In Kou v. Karmah, 2025 ONSC 3815 (CanLII), the Plaintiff’s vehicle rear-ended the Defendants’ vehicle. The Plaintiff alleged that the Defendant driver created an emergency situation by stopping suddenly without warning after missing a turn. The Defendants argued that the Plaintiff, as the rear driver, bore the presumption of negligence for failing to maintain a safe distance. The trial judge apportioned liability for the collision, finding the Plaintiff 65% at fault and the Defendants 35% at fault.
On appeal, the Divisional Court found that the trial judge conflated the Plaintiff’s evidence with the Defendants’ evidence, leading to an adverse credibility finding against the Defendant driver. This was a clear and overriding factual error, as the trial judge’s rejection of the Defendants’ version of events was based on this misattribution.
The Divisional Court further found that the trial judge’s apportionment of liability departed from established case law, which generally holds that the rear driver is fully liable unless they can prove the lead driver engaged in unusual or negligent conduct. The sudden stopping of the lead vehicle within its lane is not sufficient to rebut the presumption of negligence on the rear driver.
Given the clear evidentiary record, the Court substituted its own finding that the Plaintiff was 100% liable for the collision. The Defendants’ actions, even as described by the Plaintiff, did not constitute negligence or create an unusual circumstance justifying shared liability. Cost of the appeal and trial were awarded to the Defendants.
Citation: Kou v. Karmah, 2025 ONSC 3815 (CanLII), https://canlii.ca/t/kd09j
