Failure to remain...at the parking lot

nk1981
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Failure to remain...at the parking lot

by: nk1981 on
Mon Oct 28, 2013 4:37 pm

Greetings.

Last thursday my wife and kids were in yorkdale shopping mall cinema.
I drove in the parking lot to pick them up, parked , waited about 20 minutes till they showed up, backed up and we left.
Next day i got a phone call from police, who claimed i was involved in the accident and invited me to come over.

Apparently(what they claim) as i was backing up I scratched along a passenger side of car parked to my left. Im not saying i did not do it. The thing is i never felt any impact, nor did i hear anything. There's scratch at my car, but no dent or any structural damage. Just the paint is missing.

I was charged with fail to remain as per HTA, article 200-1-a. Policeman said the other driver did not know of the accident until they called him. I was reported by "witness".

My question is-
1)This article quotes
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;
How does accident on the parking lot apply to article that says about the highway?

2)I do not really expect judge to beleive i didnt notice the accident, i think there's lots of people claiming that. However it is true, so whats my best option? Ive never been in traffic court before, not even for speeding etc.

Thanks in advance.


PS Policeman did his best to help me get conviction. He made me sign a paper with my answers to his questions such as "I was parked beside a dark car. There was nobody in the car". Of course i know there was nobody in the car- i was parked there for good 20 minutes(at least), i would notice if smb would sit next to me. But later i realized in court they gonna say "So you remember the car but dont remember the accident"...;




nk1981
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by: nk1981 on
Sun Nov 10, 2013 6:47 am

Hello again.

I find whole this situation very strange. 2 days after this guy called me from restricted number, claimed to be the owner of a car that i hit and asked if i wanted to settle outside insurance. I said- sure i do, lets meet, show me the damage, we get an estimate and ill pay for that.

So he hung up and didnt call me for another week. Then i got a call, he said repair estimate was 1000+ bucks plus i have to pay for his rental car. I said well it is what it is, sad i did so much damage.

Another 4 days later he called me and we met. I had 1350 he asked for in my pocket but when i saw the "damage"...i was immediately certain i was just scammed. There's virtually no damage! Some straight line goes through 2 doors. When i touched it it would rub off! So i said lets go to nearest repair shop- guy said he has no time for that.

The question is how do i prove it now? They clearly called cops on me for no reason, him and his "witness" and tried to scam me out. The damage is a joke, some pencil line on a car.


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by: OPS Copper on
Sun Nov 10, 2013 12:17 pm

You don't get a say in his repair either how it is done or where it is done. If he has an estimate that says that's what it costs well that's it. If you do not want to pay for the repair let insurance handle it. Now having said that that is not outrageous. Since both doors are scratched they both need to be repainted.


ops


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by: nk1981 on
Sun Nov 10, 2013 12:48 pm

I dont think i scratched him, thats the thing! I think he drew some line with a pencil and called cops on me. This line goes off as you rub it leaving virtually no trace. I think he's a scammer.


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by: C_B on
Sun Nov 10, 2013 9:44 pm

I am thinking paying for the damage out of pocket is not likely to lead to the charge being dropped, and if you are going to defend yourself on the basis of there being no damage, or an accident not happening paying for repairs will not help your defence (only a personal opinion) Here is a case where the driver was acquitted of failing to remain, and was found guilty of careless driving which has no relevance to your situation. You get an idea of the details presented in court, and the crown was found not to have proven beyond a reasonable doubt that an accident occurred. R. v. Found, 2011 http://www.canlii.org/en/on/oncj/doc/20 ... luZwAAAAAB






nk1981
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by: nk1981 on
Mon Nov 11, 2013 4:41 pm

Fail to report applies to damage over 1 thousand dollars, isnt it? Well the damage i saw is nowhere near that. EVEN if you have to repaint 2 doors(which you dont, in this case.Wish i could show how minimal the "scratch" is, no more than a paint exchange or marker trace), there's no way 2 doors would cost a thousand.

When this guy wanted 1350 bucks it included rental car for him for a week and taxes.


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by: OPS Copper on
Mon Nov 11, 2013 5:06 pm

Actually two doors do cost over a thousand. I have a newish car and when someone traded paint the doors were completely repainted for about 1900( no dents just repaint). I would not accept a "fix". My car was going to be brought back to new condition and that means repainted. The week car rental was about right as well.

Plus there is nothing to say that when you are working it out yourselves that it has to be what it costs. The guy can say he wants 2k or 10k or what ever. Whether the repair costs that or not that is not fraud or a scam. It is civil dispute. He feels it it worth x amount and you disagree.

You again have the option to not pay and go through insurance.


ops


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by: highwaystar on
Mon Nov 11, 2013 5:59 pm

OPS Copper wrote:If this happened in a parking lot the charge is moot as the section does not apply to private property. The correct charge would have been fail to report. ops
I just want to expand on OPS Copper's comment, so as to perhaps assist others when dealing with matters on private lots . The SCC's decision in Mansour is the leading case on the topic of whether the HTA applied to private parking lots (that decision was further addressed in Ontario in the R.v.Tresham decision). The HTA was subsequently amended, however, those amendments have created legal chaos as well.

Then, this year, the Ontario Court of Appeal decision in R. v. Hajivasilis helped clarify a few things, but then also raised a bunch of new legal concerns and arguments, including regarding section 200. You should therefore read that decision.

In the end, I think the safest way to describe it is that: some sections of the HTA DO apply to parking lots, while others don't. Some offences easy to figure out (i.e. the Hajivasilis decision even references a few), while others will undoubtedly be tested in the courts for years to come; unless further clearer amendments are made to the HTA. Welcome to the zany world of statutory interpretation! :)

In any event, when dealing with section 200 (Fail to Remain), you still need to be aware that:

1) The parking lot MIGHT have been expressly classified as a 'highway' via local by-law--which is sometimes applies to large malls; or
2) The prosecution can still convince the court that the definition of 'highway' has been met because the area is "designed or intended for, or used by the general public for passage of vehicles, and every private place or passageway to which the public, for the purpose of parking or servicing of vehicles, has access or is invited"

So, don't assume that if an accident occurs in a parking lot, that's always the end of the story when charged under section 200. Its definitely an element that you will need to investigate further, but its not the end of the discussion.

As you will read in the Hajivailis decision, if the charge is under section 200 of the HTA (Fail to Remain) the definition of "highway" is quite relevant, since it is an express element in the offence. However, if the charge is under section 199 of the HTA (Fail to Report), then it is not a required element since that section does NOT require the accident to have occurred on a 'highway'.


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by: nk1981 on
Mon Nov 11, 2013 9:20 pm

Is this some amended definition of "highway" you're using?

The one i see states "“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; (“voie publique”)"

So there's nothing about parking.


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by: highwaystar on
Mon Nov 11, 2013 11:17 pm

You are simply stating the definition in section 1 of the HTA---however, you need to remember that the definition is not exhaustive! See how it only states "includes"---that , means other things may also be included.

For greater insight on the definition analyzed refer to the decision in Rv.Douglas. Like I implied before, definitions like this require following lots of case law-----this exemplifies how the law can sometimes be as clear as mud!


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by: highwaystar on
Tue Nov 12, 2013 12:16 am

As a follow-up, if the private lot has been declared a highway or public land via by-law or court declaration then your argument will obviously be different. However, if you are simply arguing over the definition of 'highway', I suggest you stick to your guns that it does NOT include a parking lot in Ontario. The expansive interpretation is what is set out in other provinces like BC, but should not be adapted in Ontario. Argue paragraph 35 of the Tresham decision!

Remember that the law is quite confusing on this topic---that's why the Supreme Court, Court of Appeal and Superior court (even in civil cases) have all chimed in on the topic. If it were clear, it certainly wouldn't require so many interpretations. So, use that to your benefit (which they must give when interpreting)-----they shouldn't be 'reading' extras into the definition. If you lose, just appeal it---give another court a chance to interpret the law again.


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by: nk1981 on
Thu Nov 14, 2013 9:19 pm

Just settled with the guy for 650, that including car rental for a week.
Still have the court case coming up.

Is there a way to find if Yorkdale shopping mall parking lot was declared a "highway"? I dont see any bylaws like that over the internet.


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