Tag Archives: car

Road Safety: Steps Everyone Can Take to Prevent Pedestrian Accidents

Written By: Joseph A. Cescon and Nicole Kiselyov, Summer Student

Pedestrians are amongst the most vulnerable road users- six people are hit by a car every day in Toronto [1]. Unfortunately, when a 3,000-pound object comes into contact with a person, the results are predictable and bleak for the pedestrian.

It is important that individuals remain safe on our roadways. As the weather warms and summer dawns, more and more people are enjoying their time throughout the cities where they reside, as stay at home measures are reduced.

Last week, a young 17-year-old girl and her 19-year-old sister were struck by a left-turning vehicle in a hit-and-run, as they crossed the road. The 17-year-old was pronounced dead at the scene while her sister suffered non-life-threatening injuries [2].

Pedestrians rarely expect such tragedies, especially when they’re following the rules of the road. Unfortunately, as we all know, mistakes can happen in an instant and can result in serious injury or death. Particularly now, as COVID restrictions are loosened, and road users are back en masse, it is important for pedestrians and drivers alike to be vigilant.

Advice for Drivers:

  • Be Attentive! – Drivers must be aware of their surroundings. It is important to be aware of other drivers, pedestrians, cyclists, and other road users.
  • Don’t Rush! – We know that everyone leads busy lives but it is important to exercise caution and care. When turning, for example, drivers should wait until the pedestrian has crossed over to the other side of the street before proceeding. At crosswalks, the law requires drivers, including cyclists to stop and yield the whole roadway.
  • Drive Accordingly! – When driving near schools, playgrounds, residential neighborhoods, and other locations where children are present, reduce your speed, kids can be unpredictable.
  • It Can Wait! – No matter what, never use your phone while driving. It takes a split second to hit someone, your attention should be on the road at all time. No text is worth a life – use your Do not Disturb While Driving feature on your mobile device, here’s How: iPhone users https://support.apple.com/en-ca/guide/iphone/iphae754533b/ios  Android users:  https://support.google.com/pixelphone/answer/9140827?hl=en

Advice for Pedestrians:

  • Look Both Ways! – We are taught from a young age to look both ways before crossing the road. It is important to always do this, no matter how familiar you are with the area or how calm the road may appear.
  • Make Eye Contact! – When crossing the street always be aware of drivers. If cars are waiting to turn right, for example, making eye contact with the driver before crossing can be helpful. This way, you know they see you and acknowledge that you’re going to cross.
  • Use the Sidewalk! – You are safer on the sidewalk. If there is a sidewalk, use it. If you absolutely need to walk on the road, walk against the direction of traffic so you can see oncoming traffic at all times.
  • Be Seen! – If you’re walking at night, avoid dark clothing. Wear bright or reflective clothing to ensure you are visible to drivers.

Find more pedestrian tips HERE and check out some myths that pertain to pedestrian safety HERE.

[1]  https://torontolife.com/city/six-people-are-hit-by-a-car-each-day-in-toronto-we-know-how-to-fix-it-so-why-dont-we/

[2] https://www.thestar.com/news/gta/2020/06/07/one-teen-dead-another-pedestrian-in-hospital-after-hit-and-run-in-north-york.html 

Obtaining the Name of the Person who Doored You

Written By: Patrick Brown and Ryan Marinacci, Law Student

YOU DON’T HAVE THE NAME OF THE PERSON WHO DOORED YOU? HERE IS SOME HELP

In the past, the Toronto Police Services Board refused to release the identities of drivers who door cyclists by stating that it is considered an “incident” as opposed to a reportable motor vehicle accident and by relying on the personal information exemption under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990.

WHY THIS MATTERS

When a cyclist is doored, failure to obtain the name and address of the driver can severely interfere with the cyclist’s ability to seek legal redress such as getting insurance benefits, compensation for their damaged bike, or being able to pursue a lawsuit.  For more on your cycling rights, visit Bikelaw Ontario and Cycle Toronto.

RECENT DECISION OPENS DOOR TO GET NAME AND ADDRESS

The Ontario Information and Privacy Commissioner recently ordered the Toronto Police Services Board to disclose the name and address of a cyclist who struck a pedestrian in Toronto (Police Services Board) (Re), 2020 CanLII 28073 (ON IPC).

For the purpose of releasing the names and addresses of the individuals involved, there is no principled reason to distinguish between a driver who doors a cyclist and a cyclist who hits a pedestrian.  Going forward, this decision should serve as a precedent for requiring the Police to release the identity of a driver who doors a cyclist.

So what to do?  If you are doored and you do not have the name of the person who doored you, prepare and send in a Freedom of Information Request (attached here):

  • Print, sign and date the letter, and insert the date of the dooring incident and any other identifying information you may have,
  • Print and complete the attached Access or Correction Request Form,
  • Print and attach the decision,
  • Pay the required $5.00 fee,
  • Wait for a response.

For those who want to know the basis for the decision please feel free to continue below.

The adjudicator had to determine whether the Police could refuse to disclose the identity of the cyclist under s. 38(2) on the basis that doing so would constitute an unjustified invasion of personal privacy.  This determination was made by turning to the criteria under sections 14(2) and (3).  Relevant here was s. 14(2)(d), the adjudicator found, which asks whether “the personal information is relevant to a fair determination of rights affecting the person who made the request.”

In order to engage s. 14(d), the appellant had to establish that,

  • the right in question is a legal right which is drawn from the concepts of common law or statute law, as opposed to a non-legal right based solely on moral or ethical grounds;
  • the right is related to a proceeding which is either existing or contemplated, not one which has already been completed;
  • the personal information to which the appellant seeks access has some bearing on or is significant to the determination of the right in question; and
  • the personal information is required in order to prepare for the proceeding or to ensure an impartial hearing.

On the facts, these criteria were easily met.  The adjudicator found that the cyclist’s name and address were relevant to a fair determination of the appellant’s rights, and stated,

[51]        …I am satisfied that he has met the four-part test in section 14(2)(d) because:

  • his right to sue is drawn from common law;
  • the right is related to a contemplated civil claim for damages;
  • the personal information to which he seeks access (i.e. the affected party’s name and contact information for service) has a direct bearing on a determination of his right to receive damages because he needs to identify the affected party in order to bring a successful claim; and
  • he needs the affected party’s name to prepare for the proceeding by serving him with his claim.

This factor heavily favoured disclosure and outweighed two concerns that militated against disclosure.  First, under s. 14(2)(h), the personal information had been supplied in confidence because the cyclist had voluntarily given a police statement.  Second, under s. 14(3)(b), the information had been obtained as part of an investigation into a possible violation of the law, and it did not matter that no charges were laid.

However, the appellant countered that the Act should not be used in a way that prevented individuals from exercising their legal rights.  Without the ability to obtain the identity of the proposed defendant, non-disclosure would effectively remove the appellant’s right to sue for the injuries sustained in the incident.

The adjudicator agreed, and stated,

[58]        I agree that the Act should not be used in a way that prevents individuals from exercising their legal rights, and find that the non-disclosure of the affected party’s name and address unduly impairs the appellant’s ability to pursue his right to seek damages.

In the result, the adjudicator ordered the Toronto Police to disclose the name and address of the cyclist.

Involved in a Hit and Run: Get the license plate of the car that hit you

Written By: Joseph A. Cescon and Brock Turville, Student-at-Law

Hit and runs can happen quickly and without warning. They can occur on highways, residential roads, and even in parking lots. Drivers, cyclists, and pedestrians who are struck by another driver who fails to remain at the scene should try and get as much information as possible under the circumstances to assist themselves and the investigators.  Failure to remain at the scene comes with significant consequences under Section 320.16 of the Criminal Code. Anyone who commits an offence by failing to remain could be imprisoned for up to two years less a day (summary conviction) or up to 10 years (indictment).[1]

If you are involved in a Hit and Run, you should immediately do the following:

  1. Call 911 if someone was injured

Reporting the incident to 911 will not only help you create a paper trail for the investigation, but will also provide assistance in a stressful situation. It is also important to gather as much evidence as possible to help increase your chances of finding the driver who fled the scene.   If no one was injured; contact police.

  1. Take pictures of the scene, including any damage and/or injuries

The most important piece of information you should try to get is the license plate of the vehicle that hit you.  A license plate search can later be conducted through the Ministry of Transportation (MTO).  The search will reveal the current address of the plate holder so that he or she can be located. Even a partial plate can be of tremendous assistance.

  1. Get witness contact information

All too often passersby have information that can assist in an investigation but their information is lost because they are unable to remain on-scene until police arrive.   If possible, speak with anyone in the area and record their contact information.

  1. Look for security or surveillance cameras

In this day and age, much of what we do is captured by a camera of some kind.  Look around the area of the incident for cameras which may have recorded the event and speak with anyone else at the scene to see if any dash cam video is available.  If a public transit vehicle was in the vicinity, note the particulars of the vehicle, it is likely equipped with cameras, and the video can be preserved by a simply request to the transit authority.

  1. Report the incident to the police

Try to provide the police with the following information:

  • Location of the collision
  • Details of any damage to your vehicle
  • Colour, make, and model of the vehicle that fled the scene
  • Physical appearance of the driver failed to remain at the scene
  • Names and contact information of any individuals who observed the collision

Hit and runs can also happen while away from your vehicle.  For example, they can happen while your car is parked at work.  Unless you are fortunate enough to have a vehicle equipped with “sentry mode”, it is typically not be possible to see the license plate of other particulars of the striking vehicle. Talking to the owners of other vehicles in the area may reveal important details if they happened to observe the incident; leave them a note. You should also check with businesses in the area to see whether security footage captured the incident.

What if the driver or vehicle cannot be located?

If you are involved in a hit and run accident or fail to remain incident, your own auto insurance coverage may provide under the circumstances. Uninsured coverage is mandatory under the standard automobile insurance contract in Ontario, and allows you to make a claim through your own insurance coverage where it is impossible to identify the vehicle or the responsible party.

If you have been involved in a hit and run accident or fail to remain incident, contact one of the lawyers at McLeish Orlando.

[1] RSC, 1985, c. C-46, S. 320.19(5)

A Reminder of the Importance of Reasonable Foreseeability in Negligence Claims

Written By: Joseph Cescon and Brandon Pedersen, Summer Student

Negligence Claims Importance of Reasonable Foreseeability in Negligence Claims

At law, certain relationships are recognized to give rise to a prima facie duty of care. It is a well-known fact and well-established point of law that a driver of a car who is at-fault owes a duty of care to a person who was injured as a result of the driver’s negligence. The reason for this is that a risk of personal injury after a driver’s negligent conduct (for example, being intoxicated while driving) is reasonably foreseeable.

In what circumstances might a property owner owe a duty of care to a thief who steals from their business? On the face of things, the notion that an innocent party could owe a duty of care to someone who steals from them seems illogical; however, last year, the Supreme Court of Canada revisited the question of foreseeability in establishing a duty of care.

In Rankin (Rankin’s Garage & Sales) v JJ,[1] two teenagers drank alcohol and smoked marijuana to the point of intoxication, and subsequently went to Rankin’s Garage in Paisley, Ontario.  At the time, Rankin’s was an unsecured car dealership and mechanic property, where the teens found an unlocked vehicle with the keys in the ashtray. The two teenagers decided to go for a joyride, though the driver did not have a driver’s license and was drunk and high. As most could anticipate, the driver got into a serious single-vehicle accident, and the passenger suffered a catastrophic brain injury as a result.

After the Ontario Court of Appeal upheld the trial court’s decision that Rankin’s Garage was negligent, the Supreme Court of Canada was forced to conduct a thorough analysis to determine if a duty of care existed.  In a split decision, 7-2, the majority for the Court determined that “this case [could] be resolved based on a straightforward application of existing tort law principles” by applying the Anns-Cooper test.[2] Based on the application of the test, the Court affirmed that what needs to be “reasonably foreseeable” is not only the risk of theft, but that the type of harm suffered – in this case, devastating personal injuries – was reasonably foreseeable to someone in the position of the thief, when considering the security of the vehicles stored at the garage. The Supreme Court of Canada ruled that a commercial car garage did not owe a duty of care to a person who was injured following the theft of a vehicle from its premises.

Implications for Tort Law

  • The decision in Rankin’s demonstrates that risk needs to be assessed on a case-by-case basis, and a duty of care must be based on the reasonably foreseeable risk of harm rather than just a mere possibility of such harm. The outcome of Rankin’s is likely to result in greater attention being paid to the foreseeability inquiry in future negligence cases.
  • While the majority’s decision clarified that a business will only be liable in this kind of situation where both the theft and the unsafe operation of the stolen vehicle should have been foreseen, it indicated that a defendant may still owe a duty of care even if a plaintiff participates in criminal activity.
  • The question that remains is whether or not individual automobile owners owe a duty of care to those injured as a result of the theft of their car. The Rankin’s decision illustrates that cars are not inherently dangerous, and storing them (whether for commercial or personal reasons) will only create a reasonably foreseeable risk in certain circumstances.

Contact the lawyers at McLeish Orlando LLP for more information about your rights, and the options available to you.

[1] Rankin (Rankin’s Garage & Sales) v JJ , [2018] 1 SCR 587, 2018 SCC 19 (CanLII)

[2] Cooper v Hobart, [2001] 3 SCR 537, 2001 SCC 79