Often, car crashes can result in serious injury, whether the injured party was a cyclist, pedestrian, or inside another motor vehicle. Pedestrians and cyclists can be a particularly vulnerable class of road users, however, there has been legislation created to help protect them.

Tucked away in Ontario’s Highway Traffic Act (the “Act”) is a provision known as the “reverse onus.” This article explores this provision in detail and explains how it may help cyclists and pedestrians in a negligence case following an injury caused by a motor vehicle.

Reverse onus provision requires motor vehicle drivers to disprove negligence in cyclist and pedestrian claims

Section 193(1) of the Act 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.”

This provision means that, in a claim by a pedestrian or cyclist for negligence, there is an onus on the driver of a motor vehicle on a highway to prove that their negligence did not cause the injury. In other words, the alleged negligent party must prove that their actions did not cause the accident.

This provision does not apply in cases of a collision between motor vehicles, or in instances where a passenger of a motor vehicle brings an action.

What impact does the reverse onus have?

Normally in a negligence case, the injured plaintiff must prove on the balance of probabilities that the other party (the defendant) was negligent and that their negligent actions caused the accident, which resulted in the plaintiff’s injury. In other words, the plaintiff bears the onus of proof.

The Act reverses the onus for pedestrians and cyclists, resulting in the driver having been presumed negligent unless they can prove otherwise.

Cyclists and pedestrians may still be found at fault for collisions with motor vehicles

While the reverse onus provision helps injured cyclists and pedestrians who have been injured due to a collision with a motor vehicle, it is not a guarantee of success. The driver of the motor vehicle may be able to prove that the pedestrian or cyclist was wholly or partially responsible for causing the accident that led to the injury. 

If a court finds that the pedestrian or cyclist’s conduct caused or contributed in part to the accident, it may find the plaintiff “contributorily negligent.” It can apportion liability between the two parties and reduce the plaintiff’s compensation accordingly. 

Cyclist knocked off bicycle by motor vehicle

The recent case of Sanson v Paterson in the Ontario Superior Court of Justice demonstrates how the reverse onus may work in practice, to the advantage of an injured cyclist.

The plaintiff was cycling in Toronto, using the right-hand lane, which was denoted as being shared by bicycles and motor vehicles. She stopped at a red light at an intersection and could hear a car behind her.

According to the plaintiff, she had stopped in the middle of the lane. When the light turned green, she began to pedal through the intersection. She was clipped from behind and then felt the car strike her again. She landed on the street, hitting her chin and forehead part of the helmet on the ground.

Motor vehicle driver claimed cyclist bumped into his vehicle

The defendant’s evidence was different. The driver of the vehicle said that he noticed the cyclist, but that she was against the curb and not in the middle of the lane. As a result, he pulled up next to her. The defendant driver explained that he planned to proceed through the intersection and move into the left lane, to avoid cars parked in the right lane. When the light changed, he entered the intersection and the plaintiff bumped into the car. 

There were no other witnesses that gave evidence to the court. Justice Black observed that the defendant agreed in cross-examination that he was focused on the need to change lanes:

“… he was focused on the car beside him and the lane ahead and preoccupied with the upcoming maneuver he would have to make to move from the curb lane to the centre lane in order to avoid cars parked in the curb lane ahead. … he paid much more attention to what was happening to his left and ahead, and was not at all focused on what was happening in the area to the front and to his right, where [the plaintiff] was.”

Driver did not satisfy reverse onus and was responsible for the accident

Justice Black determined that the driver of the car failed to watch the cyclist to check that he was able to drive past her while they were both in the same lane. As he accelerated into the intersection, he did not look at her until the impact.

As a result, the Court found that the driver had not satisfied the onus placed on him to prove that he did not cause the accident. Failing to look over at the plaintiff when the light changed to ensure he could safely pass, represented “a failure to meet the minimum requirements of basic prudence in the circumstances.” The judge found that the driver was wholly responsible and awarded the cyclist compensation.

Contact Campbell Litigation, Serving Waterloo, Kitchener and the Surrounding Area – Auto Accident Lawyer

If you have been seriously injured as a result of a collision with a motor vehicle, get in touch with Richard Campbell and the personal injury team at Campbell Litigation. We can help you explore your legal options and help manage all aspects of your claim so that you can make informed decisions each step of the way. From handling correspondence with your insurance company to taking steps to hold negligent parties to account for their conduct, our personal injury team is prepared to advocate on your behalf. To arrange a free initial consultation, call us at 519-886-1204 or contact us online.