ONTARIO COURT OF JUSTICE

CITATION: Nicholas v. Hamilton (City), 2022 ONCJ 255

DATE: 2022 06 01

Court File: 05-44763f

BETWEEN:

MICHAEL NICHOLAS

Appellant

— AND —

CITY OF HAMILTON

Respondent

Heard Before Justice M.K. WENDL on April 5, 2022

Reasons for Decision on Provincial Offences Appeal

Released June 1, 2022

S. Ramage......................................................................................... For the City of Hamilton

S. Petersen............................................................................................. For Michael Nicholas

WENDL J.:

[1] Michael Nicholas appeals his conviction under section 141(5) of the Highway Traffic Act. The applicant advanced numerous grounds of appeal but they were whittled down to two Issues:

1. The Justice of the Peace erred in his application of the due diligence standard
2. The Justice of the Peace made an unreasonable finding of fact that the oncoming bicycle was not travelling at a high rate of speed.

[2] First, at trial, the time, place and general nature of the incident were conceded. The issue at trial revolved around whether Mr. Nicholas was duly diligent in making the left turn and whether the oncoming bicycle was travelling at an excessive rate of speed.

[3] In his decision, the Justice of the Peace summarized the appropriate law as it relates to section 141(5) of the Highway Traffic Act. He also made findings of credibility. He found all participants credible and trustworthy including the defendant Mr. Nicholas.

[4] First, I will deal with the allegation that the Justice of the Peace made an unreasonable finding of fact that Mr. Verbickas was not travelling at a high rate of speed. On this issue, the standard of review is a palpable and overriding error.

Absent a palpable and overriding error, an appellate court must refrain from interfering with findings of fact and findings of mixed fact and law made by the trial judge: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10-37; Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352. An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 55-56 and 69-70; Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 33. As Morissette J.A. so eloquently put it in J.G. v. Nadeau, 2016 QCCA 167, at para. 77, [TRANSLATION] "a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions": quoted in Benhaim, at para. 39. The beam in the eye metaphor not only illustrates the obviousness of a reviewable error, but also connotes a misreading of the case whose impact on the decision is plain to see”. [^1]

[5] In his reasons, the Justice of the Peace acknowledged that there was damage to the defendant’s vehicle but found that it was not determinative on the issue of excessive speed. He noted that there was minimal damage to Mr. Verbikas’s bicycle which contradicted the defence assertion of a high rate of speed, and he ultimately found that attributing speed as the cause of the damage simply speculative. Also, in making his finding, the Justice of the Peace acknowledged Mr. Nicolas “looked into the bike lane for 15 metres and did not see anyone”, however, the trial Justice also noted that Mr. Nicolas also testified that “his view was partially obstructed by traffic”. Therefore, the Justice of the Peace was not willing to ascribe the fact that Mr. Nicolas did not see Mr. Verbickas to excessive speed. The Justice of the Peace did not ignore the evidence or the submissions of the applicant, he dealt with them in his reasons and made a finding of fact Mr. Verbickas was not travelling at an excess or gross rate of speed. The finding is not unreasonable, the Justice of the Peace is entitled to deference.

[6] On the issue of due diligence, the trial Justice noted the appropriate test from Sault Ste. Marie[^2]. The Applicant initially categorized this issue as the Justice of the Peace erred in his application of the W.D. principle. However, after some discussion, it was conceded by the applicant that, since the issue involves an error as to the mens rea of the offence, W.D[^3]. does not apply. In the context of strict liability offences, W.D. can only apply to the actus reus of the offence since the defence is required to prove due diligence on a balance of probabilities.

[7] The Justice of the Peace properly cited and applied the due diligence standard in the context of a left-hand turn across the path of oncoming traffic. The Justice of the Peace made a finding of fact that it was not reasonable when Mr. Nicholas made a left-hand turn, knowing that there was a bicycle lane and that his vision was partially obstructed by traffic, regardless of the fact that he was given the go-ahead by another vehicle. As a result, the Justice of the Peace found that Mr. Nicholas was not duly diligent and did not meet the legal burden on the balance of probabilities. His reasoning reflects no errors.

[8] The trial Justice gave a thorough and well-reasoned decision. The appeal is dismissed.

Released: June 1, 2022

Signed: Justice M.K. Wendl

[^1]: Hydro-Québec v Matta, [2020] SCJ No 37 at 33 [^2]: R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299 [^3]: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742