car-bicycle accident- fail to remain...

lawmen
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Unread post by lawmen on

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lawmen
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Unread post by lawmen on

So exactly what Ontario law is your garage relying on?


http://www.fsco.gov.on.ca/english/insur ... oachBroker

Getting Your Vehicle Repaired

Selecting a Repair Shop

As long as your insurance company approves the estimate, you may have your vehicle repaired at the repair shop of your choice.

Your insurance company may suggest you bring your vehicle to one of their "preferred" body shops. You may find using one of their "preferred" shops easier, because it puts the onus on your insurance company to make sure that the work is done satisfactorily.

"Betterment" charges may apply if the repairs to your vehicle make it significantly better than it was before the accident!

It is your insurance company's obligation to return your vehicle to its pre-accident/loss condition.

When repairs made to your vehicle end up giving you a vehicle in better condition than you had before the accident, the difference is known as "betterment." Since the premise of insurance does not allow the insured to profit or "better" from his or her loss, your insurance company has the right to ask you to contribute towards this betterment.

For example, if a rusty door panel that had been in a collision were to be replaced with one that is not rusty, you may be expected to contribute financially towards the betterment of the vehicle.
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Radar Identified
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Unread post by Radar Identified on

Some bike paths in Toronto have speed limits, such as the path through Wilket Creek Park, which is 20 km/h. A sign is posted. As for sidewalks, I don't know.

The by-law permitting smaller bikes on the sidewalk is to allow children to ride bikes without having to mix it up with Toronto's notoriously inattentive, aggressive, pig-headed motorists.
My son was lucky and did not get any injury just pain after the collision.
He was very lucky. You're right, you really can't sue for injury, since there's no way to prove it. Come to think of it, I guess you could counter-sue the driver for wrecking your son's bike. Has your insurance provider offered to send you any legal help with the lawsuit yet?


lawmen
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Unread post by lawmen on

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lawmen
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Unread post by lawmen on

From my research, your son has no avenue of appeal, given the circumstances of you case. However, your son’s rights under the Charter have been infringed. Thus, he is entitled to seek a remedy under s. 24(1) of the Charter by applying to the court of competent jurisdiction. I’m just not sure for fact what court you would apply to.

Read s. 109

http://www.e-laws.gov.on.ca/html/statut ... e.htm#BK22

Your son bears the burden of establishing that his rights have been infringed and the standard of persuasion required is only the civil standard of the balance of probabilities. An appeal of your conviction was to the Ontario Court of Justice, thus, in my view, the competent court must be the Ontario Court of Justice.

Filing a challenge is free, too; i.e., no filing fees.
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ticketcombat
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Unread post by ticketcombat on

lawmen wrote:Selecting a Repair Shop
As long as your insurance company approves the estimate, you may have your vehicle repaired at the repair shop of your choice.

Your insurance company may suggest you bring your vehicle to one of their "preferred" body shops. You may find using one of their "preferred" shops easier, because it puts the onus on your insurance company to make sure that the work is done satisfactorily.
My experience has been that most dealerships and larger body shops are "preferred" shops for most insurance companies. That is, they are authorized repair facilities for most insurance carriers. That's why they say you don't have to get multiple estimates. They already have the relationship with the insurance company and can get electronic approval the same day usually. If you go to a shop that isn't pre-approved, then the insurance company may ask for three estimates or have someone inspect the vehicle before repairs are done.

Usually once the official estimate is done, then you can go to any body shop as long as they charge the estimate or less.
Fight Your Ticket!


lawmen
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Unread post by lawmen on

TC, what’s your take on this case. Assume for the sake of discussion that I’m correct on the points in issue.

The guy plea bargains to a reduced charge and is convicted for something he cannot be convicted of. The 15 days to appeal have passed. He finds out after the 15 days have lapsed that the conviction is invalid.

Where does he appeal to?

Am I right that he needs to file a Charter challenge under s. 24(1), and would that challenge be filed in the Ontario Court of Justice?
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piezomot
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Unread post by piezomot on

lawmen wrote:piezomot, the driver was required to report the accident to his insurance company.

Read this entire link.

http://www.fsco.gov.on.ca/english/insur ... oachBroker
need not equal must!

When you are involved in an accident involving injury or property damage, you need to report it to your agent, broker, or insurance company within seven days, regardless of who is at fault.

If you are unable to report it within seven days, report it as soon as possible after that. If you don’t report your accident within a reasonable amount of time, your insurance company may not have to honour your claim.


Here are the FAULT DETERMINATION RULES
http://www.e-laws.gov.on.ca/html/regs/e ... 0668_e.htm

Can I use this document in small claim court (as an expert report) it looks like the rule
(4) If the incident occurs when automobile “B” is changing lanes, the driver of automobile “A” is not at fault and the driver of automobile “B” is 100 per cent at fault for the incident.
would apply in our bike-car situation!

Would it be a valid argument to judge as he/she may not be aware about the road rules?


lawmen
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Unread post by lawmen on

He was required to report it. You want disclosure of when he reported it and what reponse they provided him with there investigation. They cannot have investigated because they never contacted you. This tells me he never reported it.

2. (1) An insurer shall determine the degree of fault of its insured for loss or damage arising directly or indirectly from the use or operation of an automobile in accordance with these rules.

Under the Insurance Act, an automobile includes a self-propelled vehicle, which includes a bike.

“automobile” includes a trolley bus and a self-propelled vehicle, and the trailers, accessories and equipment of automobiles, but does not include railway rolling stock that runs on rails, watercraft or aircraft; (“automobile”)

http://www.fsco.gov.on.ca/english/insur ... oachBroker

Someone is always determined to be "at fault" in an automobile accident, whether partially or fully.

Under the Fault Determination Rules Fault is allocated to each driver based on which accident scenario most closely resembles the accident. If the accident is not described by any of the scenarios, then fault is allocated according to the ordinary rules of negligence law.
Last edited by lawmen on Thu Nov 06, 2008 9:58 pm, edited 1 time in total.
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Radar Identified
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Unread post by Radar Identified on

need not equal must!
Lawmen is right, the driver has to report it. This is from the Insurance Act of Ontario:
Notice of accident

258.1 (1) If an automobile insured under a contract is involved in an incident that is required to be reported to the police under the Highway Traffic Act or in respect of which the insured intends to make a claim under the contract, the insured shall give the insurer written notice of the incident, with all available particulars.

Same

(2) Subject to subsection (3), the notice required by subsection (1) shall be given to the insurer within seven days of the incident.

Same

(3) If the insured is unable because of incapacity to comply with subsection (1) within seven days of the incident, the insured shall comply as soon as possible thereafter.
Available at: http://www.e-laws.gov.on.ca/html/statut ... .htm#BK258

The word "shall" is used in the Insurance Act, so it is mandatory. It protects both parties against fraud. If the driver didn't report it, the insurance company could refuse payment, or some companies may just cancel the policy entirely, if they find out. If he doesn't report it, and goes to renew his policy with an unreported accident, he has committed insurance fraud.
Can I use this document in small claim court
Can't hurt. The Insurance Act is a tricky piece of legislation. The more info, the better.


lawmen
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Unread post by lawmen on

Radar Identified is correct. Section 199 of the HTA required the driver to report the accident to police. He was driving on a highway. Your son was not and had no obligation to report.

Like "shall" and "may," the courts have also ruled that the word "and" and "or" have meaning. In short, the word "and" means both. This and that. The word "or" means one or the other. This or that. Section 258.1(1) uses the word "or."

This means he was required by law to report the accident to his insurer if he's involved in an accident ... or ... if he makes a claim under the policy for damages. He was required by law to report within 7 days. The Act provides him only one excuse not to report within 7 days; he must be incapacitated. He was not incapacitated and thus violated the Insurance Act.

The Insurance company was required by law to invesitgate the accident and this required them to speak to your son. They never did so. They either were not told about the accident or failed to conduct a proper investigation.

Insurance Act

Notice of accident

258.1 (1) If an automobile insured under a contract is involved in an incident that is required to be reported to the police under the Highway Traffic Act ... or ... in respect of which the insured intends to make a claim under the contract, the insured shall give the insurer written notice of the incident, with all available particulars.

Same

(2) Subject to subsection (3), the notice required by subsection (1) shall be given to the insurer within seven days of the incident.

Same

(3) If the insured is unable because of incapacity to comply with subsection (1) within seven days of the incident, the insured shall comply as soon as possible thereafter.

REGULATION 668

2. (1) An insurer shall determine the degree of fault of its insured for loss ... or ... damage arising directly or indirectly from the use or operation of an automobile in accordance with these rules.
Last edited by lawmen on Thu Nov 06, 2008 11:12 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.
Does it mean that judge would not listen to any arguments as 15 days past? Why my appeal was accepted in the first place then if it does not have any grounds? Just for fun? How much it will cost to city?
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.
This is not a question of money for me record would disappear in 3 years too, we just ordinary people who would trust to justice system like you trust your doctor (what pils to take), this is like something is wrong with our justice system here in Toronto or may be Ontario or Canada? This is like you come to a doctor (and I work in Hospital too) and he/she would make a mistake (oops) and remove your healthy kidney instead of unhealthy one. This court with all of these clerks judges and prosecutors works like a “gigantic milling machine” would grind all without a trial...

May be I should make thomthing like this:
http://home.cogeco.ca/~mmdilts/Challeng ... e_afid.htm
http://home.cogeco.ca/~mmdilts/Challeng ... llenge.htm[/code]
Last edited by piezomot on Thu Nov 06, 2008 11:32 pm, edited 1 time in total.


lawmen
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Unread post by lawmen on

Why can a highly paid and highly trained cop not be able to fill out a ticket properly when they fill out tickets all day long?

Why would a Crown allow your son to plea guilty to an offence he cannot be found guilty of?

Why would a Justice allow your son to plea guilty to an offence he cannot be found guilty of?

Lazy. Incompetent. Both.

The court cannot hear your appeal because the Act provides you no avenue to appeal or review it after 15 days of the decision being made.

Why would a clerk tell you to appeal when the Act doesn’t allow it and when the clerk deals with the Act everyday?

Call them tomorrow and explain what happened properly.

Tell them to give you the section of the Act that allowed you to file the appeal after 15 days have expired.

Tell them to give you the section of the Act that allows the court to hear the appeal that you just filed?

How much money, if any, did you paid the court to file the appeal?
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piezomot
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Unread post by piezomot on

Call them tomorrow and explain what happened properly.
In Toronto you can not call to court, they are busy. The answer machine would tell you to write or come. I think I need to send my letter to crown, but might have a formal reply like you told me that they can not speak outside of the court room...
did you paid the court to file the appeal?
$0

What about this trafic tickets company incompetent too :) ? I remember they found that the sidewalk is a part of a highway from a big thick book called HTA...
Last edited by piezomot on Fri Nov 07, 2008 11:18 am, edited 1 time in total.


lawmen
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Unread post by lawmen on

You should be able to speak to the Crown on the phone, but they might have to call you back. A Justice cannot speak you about the case outside of court, though.

You should be able to speak to someone in the Registrar's office by phone.

Have you read s. 313 27 (D) of Toronto’s Municipal Code yet?

Are you satisfied that a sidewalk in TO is not a highway?

The HTA highway definition only applies to Provincial highways because the city highways are under TO jurisdiction.




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