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.lawmen wrote:Any word from the crown or court regarding your appeal?
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...
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.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:
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!
"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 regulationÃ¢Â€Â™s jurisdiction, they are Ontario <<Highway>> and Toronto By-Laws. The most bikerÃ¢Â€Â™s 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 Ã¢Â€Âbiker s are not allowed to ride on sidewalkÃ¢Â€Â 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 $325Ã¢Â€Â™.
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
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: Ã¢Â€ÂœbicycleÃ¢Â€Â includes a tricycle, a unicycle and a power-assisted bicycle but does not include a motor-assisted bicycle.
HTA s.1 Definitions wrote:Ã¢Â€Âœmotor vehicleÃ¢Â€Â 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.
A bicycle is, however, a "Vehicle"HTA s.1 Definitions wrote:Ã¢Â€Âœmotor assisted bicycleÃ¢Â€Â 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;
As such, a bicycle is regulated under s. 200:HTA s.1 Definitions wrote:Ã¢Â€ÂœvehicleÃ¢Â€Â 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
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, driverÃ¢Â€Â™s 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.
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.HTA s.1 Definitions wrote:Ã¢Â€ÂœhighwayÃ¢Â€Â 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
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:
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.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.
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;
Hope this was helpful.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 insuredÃ¢Â€Â™s insurer for damages to the insuredÃ¢Â€Â™s 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 insuredÃ¢Â€Â™s 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).