The burden of proving negligence

In the recent decision of Benavides v. Insurance Corporation of British Columbia, 2017 BCCA 15, the Court of Appeal rejected the proposition that a prima facie case of negligence can switch the onus onto the Defendant to show that it was not liable. By way of background, Mr. Benavides was injured while riding on a public bus operated by the defendant carrier. Mr. Benavides alleged that he fell when the bus braked suddenly and without warning when it was at, or just past, Mr. Benavides’ intended stop.

The trial judge found that once a plaintiff passenger establishes that he was injured while riding on a public carrier, a prima facie case of negligence is made out. The onus then shifts to the carrier to establish that the passenger’s injuries occurred without negligence on the part of the carrier. Ultimately, the trial judge found that the carrier was liable. The trial judge stated at para. 43:

“The plaintiff has established that he was injured while a passenger on a bus operated by Translink, a public carrier. Accordingly, he has made out a prima facie case of negligence, and the burden shifts to the defendants to show that Mr. Benavides’ injuries occurred without negligence on the part of Translink, or that it resulted from a cause for which the defendants are not responsible.”

The Court of Appeal rejected this formulation of the test of negligence. It pointed to the fact that it was based on a misunderstanding of the doctrine of res ipsa loquitur (i.e., “the thing speaks for itself”). In particular, the doctrine did not switch the onus onto the defendant, but rather the doctrine meant that circumstantial evidence constitutes reasonable evidence of negligence. The burden at all times remained that of the plaintiff.

However, most importantly, the doctrine was specifically rejected by the Supreme Court of Canada in Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 42, wherein the court stated at para 27:

It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.”

As a result, the Court of Appeal reaffirmed the following principles at para 17:

• The mere fact that a passenger is injured while riding on a public carrier does not establish a prima facie case of negligence.
• The plaintiff bears the burden of proving on a balance of probabilities that the defendant breached the standard of care owed to the plaintiff.
• Once the plaintiff establishes a prima facie case of negligence, in practical terms the burden shifts to the defendant to answer the case against him and to show that he was not negligent.

It should be noted that despite overturning the trial judge’s reasoning with respect to the burden of proof, the Court of Appeal ultimately determined that the trial judge made a finding of fact that the bus driver breached the standard of care by braking abruptly, which was sufficient to support his ultimate conclusion on liability. Therefore, while the carrier obtained a victory with respect to a finding that the trial judge misapplied the test, it lost in the result.