Car-bicycle accident- fail to remain...

Thanks Lawmen do you think we are going to create a precedent with this case?

Do you know any similar cour cases in the past?

I found this:

"hit by van while biking on sidewalk"

http://www.avvo.com/legal-answers/hit-b ... -6664.html

You just want to win. Get the fail to report of his record, cancel the fine, get your $500 back from the counsel who mispresented you, and not have to pay the driver any damages since he caused the accident.

lawmen wrote:

Any word from the crown or court regarding your appeal?

Just giving you an update, the downtown court quashed "fail to report" charge on March 5 and now we are at the same point as we were originally- having an original charge.

Therefore it looks like courts do whatever they want even s. 85 of the POA conflicts with s. 8 of the regulation, thus, s. 85 of the Act governs. The court should not not grant us an extension of time to file an appeal after 15 days period is passed. Reopening the case does not appear to be available either.

But court did it. How it is possible?

Also we are going to have a small claim court tomorrow in regards of the car damage...

thanks for the update....but I had to go back and read what it was even about....keep us posted, it will be interesting to see what the JP of the day thinks

Cheers

HB

piezomot wrote:

But court did it. How it is possible?

Probably something precedent-related. Hopefully the courts will get it right this time. Good luck with the small claims court, let us know how it goes.

I was disappointed with the small claim court judge decision yesterday. Judge ruled out - 25% driver's fault and 75% my son's fault. The explanation was simple- car driver was negligent, as he did not see any pedestrian (bike) on a sidewalk and my son was negligent as he did a very unusual maneuver to pass the car on the right and did not pay any attention that car was signaling...There were only one witness who confirmed that he have seen that the driver was signaling. Even we know the signaling itself does not give the right to turn…I still did not get it how it is possible…

ticketcombat wrote:

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:

• Tompkins v. Barden, 2000 BCCA 325

• Reeves v. MacEachern, 2006 NBQB 235 (CanLII)

• Dolphin v. Lepine, 1999 CanLII 5562 (BC S.C.)

• Schatz v. Kozlowski, 2002 NBQB 91 (CanLII)

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.

I guess I was doing a bit of foreshadowing on page 5 of this thread. It really depends on the testimony of the witnesses, the diligence of the people involved and whether they kept a proper lookout. It doesn't have to be about who was within the law.

I don't know how much of this was at play at small claims court. It seems that your son's choice of using the sidewalk to overtake the vehicle is what the justice didn't like.

Thanks for keeping us up to date on this. I think you set a record for longest thread!

Going back to this topic, it looks the police do whatever they want, if they want they lay the charge and if they want they do not!

"No charges in fatal bike accident

Meanwhile, Toronto Police are still investigating. But you can see the problem. First of all you are dealing with a 15-year-old and the fact that there is no criminal intent. There is also no law that says that bike is not to be on the sidewalk.

"They both saw each other and failed to negotiate that," said Burrows, who wants to see bikes off sidewalks.

But this cyclist was a 15-year-old on a kid's bike and it's only larger, adult-style bicycles that a city bylaw bans from sidewalks.

Translation? The tragic death of Jiang, 56, means nothing in terms of the law. "

http://www.torontosun.com/news/columnis ... 21651.html

It's not lost on anybody that had that been a car which struck and killed the woman, you know there would be charges laid. It's also not lost that people riding their bikes on pedestrian sidewalks are out of control in every part of the city.

"..A 16-year-old cyclist may be lucky to be alive after he went under a van and was dragged for 30 metres along Wellington Street Thursday evening.

He had been riding on the sidewalk.

The boy was airlifted by helicopter to Children's Hospital in London, Ont., after suffering severe burns and scrapes in the mishap around 6:40 p.m. Thursday. As of Friday afternoon, he was listed in fair condition at hospital.

No charges have been laid in connection with the crash, although police are investigating."

http://www.stthomastimesjournal.com/Art ... ?e=1692170

Why police did not lay any charges?

http://www.bcbarristers.com/bcbarrister ... strian.pdf

"But in Toronto, using bicycles are actually under dual regulations jurisdiction, they are Ontario <<Highway>> and Toronto By-Laws. The most bikers offense is riding the bike on sidewalk.

According to police officer Mick Robetts of Toronto Police Services Traffic Team, the purpose of permitting small-diameter bicycles to operate on sidewalk is to allow children to have a chance to practice then they can ride on road. But because the children normally have no identification to prove their ages, so the only way to control this is by the diameter of bike tire. According to by-laws, penalty for illegal riding on sidewalk is $60 and $90 in downtown.

Even the regulation "biker s are not allowed to ride on sidewalk" only applies in Toronto, other cities also have similar regulations, (in Markham, bikers are not permitted to ride bicycles whose tire diameter over 26 inches on sidewalk and offenders are charged $100 penalty). In Highway Traffic Act, there are also lots of rules regarding bicycles and bikers have to pay attention. These rules apply within Ontario and the

penalty is heavy. For example, the bad-attitude riders may be charged with careless driving and the

penalty is $325.

But according to the information from Public Health Department of City of Toronto, among all the accidents between motor vehicles and bicycles, the accidents happened on sidewalk were 30% of them. Most

accidents happened when bicycle went out to road from sidewalk and when motor vehicle went out of driveway. So it means riding on the sidewalk is not absolute safe and it threatens pedestrians, especially

seniors, young children and vision/hearing ability challenged persons."

Sorry, I did not get it why it is considered to be an offence?

From this link below it is clear that if the tire size is less then 61 cm or 24 inches then this is not an offence!

"A City bylaw allows cyclists with a tire size of 61cm or 24 inches or less to ride on the sidewalk... "

Also is this only for children? From this link below it does not look like it is...

http://www.toronto.ca/cycling/safety/si ... dewalk.htm

.

Hi everyone:

Long time no posting

THIS IS JUST MY OPINION; NOT LEGAL ADVICE

1.- A Bicycle, unless is 'motor assisted', is not a Motor Vehicle under the HTA.

HTA s.1 Definitions wrote:

"bicycle" includes a tricycle, a unicycle and a power-assisted bicycle but does not include a motor-assisted bicycle.

HTA s.1 Definitions wrote:

"motor vehicle" includes an automobile, a motorcycle, a motor-assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine.

HTA s.1 Definitions wrote:

"motor assisted bicycle" means a bicycle,

• (a) that is fitted with pedals that are operable at all times to propel the bicycle,

  (b) that weighs not more than fifty-five kilograms,

  (c) that has no hand or foot operated clutch or gearbox driven by the motor and transferring power to the driven wheel,

  (d) that has an attached motor driven by electricity or having a piston displacement of not more than fifty cubic centimetres, and

  (e) that does not have sufficient power to enable the bicycle to attain a speed greater than 50 kilometres per hour on level ground within a distance of 2 kilometres from a standing start;

A bicycle is, however, a "Vehicle"

HTA s.1 Definitions wrote:

"vehicle" includes a motor vehicle, trailer, traction engine, farm tractor, road-building machine, bicycle and any vehicle drawn, propelled or driven by any kind of power, including muscular power, but does not include a motorized snow vehicle or a street car

As such, a bicycle is regulated under s. 200:

HTA s. 200 (1) wrote:

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;

  (b) render all possible assistance; and

  (c) upon request, give in writing to anyone sustaining loss or injury or to any police officer or to any witness his or her name, address, drivers licence number and jurisdiction of issuance, motor vehicle liability insurance policy insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number. R.S.O. 1990, c. H.8, s. 200 (1); 1997, c. 12, s. 16.

HTA s.1 Definitions wrote:

"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

I believe that whether or not a sidewalk is part of the highway is not settled. See Hughes v. J.H. Watkins 1928 and R. v. Wall 1968. I would argue it's not.

In certain municipalities -Hamilton for instance- there are by-law making it illegal for bicycles to be operated on sidewalks. In fact, based on that by-law, I successfully defended a taxi driver who was involved in a similar accident and charged with careless driving.

Check with the city of Toronto if they have such by-law, which I suspect they do.

2. Now, this is the twist; section 54 creates a virtual driver's license even if the accused never had one before:

HTA s. 54 wrote:

Where by or under the provisions of an Act of the Legislature or a regulation made thereunder a permit or licence is suspended and the person to whom the suspension applies is not the holder of a permit or licence, as the case may be, the person shall be deemed for all the purposes of this Act or the regulations to be a person whose permit or licence, as the case may be, has been suspended. R.S.O. 1990, c. H.8, s. 54.

In my opinion this section is unconstitutional on the grounds of ambiguity and overbreadth. Actually, I think it is moronic. But, that is not the point here.

As I understand it, when a police officer charges someone with a provincial offence, if the accused does not have a Driver's License, the MTO will create one, as a computer entry.

Now, if you are charged with an offence that carries demerit points, the MTO computer system will attach those demerit points to such "virtual" license by default. Software glitch?

Similarly, if you do not pay a provincial offences fine, this virtual license may be suspended. Go figure.

3. Apparently, an insured person may not bring an Action -lawsuit- against a person for damages arising from an automobile accident. Check with a lawyer.

In any event, here is the applicable section of the Insurance Act;

Ins. Act s. 263 wrote:

Restrictions on other recovery

• (5) If this section applies,

  (a) an insured has no right of action against any person involved in the incident other than the insureds insurer for damages to the insureds automobile or its contents or for loss of use;

  (a.1) an insured has no right of action against a person under an agreement, other than a contract of automobile insurance, in respect of damages to the insureds automobile or its contents or loss of use, except to the extent that the person is at fault or negligent in respect of those damages or that loss;

  (b) an insurer, except as permitted by the regulations, has no right of indemnification from or subrogation against any person for payments made to its insured under this section. R.S.O. 1990, c. I.8, s. 263 (5); 1996, c. 21, s. 24 (1).

Hope this was helpful.

Cheers

.