“An Absolute Nightmare”

I was driving westbound on Hwy. 8 earlier this month in North Dumfries Township, approaching the Cambridge city limits. The weather was clear and the roads were dry. I noticed a vehicle on the shoulder on my side of the road, pointing towards me. This didn't concern me right away, as it is a rural area and I sometimes see vehicles doing mail delivery. The vehicle then started accelerating and pulled into my lane, driving straight towards me. What stunned me was the driver did not pull back into their proper (eastbound) lane. They continued driving straight towards me. I had limited options for getting out of the way. I did not want to hard brake, for fear of losing control of the car, or becoming a sitting duck. I did not want to pull right as there are obstacles (ditch, trees, rocks, homes, etc ...) My best course of action was to pull into the eastbound lane. Fortunately no other cars were coming. After I pulled into the other lane, the other vehicle then, unfortunately, pulled into the eastbound lane. I pulled my car over as far as I could to the left. That side of the road has an even larger ditch. We collided in the eastbound lane.

Both me and the other driver were taken by ambulance to the ER. I never did see the OPP officer at the hospital. I did see him briefly at the accident scene but the EMTs were working on me so he said he would catch up with me later.

When I was discharged from the ER a few hours later we still had not seen the officer. We called the OPP and they said it was ok to leave. I spent the next week or so leaving messages so I could tell my side of the story.

I finally got to meet with the officer this week and I was told I was being charged with careless. I was dumbfounded. He said the other driver said nothing about being on the shoulder, or driving towards me in my lane, and that they had simply been driving in their lane all along.

The real kicker is there were no witnesses. Well, there was one. A very nice lady who got to my car first after the accident. I gave her my cellphone to call my family (she did not have a phone). My sister remembers her saying the other driver drove straight at me. I figured the officer would get her contact info, so I did not ask for her name or anything like that. Very frustrating.

The officer said that because the crash site was in the opposite lane, they charged me with careless.

I never expected the other driver to put out a bald faced lie. I honestly thought it would be because the sun was in her eyes (it was extremely bright that time of day) or she was looking over her shoulder to avoid getting creamed by the cars accelerating up to 80 coming out of Cambridge.

I have hired a para-legal. (Wondering now if I shouldn't have hired an actual lawyer.)

Any bits of wisdom from the readers here would be appreciated. My life has been turned upside-down. I should add that I'm 47 and have always prided myself on my driving. I have an 8 star record and am devastated that it may be wrecked because of a lie.

Thanks in advance.

8Star wrote:.The real kicker is there were no witnesses. Well, there was one. A very nice lady who got to my car first after the accident.

If this person did not stay around by the time police got there that would hinder obtaining a name or even a statement from this witness. I have seen it many a times, ask for witnesses and *poof* people vanish and other times there are so many people that will stay and help out by providing statements.

8Star wrote:I never expected the other driver to put out a bald faced lie.

Unfortunately, this happens far more often than you would expect.

8Star wrote:I have hired a para-legal.

That should be fine. Actually, I would caution that although a lawyer may seem a much better course of action, that is not necessarily the case. In fact, there are instances where people have hired lawyers for traffic tickets and got very disappointing results because the lawyer was not sufficiently familiar with the Highway Traffic Act and case law applicable to it. If your paralegal was reputable, knowledgeable and spent some time discussing the case and explaining what was going to happen, you are in good hands. They deal with this stuff all of the time.

My advice is, be prepared to testify about what happened. Go back to the scene of the crash and take some notes. Download a weather report for the time and location. Also, see what your paralegal has to say about the situation. Hopefully, they will be able to find the witness. Also, you say your sister heard the witness talk about the other person's driving. Your sister could testify about this (albeit she would be a biased witness).

I've read that the prosecutor will sometimes negotiate down, but not to zero for careless. I find this disappointing to say the least, as that means the blame will still be on me, even though it was not my fault.

Is it unrealistic to expect to get the charge beat down to zero points?

Also, at what point does an insurance company deem you a high risk driver? Is it 6 points and up?

Chances are the paralegal would review disclosure of the evidence (collision report, officer's notes), and see if it is likely that they could beat the charge at trial. If not, they'll likely negotiate a lesser charge. Without that witness, it will be difficult - he said/she said. The trial would have to focus on discrediting the other driver's testimony, basically asking why she was on that road, where she was going, etc. If they can show inconsistency between her statement to police and her testimony at trial, they could completely discredit her and then you'd be the only witness - case dismissed. However, that is easier said than done. The missing witness is a rather big problem here.

Zero points would probably be unrealistic if the charge is negotiated. Going to trial may be a huge risk and the paralegal may consider that it is not a safe option for you.

Demerit points have nothing to do with insurance, in and of themselves. Demerit points are MTO's record of keeping track of how bad your driving is. While it is true that certain offences with high demerit points would result in a driver being classified as "high risk," you could, for example, have something like 9 demerit points and still not be considered high risk. (Example: 3 speeding convictions for 20-over in a 2-year period.) That, however, depends on your insurer. Major convictions, or multiple convictions, determine if you are high risk.

HOWEVER, a conviction for Careless Driving absolutely WOULD result in you being classified as high risk. In many cases, insurance companies simply terminate your coverage if you get convicted. Otherwise, premiums go way up. Other things that can result in being considered high-risk are, for example, Stunt Driving, Impaired Driving, Speeding 50 km/h or more over the limit (in some cases, 45 or more, depending on the insurer), in some cases Red Light - Fail to Stop, Fail to Remain at the Scene of a Collision, Driving Suspended, etc.

Whether a paralegal or lawyer, you would require one that actually does HTA offences more than once a month/year. They need to be in the swing of things daily to keep up with the fast paced changing laws and case law. Same as other areas of defence, that is why you see 99% of them specialize in an particular area, to be the best in that aspect. They would not want to be the term "Jack of all trades, master of none".

I've had a consult with Pointts and meeting with this firm in a few days ...

Has anyone heard of this firm?

Any paralegal in Ontario has to be licensed by the Law Society of Upper Canada, so they are regulated. Lawyers are, obviously.

As always, I'd suggest a good discussion with your potential representative, and see how often they deal with traffic issues, success rates, and see what they think about your particular matter. If the person is rushed, blows off your concerns, promises the moon, or just seems disinterested, it would be wise to seek different representation. If the person is sincere and realistic, that's probably a good choice.

We just received disclosure on my accident (see "An absolute nightmare). The statement from the other driver is very scant on details, in fact, they don't really remember anything at all.

What happens if/when they are called as a witness in court, and "can't remember"? Is their testimony discarded?

Not discarded, it's accepted and given whatever weight it's due, based on its merits. Which, as you've described it, sounds like none.

It occurred to me I never followed up on this. I suppose I just wanted to put the whole sorry mess behind me.

To those who are in despair of a seemingly hopeless situation - things sometimes work out in your favour.

They did for me.

Fairly early on in the process, I decided to hire an actual traffic lawyer, and dropped Pointts. Not to say there's anything particularly bad about Pointts. I just didn't 100% feel they had my back. After I met my lawyer the first time I knew right away this was what I needed. Yes, I spent a lot more than I would have with Pointts, but the peace of mind made it worth it. I did worry (that's just my way), but he made the process a lot less scary for me.

I also did a LOT of sleuthing in the aftermath of the accident: went to the scene, took photos, knocked on doors, got weather reports, placed ads in papers ... You name it, I did it.

March 4th was the first attendance. Early in the afternoon I received word that they had completely dropped the charge. The reason given was "no reasonable prospect of conviction". My lawyer said he went in with my 35 pages of notes and photos. That, plus the scant testimony of the other driver who "couldn't remember", and the fact that a highly experienced Toronto trial lawyer was there, put an end to things going any further.

Things happened quickly with the insurance company after that. They found me 0% at fault within a few days, and I did get back the value of my car at the time of the loss. So I figure I evened out on everything.

I found the emotional torture was far worse than the physical injuries. It was more important to be exonerated than anything.

If you know you are innocent, then fight with everything you have. The police do make mistakes when investigating. I'm not saying it was willful or anything. In this case I think they were simply lazy, and throwing out a careless charge was an easy thing for them to do. The fact that they charged me even before getting my statement still bothers me.

8Star wrote:

Things happened quickly with the insurance company after that. They found me 0% at fault within a few days, and I did get back the value of my car at the time of the loss.

Congratulations.

I'm curious about your insurance company. Did they learn that you were charged with careless driving?

I wonder if they could have declared you at fault, even with no conviction.

We know they have their own guidelines for determining fault.

Yes insurance can deem you at fault with out a conviction Insurance has their own fault determination rules.

OPS

diehard wrote:I wonder if they could have declared you at fault, even with no conviction.

Happens all the time. There are situations where the other party could be charged and 100% "at fault" according to the Highway Traffic Act, but you could be 100% at fault according to the Fault Determination Rules. In any case, not having Careless Driving on the record, whether at fault or not, will keep the insurance rates lower...