COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Pahal, 2023 ONCA 13
DATE: 20230112
DOCKET: C70362
MacPherson, Simmons and Paciocco JJ.A.
BETWEEN
His Majesty the King ex rel. The Regional Municipality of Waterloo
Appellant
and
Jasreet Singh Pahal
Respondent
Richard Brookes, for the appellant
Filipe Mendes, for the respondent
Heard: October 5, 2022
On appeal from the judgment of Justice Pamela Borghesan of the Ontario Court of Justice, dated September 23, 2021, dismissing an appeal from the acquittals entered on January 30, 2020, by Justice of the Peace James J. Ziegler of the Ontario Court of Justice.
Simmons J.A.:
A. introduction
[1] A Justice of the Peace acquitted the respondent of two by-law offences because he found an amending by-law inconsistent with s. 177(3) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "HTA") and therefore deemed repealed under s. 195 of the HTA.
[2] Section 177(2) of the HTA prohibits commercial solicitation of motor vehicle occupants while on a roadway. Section 177(3) makes an exception for offering towing services “in an emergency.”
[3] The main issue on appeal is whether a by-law that regulates tow truck operations at accident scenes on highways under a municipality’s jurisdiction (“municipal highways” or “municipal highway”) is inconsistent with s. 177(3) of the HTA.
[4] In September 2018, the respondent tow truck driver was charged with violations of two by-law provisions enacted by the Regional Municipality of Waterloo (“Waterloo” or the “Region”). The charges alleged that the respondent:
i) offered tow truck services to a person while within 200 metres of an accident on a municipal highway contrary to Part VII, section 1(a) of Waterloo By-law 16-032 (the “2016 Waterloo Traffic By-law”); and
ii) positioned his tow truck within 200 metres of an accident on a municipal highway contrary to Part VII, section 2(a) of the 2016 Waterloo Traffic By-law.
[5] As originally enacted, ss. 1, 2 and 3 of Part VII of the 2016 Waterloo Traffic By-law closely tracked ss. 171(1), (2) and (3) of the HTA, passed by the provincial government in 1989[^1] to regulate tow truck operations on a King’s Highway, a class of highways under provincial jurisdiction.
[6] Similar to s. 1 of Part VII of the 2016 Waterloo Traffic By-law as originally enacted, s. 171(1) of the HTA prohibits offering tow truck services on a King’s Highway within 200 metres of an accident scene or a vehicle involved in an accident.
[7] Similar to s. 2 of Part VII of the 2016 Waterloo Traffic By-law as originally enacted, s. 171(2) of the HTA prohibits parking or stopping a tow truck on a King’s Highway within 200 metres of an accident scene or a vehicle involved in an accident “if there is a sufficient number of tow trucks already at the scene to deal with all vehicles that apparently require the services of a tow truck.”
[8] Similar to s. 3 of Part VII of the 2016 Waterloo Traffic By-law as originally enacted, s. 171(3) of the HTA stipulates that ss. 171(1) and (2) do not apply if the tow truck operator is at the accident scene at the request of a person involved in the accident, a police officer or other specified official.
[9] In May 2018, the by-law provisions under which the respondent was later charged (ss. 1 and 2 of Part VII of the 2016 Waterloo Traffic By-law) were amended by Waterloo By-law 18-023 (the “2018 Amending By-law”).
[10] The 2018 Amending By-law made a minor correction to s. 1 of Part VII of the 2016 Waterloo Traffic By-law. However, it also amended s. 2 of Part VII by deleting the phrase “if there is a sufficient number of tow trucks already at the scene to deal with all vehicles that apparently require the services of a tow truck” from the prohibition against positioning a tow truck within 200 metres of a vehicle involved in an accident.
[11] Accordingly, following the enactment of the 2018 Amending By-law, unless requested to do so by a specified person[^2], it was no longer open to a tow truck driver to stop within 200 metres of an accident on a Waterloo municipal highway even if there were no other tow trucks at the scene.
[12] An Agreed Statement of Facts filed at trial confirmed that the respondent committed acts that violated ss. 1 and 2 of Part VII of the 2016 Waterloo Traffic By-law as amended by the 2018 Amending By-law. Nonetheless, the presiding Justice of the Peace acquitted the respondent, holding that the 2018 Amending By-law is inconsistent with s. 177(3) of the HTA and therefore deemed repealed under s. 195 of the HTA.
[13] As noted above, s. 177(3) of the HTA creates an exception “in an emergency” to a prohibition in s. 177(2) against commercial solicitation of motor vehicle occupants while on a roadway. The Justice of the Peace found that s. 177(3) gives tow truck operators’ permission to offer their services in an emergency “which is paramount province wide and … binding on the Region.”
[14] Relying in part on s. 171(2) of the HTA, the Justice of the Peace found that the 2018 Amending By-law is inconsistent with the “general exception” for emergencies in s. 177(3) because it would limit the ability of tow truck drivers to offer assistance or approach within 200 metres of an accident even if there were insufficient tow trucks on scene to deal with all vehicles apparently requiring tow truck services. He therefore concluded that the 2018 Amending By-law was deemed repealed under s. 195 of the HTA and dismissed both charges against the respondent.
[15] On appeal to the Ontario Court of Justice, an Ontario Court judge upheld the dismissals.
[16] Waterloo appeals, with leave, to this court.
[17] In addition to supporting the findings of the Justice of the Peace and the appeal judge, the respondent raises two other issues to support the dismissal of the charges.
[18] For the reasons that follow, I would allow the appeal, set aside the dismissal of the charges, substitute findings of guilt, enter convictions and impose a fine of $250 on each charge.
[19] I will begin by setting out the relevant HTA provisions and then turn to the relevant by-law provisions, the evidence at trial, the Justice of the Peace’s reasons and the appeal judge’s reasons.
B. Relevant HTA Provisions
(i) HTA Provisions Regulating Tow Truck Operations on a King’s Highway
[20] As noted above, s. 171 was enacted as an amendment to the HTA in 1989. It contains provisions regulating tow truck operations on a King’s Highway that are similar to those in Part VII of the 2016 Waterloo Traffic By-law as originally enacted (the emphasized words in s. 171 set out below pinpoint the minor language and spacing differences between it and ss. 1, 2 and 3 of Part VII of the 2016 Waterloo Traffic By-law as originally enacted):
Tow truck services
171 (1) No person shall make or convey an offer of services of a tow truck while that person is within 200 metres of,
(a) the scene of an accident or apparent accident; or
(b) a vehicle involved in an accident,
on the King’s Highway.
Idem
(2) No person shall park or stop a tow truck on the King’s Highway within 200 metres of,
(a) the scene of an accident or apparent accident; or
(b) a vehicle involved in an accident,
if there is a sufficient number of tow trucks already at the scene to deal with all vehicles that apparently require the services of a tow truck.
Idem
(3) Subsections (1) and (2) do not apply to a person who is at the scene of the accident at the request of a police officer, an officer appointed for carrying out the provisions of this Act, a person engaged in highway maintenance or a person involved in the accident. [Emphasis added.]
(ii) Section 177 of the HTA
[21] Section 177 was enacted as an amendment to the HTA in 1999 under the Safe Streets Act, 1999, S.O. 1999, c. 8, s. 7(1) (in force January 31, 2000).[^3] The purpose of the Safe Streets Act, 1999, as described in the title of Bill 8 that enacted the Safe Streets Act was:
[T]o promote safety in Ontario by prohibiting aggressive solicitation, solicitation of persons in certain places and disposal of dangerous things in certain places, and to amend the Highway Traffic Act to regulate certain activities on roadways.
[22] Section 177(2) of the HTA creates a broad prohibition against soliciting business from the driver or passenger of a motor vehicle while the motor vehicle is on a roadway. As defined under s. 1 of the HTA, the term roadway includes all highways in the province, including municipal highways[^4]. However, s. 177(3) stipulates that s. 177(2) does not apply “in an emergency.” Further, s. 177(5) specifies that s. 177 does not affect the HTA tow truck provisions contained in s. 171. To provide context, I will set out s. 177 in its entirety:
Soliciting rides prohibited
177 (1) No person, while on the roadway, shall solicit a ride from the driver of a motor vehicle other than a public passenger conveyance.
Soliciting business prohibited
(2) No person, while on the roadway, shall stop, attempt to stop or approach a motor vehicle for the purpose of offering, selling or providing any commodity or service to the driver or any other person in the motor vehicle.
Exception, emergencies
(3) Subsection (2) does not apply to the offer, sale or provision of towing or repair services or any other commodity or service, in an emergency.
Permitted fund-raising by charities
(3.1) Subsection (2) does not apply to fund-raising activities that meet the following conditions:
They are conducted by a charitable organization registered under the Income Tax Act (Canada) on a roadway where the maximum speed limit is 50 kilometres per hour.
They are permitted by a by-law of the municipality in which the activities are conducted.
Penalty for contravention of subs. (2)
(4) Every person who contravenes subsection (2) is guilty of an offence and is liable,
(a) on a first conviction, to a fine of not more than $500; and
(b) on each subsequent conviction, to a fine of not more than $1,000 or to imprisonment for a term of not more than six months, or to both.
s. 171 (tow truck services) not affected
(5) Nothing in this section affects the operation of section 171.
(iii) Section 195 of the HTA
[23] Section 195 of the HTA reads as follows:
Inconsistent by-laws deemed repealed
195 (1) If a provision of a municipal by-law passed by the council of a municipality or a police services board for,
(a) regulating traffic on the highways;
(b) regulating noise, fumes or smoke created by the operation of motor vehicles on the highways; or
(c) prohibiting or regulating the operation of motor vehicles or any type or class thereof on the highways,
is inconsistent with this Act or the regulations, the provision of the by-law shall be deemed to be repealed upon the inconsistency arising.
C. The Waterloo By-law Provisions
[24] Waterloo enacted the 2016 Waterloo Traffic By-law to regulate traffic and parking on highways under its jurisdiction[^5]. As noted above, Part VII of the 2016 Waterloo Traffic By-law as originally enacted included restrictions relating to the operation of tow trucks on Waterloo municipal highways that closely tracked the restrictions contained in s. 171 of the HTA relating to tow truck operations on King’s Highways save for some minor differences in language and a possible spacing error in s. 2 (once again, these differences are emphasized in the provisions set out below):
Part VII – Tow Trucks
- Offer of Service
No person shall make or convey an offer of services of a tow truck while that person is within 200 metres of,
a) the scene of an accident or apparent accident; or
b) a vehicle involved in an accident, on a highway.
- Station/Position
No person shall station or position a tow truck on a highway within 200 metres of,
a) the scene of an accident or apparent accident; or
b) a vehicle involved in an accident, if there is a sufficient number of tow trucks already at the scene to deal with all vehicles that apparently require the services of a tow truck.
- Exception
Part VII, Sections 1 and 2 do not apply to a person who is at the scene of the accident at the request of a police officer, a municipal law enforcement officer, a person engaged in highway maintenance or a person involved in the accident. [Emphasis added.]
[25] The 2016 Waterloo Traffic By-law defines “highway” as including a “common and public highway, street … under the jurisdiction of the Region”.
[26] The 2018 Amending By-law amended ss. 1 and 2 of Section VII of the 2016 Waterloo Traffic By-law relating to tow truck operations. The amendments made a minor spacing correction to s. 1 (the correction is emphasized below) and deleted the exception contained in s. 2(b). The 2018 Amending By-law reads as follows:
The Council of The Regional Municipality of Waterloo enacts as follows:
- That Part VII, section 1, of the Traffic and Parking By-law 16-023 be deleted and replaced with the following:
No person shall make or convey an offer of services of a tow truck while that person is within 200 metres of,
a) the scene of an accident or apparent accident; or
b) a vehicle involved in an accident,
on a highway.
- That Part VII, section 2, of the Traffic and Parking By-law 16-023 be deleted and replaced with the following:
No person shall station or position a tow truck on a highway within 200 metres of,
a) the scene of an accident or apparent accident; or
b) a vehicle involved in an accident.
- This By-law shall take effect on the 10th day of May, 2018.
D. The Agreed Statement of Facts filed at Trial
[27] An Agreed Statement of Facts filed at trial confirmed that on September 20, 2018 the respondent positioned his tow truck within 200 metres of an accident, or a vehicle involved in an accident, on a municipal highway in the City of Kitchener. In addition, the Agreed Statement of Facts confirmed that the respondent offered tow truck services to the driver of a vehicle involved in the accident while within 200 metres of the scene of the accident and that he was not at the scene at the request of a person authorized to request his presence.
E. The Oral Evidence at trial
[28] Four witnesses gave evidence at trial: the driver of one of the vehicles involved in the accident the respondent attended, two police officers, and the respondent. Based on the oral evidence, the Justice of the Peace found that the respondent was the first tow truck on scene at the accident and that two vehicles involved in the accident required tow truck services.
F. The Justice of the Peace’s Reasons
[29] After reviewing the evidence and the relevant statutory and by-law provisions, the Justice of the Peace observed that the tow truck regulations in s. 171 of the HTA apply only to King’s Highways and do not impact a municipality’s ability to enact by-laws regulating tow trucks on municipal highways.
[30] However, the Justice of the Peace found that the exception in s. 177(3) of the HTA is a general provision affecting all roadways in Ontario, including King’s Highways and municipal highways. Further, he concluded that the term “accident” as it appears in the relevant by-law provisions is synonymous with the term “emergency” as used in s. 177(3) of the HTA.
[31] To assess the question whether the 2018 Amending By-law is inconsistent with s. 177(3) of the HTA, the Justice of the Peace focused primarily on the following statements in 114957 Canada Ltee (Spraytech) v. Hudson (Town), 2001 SCC 40, [2001] S.C.R. 241, at paras. 37 and 38:
[A] by-law is not void or ineffective merely because it “enhances” the statutory scheme of regulation by imposing higher standards of control than those in the related statute. [Citation omitted.] … The municipality retains its authority as long as there is no conflict with provincial legislation. It may be more demanding than the province, but not less so. [Citation omitted.]
A finding that a municipal by-law is inconsistent with a provincial statute (or a provincial statute with a federal statute) requires, first, that they both deal with similar subject matters and, second, that obeying one necessarily means disobeying the other. [Emphasis added.]
[32] In the Justice of the Peace’s view, s. 177(3) operates as a “paramount” permission enabling tow truck drivers to offer services on any roadway in the province in the event of an emergency/accident.
[33] In particular, he found that with respect to King’s Highways the province had recognized the need for tow trucks to assist in the event of an emergency and that they could conceivably be first on scene. He noted that tow trucks have equipment to offer assistance to injured or affected parties or to prevent further collisions by moving vehicles out of the way before police arrive to secure an accident scene. Tow truck drivers, if first on the scene, can also assess the scene and call for other appropriate emergency services.
[34] Thus, in s. 171(2) of the HTA, the province had enacted a provision allowing tow truck drivers to attend within 200 metres of an accident on a King’s Highway when there are not sufficient tow trucks on scene to deal with all the vehicles that apparently require the services of a tow truck. Section 171(2) of the HTA therefore conformed with the general exception in s. 177(3). The Justice of the Peace said:
The provincial exception in section 171(2) by permitting a sufficient number of tow trucks to be on scene to deal with all the vehicles that apparently require the services of a tow truck, is recognizing that an accident is an emergency and tow trucks are necessary in an emergency and that exception makes s. 171(2) conform [with] the general exception [for emergencies] in s. 177(3). [Emphasis added.]
[35] On the other hand, because the 2018 Amending By-law prohibits a tow truck operator from stopping within 200 metres of an accident – even if no other tow truck drivers or first responders are on scene – the Justice of the Peace concluded that the 2018 Amending By-law is inconsistent with s. 177(3) of the HTA. He found that, rather than enhancing the exemption created by s. 177(3) allowing tow truck drivers to offer assistance in an emergency, the 2018 Amending By-law effectively eliminated it. The Justice of the Peace therefore concluded that the 2018 Amending By-law was deemed repealed under s. 195 of the HTA.
G. The Appeal Judge’s Reasons
[36] On appeal to the Ontario Court of Justice, the appeal judge accepted that s. 177(3) of the HTA “exempts from liability tow truck drivers offering their services in emergencies” and found that the 2018 Amending By-law was inconsistent with s. 177(3) because it “does not permit that sort of offered services.” She said, “dual compliance would be difficult for even a conscientious careful tow truck operator given the apparent inconsistencies between the [2018 Amending By-law] and section 177.”
H. Discussion
(1) Is the 2018 Amending By-law Inconsistent with s. 177(3) of the HTA?
[37] In my view, the appeal judge and the Justice of the Peace erred in their interpretation of the scope of s. 177(3) of the HTA and, as a result, erred in finding the 2018 Amending By-law is inconsistent with s. 177(3). Contrary to the conclusion reached in the courts below, I conclude that s. 177(3) of the HTA does no more than create an exception to the prohibition contained in s. 177(2) “in an emergency”.
[38] The modern approach to statutory interpretation requires that the words of a statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, quoting from Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87. See also Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300, at para. 18; and Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, [2016] 1 S.C.R. 306.
[39] For ease of reference, I repeat the relevant portions of s. 177 of the HTA:
Soliciting rides prohibited
177 (1) No person, while on the roadway, shall solicit a ride from the driver of a motor vehicle other than a public passenger conveyance.
Soliciting business prohibited
(2) No person, while on the roadway, shall stop, attempt to stop or approach a motor vehicle for the purpose of offering, selling or providing any commodity or service to the driver or any other person in the motor vehicle.
Exception, emergencies
(3) Subsection (2) does not apply to the offer, sale or provision of towing or repair services or any other commodity or service, in an emergency.
Penalty for contravention of subs. (2)
(4) Every person who contravenes subsection (2) is guilty of an offence and is liable,
(a) on a first conviction, to a fine of not more than $500; and
(b) on each subsequent conviction, to a fine of not more than $1,000 or to imprisonment for a term of not more than six months, or to both.
s. 171 (tow truck services) not affected
(5) Nothing in this section affects the operation of section 171. [Emphasis added.]
[40] As a starting point, on its face, s. 177(3) of the HTA does no more than create an exception to the broad prohibition in s. 177(2) against commercial solicitation of motor vehicle occupants on a roadway.
[41] In relation to towing services, s. 177(3) states only that the prohibition contained in s. 177(2) does not apply to their offer, sale or provision in an emergency. Section 177(3) does not purport to confer any other permission in relation to towing services. Significantly, it does not purport to regulate how and when towing services can be offered, sold or provided in an emergency. It simply says the prohibition in s. 177(2) does not apply to the offer, sale or provision of towing services in an emergency. This means that, in an emergency, it will not be an offence under s. 177(2) to act in contravention of that section.
[42] Moreover, reading ss. 177(2), (3) and (5) in conjunction with s. 171, it is apparent that ss. 177(2) and (3) were not intended to affect the regulation of tow truck services at accident scenes.
[43] As noted above, s. 171 was enacted in 1989, 10 years prior to the enactment of s. 177 in 1999. The purpose of s. 171, as can be gleaned from reading the section as a whole, was to regulate tow truck operations at accident scenes on King’s Highways, i.e., highways specifically under provincial jurisdiction. Section 177(5) states specifically “[n]othing in this section affects the operation of section 171.”
[44] In his reasons, the Justice of the Peace relied on the “exception” to the prohibition in s. 171(2) that permits “a sufficient number of tow trucks to be on scene to deal with all the vehicles that apparently require the services of a tow truck” to support his reasoning. He found the s. 171(2) exception makes s. 171(2) conform to the “general exception” for emergencies in s. 177(3).
[45] But s. 171(2) was enacted 10 years before s. 177 with the obvious purpose of regulating tow truck operations at accident scenes on King’s Highways. And s. 177(5) clarifies that nothing in s. 177 is intended to affect the operation of s. 171. Importantly, s. 177(3) does not purport to create some form of “general exception” for emergencies. Rather, it creates a specific exception in relation to the s. 177(2) prohibition by stating: “[s]ubsection (2) does not apply to…”.
[46] I accept the test adopted in the courts below for making a finding of inconsistency under s. 195 of the HTA:
A finding that a municipal by-law is inconsistent with a provincial statute … requires, first, that they both deal with similar subject matters and, second, that obeying one necessarily means disobeying the other: 114957 Canada Ltee (Spraytech), at para. 38. See also Croplife Canada v. Toronto (City), 2005 15709 (ON CA), 75 O.R. (3d) 357, at para. 63.
[47] Given my conclusion that s. 177(3) of the HTA does no more than create an exception to the prohibition in s. 177(2) against commercial solicitation from motor vehicle occupants while on a roadway, I see no basis for holding that Waterloo’s 2018 Amending By-law is inconsistent with s. 177(3). Even assuming they deal with the same subject matter, obeying one does not necessarily mean disobeying the other.
[48] As I have said, s. 177(3) of the HTA is not a broad grant of permission for tow truck operators to attend at and offer services at an accident scene. It is merely an exception to the prohibition in, and offence created by, s. 177(2) of the HTA. The fact that by attending an accident scene on a municipal highway a tow truck operator may not be contravening the prohibition in s. 177(2) of the HTA, does not give the tow truck operator a licence or permission to attend an accident scene nor does it require the tow truck operator to do so. It was therefore open to the Region through the 2016 Waterloo Traffic By-law and the 2018 Amending By-law to regulate when and how a tow truck operator may attend an accident scene on a Waterloo municipal highway.
(2) Other issues raised by the respondent
[49] In addition to supporting the reasons of the Justice of the Peace and appeal judge, the respondent raises two additional arguments to support the dismissal of the charges.
[50] First, he points out that the charges in the Information refer only to the 2016 Waterloo Traffic By-law, they do not refer to the 2018 Amending By-law. He submits it was not therefore open to the Justice of the Peace, nor is it open to this court, to find him guilty of offences not charged and of which he did not have notice, the latter being a requirement of s. 11(c) of the Charter.
[51] I would not accept this argument. Immediately after the Agreed Statement of Facts was filed as an exhibit at trial and before any witnesses were called, the municipal prosecutor asked that certified copies of the 2016 Waterloo Traffic By-law and 2018 Amending By-law be filed as exhibits. The paralegal representing the respondent objected on the basis that the Information did not refer to the 2018 Amending By-law or state that the 2016 Waterloo Traffic By-law had been amended. The Justice of the Peace permitted certified copies of both by-laws to be filed. The paralegal representing the respondent did not ask at that time that the Information be quashed or request any other remedy, such as an adjournment. Nor is there any indication on the record before us that the paralegal sought any remedy later in the proceedings[^6].
[52] In the circumstances, if necessary, I would order that both charges in the Information be amended under s. 117(1)(a.1) of the Provincial Offences Act, R.S.O. 1990, c. P.33[^7] so that the 2016 Waterloo Traffic By-law is referred to as “as amended”. Even assuming it was necessary that the words “as amended” should have been set out in the Information, given that certified copies of both relevant by-laws were filed at trial and the respondent did not request an adjournment, I see no basis for finding that he was in any way prejudiced by the omission of the words “as amended”.
[53] The respondent’s second argument is that s. 171 of the HTA will be repealed[^8] and replaced by s. 38 of the Towing and Storage Safety and Enforcement Act, 2021, S.O. 2021, c. 26. Section 177(5) of the HTA will also be repealed, and new language substituted[^9] to address this change such that it will read: “Nothing in this section affects the operation of section 25 or 38 of the Towing and Storage Safety and Enforcement Act, 2021.” Both changes will take effect on a future day yet to be named by proclamation of the Lieutenant Governor. Given these impending legislative changes, the respondent argues that the appeal is moot.
[54] I see no merit in this argument. The sections at issue are in force now and were in force at the time the charges were laid. There is a live issue before this court concerning whether the 2018 Amending by-law is inconsistent with s. 177(3) of the HTA. This appeal is not therefore moot.
I. Disposition
[55] Based on the foregoing reasons, I would allow the appeal; set aside the dismissal of the charges; if necessary, amend the Information as specified above; and make findings of guilt and enter convictions on both charges.
[56] At the appeal hearing, Waterloo requested that fines of $1000 be imposed with respect to both charges if the appeal is allowed.
[57] The maximum fine for each charge is $5000: Part XXI of the 2016 Waterloo Traffic By-law[^10]; s. 61 of the Provincial Offences Act, R.S.O. 1990, c. P. 33[^11].
[58] Given the Justice of the Peace’s finding that the respondent was the first tow truck operator on scene, that this was apparently a test case and that we have no information concerning the respondent’s prior record, if any, I would impose a nominal fine of $250 in relation to each offence.
Released: January 12, 2023 “JCM”
“Janet Simmons J.A.”
“I agree. J.C. MacPherson J.A.”
“I agree. David M. Paciocco J.A.”
[^1]: An Act to Amend the Highway Traffic Act, S.O. 1989 c. 54, s. 32.
[^2]: This exception, which tracks s. 171(3) of the HTA was contained in s. 3 of Part VII of the 2016 Waterloo Traffic By-law as originally enacted and remained unchanged following the enactment of the 2018 Amending By-law.
[^3]: With the exception of s. 177(3.1) which was enacted and came into force in 2005: Safe Streets Statute Law Amendment Act, 2005, S.O. 2005, c. 32, s. 2.
[^4]: “Highway” and “roadway” are defined as follows in s. 1 of the HTA:
“highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;
“roadway” means the part of the highway that is improved, designed or ordinarily used for vehicular traffic, but does not include the shoulder, and, where a highway includes two or more separate roadways, the term “roadway” refers to any one roadway separately and not to all of the roadways collectively.
[^5]: The title of the 2016 Waterloo Traffic By-law states:
A By-law to Regulate Traffic and Parking on Highways Under the Jurisdiction of the Regional Municipality of Waterloo and to Repeal By-law 06-72.
[^6]: The transcript of the proceedings before the Justice of the Peace indicates closing submissions were recorded but not transcribed.
[^7]: Section 117(1)(a.1) of the Provincial Offences Act provides that the court may, where it considers it to be in the interests of justice, “amend the information, unless it is of the opinion that the defendant has been misled or prejudiced in his or her defence or appeal”.
[^8]: Moving Ontarians More Safely Act, 2021, S.O. 2021, c. 26, Sched. 3, s. 67(3).
[^9]: Moving Ontarians More Safely Act, 2021, S.O. 2021, c. 26, Sched. 3, s. 67(4).
[^10]: Part XXI of the 2016 Waterloo Traffic By-law provides: “Every person who contravenes a provision of this By-law is guilty of an offence and upon conviction is liable to a fine as provided in the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended.”
[^11]: Section 61 of the Provincial Offences Act provides: “Except where otherwise expressly provided by law, every person who is convicted of an offence is liable to a fine of not more than $5,000.”