It should be noted that this case worked its way through the judicial system by first appearing in front of a Justice of the Peace, then to a Judge sitting at the Ontario Court of Justice, and finally to the Court of Appeal. The Court of Appeal convened a special five justice panel to address the important legal issues under discussion. In addition, the Court appointed a lawyer to assist the respondent with the important legal considerations being discussed.
The case itself involved an accident that occurred in a private supermarket parking lot. Although the accident caused significant damage, the respondent did not report the accident and was charged pursuant to so 199(1) of the HTA. S. 199 (1) states the following:
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, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3)
At the first level, the Justice of the Peace stated that since the Accident occurred on private property, the HTA does not apply and dismissed the charge. The Justice of the Peace relied on previous comments made by the Court of Appeal in the 2009 decision of Shah v. Becamon, 2009 ONCA 113. In obiter dicta, a legal and latin term which refers to statements that are not directly related to the legal decision made, the Court of Appeal stated at paragraph 23 that, “The entire HTA, including the graduated licensing system, is limited to “highways”.
On appeal by the Crown, the Ontario Court of Justice, dismissed the appeal and stated the Justice of the Peace correctly followed the obiter dicta in Shah.
In R v Hajivasilis, the Court of Appeal has stated that the obiter dicta from Shah is not a correct interpretation of the Highway Traffic Act. Rather, the Act covers numerous activities that are not just on Highways; the issue of Highways depends upon the wording of the relevant section. As stated by the Court of Appeal at paragraph 4:
I would hold that the obiter in Shah limiting the operation of the “entire HTA” to “highways” is wrong and should not be followed. Many provisions of the HTA are by their terms limited to “highways”. Other provisions, however, are not so limited. Nothing in the overall structure of the HTA or its purpose compels the reading of the word “highway” into sections in which it does not appear. Section 199 is one such section. I would hold that the reporting requirement in s. 199 generally applies even if the accident does not occur on a “highway” as defined in the HTA.
As a result, the present interpretation would indicate that a party to an accident on private property must report any accident that involves “personal injury or damage to property apparently exceeding an amount prescribed by regulation” (this amount is $1,000).
This decision brings clarity to the interpretation of the Highway Traffic Act. Unfortunately, there has been a widespread (mis)understanding that the Provincial law (as compared to Criminal Law), the Highway Traffic Act, does not apply to private property. After this decision, it is quite plausible that that notion is incorrect. Since ignorance of the law is not a defence, this decision could have wide ranging ramifications related to insurance coverage and injuries.
If you think you may be impacted by this decision, you should speak to a lawyer and get legal advice.
Ari Singer is a lawyer at Singer Kwinter exclusively assisting clients who have been injured or are involved in an ongoing dispute with an insurance company.
The content of this article or blog posting is of a general nature and does not constitute legal advice. It is not intended to be a full or complete analysis of the topic. Before applying the concepts or any content of this article or blog it is imperative that you consult your legal advisor.
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