New Laws Likely Insufficient in Preventing Pedestrian Deaths

woman crosses busy street of cars and pedestrians

As the summer season approaches, increasing numbers of pedestrians and cyclists will make their way outside to enjoy the beautiful weather. Unfortunately, Toronto Police Service safety statistics are not on the side of pedestrians; fatality numbers continue to rise despite new provincial laws to enhance road safety.

  • This data revealed that on average, a pedestrian in Toronto dies every 10 days.
  • There has been a 15% increase in pedestrian deaths over the last five years when compared to the preceding five years.
  • Since 2011, 163 pedestrians have been killed in Toronto, more than have died as a result of fatal shootings.

 

These statistics suggest that current laws are insufficient to address the issue, yet public awareness remains low.

Of further concern is the senior demographic, which accounts for a large portion of the pedestrians killed each year. 2011 data revealed seniors made up 14% of the Ontario population, expected to increase to 17% by 2021, and to 24% by 2041.

This increases the risk associated with pedestrian injuries and fatalities. Those concerns combined with distracted driving (on the part of both drivers and cyclists alike) will continue to increase the potential for further harm as well.

 

Pedestrian fatalities are at their highest level in years, even in the face of case law and a legal framework that favours pedestrian safety.

In the case of a collision with a pedestrian, Section 193 of the Highway Traffic Act requires the involved motorist(s) to prove that their negligence did not cause the accident. Because of the nature of a pedestrian collision, the section essentially assumes negligence on the part of the motorist until proven otherwise.

 

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. 

Highway Traffic Act, R.S.O. 1990, c. H.8

 

Decades of case law has reinforced this responsibility of motorists. In 1943, the Supreme Court of Canada (in Shapiro v. Wilkinson) held that motorists cannot transfer the responsibility to disprove negligence by showing that the pedestrian was partially responsible for causing the loss or damage. The responsibility to disprove negligence can only be transferred to the pedestrian, the Court ruled, “by the [motorist] showing that there was no negligence or misconduct on his part.”

 

“There is not an open season on pedestrians who may inadvertently, negligently, or imprudently, wander on the highway in the face of oncoming traffic.”

Desroches v. Gavin (1981), 30 Nfld. & P.E.I.R. 103, 84 A.P.R. 103 (P.E.I.S.C.)

 

While pedestrians have a responsibility not to place themselves in danger on a roadway, drivers have an overriding duty to exercise due care. Because of the safety advantages afforded by cars’ frames, airbags, and ground clearance, motorists must anticipate foreseeable pedestrian actions and take necessary precautions.

 

“The anticipation of negligent conduct renders such conduct foreseeable and makes it incumbent on the motorist to take additional precautions.”

Gellie v. Naylor (1986), 28 D.L.R. (4th) 762

 

In Toronto, recently proposed pedestrian and cyclist safety strategies are facing ferocious criticism. Safety advocate groups have expressed that the plans fall short of the type of change necessary to “actually keep people safe as they use the streets and sidewalks. “

Although we can enact tougher laws, this approach has not been successful in resolving pedestrian safety problems. The answer may very well lie in a fundamental shift in social attitude towards pedestrian safety issues and the responsibilities of all road users. This can be spearheaded by further education and awareness campaigns. However, without greater enforcement or public commitment, new legislation will likely be insufficient.

Lawson Hennick
Written by

Lawson is the creator of LawBubble.com, an online blog exploring legal issues, trends, and developments.

He received his Bachelor of Science degree in Biology from York University, and then attended University of Ottawa’s Faculty of Law graduating with a Bachelor of Laws degree in 2009 before being called to the Ontario Bar in 2010.

Lawson articled with a boutique litigation firm where he gained experience in a variety of practice areas including representing Indian Residential School survivors to obtain compensation through the Independent Assessment Process for sexual and physical harms suffered.

Since his call to the bar, Lawson has devoted his legal practice exclusively to the area of personal injury law before joining Yermus & Associates where he regularly acts for clients on injury claims including motor vehicle accidents, slip and falls, product liability and dog bite cases. He regularly appears before the Superior Court of Justice and has also appeared before the Financial Services Commission of Ontario (FSCO).