COURT OF APPEAL FOR ONTARIO

DATE: 20030317

DOCKET: C38045, M28433

BEFORE: O’CONNOR A.C.J.O., CHARRON AND FELDMAN JJ.A.

B E T W E E N :

PIERRE PEPIN

Appellant

• and -

THE SUPERINTENDENT OF INSURANCE REPRESENTING THE INTEREST OF THE MOTOR VEHICLE ACCIDENT CLAIMS FUND and JOHN DOE

Respondent

COUNSEL:

Joseph Falconeri, for the Appellant

S.J. Sokol, for the Respondent

Heard: March 10, 2003

On appeal from the judgment of Justice J. R. R. Jennings dated February 8, 2002.

Endorsement

BY THE COURT:

[1] The appellant appeals from the dismissal of his action for damages for injuries suffered when he was struck as a pedestrian by an unidentified motor vehicle.

[2] The trial judge found that the appellant had little or no recall as to what actually happened on the day in question. He suspected that the appellant’s lifestyle at the relevant time, which included a history of alcohol and substance abuse, was the main reason for the “extraordinary discrepancies” in his evidence on discovery and at trial and his lack of recollection. The trial judge concluded that he could not rely on the appellant’s evidence at all with respect to the events on the day of the accident. However, the trial judge was satisfied on the basis of the medical evidence that the appellant’s injuries were caused by a motor vehicle running over his left leg.

[3] It was the appellant’s position at trial that the accident happened on a public street, some distance away from the location where he had been found. The trial judge rejected this evidence and found that the accident happened where the appellant was found, namely in a vacant parking lot at the corner of Victoria and Shuter Streets in Toronto.

[4] The question then arose whether the accident happened on a “highway” so as to give rise to the reverse onus provision of s. 193(1) of the Highway Traffic Act R.S.O. 1990, c. H-8. Under that provision, when loss or damage is sustained by a person by reason of a motor vehicle on a highway, the onus of proof that the injury did not arise through the negligence or improper conduct of the owner or driver of the motor vehicle is upon the owner or driver.

[5] The trial judge found that the only evidence about the location where the accident happened was that of the ambulance attendant who testified that it was “a private parking lot”. He therefore concluded that s.193 did not apply to this case. He further concluded that negligence could not be presumed from the fact of the injury alone because there were “any number of plausible scenarios as to how the injury might have been received.” The trial judge therefore dismissed the action.

[6] The appellant concedes that the onus was on him to prove on a balance of probabilities that the accident in fact happened on a highway within the meaning of the Act before the onus shifted on the defendant to disprove negligence. He argues that the trial judge misapprehended the evidence when he stated that the ambulance attendant testified the lot was a “private parking lot.” He submits that the trial judge then erred in concluding that the plaintiff had failed to show that the parking lot constituted a highway within the meaning of the Act.

[7] We recognize that the trial judge did not accurately describe the evidence of the ambulance attendant when he stated that the parking lot was a “private” parking lot. Rather, the transcript reveals that the ambulance attendant agreed with the suggestions put to him by counsel that it was “a vacant parking lot”, and that it was not part of the hospital facility located across the street. Nonetheless, we are not persuaded that this error assists the appellant. In our view, it was open to the trial judge to find, as in effect he did, that the appellant had not met the onus of proving that the accident had happened on a public highway. It is noteworthy on this point that the trial judge clearly rejected the appellant’s evidence and position with respect to the location of the accident.

[8] We are further of the view that there is no basis to interfere with the trial judge’s conclusion that negligence could not be inferred from the injuries alone and that, consequently, the appellant had failed to prove his claim at trial.

[9] The appeal is dismissed. As the respondent seeks no costs, we make no order as to costs.

RELEASED:

“MAR 17 2003” “Dennis O’Connor A.C.J.O.”

“DOC” “Louise Charron J.A.”

“K. Feldman J.A.”