car-bicycle accident- fail to remain...

piezomot
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by: piezomot on
Fri Nov 07, 2008 11:58 pm

P, do not give the driver a cent at this point. Do not cash the insurance cheque. I think you should send it back.
I did not get the insurance cheque yet. They told me to call them on Monday. I did not get it, what If I loose the small claim court? First of all it will be a conference. May this case did not go beyond this conference, I mean that there will be some decisions taken by judge?

I think I have got it, I mean the whole situation.

Car driver did not report this accident to his insurance company as he knew they will investigate and tell him that he is at fault. Now he can not get any reimbursement from his insurance company as it is too late now and he wants to get this money from me. What I did not get is why my insurance company wants to cut him cheque...


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by: Radar Identified on
Sat Nov 08, 2008 11:35 am

Latest news, I just called to my home insurance company and spoke to a clerk there, they are going to write a check to me so I can pay to that car driver a full amount...
Huh? Now I'm confused. Lawsuit hasn't gone forward yet but they already want to pay it out? :?
are you talking about my premium or his premium?
Your premiums. They're going to raise your insurance rates. In the long run the insurance company paying out is going to cost you more than the fine for fail to report and the fees you paid to the traffic ticket specialist that didn't give you adequate representation.

Something doesn't sound entirely right about their response, maybe they misunderstood the situation? I'd probably go in and talk to an insurance advisor. TC is right, the clerk wouldn't just write the cheque without approval, but perhaps the person with the authority didn't get a full picture of the situation. At the very least, if you haven't already, try to get them to delay sending any cheque until the lawsuit situation is resolved. I'm sure they don't want to pay a nickel if they don't have to...


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by: lawmen on
Sat Nov 08, 2008 7:33 pm

The City of Toronto Act, 2006 makes reference to an untravelled portion of a highway and sidewalk under s. 42.

The Supreme Court of Canada rendered a decision in a case dealing with sidewalks and stated;

“There would have been no need to refer to sidewalks in these provisions if sidewalks were included in "untravelled portions" of roads or “highways.”

http://scc.lexum.umontreal.ca/en/1993/1 ... 1-650.html

Untravelled portions of highway

(4) No action shall be brought against the City for damages caused by,

(a) the presence, absence or insufficiency of any wall, fence, rail or barrier along or on any highway; or

(b) any construction, obstruction or erection, or any siting or
arrangement of any earth, rock, tree or other material or object adjacent to or on any untravelled portion of a highway, whether or not an obstruction is created due to the construction, siting or arrangement. 2006, c. 11, Sched. A, s. 42 (4).

Sidewalks

(5) Except in case of gross negligence, the City is not liable for a personal injury caused by snow or ice on a sidewalk. 2006, c. 11, Sched. A, s. 42 (5).
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piezomot
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by: piezomot on
Sat Nov 08, 2008 10:46 pm

Filing a challenge under s. 24 of the Charter is free. It's heard within a few weeks.
lawmen, are we talking about the same thing here?

This is what I have found here:
http://www.gtamotorcycle.com/vbforum/sh ... hp?t=59068

How do I make an 11b challenge?
If you are serious about making an 11b challenge on your own, I suggest you first start by reading the ruling in the R. v. Morin case. Also, there is an 11b decision digest available on Canlii that is also fairly helpful.

The first step is to file a Notice of Constitutional Question, or Form 4f, with the crown prosecutor, The Attorney General of Ontario, and the Attorney General of Canada. This lets the court know that you intend to dispute the charge with a charter claim. Again, if mailing the forms, use registered mail. The most economical route is if you own a fax machine. Here are two examples of a sample form:

Sample form from government website
Sample from FYST

You should ideally start your 11b charter challenge as soon as you are made aware of the violation of your rights. I would usually wait until disclosure is obtained, but this is not strictly necessary. In the event that the prosecution refuses to provide disclosure, or does not provide you with disclosure in a timely manner, you can use this as additional 'ammunition' in your 11b challenge. However, you should not leave the challenge until the last minute. Failure to do so can be constrewed as an implicit acceptance of the pace at which things are happening (Number 4 in the list in section 2.2.1). E.g.: You didn't say anything before your trial date, so you are implicitly agreeing that the time taken to bring your case to court is acceptable to you. Similarly, if you do not actively pursue the prosecution for your disclosure, your complacency can be seen in the same way. In any event, you must file these forms no later 15 days before your court date.

Once you have filed these forms, You may be contacted by the Prosecutor's office to have your court date moved forward. This is rare, as the courts are usually quite backed up, but in the 'unlucky' event that this happens to you, you will pretty much have to abandon your 11b challenge, unless disclosure still has not been provided.

At your court date, before court is in session, you should tell the prosecutor that you intend to make your 11b challenge. Sometimes, they will acquiesce, and you will be off the hook. Other times, they may fight you tooth and nail. Once court is in session and you are called, you must immediately motion for a stay of proceedings based on your section 11b charter rights (and explain why you feel your section 11b rights have been violated). You must make this motion pre-plea (i.e.: before you have plead guilty/not-guilty). If your motion is accepted, the justice will enter a 'stay of proceedings' based on a violation of your charter rights (you are off the hook). If your motion is denied, you will have to proceed to trial, so be ready.

Also, please note that generally speaking, making an 11b challenge and accepting a plea-bargain are mutually exclusive. If your charter challenge fails, you will not be able to plea-bargain, and you must then make a plea of either guilty (accept the ticket at face value) or not-guilty (proceed to trial immediately).

Making an 11b challenge if you filed all the paperwork
If you successfully filed all your paperwork for your 11b challenge, then you should inform the prosecutor that you intend to make an 11b motion. In some cases, if they feel your motion is very likely to succeed, they may just back down and drop the charges. Otherwise, wait until court has started. When you are called up to the stand, you will say your name for the court reporter, and then you will make your 11b motion pre-plea. See section 2.2.2 for more details.

Making an 11b challenge if you didn't file all the paperwork
If you didn't file any of the paperwork, you can still make an 11b challenge. However, you will have to ask for an adjournment to do so. Double check to make sure your witness is actually present (if the witness is not present, you could just proceed to trial and have your charge dropped). Tell the prosecutor that you intend to ask for an adjournment to file the paperwork necessary to make an 11b challenge. When you are called up, make your motion for an adjournment pre-plea. Explain that you failed to file the appropriate paperwork, and would like an adjournment to do so. Note that you will be basing the time period for your 11b challenge from the date of the offence to the first trial date. The time period from the first trial date to the second trial date will not count against your 11b rights, since you are the one who has caused the delay.


I have highlighted one line. How this is going to work in our case as we already have plead guilty?


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by: lawmen on
Sun Nov 09, 2008 12:32 am

Your case at this point has concluded. As mentioned, you need to request the Judge allow you an extension of time to appeal and waive the requirement that you pay the fine up front. This requires you to file a motion. The judge could refuse your request.

However, your son’s Charter rights have been violated, so in my opinion, you can file a constitutional challenge under s. 24 of the Charter instead of proceeding with the motion to request the judge allow you to appeal.

This becomes a new proceeding. It’s free.

The court wants you to pay the fine in full and other fees to be granted the right to appeal. Why would you do this if you can do something for free, i.e., a constitutional challenge?

However, I’m not 100% certain that I am correct on which way to proeed. It just seems to me that what I suggest is permissible.

We’ll wait and see how the court replies to your last email and go from there.
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by: lawmen on
Sun Nov 09, 2008 1:12 am

Surveys Act

http://www.e-laws.gov.on.ca/html/statut ... e.htm#BK61

Public roads, etc.

57. Subject to the Land Titles Act or the Registry Act as to the amendment or alteration of plans, every road allowance, highway, street, lane, walk and common shown on a plan of subdivision shall be deemed to be a public road, highway, street, lane, walk and common, respectively. R.S.O. 1990, c. S.30, s. 57.

Webster dictionary

http://mw1.merriam-webster.com/dictionary/sidewalk

Sidewalk

a usually paved walk for pedestrians at the side of a street
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lawmen
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by: lawmen on
Sun Nov 09, 2008 1:39 am

A sidewalk is not defined in the HTA or Municipal Act. It is however defined in section 119 of the BC Motor Vehicle Act.

Both the HTA and MVA define cross walk with reference to sidewalks, thus the sidewalk definition in the MVA would be applied to Ontario by a court.

BC Motor Vehicle Act

http://www.qp.gov.bc.ca/statreg/stat/M/ ... section119

"sidewalk" means the area between the curb lines or lateral lines of a roadway and the adjacent property lines improved for the use of pedestrians;

"crosswalk" means

(a) a portion of the roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or other markings on the surface, or

(b) the portion of a highway at an intersection that is included within the connection of the lateral lines of the sidewalks on the opposite sides of the highway, or within the extension of the lateral lines of the sidewalk on one side of the highway, measured from the curbs, or in the absence of curbs, from the edges of the roadway;


Highway Traffic Act

http://www.e-laws.gov.on.ca/html/statut ... _e.htm#BK0

“crosswalk” means,

(a) that part of a highway at an intersection that is included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the edges of the roadway, or

(b) any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or other markings on the surface; (“passage protégé pour piétons”)
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by: hwybear on
Sun Nov 09, 2008 4:53 pm

Who cares about the BC Acts? Might as well find links from Australia, Iceland, France, China etc... :roll:
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


lawmen
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by: lawmen on
Sun Nov 09, 2008 5:15 pm

The courts care. They offen refer to other Provinces for guidance. They also refer to other commonwealth countries. Are you sure you're really a cop?


Manitoba

"sidewalk" means a footpath, whether or not paved or improved, that is intended primarily for the use of pedestrians and that either

(a) forms part of that portion of a highway that lies between the kerb line or, if there is none, the lateral boundary line, of the roadway and

(i) the adjacent property lines, or

(ii) the straight production of the adjacent property lines to the kerb line or if there is none, to the lateral boundary line, of an intersecting highway, or

(b) although not part of a highway, is a publicly maintained right-of-way, set aside for pedestrian traffic only and for the purpose of giving access to property adjacent thereto; (« trottoir »)
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lawmen
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by: lawmen on
Mon Nov 10, 2008 7:19 pm

lawmen wrote:Rules of court.

http://www.canlii.net/on/laws/regu/1994 ... whole.html

EXTENSION OR ABRIDGMENT OF TIME

Judge’s power

8. (1) A judge may extend or abridge the time for bringing an appeal and for doing any other act in connection with an appeal for which a time is prescribed before or after the expiration of the time prescribed. O. Reg. 722/94, r. 8 (1).
As evidenced above, the rules of court articulate that a judge may extend the time for bringing an appeal and for doing any other act in connection with an appeal.

As evidenced below, s. 85 of the POA claims otherwise. It only allows a judge to extend time for acts "other than commencing or recommencing a proceeding.

Commencing an appeal is commencing a proceeding. Section 85 states no extension of time is permitted.

The only other avenue of relief is an application for certiorari, which I mentioned previously. However, s. 141(3) states "No application shall be made to quash a conviction, order or ruling from which an appeal is provided by this Act..."

However, I found a case that states s. 141(3) is not a finality clause. Thus, there may be special and exceptional circumstances where the demands of justice require that a superior court exercise its supervisory jurisdiction by way of certiorari despite section 141(3).

Since your son was convicted of an offence contrary to the HTA, and in breach of his rights under the Charter, in my view, this is one of those special and exceptional circumstance cases.

The certiorari provisions do not limit the time for filing an application, like the appeal section does. Therefore, I believe this is the proper route you must take, P.

Section 141(4) articulates the court can only grant relief if the court finds that a substantial wrong or miscarriage of justice has occurred.

That is the case here as you son cannot be convicted of the offence he was convicted of.

Further, s. 142(5) allows you to seek costs. You can seek costs against either the counsel you hired who is responsible for misrepresented you, or against the crown who agreed to this deal that created the substantial wrong and miscarriage of justice against your son.

POA

Extension of time

85. Any time prescribed by this Act or the regulations made thereunder or by the rules of court for doing any thing other than commencing or recommencing a proceeding may be extended by the court, whether or not the prescribed time has expired.
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by: lawmen on
Mon Nov 10, 2008 10:36 pm

If you file an application for certiorari you will serve the crown, justice and counsel who misrepresented you. You will need to prove he misrepresented you and that the trial’s result were compromised and your son suffered a miscarriages of justice as a result.

You will meet this test based upon the facts in this case.

You will also seek costs against him for the certiorari application and the original $500 you gave him.

Below is a Supreme Court of Canada case based on incompetence. Begin reading at para 24.

Hey Bear, notice the SCC relies upon a US case in para 26!

http://www.canlii.org/en/ca/scc/doc/200 ... scc22.html

24 Today the right to effective assistance of counsel extends to all accused persons. In Canada that right is seen as a principle of fundamental justice. It is derived from the evolution of the common law, s. 650(3) of the Criminal Code of Canada and ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.
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by: hwybear on
Tue Nov 11, 2008 8:54 am

lawmen wrote: Hey Bear, notice the SCC relies upon a US case in para 26!
I did not say cases elsewhere do not matter in court.

What I said is I don't give a rats behind about definitions from outside Ontario.....why? I can not just pull definitions/wordings/sections out of my ass and make up things at roadside, I have to have it in front of me, in B&W at the moment. I also have a few seconds/minutes to make a decision based on the events at that time.

This is obviously easier later in the comfort of a home or office and being able to search until the cows come home. Then to find stuff and ponder how can someone benefit if I twist a word here or there, will the JP or Judge "buy it".

It would be nice to get back to the forum on hand and what it was built/designed for.....dealing with Ontario HTA issues, not civil matters, not criminal matters etc.
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


lawmen
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by: lawmen on
Tue Nov 11, 2008 12:03 pm

The HTA is quasi-criminal. This whole thread deals with a offence under the quasi-criminal HTA. Impaired driving under the HTA is a true criminal offence. So is dangerous driving, criminal neglience causing death or injury, street racing, and many other offences.
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piezomot
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by: piezomot on
Tue Nov 11, 2008 8:46 pm

Hi lawmen, thaks for your last posts, anyway this car driver just visited my home today and brougt the letter saying that his costs went up, he wants now he WANTS new amount from me- $2686.10

Image

I do not have any reply from crown yet, I will try to call her tomorrow.

lawmen do you know how can I proceed with the The Supreme Court of Canada?


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