car-bicycle accident- fail to remain...

lawmen
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Unread post by lawmen on

If there is a municipal by-law stating you cannot ride a bike on the sidewalk, then that is all the boy can be charged with. He wasn't charged with that offence.

The boy cannot be convicted for Failing to Remain. He cannot even be charged with the offence.

Highway is defined under s. 1(1). A highway is "intended for or used by the general public for the passage of vehicles." A bike is a vehicle under the Act, but a sidewalk in not meant for vehicles. Since the boy was on a sidewak when the accident occured, he is not required to remain at the scene becaue s. 200 refers to a highway; not a sidewalk.

This is why the cop dropped that charge and changed it to Fail to Report. However, the boy cannot be charged or convicted for this offence either, as s. 199 only applies to a motor vehicle; not a vehicle.

The driver of a car should've been charged because he cut off a person on a sidewalk and his action caused an accident. Even though the boy might be in the wrong for riding his bike on a sidewalk, this wrong doesn't provide the driver the legal right or legal excuse to cut him off.


"highway" includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;

“vehicle” includes a motor vehicle, trailer, traction engine, farm tractor, road-building machine, bicycle...

Duty to report accident

199. (1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).


Duty of person in charge of vehicle in case of accident

200. (1) Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall,

(a) remain at or immediately return to the scene of the accident;
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hwybear
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Unread post by hwybear on

lawmen wrote:The driver of a car should've been charged because he cut off a person on a sidewalk and his action caused an accident.
What would be the charge to the motorist?

"highway" includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;

Duty of person in charge of vehicle in case of accident
200. (1) Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall,
(a) remain at or immediately return to the scene of the accident

So a bicycle (being a vehicle) has an accident on a highway (property line to property line) has to remain at scene!
***************************************
I would think of it like this....I'm driving along....doot to doot to do, there is my house (or even a business I'm going to), I'm signally slowing down, I see the corner of my property, the sidewalk, all is clear, make a right turn and thud (WTF?) There was no one in front of my house.
My expectation is that I visually cleared the sidewalk for pedestrians travelling at pedestrian speed within a reasonable space (my own property) and the turn was going to be completed without incident.
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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Unread post by lawmen on

“highway” includes ... any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;

Sidewalks are not made for the passage of vehicles.

If sidewalks are included in the definition of highway, then pedestrians are prohibited from waking on sidewalks because pedestrians are not vehicles and only vehicles can travel on highways, which, by definition, are intended for or used by the general public for the passage of vehicles.

A careless driving charge does no apply to the driver because it only refers to a highway.

"Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway..."

The guy said the driver did not signal. I would charge him with that under the HTA, and with dangerous operation causing bodily harm for the accident under the Criminal Code. The driver also grabbed the boy, so I would also charge him with assault under the Criminal Code.

Highway Traffic Act

142. (1) The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.

Criminal Code

Dangerous operation of motor vehicles, vessels and aircraft

249. (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

Dangerous operation causing bodily harm

(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years


Assault

265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

Assault

266. Every one who commits an assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.
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piezomot
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Unread post by piezomot on

Thank you lawmen, talking about my future small case court, as the car driver taking me and my son and trying sue me for his car damage.

The car driver reasonably thinking that he is not at fault (as he did not get any ticket), but he wants us to pay for his car damage as he is telling to us that he will pay his deductible which is nonsense! Why? See the explanation below:

As per Auto Insurance Rate Stability Act, 1996:
http://www.insurance-canada.ca/consinfoauto/l12.php

"... A deductible is part of a claim for damages to your vehicle you must pay for. Higher deductibles usually result in lower premiums, but higher financial risk to you.

As part of the new legislation, under the Direct Compensation-Property Damage section of your policy, if you are not at fault in an accident in Ontario involving another Ontario insured vehicle, there will be no deductible -- UNLESS YOU HAVE SELECTED ONE TO LOWER YOUR PREMIUM.

If you have selected a deductible, you will be required to pay to the extent to which you are not at fault for the accident. For example, if you are in an accident and the police report states that you were 50% at fault, you will be required to pay 50% of your selected deductible amount, which will go toward the repairs to the vehicle..."

From the other side the car driver does not want to place this claim as the insurance companies do their own investigation and they may consider him to be at fault...

Talking about possible scenario, let's say the judge (small claims) would decide that the car driver is right and we must pay for the damage, shouldn’t I re-address this towards my home insurance company so they will pay? And again as in this situation if we would be at fault, should not we be exempt from the deductible as we would be considered to be "at fault"?


lawmen
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Unread post by lawmen on

Is there a city by-law prohibiting riding a bike on a sidewalk where this accident occurred?

Have you gone to court yet over the failing to report charge?

With respect to the Small Court Claim, request a pre trial conference, and then request the judge to strike out the claim and request costs.

Or, bring a motionto dismiss his claim as the accident was his fault and there is no issue to be decided.

If thee is no by-law preventing your son from riding his bike on a sidewalk, in my view, you're clear.

You have your son and his friend as witnesses that he never signaled prior to the turn. He has no witnesses other than himself.

You could also counter sue him for any damage to your sons bike and/or the injury he suffered.
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piezomot
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Unread post by piezomot on

lawmen wrote:Is there a city by-law prohibiting riding a bike on a sidewalk where this accident occurred?
Have you gone to court yet over the failing to report charge?
Thanks lawmen, my son was charged with "Fail to report" $480 charge (points were removed by MTO), as he pleaded guilty (did a mistake, may be we should fight this case). My understanding that the previous court decisions (including police investigation) are not applicable for any future cases, is this correct?

My son had a bike with wheel diameter 24 inches, but greater are not permitted on sidewalks (Toronto by-law).
You could also counter sue him for any damage to your sons bike and/or the injury he suffered.
Talking about the injury he suffered, my son lost his sleep and having anxiety attacks (might be due to all these issues). But again how this is going to work? My understanding that there should be an objective clinical evidence to support this and plus we are not lawyers, we have no idea how this may work in general? Could you please give me a hint, where I can read about it?


lawmen
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Unread post by lawmen on

You can reopen trials but if he pleaded guilty and already paid the fine, I'd have to look into what recourse you have. In my view, based upon the language of the HTA, your son is not guilty. He cannot be convicted of this offence.

Did you already pay the fine?

I'll look into this more. You might not be able to sue for injury in Small Claims. You have to look into this. Call your local court and find out for sure.

As for your Small Claims case, read the rules of court. Motions are found in rule 15.

http://www.e-laws.gov.on.ca/html/regs/e ... 0258_e.htm

Rules of the Small Claims Court Forms

http://www.ontariocourtforms.on.ca/english/scc

Any appeal of a Small Claim court decision are subject to the rules of civil procedure, found below.

http://www.e-laws.gov.on.ca/html/regs/e ... 0194_e.htm
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piezomot
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Unread post by piezomot on

Did you already pay the fine?
No lawmen, my son did not pay the fine yet (must be paid untill the end of January 2009), I might be interested to reopen trial. I completely disagree with this whole situation that we were charged. Can you advice how to do it?

Talking about small claims court. Why did you mention Motions?

We have the Settlement Conference called for the end of this month.

Thanks.


lawmen
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Unread post by lawmen on

How did your son plead guilty if he hasn't paid the fine yet?

You're required to sign the plea of guilty on the offence notice and deliver the offence notice and amount of the set fine to the office of the court specified in the notice.

Payment out of court

8. (1) Where an offence notice is served on a defendant who does not wish to dispute the charge, the defendant may sign the plea of guilty on the offence notice and deliver the offence notice and amount of the set fine to the office of the court specified in the notice.
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piezomot
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Unread post by piezomot on

How did your son plead guilty if he hasn't paid the fine yet?
How can he pay $480 when he is grade 12 student and does not work? We told it in court. Court gave him 6 month to collect the money.

I am just wondering, what is going to happen if this is not paid at all? Does it mean that he will be placed in jail?


lawmen
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Unread post by lawmen on

I'm confused.

He got a ticket. He went to court. Did he have a trial before a justice?

There is no set fine for fail to report. The fine falls under s. 214.

Who decided the fine would be $480?

A justice or the crown?

General penalty

214. (1) Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for the contravention is not otherwise provided for herein, is liable to a fine of not less than $60 and not more than $500.
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Unread post by hwybear on

lawmen wrote:“highway” includes ... any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;
Sit back and read past what you are reading.....we both see "which is intended for or used by the general public for the passage of vehicles"

after that there is a huge word "AND" ( and = as well as; in addition to; also; added to; plus) includes the area betweeen the lateral property lines thereof.

The area used for vehicular traffic (not including shoulders) is called the roadway.
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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Unread post by lawmen on

I disagree. Nonetheless, the accident happened in TO. The highway in question is under the city of TO jurisdiction, not provincial.

Toronto Bicycle Laws and Fines are found on the link below. Nowhere is there a fine for fail to report under TO by-laws or the HTA.

http://www.messmedia.org/messville/TO_FINES.HTM

One cannot be convicted for a provision they did not violate. Even if he could be convicted for fail to report, the maximum fine is $500.

The set fine clearly would not be only $20 less than the maximum fine.

The crown abused his position and ripped off a 16 year old when he knew he could never achieve a conviction even if a full trial was held

This is serious.
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lawmen
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Unread post by lawmen on

Even better. Here's the bike info directly on the city of Toronto website.

Here they do include fail to report.

The fine is only $85.

Court cost $5.

Victim surcarge $25.

For a total o $115.

Not $480

http://www.toronto.ca/cycling/pdf/hta.pdf
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Unread post by ticketcombat on

piezomot wrote:Talking about possible scenario, let's say the judge (small claims) would decide that the car driver is right and we must pay for the damage, shouldn’t I re-address this towards my home insurance company so they will pay?
piezomot wrote:
Have you told your insurance company that you are being sued?
Yes I did, they asked me to send them the plaintiff claim and they will do somthing about it, I do not know what...
You should check the "legal liability" or "property damage" portion of your home insurance policy which covers the costs associated with damage to someone else's property. Depending on the coverage, it could also cover the legal costs to defend a lawsuit.




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