What is the burden of proof for the City of Burlington in the case of a pedestrian who was struck by a car while walking on a city sidewalk?

Ontario, Canada


The following excerpt is from Cartner v. Burlington (City), 2008 CanLII 37900 (ON SC):

Thus, to summarize, in determining whether the City is liable to the plaintiff for her injuries in this case, the onus first falls to the plaintiff to show on a balance of probabilities not only that the sidewalk was in a state of non-repair, but also that such state of non-repair was a cause of the plaintiff’s injuries applying the “but for” test as enunciated in Athey v. Leonati, and as reaffirmed in Resurfice, both above. Only once that onus has been met by the plaintiff and a prima facie case established that non-repair was a cause of the plaintiff’s injuries does the burden of proof shift to the City of Burlington to avoid liability by showing either that it took reasonable steps to maintain the sidewalk in a state of repair or that it could not reasonably have known of the presence of the state of non-repair of that sidewalk. If it is able to establish either of these alternatives, it will escape liability. If it does not discharge that onus, it will be found liable. 2) What is the meaning of non-repair and what is the standard of care owed by the City to users of its sidewalks?

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