Making Bad Drivers Pay

Last week we looked at how we might define a bad driver. Views were varied, but there were two well thought out responses that did more than just express an opinion. This week, let’s look at how bad drivers pay for the risk that they present to others using our highways.

At the top of the list is the Criminal Code of Canada. Part 8 deals with offences against the person and reputation. Here we find homicidecriminal negligence and motor vehicles, vessels & aircraft. These are reserved for the worst of the worst offenders and convictions may result in significant fines and / or time in jail.

Our Motor Vehicle Act and it’s associated Regulations create the framework of rules that we are supposed to follow when we drive. Disobey one of these and you might receive a violation ticket with a prescribed fine. The fine amount should reflect the seriousness of the offence, the more dangerous the act, the higher the fine.

There are some problems with this system. First among them is that the fine may be a life altering penalty for those with no financial means and the bite of a gnat for those with significant resources.

Yes, the court system exists to reduce the penalties to be more fair in the circumstances, but my experience there is that those of limited means seldom take advantage of it. Also, there is no provision to increase the fine beyond the prescribed fine in traffic court.

Some countries use a Day Fine system where the penalty is based on the offenders daily income level to make the penalty more appropriate.

If the circumstances are out of the ordinary but do not call for criminal sanctions, the offending driver may be served with an appearance notice instead of a violation ticket. A provincial court judge will hear the case and may apply a variety of penalties on conviction. These may range from probation orders to fines, prohibitions from driving and jail sentences.

The second problem that comes to mind is the high threshold for sanction of experienced bad drivers in the Driver Improvement Program.

Additions to the penalty system include the Immediate Roadside Prohibition program (IRP) for alcohol and drug impaired drivers and the Vehicle Impoundment program for the IRP, excessive speeding, driving while unlicensed, prohibited or suspended, stunting and not being seated properly on a motorcycle.

The Driver Penalty Point Premium is based on driving convictions and paid to ICBC each year. The more penalty points you are assigned, the more you pay. This part of the Motor Vehicle Act Regulations is overdue for revision. A red light conviction is 2 points, as is parking next to a yellow curb if you are ticketed for disobeying a traffic control device.

The Driver Risk Premium is meant to penalize drivers who have shown that they present a significant danger others through a driving related Criminal Code conviction, a 10 penalty point violation, excessive speeding or a distracted driving conviction.

If you are an at fault driver in a collision, you will either lose your safe driving insurance discount or the possibility of forgiveness should you experience another at fault collision.

Finally, the courts, RoadSafetyBC in Part 2 or the roadside prohibition requirements of Part 4 of the Motor Vehicle Act serve to remove driving priviliges entirely as a penalty.

This is quite an array of possibilities, isn’t it? With all of this in place, one wonders why there are still so much bad driving behaviour on our roads.

What All Canadian Sports Organizations Can Learn From Ontario’s “Concussion Law”

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

As detailed at my second site, combatsportslaw.com, Ontario recently passed a ‘concussion law’ which will impact all sports organizations in the Province.

While the law has no bearing outside of Ontario’s borders it’s requirements likely will prove influential instructing th

e standard of care when personal injury lawsuits are filed alleging negligence against sports organization that fail to take proper measures in response to athlete concussions.

The legislation requires all sports organizations (a term broadly defined) along with coaches and other key personnel involved in the oversight of amateur sport to be familiar with concussions, to implement a concussion protocol discussing when athletes must be removed from play and when concussed athletes are ok to return to play.  The law further requires these organizations to educate athletes (and in the case of minors, their parents) about the realities of concussion.

The law does not appear to have any enforcement mechanisms however that does not mean it is meaningless.

This law likely sets the framework that courts would adopt when asked whether sports organizations are negligent when athletes are concussed.  If a sports organization anywhere in Canada fails to have meaningful concussion protocols in place and further fails to follow these protocols successful litigation framed in negligence very well may follow.

If you are involved in the oversight of amateur sport becoming familiar with and following the Sport Concussion Guidelines published by the Ontario Ministry of Tourism, Culture and Sport is a wise idea.

Illegal home builders put buyers at risk!

Press Release:

Tarion Warranty Corporation is recognizing Fraud Prevention Month with a strong warning to consumers that an illegally built home in Ontario may come with devastating consequences, including a home that may be unsafe to inhabit or a builder who, once paid, abandons the project altogether.

“When it comes to the largest investment of a family’s life, namely a newly built home, it pays to know that your builder has the technical and financial wherewithal to complete the job and that you have the protection of a warranty if anything goes wrong,” said Howard Bogach, Tarion’s president and CEO. “If builders are not registered with Tarion, they are building illegally and won’t provide warranty protection that is legally required in Ontario.”

Bogach emphasized that every builder in Ontario must be registered with Tarion and must enroll all newly built homes in the warranty program. It’s the law. And almost all municipalities across Ontario are supporting it by sharing their building permit information with Tarion. An additional 15 municipalities have partnered up with Tarion to educate consumers who opt to take out permits in their own names as opposed to using a builder licensed by Tarion.

Illegal builds are more than just a bad idea. They can be expensive for homeowners and builders alike. Last year, for example, Ontario provincial courts set down 117 convictions related to illegal building, and illegal builders paid almost $400,000 in fines for proceeding without proper registration, warranties, or permits. In 2016, one builder even went to jail.

Bogach expects this price tag to increase in 2018 because the fines themselves have increased. Beginning in 2018, builders found in violation of the law will face fines up to $50,000 – up from $25,000 – as well as imprisonment for one year, less a day (twice the previous jail time). Corporations building new homes will face the heaviest penalties with maximum fines of $250,000, up from the previous $100,000. Even directors and officers of these delinquent companies are subject to penalties up to $50,000.

For the homeowner, risks are also high. Unregistered builders do not necessarily comply with Ontario Building Code specifications and the new owner can fall victim to poor craftsmanship, including such dangerous and costly elements as electricity and plumbing. There is also the risk that an illegal builder will take a buyer’s deposit and then abandon the build.

In keeping with its mandate of consumer protection, Tarion advises prospective buyers of new homes to recognize the following signs that a builder may be operating illegally. Builders:

  • Say they built the house for themselves but then decided to sell it.
  • Say they offer their own warranty and the homeowner doesn’t need Tarion’s warranty.
  • Say the Tarion warranty is too costly (sometimes quoting $10k when in fact the maximum cost is $1800 plus taxes.)
  • Offer the consumer a brief contract or, worse, no contract at all.

About Tarion Warranty Corporation

For more than 40 years, Tarion has been enhancing confidence in the new home buying experience. Tarion is a private, not-for-profit corporation that administers the Ontario New Home Warranties Plan Act, and backstops the warranty coverage. We set the standards for builder licensing and after-sales service and step in when your builder cannot or will not fulfill the warranty obligations. Since 1976, Ontario’s new home warranty program has registered close to two million homes and paid put hundreds of thousands of dollars in warranty claims. Our mandate is to serve the public interest, and is what guides us every day.

SOURCE Tarion Warranty Corporation

www.tarion.com

 

Allstate Canada Poll: Is FOMO Driving Distraction Behind the Wheel?

Study reveals 69 per cent of Canadian millennials think they are most distracted generation behind the wheel

MARKHAM, ONMarch 6, 2018 /CNW/ – A new poll from Allstate Insurance Company of Canada reveals 80 per cent of Canadians believe drivers under the age of 34 are most likely to drive distracted. The study, conducted by Leger, also found that Canadians from that younger cohort recognize their own tendency to drive distracted, with 69 per cent conceding that their age group is probably the most likely to do so.

“When faced with tight schedules and temptation from smartphone notifications, drivers may find it hard to resist the urge to grab a quick bite while at the wheel or to sneak a peek at their devices,” says Ryan Michel, president and CEO of Allstate Insurance Company of Canada. “The data shows younger drivers are honest in recognizing the tendencies of their own peer group – but that self-awareness isn’t necessarily leading to changes in risky behaviour. This is why we’ve partnered with Young Drivers of Canada to help shed light on the need to instill and reinforce safe driving habits with all Canadians – even those who have yet to earn their license.”

Is age a key factor?

While many younger Canadians agree that people in their age group are most likely to be distracted at the wheel, they’re also less likely to believe their behaviours can cause them to lose focus. Eating (68 per cent under age 34 vs. 76 per cent nationally), drinking (58 per cent vs. 68 per cent), playing with the sound system (59 per cent vs. 68 per cent) and looking at roadside distractions (67 per cent vs. 77 per cent) are less likely seen as distracting behaviours compared to the national average.

What do Canadians perceive as distractions while driving?

Two actions nearly all Canadians agree cause distraction behind the wheel are using a mobile device and grooming (at 94 per cent and 93 per cent, respectively). Many Canadians also feel that looking at roadside distractions, such as collisions, signs or billboards, are more distracting than using a GPS/navigation system (77 per cent vs. 69 per cent).

Some activities Canadians perform when driving might seem commonplace but can cause them to lose focus. Seventy-six per cent of Canadians believe eating while driving is more distracting then drinking (68 per cent), while 73 per cent of Canadians believe that thinking about personal stressors like work or family issues take their minds off the task at-hand.

“It’s inevitable to face distractions when driving – and it may seem impossible not to give into these distractions,” says Michel. “Our aim is to make Canadians more aware of their behaviours and actions on the road. This is an important step to help keep our focus in the right place and our streets safe.”

Parents believe they are less distracted when on the road

The poll found that caregivers with children under the age of 18 were less likely to believe activities such as using a mobile device (92 per cent of parents vs. 96 per cent nationally), changing the music (62 per cent vs. 70 per cent) and eating (70 per cent vs. 78 per cent) are distractions when driving.

“Parents will always be a catalyst for how newly licensed drivers behave behind the wheel,” says Angelo DiCicco, director of operations for the Advanced Driving Centre for Young Drivers of Canada. “It’s important that we as adults lead by example and teach the next generation of drivers how to behave and focus when it’s their turn to be in the driver’s seat.”

Canadians’ perceptions differ nationally

The poll found some key differences of opinion between regions across the country. When compared to the rest of Canada, Ontarians were more likely to agree that talking on the phone using a Bluetooth is more distracting (77 per cent vs. 69 per cent), while conversely, two-thirds of New Brunswickers (66 per cent) feel that talking to passengers in the car is not distracting compared to the national average of 55 per cent.

In Nova Scotia, 89 per cent of residents ranked eating as a key distractor, which is significantly higher than the national average of 76 per cent. In Alberta, respondents highlighted personal stressors, such as work or family problems, as more distracting than eating while driving (79 per cent vs. 76 per cent). Albertans almost universally agreed that using a mobile device while driving was a distraction at 98 per cent, slightly higher than the rest of Canada.

Staying focused, even during busy times with family

“We all want new drivers to learn safe driving habits and practicing what we preach when we’re in the driver’s seat is crucial to instilling those lessons,” says Michel. “As we head into the March Break, a peak travel period, we encourage all drivers to be aware of their driving habits, to help keep our roads – and our families – safe and secure.”

To help avoid distractions while on the road, Allstate and Young Drivers of Canada have the following tips for Canadians: No Excuses – Distracted Driving Affects Us All.

About the Leger Study:
A survey of 1,982 Canadians was completed online between February 5-8, 2018, using Leger’s online panel, LegerWeb. A probability sample of the same size would yield a margin of error of +/- 2.2%, 19 times out of 20.

About Allstate Insurance Company of Canada:
Allstate Insurance Company of Canada is one of the country’s leading producers and distributors of home and auto insurance products, serving Canadians since 1953. The company strives to keep its customers in “Good Hands®” as well as its employees, and is proud to be named a Best Employer in Canada for the sixth consecutive year. Allstate Canada is committed to making a positive difference in the communities in which it operates and has partnered with organizations such as MADD Canada, United Way and Junior Achievement. To learn more about Allstate Canada, visit www.allstate.ca. For safety tips and advice, visit www.goodhandsadvice.ca.

About Young Drivers of Canada
Young Drivers of Canada is Canada’s largest driver training organization. Established in 1970, the organization is home to over 140 classrooms and provides training programs for new drivers, fleet drivers and driver improvement. Young Driversis committed to being Canada’s leading provider of driver training, teaching new drivers Collision free! techniques that will reduce the number of road deaths and injuries.

SOURCE Allstate Insurance Company of Canada

Close Call at the Crosswalk

A pedestrian pushing a child in a stroller and the driver of a van approach an intersection controlled by a traffic light with a pedestrian signal. Both the traffic light and the pedestrian signal are red. The driver is in the lane next to the pedestrian who arrives at the cross street and stops seconds before the driver arrives at the stop line.

The traffic signal turns green and the pedestrian signal turns white. No longer needing to stop, the driver turns right as the pedestrian starts to move ahead. Were it not for the crosswalk obstruction caused by incomplete snow removal making it difficult to push the stroller ahead, it’s entirely possible that I would have watched a collision occur.

Link to a video of the incident.

Section 132 of the Motor Vehicle Act sets out the rules for pedestrian signals. It says in part that:

When the word “walk” or an outline of a walking person is exhibited at an intersection by a pedestrian traffic control signal, a pedestrian may proceed across the roadway in the direction of the signal in a marked or unmarked crosswalk and has the right of way over all vehicles in the intersection or any adjacent crosswalk.

It looks fairly promising for the pedestrian at first glance, doesn’t it? Right of way over all vehicles in the intersection should mean pedestrians first, shouldn’t it?

The driver was not in the intersection yet, but section 127 covers this situation:

A pedestrian facing the green light may proceed across the roadway in a marked or unmarked crosswalk, subject to special pedestrian traffic control signals directing him or her otherwise, and has the right of way for that purpose over all vehicles.

Finally, section 181 puts a further onus on the driver:

A driver of a vehicle must exercise due care to avoid colliding with a pedestrian who is on the highway

The sidewalk is part of the highway.

Clearly, this driver was required to yield to the pedestrian, but should she have moved to cross? Having the right of way is not a physical protection from harm. The painted lines of the crosswalk don’t help either as they are not a barrier.

She has a duty of care to both herself and the child to insure that it is safe before she proceeds. Had a collision occurred and a hearing to decide liability held, the justice would have reminded her of this and apportioned some of the blame to her for relying solely on right of way rules.

Let’s take a look at crosswalks that don’t involve any traffic lights while we’re on the subject.

If you take ICBC’s on line practice test for drivers, one of the questions shows two pedestrians standing on the sidewalk, mid block, each facing the other across a marked crosswalk and asks what the driver must do. According to the test, the driver must stop and let the pedestrians proceed.

Our rulebook takes a slightly different view in section 179:

The driver of a vehicle must yield the right of way to a pedestrian where traffic control signals are not in place or not in operation when the pedestrian is crossing the highway in a crosswalk and the pedestrian is on the half of the highway on which the vehicle is travelling, or is approaching so closely from the other half of the highway that he or she is in danger.

As I learned to my chagrin in court one day, the driver does not have to yield unless the pedestrian is actually in the crosswalk. Standing on the sidewalk looking across does not qualify.

A pedestrian must carefully step into the crosswalk and wait for a driver to yield before crossing in this instance.

Keep section 179 in mind though, as you must wait until it is safe to do so:

A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way.

Slow Down, Move Over, Not!

On June 1, 2009 the Slow Down, Move Over law came into effect in British Columbia. Just in case you’ve never heard of it, when you approach an official vehicle stopped on the side of the road that is displaying flashing red, blue, white or yellow lights you must slow down and, if possible, move over before you pass it.

An official vehicle is any vehicle authorised under division 4.28 of the Motor Vehicle Act Regulations to use flashing lights of those colours. This includes police, fire, paramedic, towing and public utility vehicles.

Think of it as the 70/40 rule: If the speed limit is 80 km/h or more, you slow down to 70 km/h. If it is lower than 80 km/h you slow down to 40 km/h.

After you have passed by, you may resume speed.

The whole idea of this law is to give the people who work on the side of the road a relatively safe place to conduct their business.

How difficult can it be? You see the flashing lights and check around you to see if it is safe to move over. If it is, you change lanes and begin to slow down. If it isn’t, you simply begin to slow down. In either case, you need to be at the correct speed before you pass by.

Don’t confuse the rule as permission to pass by at either 70 or 40 km/h as the case may be. Circumstances may require that you slow down more than this or even stop if necessary.

I know that the message has not gotten through to some drivers. The last time I passed a tow truck picking up a broken down vehicle on the right shoulder of a divided highway I moved over to the left and slowed down. The driver behind me caught up, changed to the curb lane and blew right on through.

A genuinely stupid move like this could qualify as driving without reasonable consideration for others using the highway instead of a slow down, move over violation.

The fault is not always the passing driver’s however. I have come across situations where there was insufficient time to see the stopped official vehicle and safely carry out the slow down, move over requirement.

Section 138 of the Motor Vehicle Act requires that warning signs be put in place when work is being carried out on a highway. In fact, signs with a pink background are meant to advise of a temporary emergency situation.

Further, section 139 requires that temporary signs be set up limiting speed and how vehicles are to proceed in these situations as well. It is not uncommon to find work being done at the roadside with no warning signs in place.

I have also found an official vehicle parked well off the highway with yellow lights flashing while the worker’s task was being conducted even further off the highway. There should be guidelines for when it is appropriate to use flashing lights and when it is not.

If you read case law, the justice will often mention that is your responsibility as a driver to be able to respond safely to situations that may reasonably be encountered on the highway. A slow down, move over situation is one of them.

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