car-bicycle accident- fail to remain...

lawmen
Sr. Member
Sr. Member
Posts: 256
Joined:
Location: Planet X

Unread post by lawmen »

Again, the boy wasn't driving a motor vehicle thus he had no obligation to report. The driver of the car did if it was apparent the damage was $1000. It turned out to be $1200. It's so close that it was not apparent that it was over $1000. Even i it was, it was his duty, not the boys, to report the accident. If the boy didn't suffer any real injury, and I doubt he did, then he did't need to report it.

Duty to report accident

199. (1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation...


Damage to Property Accident Report

11. For the purpose of subsection 199 (1) of the Act, the prescribed amount for damage to property is $1,000. O. Reg. 537/97, s. 1

http://www.e-laws.gov.on.ca/html/regs/e ... 0596_e.htm
Without Justice there's JUST US


User avatar
hwybear
Moderator
Moderator
Posts: 2933
Joined:
Location: In YOUR rearview mirror!

Unread post by hwybear »

lawmen wrote:Again, the boy wasn't driving a motor vehicle thus he had no obligation to report. The driver of the car did if it was apparent the damage was $1000. It turned out to be $1200. It's so close that it was not apparent that it was over $1000. Even i it was, it was his duty, not the boys, to report the accident. If the boy didn't suffer any real injury, and I doubt he did, then he did't need to report it.
Still is a requirement to remain at scene as a bicycle is a vehicle.

Does not take much to have $1000 damage these days. Most exterior parts are huge and wrap around.

Think the issue will be going back to whomever "hears" the story of both drivers and deciding what they think. (We have only heard one side of the events 2nd hand here)
- some believe the bicycle should be on a sidewalk
- some believe a bicycle should not be on a sidewalk
- some believe the driver is still responsible until the car is in park ,doors locked, standing on the front porch, keys in hand
- some believe the driver has met requirement by checking the actual lanes of traffic and turning where no other vehicle would normally be
- then throw in the events told by each person involved, and their own twisted truth to make them each sound better
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


lawmen
Sr. Member
Sr. Member
Posts: 256
Joined:
Location: Planet X

Unread post by lawmen »

I re-read this thread and am intrigued by this case. I take it your son was charged with failing to remain after the accident. You hired someone to represent you. You went to court and a trial was held, or at a minimum, a plea bargain was reached during or prior to trial where your son agreed to plead guilty to failing to report.

You stated your counsel talked to the Justice and got the charge reduced. You stated the Justice gave you six months to pay, thus you had to have been in court.

You mentioned that you disagree with your counsel that it was a better deal. It is in a way. Your son was facing a fine of $200 to $1000, plus a possible imprisonment for a term of not more than six months, or both, and in addition his licence or permit may have been suspended for a period of not more than two years.

The term of imprisonment violates s. 7 of the Charter, which is another story, but failing to report only provided a fine between $60 and $500.

So, from this perspective it was a better deal.

However, your son cannot be convicted for failing to report because he was on a bike. A bike is a vehicle, not a motor vehicle, and only motor vehicles are required to report under s. 199.

This raises a legal question; can you agree to be convicted of something the law cannot convict you of?

I say no.

You could seek leave to appeal and request a new trial, bases on fresh evidence, but then you are back to facing the penalties for failing to remain. If Bear is correct that sidewalks are included in the term “highway”, then you could be convicted if you even could get a new trial. If sidewalks are not included in the term highway, then your son cannot be convicted of failing to remain.

You could appeal the conviction, but the POA only provided you with a window of 15 days to appeal. However, again, you may have grounds to appeal anyway because your son was convicted for failing to report, an offence at law for which he cannot be convicted, thus the conviction is invalid.

Prior to pleading guilty, your son had the opportunity of receiving advice, and the advice you were provided is questionable. In fact, you were misrepresented and wasted your $500. And you want your money back.

There is no set fine for failing to remain, thus the fine is from $60 to $500. There is a set fine for failing to report; $85, plus other fees for a total of $110.

Should you have been offered the chance to pay the set fine of $110 for failing to report when the plea bargain was offered?

I don’t know for certain, but I say yes.

The accident occurred in TO. You need to contact the city and find out if a sidewalk is included within the definition of highway in TO. Where I live, sidewalks in the core city are within the term highway, but in the rural areas it is not. So it’s not automatic at all times.

Under the Toronto Municipal Code, a higway is defined under s. 1(1) of the Municipal Act, and has a different definition than a highway under the HTA, but does not include a highway that is a Metropolitan road.

“highway” means a common and public highway and includes any bridge, trestle, viaduct or other structure forming part of the highway and, except as otherwise provided, includes a portion of a highway;

In TO, (on page 3 of the link below) there is a $90 fine for riding a bike on a sidewalk without due care and attention or without reasonable consideration for others.

http://www.toronto.ca/cycling/pdf/hta.pdf

Municipal Code 313 27 (D) Sidewalk Regulations

http://www.toronto.ca/licensing/pdf/chpt313.pdf

There is a $8.75 fine for riding on a sidewalk with wheels greater than 61 cms. There is also a $8.75 fine for riding on a prohibited highway.

Therefore, in my view, a sidewalk is not included in the term highway as this $90 offence and both $8.75 offence distinguish sidewalks from highway in TO.

Failing to operate a bike on a sidewalk without due care and attention or without reasonable consideration for others, would be careless driving on a highway. Therefore, again, a sidewalk does not fall within the definition of a highway in TO based upon the language of this bike fine which could only be created by a city by-law.

The careless bike fine on a sidewalk uses exactly the same wording as careless driving on a highway. This distinguishes that there is one offence for bikes on a sidewalk and one offence for vehicles on a highway. The fines for each offence are vastly different, which further distinguish a sidewalk from a highway in TO. There are also demerit points for driving but none for biking, which provides even more distinction between the two stand alone offences.

Careless driving

130. Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $200 and not more than $1,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years.

This undue care bike offence, just like careless driving, is a mens rea offence. At trial, the Crown must prove actus reus beyond a reasonable doubt, and mens rea beyond a reasonable doubt.

Careless charges are often laid as a bargaining chip so it can be pleaded down to a lesser charge. Prosecutors can convince an uninformed defendant that they are getting a good deal because of the difficulties in proving a careless charge. This creates the illusion of a win-win scenario for everyone.

In my view, your son cannot be convicted of failing to remain or failing to report. The Justice has made an error of law allowing your son to plead guilty to an offence he could not be convicted of. The fact that you were sane, sober and received legal advice prior to agreeing to a plea bargain is irrelevant. The conviction is invalid and cannot stand.

With respect to the Small Claims court case against you for damages, the driver is claiming your son is 100% responsible for the damages. He must prove this on a balance of probabilities. In essence, he is claiming that he signaled before making his turn and your son internationally or carelessly drove directly into his car. The fact that your son was charged with failing to remain, or failing to report, is in my view irrelevant to this court case.

Being 16 years old, I’m sure your son is an experienced cyclist and has never been in a cycling accident before. Since your son wasn’t charge with not wearing bike helmet further shows he is a responsible person and cyclist. You son has never admitted fault, and, in fact, has his cycling friend at the time who witnessed that the driver never signaled.

Moreover, since your son was riding his bike on a sidewalk in compliance with the TOs by-law he had the right of way and the driver was 100% negligent in failing to yield the right of way to him. You son was also not speeding.

The fact that the driver was not charged by the police with any breach of any Act means nothing if the driver raises this point. Your son does not control who should be charged, and more importantly, the cop involved also enforces TO city by-laws, yet he failed to charge your son with riding a bike without due care on a sidewalk, and failed to charge the driver with anything, thus, there is evidence to show the cop is a complete incompetent, since an accident occurs that involved damages and an injury and no one was charged; other than your son for failing to remain.

Under the Negligence Act, a person will not be liable for damage or loss unless he is at fault, in other words negligent, in causing the damage in part or in whole.

The driver alleges that the collision and his damages were caused wholly by the negligence of your son, thus the onus lies upon him to prove that your son, who had a legal right of way on the sidewalk, owed the driver a duty of care which he breached, and that such breach of duty was the sole cause of the driver's damage.

In my view, this test will never be met for your son had the right of way under common law, the HTA, and TO Municipal Code section 313 27 (D). The driver will have to prove your son had sufficient time and space to see the car to enable him to stop before running into it. You stated your son went from the roadway to the sidewalk before the accident, and this might play a part in determining responsiblity, but I think not since your son was on the sidewalk at the time of the accident.

While the driver will have a version of events too, the problem of determination on which side the balance of probabilities lies largely depends upon which of the two accounts is the more acceptable.
Last edited by lawmen on Tue Nov 04, 2008 8:50 pm, edited 2 times in total.
Without Justice there's JUST US


piezomot
Jr. Member
Jr. Member
Posts: 60
Joined:

Unread post by piezomot »

Thank you again lawmen, I have found the by-law you were talking about, but was not able to find out if a sidewalk is included within the definition of highway here.

I was not able to include the whole document with this post, but here are two related short paragraphs I found:

Authority: Transportation Committee Reports
No. 20(4), September 25, 1991 and No. 4(3)
February 26, 1992.
Intended for first presentation to Council:
February 26, 1992.
Adopted by Council: February 27, 1992.
THE MUNICIPALITY
OF METROPOLITAN TORONTO
BY-LAW No. 32-92.
To regulate traffic on Metropolitan Roads.

MISCELLANEOUS DRIVING RULES
4. The driver or operator of a vehicle or streetcar emerging from a driveway, laneway, or
building or streetcar or bus loop onto a highway shall bring the vehicle or streetcar to a full stop
immediately before driving onto a sidewalk or footpath, and upon proceeding shall yield the right-of-way
to pedestrians upon the sidewalk or footpath.

REGULATIONS FOR BICYCLES AND MOPEDS
14. (1) A person operating a bicycle upon a roadway shall ride as near the right-hand side
of the roadway as practicable and shall exercise due care when passing a standing vehicle or one
proceeding in the same direction.
(2) Persons operating bicycles upon a roadway shall ride in single file.
15. No person operating a bicycle shall carry any package, bundle, or article which prevents
the rider from keeping both hands on the handlebars.
16. No person shall park a bicycle on a highway except in such a manner as to cause the
least possible obstruction to pedestrian or vehicular traffic.
17. (1) No person shall ride a bicycle with a wheel or wheels more than 61.0 centimetres in
diameter upon a sidewalk on any highway.
(2) No person shall ride a bicycle or motor-assisted bicycle on the highways set out in
Column 1 of Schedule II to this By-law between the limits set out in Column 2 of the said Schedule.


lawmen
Sr. Member
Sr. Member
Posts: 256
Joined:
Location: Planet X

Unread post by lawmen »

First, you want to call the counsel you gave $500 too and tell him you want your money back after explaining the law to him. He misrepresented you. But hold off on doing this for now.

Second, the cops have six months to lay charges against your son under the POA. This accident occurred weeks or months before you went to trial. You were granted a six month period to pay the fine. In some cases a period of time does not include weekends or holidays, so 6 months could actually mean 6 and half months. I’m confident, without looking at the Act yet, that it is six calendar months.

Therefore, when 6 months after the day of the accident are up, you need to write a letter to the crown and explain why you are not going to be paying the ticket. Because your son was convicted of an offence you cannot be convicted of. The time period for filing appeals is exhausted, so you might not be able to appeal anyway. If you notify them before the 6 month period is up, they can still legally charge your son.

You will send the letter by e mail, fax, or registered mail so it’s traceable.
You mentioned you have a court conference coming up with the driver who is suing you. It’s best if you can delay the hearing, because you’re going to point out everything I mentioned, and if he’s a prick, he’s going to notify the cops who can then charge your son if the six month limitation period is not up yet. Same goes for the counsel you hired, which is why you're not going to say anything to him...yet.

On what date did this accident occur?
Without Justice there's JUST US


piezomot
Jr. Member
Jr. Member
Posts: 60
Joined:

Unread post by piezomot »

Second, the cops have six months to lay charges against your son under the POA. This accident occurred weeks or months before you went to trial. You were granted a six month period to pay the fine. In some cases a period of time does not include weekends or holidays, so 6 months could actually mean 6 and half months. I’m confident, without looking at the Act yet, that it is six calendar months.

Therefore, when 6 months after the day of the accident are up, you need to write a letter to the crown and explain why you are not going to be paying the ticket. Because your son was convicted of an offence you cannot be convicted of. The time period for filing appeals is exhausted.
If you notify them before the 6 month period is up, they can still legally charge your son.
Thanks lawmen, I did not get your point talking about 6 months.
The incident took place on 28 October 2007. The Court took place on July 31, 2008. The payment deadline is January 31, 2009.
Last edited by piezomot on Tue Nov 04, 2008 4:56 pm, edited 2 times in total.


lawmen
Sr. Member
Sr. Member
Posts: 256
Joined:
Location: Planet X

Unread post by lawmen »

Okay. Don’t worry about the six month limitation. The time is up.

You need to get a hold of the guy who represented you. You want your money back.

You need to contact the crown and explain why you’re not paying the fine.

You also want to request that the crown initiate an appeal so the fail to report if removed from your son’s record. I don’t know that it is even on a record, but you mentioned that it is, and you want it removed.
Without Justice there's JUST US


piezomot
Jr. Member
Jr. Member
Posts: 60
Joined:

Unread post by piezomot »

Many thanks, I just have got the reply from City Of Toronto in regards if the sidewalk falls into Highway:

From the definition section in the HTA reads as follows:

*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*)


Talking about the Settlement conference, what would be the legitimate reason to delay it? Collecting evidence? Looking for possible witnesses to be placed on the list?

Court is asking to submit an expert report that was not attached to the part's claim or defense and the list of proposed witnesses within 14 days before the conference set on November 27, 2008.

Talking about an expert report, is it a mandatory to get it? Can I prepare it by myself as I plan to defend myself and my son as the Plaintiff placed me and my son as the defendants and I have completed form 4a to act as a guardian on behalf of my son.[/i]


lawmen
Sr. Member
Sr. Member
Posts: 256
Joined:
Location: Planet X

Unread post by lawmen »

Not sure who from the city of Toronto sent you that, but it’s incorrect. That definition comes from the HTA. The city has jurisdiction over its own roadways. There definition of highway is found in their Municipal Code. The Code then refers you to the highway definition in the Municipal Act, which is different from the HTA definition.

I posted it in my first message to you today. Go re-read it.

A sidewalk is not a highway for your son’s purposes. His bike had tires under 61 cms. He was legally permitted to ride on the sidewalk and had the right of way when the accident occurred.

You do not need to delay the conference anymore. I was sure when the accident happened, but it happened longer than 6 months ago, so don’t worry about it.

You don’t need an expert report. Study up on what I told you and present this argument. You should get your son and your son’s friend to honestly write up in Affidavit form what happened.

The driver never signaled. He cut off your son. Why he managed to stop but you son didn’t. The weather was clear. There was no parked cars, street furniture or trees blocking the drivers view of the sidewalk. The driver was swearing at your son. He grabbed your son. You son suffered an injury. Etc.

Then, take the boy and your son to your local courthouse and have the clerk in the Registrar office take the Affidavit and have the boy and son swear it true, so don’t lie.

You will submit this in court if the boy and your son are not going to appear as a witness in person. If the driver wants to cross examine the boy or your son he must summons them. If he does not do so, the boys evidence stands since the driver never challenged the Affidavits.

Use this form for his statement. Form 15 B

http://www.ontariocourtforms.on.ca/english/scc

Your hearing is meant to narrow the issues and attempt a settlement. You will only accept him withdrawing his claim. Nothing less.
Without Justice there's JUST US


User avatar
hwybear
Moderator
Moderator
Posts: 2933
Joined:
Location: In YOUR rearview mirror!

Unread post by hwybear »

piezomot wrote:MISCELLANEOUS DRIVING RULES
4. The driver or operator of a vehicle or streetcar emerging from a driveway, laneway, or
building or streetcar or bus loop onto a highway shall bring the vehicle or streetcar to a full stop immediately before driving onto a sidewalk or footpath, and upon proceeding shall yield the right-of-way
to pedestrians upon the sidewalk or footpath.
Pies - Do not think this applies at all. It refers to a vehicle coming from pretty much everywhere and going onto a highway. Which sounds the opposite of what happended.
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


User avatar
hwybear
Moderator
Moderator
Posts: 2933
Joined:
Location: In YOUR rearview mirror!

Unread post by hwybear »

lawmen wrote: I don’t know that it is even on a record, but you mentioned that it is, and you want it removed.
Would think that it is similiar to someone that does not have a licence or from out of province, the MTO will generate a DL so that a HTA fine can be tracked.
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


piezomot
Jr. Member
Jr. Member
Posts: 60
Joined:

Unread post by piezomot »

You need to get a hold of the guy who represented you. You want your money back.
Yes lawman, I just went today to the traffic ticket office and spoke to their president, he told me that they will not return any money back, as in his opinion the sidewalk is a part of the highway in Toronto and if I sue him (as I know law better...) in a small claim court and lose, he would sue me back for damages...

Tomorrow I will go and talk to a prosecutor about possible appeal and let you know what happened...


lawmen
Sr. Member
Sr. Member
Posts: 256
Joined:
Location: Planet X

Unread post by lawmen »

Who ever represented you in court is now governed by the Law Society Act.

http://www.e-laws.gov.on.ca/html/statut ... 0l08_e.htm

You can file a complaint against him there for sure and even seek damages, I think.

You can sue him in small claims court. He claims he will sue you back, but he has no grounds to sue you at all.

Think about it, what could he sue you for?

You know nothing about law. You correctly hired someone to represent your son in court. You correctly followed their advice which turned out to be incorrect. This is not your fault.

A miscarriage of justice has occurred here as you pleaded guilty to an offence you cannot be found guilty of. When one is found guilty they all guilty of all elements of the offence. This also applies to a plea bargain. However, again, you cannot be found guilty because the offence doesn’t apply to your son in anyway.

Write him a letter and sent it by email, fax or registered mail. Lay out the facts. Give him a date, say, 2 weeks, to reimburse you. Advise him that if he doesn’t respond by the date further steps will be taken.

But, if you’re happy with him ripping you off then just move on and forget about it all.
Without Justice there's JUST US


piezomot
Jr. Member
Jr. Member
Posts: 60
Joined:

Unread post by piezomot »

Think about it, what could he sue you for?
Yes I put all arguments on paper and e-mailed it to them yesterday. Today i just visited them to get the reply back...

Yes, I do not know anything about the law; I did hope that they would help me like you are helping me. I'll tell you more, I might be suing them for these $500 I have paid them and if I win I will be willing to pay these $500 to you lawmen as a reward for your help...

He told me that they would sue me back for their time loses (as they spent time and money to defend) if I loose a small claim court against them.

I agree with your point of view, let's see what crown would tell me tomorrow...


lawmen
Sr. Member
Sr. Member
Posts: 256
Joined:
Location: Planet X

Unread post by lawmen »

If you were to lose your small claims suit against him he is only entitled to a small amount of costs. Rule 19.

http://www.e-laws.gov.on.ca/html/regs/e ... 0258_e.htm

But even if the guy could prove that sidewalks are included as highways, so what, he still managed to get you convicted for an offence you canno be convicted of. Therefore, His defence argument about highways is meaningless.

You need to satisfy yourself that the info I provided is correct. Everything you read online in opinion, not fact. I've satisfied myself that I'm correct.

I know a bike is a vehicle, not a motor vehicle and only a motor vehicle operator has to report an accident, under the HTA.

The question we need to find out for sure, is whether or not you can agree to be found guilty of a provision that at law you cannot be found guilty of.

It's common sense to me that you cannot.

You’re not paying me anything. That’s not the purpose of this site or why I’m here.
Without Justice there's JUST US


Post Reply

Return to “Failing to remain at the scene of a collision”