Judge Rules Plaintiff May Use Police Report as Evidence in Texting-while-Driving Accident

  Published on November 06, 2017  

Distracted driving due to texting or talking on a cell phone is an increasing cause of accidents and injury in Ontario.  Ontario Provincial Police (OPP) and municipal police throughout the province have cracked down on drivers caught in the act of using a handheld electronic device, and police have stated that such actions are as reprehensible and dangerous as drunk driving.   When people take their eyes off the road to respond to a text or make call for just a few seconds, the risk and likelihood of causing an accident increases many-fold.

Every year, many people are killed due to distracted driving, and these tragic accidents are entirely preventable.  Although injured persons and the families of fatally injured accident victims are entitled to claim damages from a distracted driver who caused their loss, clearly nothing will undo a catastrophic or serious injury, or compensate for the loss of a loved one.

After a distracted driver caused the death of her father in July 2010, a woman, Ms. Vachon, commenced a civil action for damages against the driver.   The defendant driver was charged and convicted of a driving-related offence and admitted liability for the accident, but denied causing damage to the plaintiff, Ms. Vachon.  The only issue in dispute in the action was the assessment of damages.

In her claim against the defendant, the plaintiff alleged that the accident and her father’s death resulted because the defendant was texting while driving. On this basis, she brought a motion to the court that requested the Crown brief and investigation file for the accident, which she submits “is relevant because it is an aggravating factor to the nervous shock, psychological trauma and suffering” for which she was seeking compensation.

The Crown agreed to provide the accident report; however, the defendant opposed the plaintiff’s motion, arguing that the requested documents are not relevant to the issue of damages and also, the plaintiff has not satisfied the onus of showing it would be unfair to go to trial without this documentation.  The defendant further argued that since he has admitted liability, the information is not material and will not disprove or prove the issue at trial.  Another argument posed by the defendant is that the plaintiff was already provided extensive information about his texting during examinations for discovery and therefore, there is no unfairness to the plaintiff going to trial without the documents in question.

The motion judge referenced Rule 30.1 of the Rules of Civil Procedure which states that on a motion by a party, the court may order production or inspection of a document if the document is relevant to the material issue in the action, and if it would be unfair to the party making the motion to proceed to trial without discovery of the documents.  Several factors are considered in a test for the relevance of requested documents, such as: the importance of the documents to the litigation; whether production at the discovery stage of the process (rather than at trial) avoids unfairness to the plaintiff; and the availability of such documents.  

The motions judge concluded that the requested documents were, in fact, relevant to the issue of damages and that it would be unfair to the plaintiff to go to trial without them.  Although neither the defendant or plaintiff know what the Crown file contains, it is likely to contain witness statements and police investigation notes, and the judge believed that little or no prejudice to the defendant would result from the plaintiff being given the file.  However, it was acknowledged that the Crown file may contain additional relevant information beyond what was revealed during discovery, which may assist the plaintiff in making a successful claim for damages and also in challenging the defendant’s evidence.

If you or a loved one suffered injury as a result of a distracted driver or another negligent driving action, you may be entitled to compensation for loss of income, pain and suffering, medical and rehabilitation expenses, home maintenance expenses, claims under the Family Law Act, and other losses.   Call an experienced car accident lawyer at Stevenson Whelton MacDonald & Swan for an initial consultation, to obtain an honest assessment of your case and have all your legal questions answered.  Also, find out about the required timelines for commencing a civil action in Ontario -- don’t miss out on the opportunity to make a successful claim by filing too late.

Disclaimer: Our blog is intended to inform our existing and prospective clients about topics pertinent to their lives. While our goal is to provide accurate and factual information, this in no way should be taken as legal advice or applied to specific cases. It is in your best interest to contact a licenced and practising lawyer for legal representation, as matters of the law are often complicated and cannot be fully assessed without knowing all of the details of a case.