car-bicycle accident- fail to remain...

lawmen
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Unread post by lawmen on

Here's a bit more argument to make to the Crown. The conviction violates your son's ss. 11(d), (g) and 12 Charter rights. The Supreme Court of Canada has dealt with plea bargaining issues. They are legal but the Crown engaged in the plea bargaining process must act honourably and forthrightly.

In your son’s case they did not, and contrary to the public interest of only convicting actual guilty persons, their conduct bring the administration of justice into disrepute.

Since a conviction has been entered, and since it cannot stand, and since the time limit to appeal is exhausted, you need to ask the Crown to file an application for relief in the nature of certiorari, under ss. 140 and 141 of the POA, to quash the conviction due to this substantial wrong and miscarriage of justice, despite s. 141(3), on the ground that the justice exceeded his or her jurisdiction in entering a conviction.

Canadian Charter of Rights and Freedoms

11. Any person charged with an offence has the right

…

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

…

g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

R. v. Burlingham, 1995

http://csc.lexum.umontreal.ca/en/1995/1 ... 2-206.html

XXIII. In closing, given the appellant's success on the other questions he raises, I need not deal with his submission that the breach by the Crown of the plea bargain deal also triggered constitutional violations. However, I should mention that, to the extent that the plea bargain is an integral element of the Canadian criminal process, the Crown and its officers engaged in the plea bargaining process must act honourably and forthrightly.

Provincial Offences Act

http://www.e-laws.gov.on.ca/html/statut ... .htm#BK172

Mandamus, prohibition, certiorari

140. (1) On application, the Superior Court of Justice may by order grant any relief in respect of matters arising under this Act that the applicant would be entitled to in an application for an order in the nature of mandamus, prohibition or certiorari. R.S.O. 1990, c. P.33, s. 140 (1); 2000, c. 26, Sched. A, s. 13 (5).

Notice of application

(2) Notice of an application under this section shall be served on,

(a) the person whose act or omission gives rise to the application;

(b) any person who is a party to a proceeding that gives rise to the application; and

(c) the Attorney General. R.S.O. 1990, c. P.33, s. 140 (2).

Appeal

(3) An appeal lies to the Court of Appeal from an order made under this section. R.S.O. 1990, c. P.33, s. 140 (3).

Certiorari

141. (1) A notice under section 140 in respect of an application for relief in the nature of certiorari shall be given at least seven days and not more than ten days before the date fixed for the hearing of the application and the notice shall be served within thirty days after the occurrence of the act sought to be quashed. R.S.O. 1990, c. P.33, s. 141 (1).

Filing material

(2) Where a notice referred to in subsection (1) is served on the person making the decision, order or warrant or holding the proceeding giving rise to the application, such person shall forthwith file with the Superior Court of Justice for use on the application, all material concerning the subject-matter of the application. R.S.O. 1990, c. P.33, s. 141 (2); 2000, c. 26, Sched. A, s. 13 (5).

Motion to continue proceeding

(2.1) Where a notice referred to in subsection (1) is served in respect of an application, a person who is entitled to notice of the application under subsection 140 (2) may make a motion to the Superior Court of Justice for an order that a trial in the proceeding giving rise to the application may continue despite the application and the Court may make the order if it is satisfied that it is in the interests of justice to do so. 2000, c. 26, Sched. A, s. 13 (3).

Where appeal available

(3) No application shall be made to quash a conviction, order or ruling from which an appeal is provided by this Act, whether subject to leave or otherwise. R.S.O. 1990, c. P.33, s. 141 (3).

Substantial wrong

(4) On an application for relief in the nature of certiorari, the Superior Court of Justice shall not grant relief unless the court finds that a substantial wrong or miscarriage of justice has occurred, and the court may amend or validate any decision already made, with effect from such time and on such terms as the court considers proper
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piezomot
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Unread post by piezomot on

Thanks lawmen!!!

I just have found this document:
https://www.belairdirect.com/english/pdf/oap1eng.pdf

3.3.1 If Someone Sues You
By accepting this policy you and other insured persons irrevocably appoint us to act on your or their behalf in any lawsuit against you or them in Canada, the United States of America or any other jurisdiction designated in the Statutory Accident Benefits Schedule arising out of the ownership, use or operation of the automobile.
If someone sues you or other insured persons insured by this Section for losses suffered in an automobile incident, we will provide a defence and cover the costs of that defence, including investigation costs. We will pay all legal costs the court assesses against you and other insured persons in the lawsuit we have defended.
If there is a judgment against you or other insured persons, we will pay any post-judgment interest owed on that part of the amount the court orders that falls within the liability limits of your policy.
We reserve the right to investigate, negotiate and settle any claim out of court if we choose.


I will try to contact my insurance company to see if they can help me with this small claim court...

Also I have found that:
6.4.2 The Deductible
The amount we pay may be subject to a Direct Compensation - Property Damage deductible. The deductible is the amount you agree to pay toward the cost of any single claim you make under this Section. The deductible, if any, is the amount shown on the Certificate of Automobile Insurance, multiplied by the percentage to which you or the driver of the automobile were not at fault for the accident. You are not permitted to sue anyone (for instance the at-fault motorist) to recover this deductible.

This means that probably that car driver's insurance company did their own investigation and found that he is guilty in spite of the absence of any police charges. So he probably was told that he will must pay his deductable!

www.insurance-canada.ca/consinfoauto/l12.php

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.

In other words if I mention this in small claim court that the car driver is at fault as the above mentioned paragraph, will it be helpful?


lawmen
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Unread post by lawmen on

Part of this hearing you are attending is to acquire full disclosure. You want him to provide you with all information he provided his insurance company and their response, if any, to him in regards to this matter.

I may be wrong, but I don’t see your insurance company getting involved to represent you because this claim has zero to do with your car. He was riding a bike which was not an automobile under your policy.

You should contact the city of TO and get them to confirm that a sidewalk is not within the definition of a highway, as is defined in the Municipal Code, and that the separate charges for careless biking on a sidewalk are distinct from careless driving on a highway.

In Canada, due to double jeopardy, you cannot be convicted of two offences for the same occurrence arising out of substantially the same facts.

Kienapple v. The Queen, [1975] 1 S.C.R. 729

http://scc.lexum.umontreal.ca/en/1974/1 ... 1-729.html
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piezomot
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Unread post by piezomot on

Thanks lawmen,
I may be wrong, but I don’t see your insurance company getting involved to represent you because this claim has zero to do with your car. He was riding a bike which was not an automobile under your policy.
No the bike is covered by my home insurance company and it is the same company. I just called to the clerk who is responsible for my claim, he will take a look and let me know tomorrow.


lawmen
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Unread post by lawmen on

Unlike other cities in Ontario, TO does not fall under the Municipal Act unless otherwise provided for. TO has its own Act, City of Toronto Act, 2006.

Highway is defined under s. 3(1) of the City of Toronto Act.

http://www.e-laws.gov.on.ca/html/statut ... e.htm#BK41

TO has enacted a Municipal Code, under s. 196 of the City of Toronto Act.

http://www.toronto.ca/legdocs/municode/index.htm

Under TOs Municipal Code, a street is defined under the Municipal Act.

http://www.e-laws.gov.on.ca/html/statut ... _e.htm#BK1

Under s. 32 of the City of Toronto Act, the city may pass by-laws in respect of only those highways over which it has jurisdiction.

The city has passed a valid by-law, and sidewalks are not part of a highway, as evidences in s. 313 27 (D) of TOs Municipal Code.

You want the city to provide you with a certified copy of the Municipal Code.

If this case reaches a trial, you can only use and rely on what you provided the driver in disclosure. The driver can only use and rely on what he provides you in disclosure. He isn’t going to provide you with anything because he has nothing valid to provide that will help him at trial.

You’re going to sink him with evidence. And demand costs for your time and trouble. Thus, keep track of all hours you spend preparing, any gas money or other expenses you incur.

Also, go take pictures of the area where the accident occurred. Show there was no trees or street furniture blocking his view. Take the pictures yourself or you need the person who took them to show up in court or provide an affidavit that they took the pictures for you.
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Radar Identified
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Unread post by Radar Identified on

This means that probably that car driver's insurance company did their own investigation and found that he is guilty in spite of the absence of any police charges. So he probably was told that he will must pay his deductable!
Thought so. What you said earlier now makes the whole scenario make sense: Since your son's bike has tires of 24 inches or less, he WAS legally allowed to ride the bike on the sidewalk in Toronto. Therefore, the driver, when he turned and cut off your son, was 100% at fault for the collision and his insurance company likely told him so. If your son's bike had larger tires, then yes, because he would've been prohibited from riding on the sidewalk, he would've been at fault... but that wasn't the case.

I was pretty sure that the statement that "he should not have to file a claim because the person who caused the damage is known," purportedly by the insurance company, was a misrepresentation by the driver. Now I can be certain. Since the driver cut off your son and injured him, and your son was otherwise obeying the law (notwithstanding the fact that he did leave the scene, but that wasn't what caused the accident) you have an excellent chance of counter-suing him for injuring your son and causing you needless trouble, if you choose to do so. There is no way he is going to win. If your hypothesis is correct (and it probably is), the driver's insurance company complied with the Insurance Act and told him "you're at fault, pay up." It is the responsibility of police to determine if charges are necessary under the HTA/CC. The insurance companies are responsible for assessing "fault" with respect to compensation, which it sounds like they did.

As I said earlier, your insurance company should send someone to defend you in this case, if the bike was covered. Your policy may provide for payment to defend you in a lawsuit (Ticketcombat also mentioned this) and cover your losses. If they do, their attorneys will gather the necessary information and nail the driver in court. You may not have to do any heavy work at all.
In other words if I mention this in small claim court that the car driver is at fault as the above mentioned paragraph, will it be helpful?
That should squash his lawsuit right there. Good luck with it.


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ticketcombat
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Unread post by ticketcombat on

I think we need to step back a bit and look at the forest. A lot of us were approaching this post as if it were traffic court. And that makes sense for piezomot's son's charge.

However the lawsuit is ordinarily beyond what we discuss here. I point this out because the civil case will not only consider who was within the law, but who was at fault and who failed to maintain a proper lookout. In the bicycle/vehicle/sidewalk cases I've read, liability ends up being shared proportionately between plaintiff and defendant. See: Remember this is a civil suit. What is working against piezomot is that the driver may testify as to his son's speed. Also if he was riding a stunt bmx, then that creates another layer. No doubt his son will get taller between now and the trial which will affect the judge's perception that it was an adult riding on the sidewalk. I'm not saying any of this is fair but you can bet that the son's charge and the fact he tried to "get away" is going to play big in the court's assessment of fault. This is not a slam dunk case for either side.
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lawmen
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Unread post by lawmen on

TC is correct that nothing is ever a slam dunk, but I believe it is in this case.

The boy was legally riding on the sidewalk and has a clear cut statutory right-of-way. His speed is much faster than a pedestrian thus he covers much more distance per second than a pedestrian. However, he was not speeding. The driver knew or ought to have known bikes are permitted on sidewalks and the driver should have anticipated a pedestrian or cyclist on the sidewalk, each doing different speeds.

The car was stopped or slowing down on the road but was not signaling. The boy took to the sidewalk to avoid the car. The driver then quickly turned right without signaling and failed to keep a proper look out and failed to yield the right of way. The driver has to guilty of causing the accident because of the burden placed by the HTA and he failed to see the boy’s vehicle when it was there to be seen.

The boy was not bound to guard against every conceivable eventuality but only against such eventualities as a reasonable person ought to have foreseen as being within the ordinary range of human experience.

The boy was entitled to proceed on the assumption that all other vehicles will do what it is their duty to do, namely observe the rules regulating traffic.

In my view, the boy is not contributorily negligent because the driver was clearly in contravention of the provisions of the HTA which governed the conduct of a driver turning right, and s. 130, careless driving. A driver who wishes to make a right hand turn has an obligation not to proceed unless it can be done safely.

As TC pointed out previously, a bike requires a bell. As the boy was not charged for not having a bell, I assume he has one. The boy was not charged with speeding, or careless biking. All of these charges were available to the cop.

The boy took all reasonable steps to avoid the collision once the car turned in front of him and across his path. He rang his bell; he took evasive action by braking and riding to the right to avoid the car, only to be hit by the car.

After the boy left, the driver chased him down and cut the boy off again.

The cop stated the driver would be charged with careless driving had the son not left the scene. This is not grounds to not file charges against the driver. You need to consider summoning the cop, but the cop might not be helpful and could hurt your case. If you limit the questions put to him though, I think it would help your case. You have to decide, because the driver gets to question him as well.

The accident happened so long ago that the driver’s car is fixed by now. He was however required to get more than one estimate on the damages. Maybe he did, but maybe he did not. So also make him produce the estimates.
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Bookm
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Unread post by Bookm on

lawmen wrote:The car was stopped or slowing down on the road but was not signaling.
Do you really think the driver will admit that?
lawmen wrote:The boy was not charged with speeding,...
Do you consider the speed limit of a bike on a sidewalk to be the same as the traveled road? What is the speed limit for a bike on a sidewalk?
lawmen wrote:He was however required to get more than one estimate on the damages.
The last TWO times I was hit, my body shop provided me with information to the contrary. They said I have every right to bring it straight to them with no other estimates required.


I see a lot of legal wrangling going on here, but my main problem is this assumption that a driver has the duty to somehow see a cyclist whippin' up from behind up on the sidewalk. Most automotive mirrors do not allow for such a wide field of view that the sidewalk can be seen. And though a cyclist may have the legal right to use the sidewalk, it doesn't necessarily give him the legal right to ride faster than a walking pedestrian.


piezomot
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Unread post by piezomot on

Thanks, Radar Identified, ticketcombat and lawmen for your comments.

Today I went to court and filed two applications one is to extend the payment charge up to the end of March 2009 and another for appeal. First one was approved, as I have visited Justice of Peace. The appeal court will be in downtown in March 5, 2009.

I was trying to explain to Justice of Peace that law did a mistake as my son was on bike etc., but he did not even wanted to hear any arguments, he told me basically that all need to follow rules regardless of you drive car or bike...I did not want to argue wit him.

Now if appeal judge is going to speak in the same way then probably this appeal will not be approved...But if it is approved then we might go back to the original point- new trial...
you have an excellent chance of counter-suing him for injuring your son and causing you needless trouble, if you choose to do so.
Talking about counter-suing him for injuring. My son was lucky and did not get any injury just pain after the collision. We did not go to a hospital. I do not think we can prove any injury...

http://personal-injury.lawyers.com/FAQ- ... njury.html

Q: How do I estimate how much my case is worth?

A: There are many factors to consider in evaluating a personal injury claim, so beware of any "formula" an adjuster may try to sell you. The value of your claim will depend on the nature of your injuries, how your doctors expect you to fare in the future, your medical bills now and anticipated in the future, the pain you experienced, how your injuries have affected your ability to work and carry on with your lifestyle, how old you are, whether you had preexisting injuries that already impaired your ability to work or go about your everyday life and what a jury in your area would be inclined to give you. Your doctors' and lawyers' interest in preserving their reputations may also influence the value of your claim. Pricing all these factors is complex, and one reason why you should consult with an attorney earlier rather than later in the negotiation process.


lawmen
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Unread post by lawmen on

The Justice cannot hear argument out of court, which is why he didn’t want to hear from you. He stated all must follow rules, and he's right, and this includes the Crown and Justice. Your son was the only one to follow the rules. He’s on a sidewalk and a sidewalk is not a highway. He had no obligation to remain or report.

Your appeal will go nowhere because the time limit to appeal is exhausted. You had 15 days to appeal from the time of the decision.

You only found out what the law is after the 15 days, so this creates a new issue, but the POA doesn’t recognize appeal after 15 days. However, the justice made a prejudicial error in fact and law so you must take the correct course of action.

Appeals fall under Part VII of the POA and an apeal under PART I of the Act begin at section 135.

Section 135(2) expresly states;

Application for appeal

(2) A notice of appeal shall be in the prescribed form and shall state the reasons why the appeal is taken and shall be filed with the clerk of the court within fifteen days after the making of the decision appealed from, in accordance with the rules of court.

When the word "shall" is used, as here, it is imperative. Shall = must. Always.

General appeal info pertaining to an appeal under any section of the Act is provided in Part VII.

Section 111 expressly staes;

Payment of fine before appeal

111. (1) A notice of appeal by a defendant shall not be accepted for filing if the defendant has not paid in full the fine imposed by the decision appealed from.

Exception with recognizance

(2) A judge may waive compliance with subsection (1) and order that the appellant enter into a recognizance to appear on the appeal, and the recognizance shall be in such amount, with or without sureties, as the judge directs.


You're making a mistake waiting under March 5 to take the correct couse of action. In addition to having no right of appeal, since it's beyond 15 days, you have not paid the fne in full and a Judge has also not waived compliance with subsection 1.


Bookm, there is no speed limit or default speed limit on a sidewalk or signs would be posted or a regulation or by-law is required. Common sense indicates the speed limit, however, would be no more than the speed limit on that given street.

The driver has no witnesses. The boy has his friend as a witness as to whether or not the driver signaled. . Even if he signaled, the driver still owns a duty of care to those on the sidewalk as they have the right of way.

Because your body shop told you that you don't require two estimates means nothing. Your insurance comapny requires two estimates, in most cases.

Checking an automotive mirrors is not the only requirement, you must look both ways and check all blind spots. Doing this isn't done by checking your mirrors.
Last edited by lawmen on Thu Nov 06, 2008 1:59 pm, edited 1 time in total.
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piezomot
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Unread post by piezomot on

Your appeal will go nowhere because the time limit to appeal is exhausted. You had 15 days to appeal from the time of the decision.
I put my four page letter to the crown and I wanted to discuss the error justice made, but the court office clerk did not let me speak to the crown in this regard. He told me the right order - file the appeal and extend the payment deadline...

May be I should mail my letter to crown? I do not know...


lawmen
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Unread post by lawmen on

The clerk is incompetent. They are government employees, so are you surprised they're incompetent?

Call the Crown.

Even I don’t know for sure the proper procedure given the facts of this case.

An appeal is too late. A review is different from an appeal.

I mentioned yesterday that you could file an application for an order in the nature of certiorari, but s. 141(3) expressly states no application shall be made which an appeal is provided for under the POA.

An appeal was provided for but only provided 15 days. You found out the real facts of law regarding the conviction after the 15 days expired.

It appears you're out of luck, but this is not possible because you have been wronged and the fault lies with the Crown and Justice. You could sue them for damages (the $480 fine) but even if you sue them and win, the fail to report remains on your sons record. That's what you want removed, and suing them does not provide this relief.

Where appeal available

141(3) No application shall be made to quash a conviction, order or ruling from which an appeal is provided by this Act, whether subject to leave or otherwise.
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Bookm
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Unread post by Bookm on

lawmen wrote:Bookm, there is no speed limit or default speed limit on a sidewalk or signs would be posted or a regulation or by-law is required. Common sense indicates the speed limit, however, would be no more than the speed limit on that given street.
I find it hard to believe it's legal to ride 50kph on a sidewalk in downtown Toronto, LOL.
lawmen wrote:Because your body shop told you that you don't require two estimates means nothing. Your insurance comapny requires two estimates, in most cases.
OK, now I feel I must ask exactly what your background is (as I'm sure others are curious also). Are you a real lawyer? Here are two ADDITIONAL Ontario body shops that state the exact same thing as mine did.

http://www.plazagm.com/collision.php
IN CASE OF AN ACCIDENT WE RECOMMEND THE FOLLOWING:

1. Print and complete the "Accident Report Summary"
2. Contact Plaza Pontiac Buick GMC for information on a reputable tow driver and/or company: 24 hour line 416-419-2753
3. Do not sign any form or waiver provided to you by a tow driver. Only sign the tow bill - do not be intimidated.
4. Have your vehicle taken to an "Accident Reporting Centre."
5. Once you have finished at the reporting centre, indicate that you wish your vehicle to be towed to Plaza Pontiac Buick GMC Inc.
6. An insurance company, insurance adjuster, or tow driver CANNOT tell you where to have your vehicle repaired.
7. You may be entitled to a rental vehicle. When you contact us, we will arrange for a rental car.
8. You DO NOT need more than one repair estimate.
9. Our estimates always include new replacement parts. Many collision shops will quote salvage or reconditioned parts. Your insurance company will ultimately dictate which parts will be used for the repair.



http://www.phoenixcustom.ca/faq.html
Frequently Asked Questions

Q. Must I notify my insurance company prior to having repairs done?
A. Yes. Insurance policies state that you must notify the insurance company or your broker, file a report with them, and let them know where the damaged vehicle can be viewed.

Q. Do I need more than one estimate?
A. No. Ontario law states that your only obligation is to choose the shop of your choice and inform the insurance company where the vehicle is going.


Q. Will I be forced to use the repair shop preferred by my insurance company?
A. No. The repair facility that your insurance company suggests you use is not necessarily the best place to have your car repaired. In fact, here at Phoenix Custom Autobody we guarantee the work for as long as you own your vehicle. Remember, the choice is entirely up to you!

Please prove YOUR position on this matter and my faith in your other comments just might be completely restored ;)

I'm not trying to be rude or disrespectful. I just see you making claims that may send folks on expensive and time consuming quests when they don't even know who they're taking direction from. If at all possible please post "real life experiences" along with your claims.


lawmen
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Unread post by lawmen on

If you can post a section of any Act that articulates a speed limit on a sidewalk, then you’re right. You cannot do it because it doesn’t exist. Sidewalks in TO are covered by the Municipal Code. There is no speed limit therein.

I already posted a link to the Code. Go read it for yourself.

The bylaw offence for careless riding on a sidewalk require you to use “due care” and have “consideration for other users.” As I said, the default speed limit for a sidewalk, in my view, is the speed limit on the road in question. Bear states sidewalks fall under the definition of highway, under the HTA, and barring a city by-law declaring otherwise, he's correct, therefore, the speed limit for the sidewalk is the same as on the roadway.

I was hit by a car in 1983. My insurance company covered the damages but required me to get two quotes (and maybe 3, I can't recall) and they would only cover the costs of the lowest estimate.

Why would they payout more then they have too? Would you? Neither will they, nor do they have too.

All your garage claims is that you can go wherever you want, which is true, but it doesn't mean your insurance company is going to pay out the full amount the garage bills you if the work can be done cheaper elsewhere.

You garage post claims the law states this or that; but they don't tell you what law, or what section of what law.

That was 1983. If the Insurance Act has changed, then you’re correct again. I haven’t reviewed the Ac t yet. But I will when I have time.

You can call your insurance company and inquire as to what is their policy, as well. Every company may be different.




Last edited by lawmen on Thu Nov 06, 2008 3:42 pm, edited 2 times in total.
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