Court File and Parties
Ontario Court of Justice
Date: 2020-01-30
Court File No.: 4460 999 19 28905 00
Between:
Her Majesty the Queen ex rel. Regional Municipality of Waterloo
— AND —
Jasreet Singh Pahal
Before: Justice of the Peace James Ziegler
Heard on: October 9th, 2019
Reasons for Judgment released on: January 30th, 2020
Counsel
D. Dyer — counsel for the prosecution
S. Jackson — agent for the defendant Jasreet Singh Pahal
Judgment
JUSTICE OF THE PEACE ZIEGLER:
The Charges
[1] The Defendant, Jasreet Singh Pahal [hereinafter referred to as "Mr. Pahal"] faces two charges under the Regional Municipality of Waterloo By-Law 16-023, one charge under Part VII 1(a) and the other charge under Part VII 2(a) both on September 20th, 2018 in the City of Kitchener. By-Law 16-023 was amended by By-Law 18-023 on May 10th, 2018 and the charges are impacted by the amendment.
[2] The charge under Part VII 1(a) is that Mr. Pahal on or about September 20th 2018 being the operator of a tow truck bearing licence plate AM33217, did offer tow truck services to a person, to wit: Arbresha Shala, while on a highway, Bleams Road, within 200 metres of an accident, or an apparent accident on a highway as per the Regional Municipality of Waterloo By-Law 16-023 [hereinafter referred to as "Waterloo Region"].
[3] The charge under Part VII 2(a) is that Mr. Pahal on or about September 20th, 2018 being the operator of a tow truck bearing licence plate AM33217, did position his tow truck while on a highway, Bleams Road, within 200 metres of an accident, or an apparent accident on a highway as per Waterloo Region By-Law 16-023.
Agreed Statement of Facts
[4] We have an Agreed Statement of Facts attached as Schedule 1, where Mr. Pahal agrees he operated a tow truck owned by Able Regional Towing and Recovery Ltd., positioned his tow truck on September 20th 2018 within 200 metres of an accident or a vehicle involved in an accident and he agrees he offered services of a tow truck to Arbresha Shala the driver of a motor vehicle involved in an accident within 200 metres of the scene of the accident on Bleams Road, a highway, in the City of Kitchener which are not in issue. Mr. Pahal also agrees he was not at the scene of the accident at the request of a police officer, a Municipal Law Enforcement Officer, or a person engaged in highway maintenance or a person involved in the accident.
Evidence
[5] I heard the testimony of Arbresha Shala. She testified she was the driver who rear ended the vehicle in front of her. She said she did not call a tow truck. She said the tow truck operated by Mr. Pahal, who she identified in court, arrived within 12 to 15 minutes of the accident. The police did not arrive until approximately 1 hour after the accident she opined that the accident was around the same time as a shooting at Huron Heights. Mr. Pahal offered her tow truck services for a cheaper price, but she declined the offer. She was waiting for her brother to attend. She said an ambulance came and took the other person in the accident, she herself was not hurt.
[6] Cst. Steve Sadler works for the Waterloo Regional Police Service [hereinafter referred to as WRPS]. He testified he arrived on the scene on Bleams Road in the City of Kitchener just up the Road from Homer Watson Boulevard and the Plaza, on September 20th, 2018 and testified that when he arrived there were two firetrucks and an ambulance and two tow trucks on the road and at the scene.
[7] Cst. Sadler said the one tow truck, Abstract Towing, was called by an involved party and the other was Able Towing driven by Mr. Pahal. He said the Able tow truck was on the road just behind one of the firetrucks and that firetruck blocked the entrance to the plaza. The Able tow truck was behind that firetruck.
[8] Cst. Sadler was not there when the emergency vehicles and tow trucks arrived, he cannot say who showed up first.
[9] Cst. Black from the WRPS was called by Cst. Sadler to deal with the tow truck in violation of the bylaws and arrived at 233 pm on September 20th, 2018 and based on the information obtained from Cst. Sadler and in speaking with witnesses he charged Mr. Pahal with the two offences contrary to the Waterloo Region by-law.
[10] Mr. Pahal testified that he came upon the accident scene On September 20th, 2018 and saw two firetrucks as well as two vehicles in the middle of Bleams Road. He turned on his emergency lights and positioned himself behind the firetruck. He offered the woman who needed help tow truck services. The police officer told him not to leave checked his emergency brakes then told him to park in the Plaza. He stated not all officers give tickets for being there. He has had by-law tickets and he has towed after being given a by-law ticket.
[11] Mr. Pahal testified there were two vehicles in the collision, so the law permits two tow trucks to be on scene and other trucks are not allowed to stop.
[12] Based on the testimony of Arbresha Shala an involved party and the testimony of Mr. Pahal I find that Mr. Pahal was the first tow truck that arrived at the accident scene and that there were two vehicles that required tow truck services.
[13] The Facts in Schedule 1 and are not in issue and based on the testimony and my finding of facts, the remaining issue is the validity of the Waterloo Region By-Law, as amended.
Waterloo Region By-Law 18-023
[14] Waterloo Region By-Law 16-023 Part VII sections 1, 2, and 3 in its original format is attached as Schedule 2. The amendment to those sections on May 10th, 2018 is attached as Schedule 3 identified as By-Law 18-023 of Waterloo Region, a By-Law to amend By-Law 16-023.
[15] By-Law 18-023 is described as a By-Law to Regulate Traffic and Parking on Highways Under the Jurisdiction of the Regional Municipality of Waterloo in a preamble at the top of the page.
[16] The difference between By-Law 16-023 and the amended 18-023 is simply one of deletion. The deletion of the last part of section 2 (b) in By-Law 16-023. Sections 1 and 2 and 3 in By-Law 16-023 are retained in the amended By-Law 18-023 in their original form except for the deletion of the following words at the end of section 2(b);
"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."
[17] The deleted portion attached to 2(b) applies as an exception to both 2(a) and 2(b) of By-Law 16-023 when read in its entirety, it states:
2. 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.
[18] Sections 3 of By-Law 16-023 is maintained in the amended By-Law 18-023 as the amendment specifies part VII section 1 and section 2 only. The exception in section 3 is as follows: "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.
[19] In reviewing Part VII in its original format and without knowing the history of any prior amendments to Part VII, it strikes me as odd that the apparent exception in Section 2 regarding 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, was not clearly included in section 1 regarding Offer of Service. I will come back to this later.
[20] Mr. Pahal's position is that the Waterloo Region By-Law 18-023 is inconsistent or in conflict with the provisions specified in the Highway Traffic Act which articulate rules regarding tow trucks.
[21] Waterloo Region argues that the amended regional By-Law supplements or augments the provisions of the Highway Traffic Act and is not contrary to or inconsistent with the Highway Traffic Act [hereinafter sometimes referred to as the HTA] regarding tow trucks.
The Highway Traffic Act and Inconsistent By-laws
[22] It appears that a court has authority to deem a by-law repealed if a by-law is found inconsistent with the Highway Traffic Act:
PART XII – MUNICIPAL BY-LAWS (S. 195) of the Highway Traffic Act R.S.O. 1990 c. H.8, as amended, states:
195.(1) Inconsistent by-laws may be deemed invalid – If a provision of a municipal by-law passed by the council of a municipality or a police service 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, (bolded and italicized by author)
Is inconsistent with this Act or the regulations, the provision of the by-law shall be deemed to be repealed upon the inconsistency arising.
[23] The 2019 Annotated Ontario Highway Traffic Act edition at page 473 sets out case law under section 195, the first of which is reference to R. v. Jeffs, [1959] O.R. 150 (H.C.) which states "the approval under this section of an invalid by-law, e.g., one passed without legislative authority, will not make such by-law valid.
The Highway Traffic Act Provisions Regarding Tow Trucks Section 171
[24] Section 171 of the HTA refers to tow truck services and uses the same language a By-Law 16-023 enacted by Waterloo Region before the amendment made in May 2018 under By-Law 18-023, except the HTA adds the phrase "on the King's Highway" as clarification in both subsection 1 and 2 under section 171.
[25] HTA section 171. (1) states: "Tow Truck services- 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. [emphasis added].
[26] HTA section 171. (2) states: - 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.
[27] Subsection 171. (2) HTA is the exact same wording as Waterloo Region used in their exception under section 2. of By-Law 16-023 and was not affected by the amendment in 18-023, namely where a tow truck is requested by: a police officer, another appointed officer, or a person engaged in highway maintenance, or a person involved in the accident.
[28] This Court assumes by the reference to "on the King's Highway" the province has created these rules in 171 in respect to tow trucks operating on provincial highways which are highways created maintained and controlled by the Province and not applicable to roads created maintained and controlled by municipalities, except as indicated in the definition of King's Highway page 12 of the 2019 annotated version of the HTA where it incudes the secondary highways and tertiary roads designated under the Public Transportation and Highway Improvement Act, which in a brief review this writer understands to be on and off ramps and certain designated feeders to provincial highways particularly in the 400 series.
[29] In other words, this Court finds that the provisions of section 171 in respect to tow trucks applies to King's Highways and does not impede municipalities from deciding not to regulate tow trucks, or in regulating tow trucks does not impede municipalities from creating their own bylaws which may or may not differ from the provisions outlined in section 171, albeit bylaws with the same wording would be difficult or unlikely to be found inconsistent, if challenged. However, section 171 is not the only provision in the HTA that deals with tow trucks and in my view section 177. (3) of the Highway Traffic Act when read in conjunction with the other paragraphs in section 177, is a general provision which affects all highways in the Province of Ontario.
Section 177. (2) and 177. (3) Emergency Exception of the Highway Traffic Act
[30] Section 177. (2) deals with a prohibition of stopping or approaching a motor vehicle to offer services, it states:
"(2) Stopping or approaching vehicle prohibited – 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."
[31] Section 177. (3) deals with an exception to subsection (2), it states:
"(3) Exception – 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."
[32] This Court needs to consider what is an emergency? In reviewing my notes, neither party addressed the exception provided under 177. (3) in terms of the meaning of an emergency and the scope of the exception. I find that section 171 does not bind municipalities to create a bylaw nor if in creating a bylaw does it require the provisions of 171 to be duplicated, but section 177. (3) is not a rule restricted to King's Highways. I find section 177. (3) both in its wording and effect has general application to all highways in the Province and I find the exception in 177. (3) applies to King's Highways and municipal highways as its wording has a general application.
[33] HTA definitions section does not cover or address the meaning of emergency, nor does it cover the definition of accident or motor vehicle accident. The parties did not address the meaning of emergency or accident in their submissions or the case law cited. It might be that they were of the view that it spoke for itself. Not having that understanding, the writer googled the definition of emergency and it defined it as "a serious, unexpected, and often dangerous situation requiring immediate action."
[34] The writer also looked up the meaning of emergency in "Black's Law Dictionary Revised Fourth Edition" 1968, reprinted 1972 which stated at page 615: "A sudden unexpected happening; an unforeseen occurrence or condition; specifically, perplexing contingency or complication of circumstances; a sudden or unexpected occasion for action; exigency; pressing necessity."
[35] The writer googled the definition of motor vehicle accident and it defined it as: "A car accident, also referred to as a "traffic collision" or a "motor vehicle accident" occurs when a motor vehicle strikes or collides another vehicle, a stationary object, a pedestrian, or an animal. While some car accidents only refer in property damage, others result in severe injuries or death".
[36] The writer looked up the meaning of automobile accident in "Black's Law Dictionary Revised Fourth Edition" 1968, reprinted 1972 which stated at page 30: "the word "accident" as used in automobile liability policy requiring notice of any "accident" to be given to an insurer as a condition precedent to liability means an untoward and unforeseen occurrence in the operation of the automobile which results in injury to the person or property of another…connotes event which occurs without one's foresight or expectation, and does not exclude negligence…The word "accident", requiring operator of vehicle to stop immediately in case of accident, contemplates any situation occurring on the highway wherein he so operates his automobile as to cause injury to the property or person of another using the same highway."
[37] I have reviewed the facts, the case law, the Ontario Highway Traffic Act and the submissions of both counsel and agent. I have considered the definitions of emergency and accident from the sources as noted all of which has led to this decision.
[38] Black's Law Dictionary defines "emergency" as a sudden unexpected happening, an unforeseen occurrence or condition, a sudden or unexpected occasion for action; exigency; pressing necessity. Black's Law Dictionary defines "accident" as an untoward and unforeseen occurrence in the operation of the automobile which results in injury to the person or property of another…{it} connotes event which occurs without one's foresight or expectation and does not exclude negligence. The Ontario Highway Traffic Act provides no specific definition for the word's accident or emergency. The Waterloo Region By-Law 16-023 has no specific definition for the word's accident or emergency.
[39] In comparing these two definitions from Black's Law, I am of the opinion and find, the definition of emergency as used the Ontario Highway Act to mean and be synonymous with the word or term or word "accident" as used in the Ontario Highway Traffic Act; and I find the same otherwise undefined meaning of the word "accident" used in the Waterloo Region tow truck by-laws as I have found in the meaning used In the Highway Traffic Act. I find that the word "accident" in the Waterloo Region tow truck by-laws to be synonymous with the term or word "emergency" as referred to in the Highway Traffic Act particularly as used in section 177. (3) Of the Highway Traffic Act.
[40] I therefore find an accident is an emergency in respect to the Waterloo Region tow truck By-laws 18-023 and 16-023.
[41] The case law cited by Waterloo Region's counsel in its brief of authorities covered a variety of law and decisions of higher courts which dealt with conflict or differences between provincial and federal law, or municipal and provincial law in areas where jurisdiction overlaps.
[42] Tab 4: 114957 Canada Ltee (Spraytech) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241: deals with regulation and restriction of pesticide use and reference is made to page 17 paragraph 37 which states "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…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"; and at paragraph 38 quoting another case states "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."
[43] Tab 6: Toronto (City) v. Goldlist Properties Inc., O.J. No. 3931, Ontario Court of Appeal: deals with planning issues and a decision by the Ontario Municipal Board. The court ruled the Board had jurisdiction and the appropriate standard of review was correctness. The City restrictions imposed on rental properties did not conflict with legal protection afforded tenants under the Tenant Protection Act. As long as it was within its municipal competence, the City was free to establish policies and standards more restrictive than those established by provincial legislation. Quoted from Hudson case at page 15, paragraph 67 which paragraph also noted "A conflict rendering a by-law invalid arises only when one enactment compels what the other forbids".
[44] Tab 8: Law Society of Upper Canada V. Barrie (City), 46 O.R. (3d) 620 Ontario Superior Court: a municipal by-law regulating law firms does not necessarily conflict with the regulation of a legal practice by the law Society under the Law Society Act. The by-law regulates businesses, the Law Society governs legal practice.
[45] This court accepts the Hudson case as binding authority in the case at present, as well as Goldlist and Law Society v Barrie, in respect to their findings of law, even though the subject matter of all three cases referred to in paragraphs 31 to 33 above can be distinguished on their facts.
[46] In the case at hand I find the Waterloo Region By-Law 18-023 amending By-Law 16-023 conflicts with the general provision under section 177. (3) of the Highway Traffic Act as the Waterloo Region by-law does not enhance the exemption for tow truck assistance in emergencies but rather eliminates it in its entirety. The permission to tow truck operators to offer service in emergencies is paramount province wide and is binding on the Region.
[47] In my view any accident is an emergency. Not all accidents or emergencies are equal in severity. Injuries to people may or may not have occurred, property damage will vary in every case, but the fact of an accident creates a situation which must be initially treated as an emergency to ascertain what if any immediate steps are necessary to save life, move vehicles off the roadway, remove people injured from vehicles if necessary, call ambulance, reroute traffic to limit further collisions because of the location and effect on traffic continuing along or through the highway where it occurred.
[48] I find that the province in respect to King's Highways has recognized the need for tow trucks to assist the public, the police and other services in these emergencies. They can conceivably be the first on the scene. There are remote locations even in Waterloo Region where the first responder to an accident could be a tow truck operator. A tow truck operator coming along an unconscious driver in an accident cannot seek the consent of the injured before calling other emergency services and to offer immediate assistance.
[49] Tow truck drivers have some of the equipment to seek or offer assistance to an injured or affected party or to prevent further collisions by possibly moving a vehicle out of the way of danger from oncoming traffic before police have arrived to secure the scene, or to assess the scene and call for other appropriate emergency services like an ambulance or fire service with jaws of life. Hence, the province has said on King's Highways a tow truck driver can attend on the scene closer than 200 metres when there are not sufficient tow trucks on scene to deal with all the vehicles that apparently require the services of a tow truck.
[50] 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 to assist in an emergency and that exception makes section 171. (2) conform the general exception in section 177. (3).
[51] The Province recently, on June 1st, 2015 amended subsections 159. (2) (3) and (5) of the Highway Traffic Act to include tow trucks. This provision applies province wide to all highways.
[52] Subsection 159 (2) it now requires vehicles to slow down on approaching stopped emergency vehicle or tow truck, it states: "Upon approaching an emergency vehicle with its lamp producing intermittent flashes of red light or red and blue light or a tow truck with its lamp producing intermittent flashes of amber light that is stopped on a highway, the driver of a vehicle travelling on the same side of the highway shall slow down and proceed with caution, having due regard for traffic on and the conditions of the highway and the weather, to ensure the driver does not collide with the emergency vehicle or tow truck or endanger any person outside the emergency vehicle or tow truck.
[53] Subsection 159 (3) now requires the Same – "Upon approaching an emergency vehicle with its lamp producing intermittent flashes of red light or red and blue light or a tow truck with its lamp producing intermittent flashes of amber light that is stopped on a highway with two or more lanes of traffic on the same side of the highway as the side on which the emergency vehicle or tow truck is stopped, the driver of a vehicle which is travelling in the same lane that the emergency vehicle or tow truck is stopped in or in a lane that is adjacent to the emergency vehicle or tow truck, in addition to slowing down and proceeding with caution as required by subsection (2), shall move into another lane if that movement can be made in safety.
[54] Subsection 159 (5) regarding Stop on approaching emergency vehicle or tow truck - it states, "Nothing in subsection (2) or (3) prevents a driver form stopping his or her vehicle and not passing the stopped emergency vehicle or tow truck if stopping can be done safely and is not otherwise prohibited by law." [emphasis added to sub (2) (3) & (5)].
[55] This Court views the amendments recently made by the Province as increased recognition of the importance and function of tow trucks to assist in dealing with emergencies.
[56] With the amendments enacted in section 159(2) (3) and (5) of the HTA outlined above, it provides further opportunity for a tow truck to assist in an emergency by positioning the tow truck with its amber lights flashing and requiring motorists approaching the scene to slow down or move into another lane if the movement can be made in safety. In my opinion, if a tow truck was first on a scene this could assist the preservation of the scene and safety of the affected parties particularly until the police and other emergency services arrived.
Conclusion
[57] I conclude Waterloo Region By-Law 18-023 amending By-Law 16-023 is inconsistent or conflicts with the general provision under section 177. (3) of the Highway Traffic Act. The by-law does not enhance the exemption for tow truck assistance in emergencies but rather eliminates it in its entirety. An accident is an emergency. The permission to tow truck operators to offer service in emergencies under section 177. (3) is paramount province wide and is binding on the Region.
[58] By-Law 16-023 as amended by By-Law 18-023 literally prohibits any tow truck driver to be within 200 metres of an accident notwithstanding there may be no other emergency services on scene. Therefore, a tow truck who is the First responder, or one of other tow truck responders where there are multiple vehicles involved, would be commit an offence against the by-law by offering assistance or from approaching within 200 metres of the scene of an accident to determine the extent of the emergency. This conflicts with the general exception for emergencies under section 177. (3) of the Highway Traffic Act.
[59] As stated in the Hudson case [Tab 4 in the Prosecution's brief of Authorities]: "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."
[60] I find the amending By-Law 18-023 is inconsistent as per section 195 of the Highway Traffic Act and therefore invalid as per the Jeff decision. According to section 195 (1) the By-Law is deemed to be repealed upon a finding that it is inconsistent with the Highway Traffic Act. The original By-law 16-023 remains in effect. I am dismissing both charges against the defendant Mr. Pahal.
Released: January 30th, 2020
Justice of the Peace James Ziegler