Distracted Driving and Civil Claims in Ontario: What Really Matters
We all know that distracted driving is dangerous. It’s one of the leading causes of motor vehicle collisions in Ontario. But when it comes to civil injury claims, clients are often surprised to learn that proving distraction, like texting and driving, is not always the key issue in their case.
At Auger Hollingsworth Injury and Accident Lawyers, we regularly handle cases where distracted driving may have played a role. While distraction can certainly make a driver’s behaviour look worse, what truly matters in court isn’t what the driver was doing with their phone. It’s how they drove and what that driving caused.
In this article, we explain how distracted driving fits into Ontario personal injury law, what evidence can and can’t prove distraction, and why you shouldn’t get discouraged if the “smoking gun” doesn’t exist.
The Role of Distracted Driving in a Civil Claim
When you’re injured in a car accident caused by someone else, your case rests on negligence. To succeed, your lawyer must prove that:
- The other driver owed you a duty of care (which all drivers do);
- They breached that duty by driving carelessly; and
- That breach caused your injuries and damages.
Distracted driving, whether it’s texting, eating, reaching for something, or daydreaming, can certainly be evidence of breach of duty. But it’s not always necessary to prove that the person was using their phone. What matters most is the driving behaviour itself: following too closely, failing to brake, drifting out of a lane, running a red light, or turning left unsafely.
In other words, distraction is often the reason behind bad driving, but in a civil lawsuit the law focuses on the bad driving, not necessarily what caused it.
The Difference Between Distraction and Negligence
In civil law, “negligence” means failing to act as a reasonably careful driver would in the same circumstances. A driver can be negligent whether they are distracted by a phone, talking to a passenger, or simply not paying attention.
For example:
- A driver who rear-ends another vehicle because they didn’t stop in time is negligent, whether they were texting, adjusting the radio, or just inattentive.
- A driver who veers across the centre line into oncoming traffic is negligent, even if no one can prove why their attention lapsed.
- A driver who rolls through a stop sign and hits a pedestrian has still breached their duty of care, regardless of what they were doing in the car.
If we can prove the careless driving itself, we can usually prove negligence — even without proving why the driver was careless.
Why Clients Fixate on Texting and Driving
After a collision, it’s natural to look for a simple explanation and texting while driving has become the modern symbol of reckless behaviour. Clients often tell us, “I know they were on their phone!” and understandably want that fact to be front and centre in their claim.
But in most cases, texting and driving is not the legal foundation of your lawsuit — it’s an aggravating factor that makes the driver’s conduct look worse, but not the main reason you recover compensation.
From a practical standpoint:
- Courts care about whether the driver failed to meet the standard of care, not just whether they were distracted.
- Insurance companies pay attention to causation — how the accident happened and what the driver did wrong — not necessarily what distracted them.
- Juries are influenced more by clear evidence of bad driving (like running a red light or rear-ending someone) than speculation about cell phone use, although they might care more about distracted driving than a judge.
The “Smoking Gun” Is Rare and That’s Okay
Many clients assume that their lawyer will be able to obtain cell phone records to prove the other driver was texting at the time of the crash. While we routinely request those records during the litigation process, they rarely contain definitive proof.
There are several reasons:
- Cell phone bills typically show call times and data usage, not individual text message timestamps or app activity.
- Some messages (like those sent over iMessage, WhatsApp, or social media apps) may not appear in billing data at all.
- Even when usage is shown, matching the exact second of phone activity to the moment of impact can be difficult, costly and rarely worth it.
That’s why, at Auger Hollingsworth, we don’t build cases around proving a driver was texting. We build them around the driving conduct that caused the crash. If a driver ran into you, changed lanes without looking, or failed to yield, we can prove negligence based on those facts alone.
If the evidence later confirms that the driver was texting, that’s an added aggravating factor that can strengthen your case but it’s not required for you to win.
Aggravating Conduct and Its Impact
When distracted driving can be proven, it often becomes a powerful piece of evidence in settlement discussions or at trial. Why? Because it shows conscious disregard for safety.
Courts in Ontario have consistently condemned texting and driving as a deliberate, dangerous act that increases risk to others. It’s not just careless, it’s reckless. A proven act of texting can:
- Undermine the defendant’s credibility;
- Influence a judge or jury’s view of how egregious the conduct was;
- Support a finding of gross negligence; or
- Justify higher damages in rare cases where punitive damages are appropriate.
So while distraction itself is not the root of liability, evidence of texting can make the defendant’s negligence look worse, both legally and morally.
How Distracted Driving Evidence Is Gathered
When distraction is suspected, your lawyer may pursue several types of evidence:
- Witness statements: Passengers, pedestrians, or other drivers may have seen the at-fault driver holding or looking at a phone.
- Police reports: Officers may note phone use if the driver admitted it or if a phone was found open at the scene.
- Cell phone records: Obtained through the discovery process, these can sometimes show call or text activity near the time of the crash.
- Vehicle data: Newer vehicles often record steering, braking, and acceleration data that can show reaction times consistent with distraction.
- Video evidence: Dashcams or intersection cameras may capture the driver’s behaviour moments before impact.
Even if none of these sources directly confirm distraction, the pattern of driving (such as no braking before impact or erratic lane drift) often tells the story.
Why “Bad Driving” Wins Cases
At the end of the day, civil cases are about conduct and consequence. The plaintiff must prove the defendant drove carelessly and that this carelessness caused injury. Whether that carelessness was due to distraction, inexperience, fatigue, or impatience doesn’t change the analysis.
We’ve won many cases without ever proving what distracted the at-fault driver. A few examples include:
- A rear-end collision where the defendant simply failed to brake, negligence was clear without any phone evidence.
- A left-turn case where the driver misjudged oncoming traffic, it didn’t matter whether they were distracted, only that the turn was unsafe.
- A pedestrian case where the driver “never saw” the person in the crosswalk, the failure to keep a proper lookout was enough to establish fault.
The civil system doesn’t require proof of motive; it requires proof of failure to meet the standard of care. That’s why lawyers focus on the driving behaviour itself.
Managing Expectations: What to Focus On
If you’ve been injured in a collision and you suspect the other driver was distracted, it’s reasonable to mention it but don’t let it become your main focus. Your lawyer’s job is to prove negligence, causation, and damages, not necessarily what the other driver was doing inside the car.
At Auger Hollingsworth, we explain to clients that:
- Texting evidence is helpful, not essential.
- Bad driving speaks for itself.
- Judges care more about how the accident happened than why the driver wasn’t paying attention.
Even if we never find proof of a text message, we can still build a strong claim based on physical evidence, witness statements, and the mechanics of the crash.
A Note on Criminal vs. Civil Consequences
It’s also worth remembering that civil negligence and criminal distracted driving are separate matters. The police or Crown prosecutor may lay a distracted driving charge under the Highway Traffic Act, but your civil claim doesn’t depend on whether that charge succeeds.
In a civil lawsuit, the standard of proof is lower — we only need to show it’s more likely than not that the defendant drove carelessly. Even if there’s no conviction, you can still win your case.
What You Should Do After a Distracted Driving Collision
If you believe you were hit by a distracted driver:
- Call police immediately — they may seize the phone or record statements that later support your claim.
- Document everything — take photos, note witnesses, and record what you observed.
- Get medical attention — even minor injuries can worsen over time.
- Call an experienced injury lawyer — early legal advice ensures the right evidence is requested before it disappears.
The Bottom Line
Distracted driving is a serious problem on Ontario roads, but in a civil claim, the focus isn’t on the distraction — it’s on the driving behaviour that caused the crash.
If you can prove the other driver followed too closely, failed to yield, ran a light, or drifted across lanes, you can establish negligence without ever proving they were on their phone. Evidence of texting or distraction may strengthen your case, but it’s not required for success.
At Auger Hollingsworth Injury and Accident Lawyers, we know how to uncover and present the right evidence — focusing on the bad driving, the injuries it caused, and the compensation you deserve.
If you’ve been injured in a collision caused by a careless or distracted driver, we can help.
📞 Call us at 1-888-574-4529 for a free consultation. Even if there’s no “smoking gun,” we’ll build the case that proves what really matters: negligence, accountability, and your right to recover.
