Notwithstanding that David’s counsel disclaimed any reliance on res ipsa loquitur, the following was stated in Fontaine v. Insurance Corporation of British Columbia (1998), 1998 CanLII 814 (SCC), 1 S.C.R. 424: 27 It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed. In my view and I find that the plaintiff has not established on a balance of probability by circumstantial evidence with the direct evidence or otherwise a prima facie case of negligence against the defendants.
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