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Twisted Rules – Cyclists and Pedestrians Beware

The law of negligence in Ontario car accidents is not what you think it is.


The law requires that the driver and owner of an automobile prove that loss or damage sustained in a crash did NOT arise as a result of their negligence. Section 193(1) of the Highway Traffic Act (HTA) says that a driver involved in a crash has to prove he or she is NOT at-fault.


This is not the normal way of things in negligence law. Usually an injured person must prove that the ‘defendant’ is negligent, that he or she did something carelessly to cause an accident and the associated injuries.


In a car crash, the starting point of any negligence investigation is the other way around. How can that be?


The explanation is contained in the EXCEPTION to the rule.


Section 193(2) of the HTA says that the rule does not apply to claims made as a result of collisions between two cars or claims made by passengers in either car.


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.


(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.

The rule that drivers are deemed to be at fault unless they can prove otherwise, is reversed when it comes to car accidents involving other cars.


It does not reverse the rule when it comes to pedestrians and cyclists. The driver of an automobile who hits a pedestrian or cyclist must still prove that he or she is NOT at-fault.


A court reviewing the facts of the crash can split responsibility between the driver and the pedestrian or cyclist but the exercise begins with the driver bearing the onus of showing that he or she is not to blame.


This rule helps protect vulnerable users of the roadway. The operator of an automobile will almost always have greater opportunity to maneuver out of a potentially dangerous situation.


There can be no doubt that the operator of the automobile has greater power to cause harm and it therefore stands to reason that he or she bears the greater onus of proof.


This rule was the liability centrepiece of a jury trial that took place in Picton in the summer of 2015, Vickers v. Palaccio. Ms. Vickers was riding her bike on a Prince Edward County road when Mr. Palaccio driving his car into the setting sun, approached her from behind. Without taking the necessary care, he drove too close to her and struck her with the rear-view mirror of his car. Bergeron Clifford Injury Lawyers asked the jury to find the driver negligent based on the provisions of Section 193 of the Highway Traffic Act, which they did.


The Highway Traffic Act of Ontario contains other measures designed to protect cyclists. Section 165 states that no occupant of a motor vehicle shall open the door without first ensuring that it is safe to do so. The frequency of cyclists being ‘doored’ by careless drivers never seems to drop even though the legislation provides for a fine of up to $1,000. With the increased focus on health lifestyle and liveable cities, it may be time for the Province to increase the penalty for ‘dooring’.


Injury claims involving cyclists and pedestrians need not be complex. Consult with an experienced Bergeron Clifford Injury Lawyer to ensure nothing gets missed. There is no charge for an initial consultation.



Edward Bergeron

Ted Bergeron is a Queen’s University graduate with degrees in Physical Education, Arts, Education and Law.

Ted’s legal career started in insurance defence litigation. He worked at a boutique law firm in Toronto, servicing only insurance companies. He switched to representing only injured clients and their families in 1995. He knows both sides of the system inside and out.

He has lectured extensively in the School of Rehabilitation Therapy, the School of Physical and Health Education and the Faculty of Law at Queen’s University. He has worked in a volunteer capacity with the Law Society of Upper Canada as an instructor in the Bar Admission Course teaching Civil Litigation.

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