Incident

There were 2 eastbound lanes and both lanes stopped and waved to allow the minivan to cross from the private driveway. The minivan was making left, going west. The road had a center lane as well. As the minivan approached the center lane, it was hit by another car going east, that was passing all the other cars on the center lane.

It is estimated that the incident occurred about 50 meters from where the center lane becomes an actual left lane. I presume the car was rushing towards the left lane, there is no plaza or other private driveway, where the car might turn left, prior to the left lane. The minivan was hit on the front passenger bumper near the headlight (interesting, not on the driver side). There is one witness that testified to the police, apparently supporting the minivan's position.

Charges

The driver of the minivan was charged with Fail to Yield from Private Road S. 139 (1). The officer claims he charged the driver of the car as well, the offence is unknown to us.

Plan

- The driver of the Minivan to fight the ticket at trial;

- Request disclosure;

- Request witness' statement;

Questions

1 - What is the best way to defend against this offence? Please advise of any relevant cases.

2 - I can't quite figure out which At Fault Rule for the insurance, would apply in this case, any help would be appreciated.

3 - Driver of the minivan doesn't want to involve insurance, how to advise them without making a claim? I assume without a claim opened, the rates won't increase?

Note: I would like to say that I've read the topics under this category without figuring out the answer. I have done some research for some cases, but did not find what I was looking for. At this point, I'm hoping for your support in figuring out this issue.

It is difficult but the van is 100% at fault.

Cheers

Viper1

aemi wrote:

2 - I can't quite figure out which At Fault Rule for the insurance, would apply in this case, any help would be appreciated.

Insurance Act Here. The case would probably fall under 12(5) or (6). The insurance claim and the highway traffic act charge are two different things.

aemi wrote:

3 - Driver of the minivan doesn't want to involve insurance, how to advise them without making a claim? I assume without a claim opened, the rates won't increase?

"Your auto insurance policy requires that any accident involving injury or property damage, be reported to your insurance company within seven days, regardless of who is at fault. If you are unable to report within seven days, you must report it as soon as possible after the accident."

Thank you for your answers!

Regarding Question 1, the Ontario Driver's Handbook states that the center lanes are not to be used for passing.Diagram 2-35

Even though this may be a guideline only, would this work as a defence for the ticket and against the at fault rules? It shall be easy to prove that the car's intention was to pass and not to turn left, as there were no places to turn left to. Otherwise, I can't figure out any other defence.

Drivers Handbook is a guideline only. It'll say that in the opening of the book. There are some instances in the book where it'll tell you not to do something (safety and common sense first), but it doesn't mean it's illegal under the HTA.

As you read, remember that this handbook is only a guide...For official descriptions of the laws, look in the Highway Traffic Act of Ontario and its Regulations

You were charged under the Highway Traffic Act, so you'll have to reference that. Not the Insurance Act and not the Drivers Handbook. Your insurance claim and charge are two different things, so you'll have to treat them that way. If by some miracle the ticket is dropped, it doesn't clear you from the insurance company.

Even if the other driver was found to use the centre lane unlawfully, you can still be charged.

I assume there is no rule under the HTA to prohibit driving/passing on the center lane?

Unfortunately the fact that the other driver may have been unlawfully passing isn't a strong defence if it goes to trial. Section 139 (1) states:

139. (1) Every driver or street car operator entering a highway from a private road or driveway shall yield the right of way to all traffic approaching on the highway so closely that to enter would constitute an immediate hazard

Key words: "all traffic." It doesn't say "all traffic conforming to all of the other rules in the Highway Traffic Act." I suppose the other driver could have been ticketed with something like "fail to drive in a marked lane" or possibly making an unsafe pass, but here's an interesting (somewhat applicable) section:

(b) in the case of a highway that is divided into three lanes, a vehicle shall not be driven in the centre lane except when overtaking and passing another vehicle where the roadway is clearly visible and the centre lane is clear of traffic within a reasonable safe distance, or in preparation for a left turn, or where the centre lane is at the time designated for the use of traffic moving in the direction in which the vehicle is proceeding and official signs are erected to indicate the designation;

That's section 154 (1)(b). Sounds like there were more than three lanes, though.

The Prosecutor may withdraw the charge if you explain the situation, but I'm not sure. The other driver/witness may not show up to the trial. Or, you could try plea-bargaining to a lesser charge. Best thing to do at this stage is see what the disclosure brings. For this I'd recommend asking for the officer's notes, a copy of the Collision/Accident report, any statements given by the witnesses that weren't included in the officer's notes, and any other evidence that the Prosecutor intends to introduce... DON'T cut and paste the list on the ticketcombat website!! If it goes to trial, you could try arguing that the vehicle using the centre lane wasn't expected etc., but I don't think it's a very strong argument.