Court of Appeal affirms Reverse Onus under HTA s.148(1)

Written on April 20, 2013.

The Court of Appeal for Ontario in the recent case of  El Dali v. Panjalingam, 2013 ONCA 24, affirmed two important principles that often arise in municipal defence cases: (1) a driver who crosses the centre line and is involved in an accident, is deemed at fault absent evidence to the contrary, and (2) the doctrine of Res Ipsa Loquitor remains dead in Canada. The Court held, in respect of s.148: [17]      By crossing the centre line of the road, Panjalingam breached s. 148(1) of the Highway Traffic Act, which provides: Every person in charge of a vehicle on a highway meeting another vehicle shall turn out to the right from the centre of the roadway, allowing the other vehicle one-half of the roadway free. [18]      When a driver breaches s. 148(1) and an accident occurs, the driver is held to be prima facie negligent.  The driver then bears the onus of explaining that the accident could not have been avoided by the exercise of reasonable care.  Charron J.A. set out this proposition in Levesque v. Levesque 2001 CanLII 8615 (ON CA), (2001), 151 O.A.C. 227, at para. 6: It is my view that the overwhelming weight of the evidence established that the respondent, at the time of the collision, did not leave one-half of the road clear for the appellant’s vehicle, as he was required to do pursuant to the Highway Traffic Act, R.S.O. 1990, c. H-8, ss. 148 and 149. Hence, on this circumstance alone, a prima facie case of negligence was made out, and it became incumbent upon the respondent to explain that the accident could not have been avoided by the exercise of reasonable care. [Citations omitted.] Regarding the doctrine of Res Ipsa Loquitor, the Court of Appeal stated: [27]      Before concluding, I will briefly address the Supreme Court of Canada’s decision in Fontaine v. British Columbia,1998 CanLII 814 (SCC), [1998] 1 S.C.R. 424, which the respondents relied on heavily.  They submit that Fontaine precludes this court from finding a prima facie case of negligence where a car has crossed the centre line of a road.  I disagree. [28]      Fontaine marked the end of res ipsa loquitur in Canadian law.  The maxim res ipsa loquitur – “the thing speaks for itself” – in some circumstances permitted a court to infer that a defendant’s negligence caused an accident in the absence of an explanation from that defendant.  Even where the plaintiff had no direct or positive evidence to prove the defendant’s negligent, the plaintiff could lead circumstantial evidence to raise a prima facie case for the defendant to answer. [29]      In Fontaine, Major J. wrote at para. 27, “[t]hat the law would be better served if the maxim was treated as expired…”  Instead, the trier of fact should simply weigh the direct and circumstantial evidence to determine whether the plaintiff has established, on a balance of probability, a prima facie case of negligence against the defendant.  If the plaintiff has done so, then the defendant must lead evidence to negate the evidence of the plaintiff.  If the defendant does not do so, the plaintiff will succeed.