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Evidence - Res Ipsa Loquitor. Adam v. Ledesma-Cadhit
In Adam v. Ledesma-Cadhit (Ont CA, 2021) the Court of Appeal reviews the status of the evidentiary principle of res ipsa loquitor:(1) Inferring a breach of the standard of care from circumstantial evidence
[51] The appellants’ submission that the circumstances surrounding Amina’s death required the trial judge to call on GSK to explain her death contains echoes of the discarded maxim of res ipsa loquitur, which dealt with the use of circumstantial evidence in negligence cases. The old maxim provided that a plaintiff could establish negligence by a defendant if (i) the thing that inflicted the damage on the plaintiff was under the sole management and control of the defendant, (ii) the occurrence in issue was such that it would not have happened without negligence, and (iii) there was no evidence as to why or how the occurrence took place: Fontaine v. British Columbia (Official Administrator), 1998 CanLII 814 (SCC), [1998] 1 S.C.R. 424, at para. 18.
[52] In Fontaine, the Supreme Court of Canada concluded that whatever value res ipsa loquitur may once have provided to the adjudicative process had long since passed and went on to clarify, at para. 27, the proper use of circumstantial evidence in negligence cases: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. See also: Dickie v. Minett, 2014 ONCA 265, at para. 3.
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