Court File and Parties

COURT FILE NO.: CV-16-552668

DATE: 2022-03-30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JASMINE JARVIS, JEANETTE MARIE JARVIS, and WILLBY WATSON JARVIS, Plaintiffs

AND:

STACEY OLIVEIRA, JOSE M. OLIVEIRA and AIDA F. OLIVEIRA, Defendants

BEFORE: Madam Justice A. Ramsay

COUNSEL: J. Patrick Brown and Nick Todorovic, for the Plaintiffs R. Donald Rollo and Symone Marlowe, for the Defendants

HEARD: March 29, 2022

Ruling

[1] The parties have settled damages in this motor vehicle accident. The defendants seek an order varying the usual order of presentation on the basis that the defendants bear the onus of disproving negligence and proving negligence on the part of the plaintiff.

[2] Section 193(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, deals with the onus of disproving negligence in a situation where a pedestrian has been struck by a motor vehicle. The provide states:

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.

[3] The case law in Ontario has indicated that the impact of the s. 193(1) is to reverse the onus: Hoang v. Vicentini, 2012 ONSC 1068, at paras. 40 and 42, per D.A. Wilson J., Chen v. Toronto Transit Commission, 2014 ONSC 4092, at para. 7, per Lederer J.

[4] The jurisprudence has also established that it is not necessary for the plaintiff to prove that the defendant was negligent for the reason that the law presumes negligence in favour of the plaintiff: Winnipeg Electric Company v. Geel, 1931 CanLII 69 (SCC), [1931] S.C.R. 443, at p. 444; Chen v. Toronto Transit Commission, at para. 40.

[5] The burden of rebutting the presumption lies entirely with the defendant: Winnipeg Electric Company, at para. 443; Chen.

[6] The plaintiff need only prove that the collision occurred and that the collision caused the damage.

[7] As for the negligence on the part of the plaintiff, the jurisprudence establishes that “[t]he defendant cannot discharge the onus on him … by showing that the plaintiff’s loss or damage was caused in part by the negligence of the plaintiff. That can only be done by the defendant showing that there was no negligence or misconduct on his part”: Shapiro v. Wilkinson, 1943 CanLII 14 (ON CA), [1943] O.R. 806 (C.A.), aff’d 1944 CanLII 10 (SCC), [1944] S.C.R. 443.

[8] In Phipson on Evidence, 10th ed. (London: Sweet & Maxwell, 1963), the author notes that:

The phrase ‘burden of proof’ is used to describe the duty which lies on one or other of the parties either to establish a case or to establish the facts upon a particular issue. The “standard of proof” is used to describe the degree to which the proof must be established.

[9] In the text, The Law of Evidence, the authors note: “The party who has the burden of proof must present their evidence first and will lose the issue if they do not discharge their burden”: David M. Paciocco, Lee Stuesser & Palma Paciocco, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 689.

[10] In Ontario Courtroom Procedure, the authors state:

If the burden of proof is on the defendant (e.g. where the defendant driver strikes a pedestrian) the trial judge usually reverses the order of presentation on the issue on which the defendant bears the burden: Civil Rule 52.07(2): Michelle Fuerst, Mary Anne Sanderson & Stephen Firestone, Ontario Courtroom Procedure, 5th ed. (Toronto: LexisNexis Canada, 2020).

[11] In a civil jury trial, at common law the trial begins with the plaintiff counsel’s opening address to the jury, followed by the defendant’s, if leave is obtained, or if the defendant does not obtain leave, the plaintiff presents its case followed by opening by the defence and the presentation of the case by the defence: Geoffrey Adair, On Trial: Advocacy Skills Law and Practice, 2nd ed. (Toronto: LexisNexis Canada, 2004), at p. 37.

[12] The rationale for doing so is summarized by the authors of Phipson on Evidence, at para. 109: “Where the onus of proving any of the issues however numerous they may be, rests upon the plaintiff and he will undertake to give evidence upon it, he is to go first” (emphasis added). The common law rule goes on to provide that “If the onus of proving all of the issues lies upon the defendant, he is, subject to the exception last mentioned (which do not apply here), entitled to begin. But his mere admission at the trial of the plaintiff’s whole prima facie case will not be sufficient to give him this right, if he could have made the admission by his pleadings” (emphasis added).

[13] The common law rules have been impacted by rule 52.07 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Subrule 52.07(1) regulates the order of presentation at trial. Generally, a trial is started by the plaintiff unless the trial judge directs any other order of presentation.

[14] Subrule 52.07(2) provides that: “Where the burden of proof in respect of all matters in issue in the action lies on the defendant, the trial judge may reverse the order of presentation.”

[15] The plaintiffs do not dispute that the defendants bear the onus of disproving negligence on their part.

[16] At paragraph 4 of the statement of defence, the defendants plead that the collision did not occur because of the want of care on their part, and they put the plaintiff to the strict proof thereof. This matter is further complicated in that the plaintiff has no memory of the accident. She does bear the burden of proving some issues in the case on liability, if even that she was struck by the defendants’ vehicle.

[17] As noted by Adair: “Any reversal of the usual order of opening addresses is unlikely to occur in anything other than the most unusual case. The plaintiff inevitably has the burden of proving at least one issue. As a result, the plaintiff will almost always proceed first”: at p. 38. Having only the pleadings before me, it appears that the plaintiff may have to prove at least one issue on liability, and therefore I see no basis to depart from the usual order of presentation, especially given the plaintiff’s memory issues.

A. Ramsay J.

Date: March 30, 2022