Suggesting Driver At Fault for Collision Based on Past Convictions is “Frivolous”

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

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, describing the suggestion of deciding fault for a collision based in part on a motorist’s past driving convictions as ‘frivolous’.

In today’s case (Rezai v. Uddin) the Plaintiff was a pedestrian involved in a collision with the Defendant.  Fault was disputed.  Prior to trial the Plaintiff sought to amend her pleadings to allege “The Defendant Driver had on several previous occasions driven in a manner that put pedestrians and motorists at risk of injury” based on

a.   on Nov. 27, 2008, the defendant was charged with speeding, for which he plead guilty;

b.   on Dec. 4, 2008, the defendant was charged with failing to yield to a pedestrian on a green light, for which he plead guilty;

c.   on December 5, 2008, the defendant was charged with entering an intersection when the light was red for which he plead guilty;

d.   on March 11, 2009, the defendant was charged with speeding, for which he plead guilty;

e.   on January 17, [2015], the defendant was charged with using an electronic device while driving. He failed to appear at the hearing and was deemed not to dispute the charge.

The court rejected this request noting that past convictions likely do not constitute similar fact evidence.  In dismissing the application Master Wilson provided the following reasons:

[22]         The parties agree that there is no British Columbia authority on the issue of whether a pleading alleging similar fact evidence in the context of a prior driving record should be allowed in British Columbia. The defendant refers me to some Ontario authorities in support of his position that such pleadings are improper.

[23]         In Wilson v. Lind, (1985) 35 C.C.L.T. 95, O’Brien J. struck from the pleadings allegations of prior or subsequent impaired driving by the defendant. The application was brought on the basis that the allegations were prejudicial, scandalous or an abuse of process, a rule akin to our R. 9-5(1). At paragraph 12 the court held the following:

Our Courts have held for a long time, and for good reason, that prior negligence of a party is generally irrelevant to proof of subsequent negligence. …

[24]         I note that of the five driving infractions in our case, only two of them are for the same offence, namely speeding. Both were over five years old at the time of the accident. Indeed four of the five convictions were over five years old, with the fifth occurring some months after the accident. The defendant was not issued a violation ticket arising out of the accident.

[25]         The only possible purpose for Similar Fact Pleading here, given the variety of infractions, would be to enable the plaintiff to suggest that the defendant is a generally bad driver based on his driving record. However, this does not inform the analysis of whether or not he was responsible for the subject accident, any more than a clean driving record would tend to absolve him of responsibility.

[26]         It is highly improbable that the trial judge would admit the defendant’s prior infractions as similar fact evidence to support a finding of liability on the part of the defendant. Evidence of prior speeding infractions does not lead to the inference that the defendant was speeding at the time of the accident. Drivers often speed without receiving violation tickets. Proof of speeding does not conclusively establish negligence in the case of an accident. In Hamm Estate v. JeBailey (1974), 12 N.S.R. (2d) 27, evidence of driving record and habits was held to be irrelevant and inadmissible for the purpose of determining liability.

[27]         In Witten v. Bhardwaj, [2008] O.J. No. 1769, the court was asked to strike certain portions of a statement of claim that also involved a pedestrian struck by a vehicle. The plaintiff had pleaded that the defendant had a ‘pattern of reckless conduct’ that included multiple speeding offences. The allegations of speeding in the Witten case were a year before and a year after the accident in issue.

[28]         After reviewing the decision of Wilson v. Lind, Master Haberman said that there were only two purposes for the plea about the defendant’s driving record and held the plea should be struck regardless of which applied:

The plaintiff’s purpose in including these additional allegations about Paawan’s driving patterns could only involve one of two issues: 1) to enable the plaintiff to ask the court to rely on Paawan’s driving record when assessing whether he was likely speeding at the time of this accident; or, 2) to provide “colour” for the court, so that Paawan will be viewed as a bad driver generally, and hence, be seen as likely responsible for this accident. If the former, what the plaintiff seeks to plead in the impugned portion of paragraph 15 is clearly evidence, not material fact, and on that basis should be struck. If the latter, it is frivolous and should be struck.

[29]         I agree. The Similar Fact Pleading is either evidence and therefore improper to include in a pleading, or is intended to suggest that the defendant is generally a bad driver and therefore he is more likely to be the cause of the subject accident, in which case it is frivolous.

Canadians demanding technology relief from Distracted Driving: Aviva poll

A groundbreaking new opinion poll of Canadians shows they have the answer to texting and driving – and it’s not peer pressure or police crackdowns.

Instead, the majority of Canadians in a new public opinion poll by Aviva Canada believe only a technology solution that blocks drivers from using texting and other phone messaging functions while driving will ultimately solve the problem and make roads safer.

Distracted driving kills. More Canadians die on our roads from distracted driving than from impaired driving. The RCMP says that in 4-out-of-5 collisions, drivers have their eyes off the road for just three seconds prior to crashing.

Aviva has long fought distracted driving, launching the Driving Change Together campaign in 2015 and increasing its efforts this year by launching the #avivayolo campaign https://avivayolo.com.

For this new report, Aviva surveyed 1,504 Canadians between August 8-13 with Pollara Strategic Insights.

An overwhelming number of Canadians – 95 per cent of respondents – said texting and driving by others makes them feel unsafe on the roads. A total of 88 per cent of Canadians have witnessed other drivers texting while behind the wheel, while only 22 per cent admitted texting while driving themselves.

“For the first time, what we are seeing is that Canadians don’t think social persuasion or law enforcement strategies against distracted driving are working, and they feel technology is the only realistic answer,” said Aviva Canada Presidentand CEO Greg Somerville.

Canadians are aware of efforts to socially stigmatize distracted driving. They are also aware of increased penalties and demerit points. However, only 48 per cent of Canadians think fines and demerits are a deterrent, while only 32 per cent said they think peer pressure will work.

Instead, almost 4-in-5 Canadians – 78 per cent – said they want to see a technology solution that would stop distracted driving by disabling texting and other functions while the driver is behind the wheel. This week (Sept. 19) Apple’s new iOS operating system debuted a ‘do not disturb while driving’ feature. This is progress as almost three-quarters of Canadians (73 per cent) in our poll said they would use anti-texting technology.

#PutDownYourPhone

*NOTE: A pdf copy of the opinion poll results is available from Aviva Canada.

About Aviva Canada

Aviva Canada Inc. is one of the leading property and casualty insurance groups in the country providing home, automobile, leisure/lifestyle and business insurance to 2.9 million customers. A wholly-owned subsidiary of UK-based Aviva plc, the company has more than 4,000 employees focused on creating a bright and sustainable future for their customers and communities.

Aviva Canada invests in positive change through the Aviva Community Fund, Canada’s longest running online community funding competition. Since its inception in 2009, the Aviva Community Fund has awarded $7.5 million to over 250 charities and community groups nationwide. Aviva Canada, bringing over 300 years of good thinking and insurance solutions to Canadians from coast-to-coast.

For more information visit avivacanada.com

SOURCE Aviva Canada Inc.

 

SGI: Embrace the zipper merge! Plus, other changes in the latest Driver’s Handbook

SGI News Release

Has this ever happened to you? You’re entering a construction zone and the lane you’re in will be closing, so you signal and merge into the continuing lane. Meanwhile, the driver who was previously behind you keeps going in the original lane and merges into the continuing lane at the last minute, well ahead of you. What’s up with that? Is that a fair move?

Yes – that driver was simply doing a zipper merge, which allows drivers to use both lanes until the closing lane ends, then alternate in a ‘zipper’ fashion into the open lane. Vehicles in the closing lane must signal, shoulder check and merge when safe, and each driver in the open lane should let in one vehicle.

“Saskatchewan, it is time to officially embrace the zipper merge,” said Earl Cameron, Executive Vice President of the Auto Fund. “Some people think zipper-merging is rude, but it’s not. When a lane is closing, slowing down to change lanes well ahead of the merge point slows traffic unnecessarily, and can cause congestion.”

Zipper merging benefits all drivers in both lanes, making traffic flow more quickly and efficiently. It also creates fairness and eliminates the stress of the ‘other’ lane moving faster than yours, as everyone can now travel at the same speed. If everyone is courteous and cooperative (courtesy waves encouraged), everyone will zip through quickly!

A new section featuring zipper merges is featured in the latest edition of the Saskatchewan Driver’s Handbook. The Handbook is updated and re-printed each fall. The Handbook isn’t just a study guide to pass the learner’s licence exam; it’s a fantastic resource for all drivers, no matter their age or driving experience.

Other new information in this year’s edition:

  • Tougher impaired driving and cellphone laws that came into effect Jan. 1, 2017
  • Best practice is for hand positions at “9 and 3” or “8 and 4” on the steering wheel, not “10 and 2”
  • Tow trucks can have blue and amber flashing lights; slow to 60 when lights are flashing
  • Addition of “in-laws” to family members who can ride with new drivers
  • Jaywalkers – you should always be prepared to stop if a jaywalker enters your path. But don’t wave them on or encourage them as the car behind or beside you may not see them.
  • Right of way in parking lots – rules of the road to follow when it comes to thoroughfares and feeder lanes

The Saskatchewan Driver’s Handbook is available online, or you can pick up a printed version at any SGI motor licence issuer or driver exam office.

 

New Web-Based Resource Launched to Help Prevent Drug-Impaired Driving

The Traffic Injury Research Foundation (TIRF), in partnership with State Farm® Canada, has launched a Drug-Impaired Driving Learning Centre (DIDLC). The Centre is a web-based resource that was designed to share the latest research about the problem, increase awareness, and inform the development of effective strategies to tackle it.

Drug-impaired driving has become a top priority among governments, law enforcement, and other road safety stakeholders in the past few years. Increases in the proportion of drivers who self-report driving within two hours of consuming drugs, combined with increases in the proportion of drivers killed in road crashes who tested positive for drugs, warrant attention and concern. Public awareness of the impairing effects of many drugs is quite low, and strategies to reduce the prevalence of this problem are much needed.

The effects of alcohol consumption on driving are widely acknowledged; however, much less is known about the effects of different drugs on driving. This, in combination with the permissive attitudes among young drivers towards marijuana and driving, suggests that work is needed to increase awareness about the risks.

“More public awareness and education about the impacts of drug-impaired driving are essential to combatting its consequences,” said John Bordignon, Media Relations State Farm Canada. “Recent State Farm surveys reveal about half of cannabis users that drive feel the drug does not negatively affect their ability to operate a motor vehicle. With impending legalization of recreational marijuana and the opioid crisis in parts of Canada, a factual, publicly available resource like the DIDLC is a valuable tool that can help prevent injury and save lives.”

“The science of drug impairment is much more complex as compared to alcohol impairment,” said Robyn Robertson, President & CEO of TIRF. “The multitude and diversity of legal and illegal drugs, prescription drugs, and over-the-counter medications that can impair driving is substantial. Moreover, the impairing effects of some drugs may vary based on user characteristics and the conditions under which drugs are consumed.”

The good news is that research investigating drug-impaired driving has grown exponentially in the past few years. Studies exploring this topic have been conducted across many disciplines including road safety, justice, health, and neuroscience to name a few. The bad news is that this rapid proliferation of research can make it challenging for decision-makers, governments, law enforcement and health practitioners to keep pace with the latest knowledge.

“Drug-impaired driving is a source of concern for many stakeholders because this cross-cutting issue affects drivers of all ages,” said Dr. Ward Vanlaar, Chief Operating Officer at TIRF. “According to TIRF’s National Fatality Database, 44.5% of drivers killed in road crashes tested positive for drugs in 2013; a larger proportion than those drivers testing positive for alcohol (31.6%). Whereas young drivers were more likely to test positive for marijuana, older drivers were more likely to test positive for prescription drugs.”

TIRF created the DIDLC to support the efforts of governments and road safety stakeholders to prevent and reduce drug-impaired driving. This comprehensive resource contains several modules and is structured in a user-friendly, accessible, question and answer format. It also includes a variety of fact sheets that can be used by health professionals, teachers, parents and teens to increase knowledge and awareness about drug-impaired driving. The resource can be accessed at: www.druggeddriving.tirf.ca.

Fast Facts

According to TIRF’s 2016 Road Safety Monitor on Drugs & Driving:

  • Approximately 2.2% of drivers self-reported driving within two hours of using marijuana in 2016 compared to 1.6% in 2013.

According to the Alcohol and Drug Crash Problem in Canada 2013 Report:

  • In 2013 fatally injured young drivers (26-35 years old) were more likely to test positive for drugs (50.3%) than any other age group.
  • Male drivers accounted for 76.2% of all fatally injured drivers who tested positive for drugs.
  • Fatally injured drivers who tested positive for drugs were more likely to be involved in a single vehicle collision (48.2%).
  • Among those who tested positive for drugs, cannabis was the most frequently detected drug among fatally injured drivers.

About TIRF

Established in 1964, TIRF’s mission is to reduce traffic-related deaths and injuries. As a national, independent, charitable road safety institute, TIRF designs, promotes, and implements effective programs and policies, based on sound research. TIRF is a registered charity and depends on grants, contracts, and donations to provide services for the public. Visit us online at www.tirf.ca.

About the State Farm brand in Canada.

In January 2015, State Farm Canada operations were purchased by the Desjardins Group, the leading cooperative financial group in Canada and among the three largest P&C insurance providers in Canada. With its 500 dedicated agents and 1700 employees, the State Farm division provides insurance and financial services products including mutual funds, life insurance, vehicle loans, critical illness, disability, home and auto insurance to customers in OntarioAlberta and New Brunswick. For more information, visit www.statefarm.ca, join us on Facebook – www.facebook.com/statefarmcanada – or follow us on Twitter – www.twitter.com/StateFarmCanada.

® State Farm and related trademarks and logos are registered trademarks owned by State Farm Mutual Automobile Insurance Company, used under licence by Certas Home and Auto Insurance Company and certain of its affiliates.

SOURCE Traffic Injury Research Foundation

There are cases where buying travel insurance might leave you bereft of coverage. Here are a few examples.

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A $500,000 lesson in how to fight identity theft

 | The Globe and Mail

Identity thieves once stole a total $500,000 by pretending to be Jennifer Fiddian-Green.

Her story is worth hearing if you want to understand the risks that arise when your personal information is stolen. We’re told endlessly to keep our data private so identity thieves can’t get it. But a data breach at the credit monitoring company Equifax highlights the way people can be vulnerable through no fault of their own.

Ms. Fiddian-Green, a forensic accountant at Grant Thornton LLP, isn’t sure how her personal information was stolen back in 2006. But she does know the thieves were able to secure two mortgages in her name that netted them the $500,000.

In investigating her own case, she learned that the thieves tried to borrow money at 12 or more financial companies. “Ten times, these institutions said ‘no, this is not a good application, get rid of it,'” she said. “But two of them [a bank and a mortgage lender] let it go through.” She realized this only after one of the lenders came looking for repayment.

Equifax has been rightly slammed for its vagueness about how many Canadians were affected by a cyberattack against the Atlanta-based company and the extent to which their private information has been compromised. On Monday afternoon, the company’s website said that only a limited number of Canadians may have been affected, and “it seems” at this point that the information possibly breached includes names, addresses and social insurance numbers.

According to the RCMP, personal information can be used to open bank accounts, apply for loans and credit cards and make purchases, among other things. “If a fraudster is successful in using your data to obtain financing, you could quickly be overwhelmed by the number of accounts and the dollars that are out there,” Ms. Fiddian-Green said.

As a cybersecurity expert, she was able to convince the duped mortgage lenders that they were fraud victims. Now, she has some thoughts on helping others understand identity theft and how to fight it.

To start, people need to understand that the data kept by credit monitoring companies such as Equifax and competitor TransUnion is enough to enable thieves to borrow money or set up accounts in your name. These firms are clearinghouses for data on how people are keeping up with their borrowing – they take in information from financial companies and sell it back to these firms to help with decisions on whether to lend money, and at what rate. You should certainly check your credit file to monitor for fraudulent activity. But there’s also some onus on banks, credit card companies and other lenders to make sure they’re lending to actual customers and not thieves.

Expect to find out by letter, phone call or contact from a debt collection agency if you’re a victim of thieves who have used your identity to borrow money. Ms. Fiddian-Green’s suggested response: “You need to say no, I was not a party to this. I’ll help you figure out the fraud that was conducted on you and your institution using my data.”

Scott Terrio of insolvency trustees Cooper & Co. says people are legally responsible for debts in their name. “But if it’s true fraud, then you’re not legally obliged to pay it. The trick is to prove that it wasn’t you.”

One way to do that is to demonstrate the fraudulent expense or borrowing is not in keeping with your usual pattern of spending. Mr. Terrio notes that credit card companies use fraud detection software that looks for deviations from your usual spending. In the fraud cases he’s seen, banks and card issuers have typically been co-operative in identifying identity theft.

Equifax is pushing a $19.95-a-month service on its website that monitors your credit file and can help detect identity theft. But you can also order a free credit report from both Equifax and its competitor TransUnion. Just google Equifax Canada or TransUnion Canada and “free credit report.”

Some financial firms also provide credit reports to their clients. For example, Royal Bank of Canada clients who bank online can now access their credit score and a credit file showing all their existing accounts and inquiries made by lenders. Scan all of this information for unauthorized activity and contact the firm involved if you find anything.

Even after her experience several years back, Ms. Fiddian-Green says she wouldn’t take Equifax up on its credit-monitoring service. “I refuse to pay to have them tell me they’re taking care of my data.”

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