [1950] 4 D.L.R. 587, [1950] 2 W.W.R. 355. So, once the onus is placed on the defendant it will not be discharged unless the defendant satisfies the Court not merely that the damages were in fact sustained without such negligence, which was confirmed in the case entitled Foster v. Registrar of Motor Vehicles for Province of Ontario, 1961 CanLII 144 (ON CA), [1961] O.R. 551, 28 D.L.R. (2d) 561. Therefore, it is not necessary to find any specific act of negligence against the defendant in order that liability may attach to him, and if any doubt remains on a consideration of all the evidence as to whether or not the defendant was negligent, then you – the plaintiff – are entitled to the verdict.

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.