Most of my posts grow out of files I’ve worked or rooms I’ve mediated in, and this one is no different.

This one came from a recent mediation. A driver turning out of a parking lot, an alleged pedestrian knock-down about 200 metres from the intersection, and a dispute that turned on who bore the burden and why. The defence said they exercised due care. The plaintiff said the impact speaks for itself. Adding to the mix, an independent witness gave a statement to police suggesting the plaintiff appeared to go down after the fact.

That kind of record—ordinary people, ordinary streets, conflicting accounts—is exactly where Ontario’s reverse-onus regime does its work, and where evidence, not slogans, decides outcomes.

The Statutory Hook

In Ontario, when a pedestrian (or any person) suffers loss or damage “by reason of a motor vehicle on a highway,” the burden of proof flips. The driver/owner must prove the loss did not arise through their negligence or improper conduct.

That reverse onus is created by s. 193(1) of the Highway Traffic Act R.S.O. 1990, Chapter H.^[1], and it’s potent—but it doesn’t create strict liability. It simply shifts the evidentiary load to the motorist, after which the Court still conducts an ordinary negligence analysis keyed to the circumstances. The provision 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.

Note the scope: “highway” means a public roadway within the HTA defined in s.1(1) as

…a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof.

Off-road or private-property impacts (e.g., many parking lots) fall outside s. 193, so the ordinary plaintiff’s onus applies there.

How Courts Actually Use It

Courts treat s. 193 as a starting posture and then test the evidence, such as lookout, speed, lighting and visibility, lane position, traffic controls, and the pedestrian’s own conduct.

The modern standard-of-care frame remains the Supreme Court’s guidance in Walker v. Brownlee and Harmon, 1952 CanLII 328 (SCC), which holds that a motorist—even with right-of-way—must take reasonable steps to avoid a collision once danger is or should be apparent. In practice, that meshes with s. 193. A driver who proves timely perception and reasonable reaction can rebut the presumption. A driver who could and should have avoided impact often cannot.

A frequently-cited Ontario Court of Appeal companion principle is Gellie v. Naylor, 1986 CanLII 2673 (ON CA)^[2]. A pedestrian struck by a tractor-trailer sued the driver and owner. A jury found the driver not negligent, but the Court of Appeal ordered a new trial. The case is often cited for the principle that motorists may assume pedestrians will act reasonably unless alerted to danger. Once alerted, added precautions are required.

In pedestrian cases that often means the apportionment turns on whether a driver should have perceived and reacted to a pedestrian’s emerging hazard, balanced against what the pedestrian did to create or heighten risk.

Where the Reverse Onus Doesn’t Reach

Section 193 applies to loss or damage “by reason of a motor vehicle on a highway.” When the incident occurs off the HTA’s “highway”—for example, on private property—the statutory presumption does not apply and the plaintiff resumes the ordinary burden to prove negligence. The negligence analysis (duty, breach, causation, damage) remains the same, but the evidentiary deck is no longer stacked.

Rebutting the Presumption: What Actually Works

Defendants discharge the onus by showing diligence matched to the conditions—credible lookout evidence, believable timelines, and objective corroboration (video, scene measurements, vehicle data) that together demonstrate reasonable care and an unavoidable collision given the pedestrian’s movements.

Ontario trial courts regularly weigh that evidence and then apportion under the Negligence Act R.S.O. 1990, Chapter N.1^[3]. A clean illustration of how courts synthesize visibility, approach, and lookout in a vulnerable-road-user context is Pelletier v. Her Majesty the Queen, 2013 ONSC 6898^[4], a downtown Orillia night collision where an OPP officer, responding to a non-emergency call, turned right onto Gill Street and struck a cyclist who had ridden through the pedestrian crosswalk from a dark parking area. The cyclist wore dark clothing and had no light, the officer conceded there was enough intersection lighting to see someone in the crosswalk, and the court applied HTA s. 193’s reverse onus, faulting the officer for not proceeding more cautiously and apportioning liability 60% to the driver and 40% to the cyclist, with damages reduced accordingly.

Another useful counterpoint on how the presumption yields to a credible diligence narrative is Taylor v. Asody, 1974 CanLII 21 (SCC)^[5]. A pedestrian began crossing mid-block at night. The motorist was travelling within the speed limit and testified to keeping a proper lookout, braking immediately on perception. The trial judge applied Ontario’s reverse onus (then-s. 106(1), now s. 193 HTA) but found the driver had discharged it on the evidence. The Supreme Court restored that result, emphasizing that the presumption is not strict liability and can be rebutted by proof of reasonable care in the circumstances.

For apportionment in a classic “dart-out/visibility” setting, Danis v. Saumure, 1956 CanLII 9 (SCC)^[6] remains instructive and is still cited in modern knock-down litigation. A pedestrian stepped into the roadway from near-curb position at night. Conflicting evidence addressed speed, lighting, and the driver’s reaction. A jury cleared the motorist. The Supreme Court upheld the result, underscoring that even with the statutory burden shift the trier can accept that a prudent driver could not reasonably avoid impact given the timing and sightlines.

Practical Implications for Mediation

Don’t posture on “onus” alone. Plaintiffs are best served by locking down objective material early. The reverse onus is most persuasive when the record aligns with testimony. Defendants need a coherent, measured diligence narrative, namely where were the eyes, when was risk perceived, what reaction followed, and could anything more have been done without courting new danger.

Expect courts to split liability when both parties’ stories show lapses. In clear-lookout, controlled-intersection cases, Walker-style avoidability duties can drive higher defence exposure, while Gellie-type “dart-out/occlusion” fact patterns tend to pull percentages back toward the pedestrian.