Kou v. Karmah, 2025 ONSC 3815 (CanLII)
This is an appeal from a trial decision where the court found partial liability on the driver of a car that was rear ended.
The collision took place in the left westbound lane of Bloor Street in Mississauga, where there were two westbound lanes, no stop sign or signal and no designated left turn lane. The plaintiff, Ms. Kou, claimed she was traveling at 20 km/h, half a car length behind the defendant’s vehicle, when he stopped abruptly without warning, leaving her insufficient time to brake. She claimed that the defendant, Mr. Karmah, created an emergency that she was unable to avoid.
Mr. Karmah testified he signaled a left turn, slowed normally and was stopped for 30 to 60 seconds waiting for eastbound traffic to clear when Ms. Kou’s vehicle, approaching quickly, struck his vehicle. His nephew, a passenger, corroborated this, stating the stop was not sudden and they were stationary for at least 30 seconds before the collision.
Mr. Karmah argued that Ontario’s rear-end collision jurisprudence imposes a reverse onus on the rear driver to prove they were not negligent, asserting Ms. Kou was fully liable as she failed to rebut this presumption.
The parties agreed on damages and proceeded to a summary trial under simplified procedure to determine liability. The trial judge found Ms. Kou 65% liable and Mr. Karmah 35% liable. No surprise, Mr. Karmah appealed.
The appeal raised two primary issues:
- Did the trial judge make a palpable and overriding factual error in assessing the evidence, particularly by conflating the parties’ accounts of the collision, leading to an erroneous credibility finding against Mr. Karmah?
- Did the trial judge err in law by not holding Ms. Kou 100% liable under the reverse onus principle for rear-end collisions and by finding Mr. Karmah partially liable despite case law on following too closely?
The Divisional Court allowed the appeal, set aside the trial judge’s liability apportionment and found Ms. Kou 100% liable, dismissing the claim against Mr. Karmah. The court identified a palpable and overriding factual error in the trial judge’s reasoning and a legal error in the application of rear-end collision jurisprudence.
Firstly, the Divisional Court found that the trial judge erred by conflating Ms. Kou’s and Mr. Karmah’s accounts by incorrectly attributing Ms. Kou’s evidence—that she was driving 20 km/h and half a car length behind Mr. Karmah—to Mr. Karmah, concluding that his claim of being stopped for 30 to 60 seconds was “impossible.” This misattribution led to a negative credibility finding against Mr. Karmah, which was the primary basis for rejecting his version of events.
The Divisional Court then addressed Mr. Kharma’s argument that the trial judge erred by not applying the reverse onus principle, which presumes negligence by the rear driver in a rear-end collision unless rebutted. While the trial judge cited relevant authorities and acknowledged the plaintiff’s burden of proof, the Divisional Court found he erred in apportioning 35% liability to Mr. Karmah. The trial judge concluded Ms. Kou had insufficient time to react due to her proximity to Mr. Karmah’s vehicle, effectively finding she was following too closely, a violation under Ontario’s Highway Traffic Act. The court noted that established case law holds that a driver following too closely is typically 100% liable, as they must maintain a safe distance to anticipate sudden stops. The trial judge’s finding that Mr. Karmah stopped suddenly due to unfamiliarity with the area was insufficient to rebut this presumption, as sudden stops within a lane are not unusual circumstances warranting shared liability.
Under the circumstances, the court exercised its authority to draw inferences from the record, given the summary trial’s complete evidentiary record. Even accepting Ms. Kou’s version—that Mr. Karmah stopped suddenly without signaling—it did not establish an unusual circumstance to shift liability. The court concluded Ms. Kou failed to rebut the presumption of negligence, as she should have anticipated a sudden stop by maintaining adequate distance. Thus, the trial judge’s 65%/35% liability split was set aside, and Ms. Kou was found 100% liable.
In this case, karma eventually worked for Mr. Karmah.