Highway

Becamon v. Wawanesa Mutual Insurance Company

[2009] ONCA 113

Becamon v. Wawanesa Mutual Insurance Company

2009 ONCA 113
Ontario Court of Appeal — MacPherson, Laskin & Armstrong JJ.A. | February 6, 2009

Background

On December 19, 2000, Bethily Becamon drove from her home to a small strip mall at 336 Wilson Avenue in Toronto. She had a G1 licence, which required her to be accompanied by a fully licensed driver with at least four years' experience. For the first time, she chose to drive alone — a clear violation of her licence conditions.

While attempting to park at the strip mall, Becamon stepped on the gas instead of the brake. Her vehicle mounted the sidewalk and struck pedestrian Mian Daud Shah in front of the Bagel World store. Shah sued for damages, but Wawanesa Insurance refused to provide full coverage, arguing that Becamon's licence violation voided her policy under Statutory Condition 4(1), which requires drivers to be "authorized by law" to operate the vehicle.

Issues

1. Did Becamon's guilty pleas to Highway Traffic Act charges create issue estoppel, preventing her from arguing she was authorized to drive?
2. Was the strip mall parking lot a "highway" under the Highway Traffic Act, making her licence violations applicable to the accident?

The Guilty Plea Question

Becamon had pleaded guilty to driving without being accompanied by a qualified driver and received a $105 fine. Wawanesa argued this admission bound her in civil court. But the Court of Appeal disagreed, applying the Supreme Court's decision in Toronto v. C.U.P.E. The stakes in the original proceeding were too minor ($105 fine) compared to the civil lawsuit (potentially hundreds of thousands in damages). The court also noted that Becamon was likely unrepresented and had obvious English language difficulties — she testified with a Tagalog interpreter. Fairness dictated that her quick guilty plea shouldn't bind her in the much more serious civil proceeding.

The "Highway" Definition

This was the crucial question. Under the Highway Traffic Act, section 1(1) defines "highway" to include any place "intended for or used by the general public for the passage of vehicles." Wawanesa argued the strip mall qualified because some drivers used it as a shortcut between Wilson Avenue and Bathurst Street.

The court rejected this argument, relying on Gill v. Elwood and R. v. Mansour. The test is what the "paramount use" of the property is. Despite some through-traffic, the evidence showed the parking lot was "established primarily for" and overwhelmingly used as parking for store customers. The court emphasized you must view the premises "as a whole" — you can't carve out specific sections and analyze them separately.

Key Takeaway

Private parking lots are generally not "highways" under the HTA, even if some public through-traffic occurs.

This means licence restrictions and many traffic laws don't apply on private property like shopping malls, apartment complexes, or private driveways — though other laws like impaired driving still apply everywhere.

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R v DOUGLAS

[1997] O.J. No. 3931

No summary has been written for this decision yet.

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R v Hajivasilis

[2012] O.J. No. 859

R. v. Hajivasilis

[2012] O.J. No. 859
Ontario Court of Justice — C. Mocha J. | January 23, 2012

Background

Ioannis Hajivasilis was charged under section 199.1 of the Highway Traffic Act for failing to report an accident that occurred on October 1, 2007. The key fact that would doom the prosecution's case: the accident happened in a supermarket parking lot that was used solely for parking — not as a combined parking lot and thoroughfare.

The trial began in January 2009 before His Worship Angelo Cremisio. After two adjournments, something happened that changed everything. In February 2009, the Ontario Court of Appeal released its decision in Shah v. Becamon, which fundamentally altered how courts interpret what constitutes a "highway" under the Highway Traffic Act. When the trial resumed in April 2009, His Worship brought this new case to counsel's attention and eventually dismissed the charge based on the Shah decision.

Issues

1. Does the Highway Traffic Act apply to accidents that occur in private parking lots?
2. Was the trial judge bound by the Court of Appeal's decision in Shah v. Becamon?

The Definition of "Highway"

The Highway Traffic Act defines "highway" in section 1.1 as including "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."

In Shah v. Becamon, the Court of Appeal concluded that a private parking lot does not fall within this definition of "highway." The Court stated: "Indeed, not surprisingly, the entire Highway Traffic Act applies to what its title foreshadows, highways." The Crown argued that section 199.1 doesn't specifically use the word "highway" so it should apply everywhere, but Justice Mocha rejected this interpretation.

The judge explained that if the Lieutenant Governor wants the Highway Traffic Act to apply to places other than highways, section 1.1 specifically provides the mechanism: "The Lieutenant Governor and Counsel may make regulations providing that this Act or any provision of this Act or of a regulation applies to a specified place or class of place that is not a highway." No such regulation had been passed for parking lots.

The Procedural Problems

Justice Mocha noted significant procedural irregularities in how the case was handled. When His Worship learned about the Shah decision, the proper procedure would have been for the Crown to continue its case, and then the defence could have moved for a nonsuit. Instead, the trial judge essentially stopped the proceedings and dismissed the charge without following proper procedure. However, since all parties had already agreed that the accident occurred solely in a private parking lot, continuing the trial wouldn't have changed the outcome.

Key Takeaway

The Highway Traffic Act only applies on actual highways — not in private parking lots, unless specific regulations extend it to those areas.

This decision shows the importance of challenging jurisdiction in Highway Traffic Act cases. If your alleged offence occurred on private property rather than a public highway, the Act may not apply at all, regardless of what the charging provision says.

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R v McColman

[2019] ONSC 5359

R. v. McColman

2019 ONSC 5359
Ontario Superior Court of Justice — Gareau J. | September 16, 2019

Background

At 12:30 a.m. on March 25, 2016, Constable Lobsinger spotted Walker McColman driving an ATV parked outside Rob's Variety store on the Thessalon First Nation. The officer followed McColman for about a minute as he drove on public roads, then watched him turn into a private driveway at 30 Biish Road — his parents' property. Instead of stopping McColman on the public road, Constable Lobsinger followed him onto the private driveway and detained him there.

Once on the private property, the officer observed signs of impairment: McColman hanging onto the ATV, strong alcohol odour, bloodshot eyes, buckling knees, and mumbling speech. McColman was arrested and later convicted under section 253(1)(b) of the Criminal Code. Crucially, Constable Lobsinger admitted he saw no signs of impairment while McColman was driving on public roads and had no information suggesting McColman had been drinking.

Issues

1. Did the police officer have statutory authority under section 48 of the Highway Traffic Act to stop McColman on private property?
2. Did the officer have common law authority to enter the private property and detain McColman?

The Limits of Highway Traffic Act Authority

The Superior Court found the trial judge made a reversible error in law. Section 48(1) of the Highway Traffic Act allows officers to stop drivers "for the purposes of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code." But the Act defines a "driver" as "a person who drives a vehicle on a highway," and "highway" means property "intended for or used by the general public for the passage of vehicles."

Once McColman turned into his private driveway, he was no longer a "driver" under the Highway Traffic Act — he was no longer on a "highway." The court emphasized that most privately owned driveways are not highways as defined in the Act. The officer's statutory authority under sections 48 and 216 simply didn't extend to private property unless he had reasonable grounds to believe an offence had been committed.

The court also rejected the Crown's argument about implied consent and common law authority. For police to rely on implied license to enter private property, they need a "legitimate basis" for entering. Here, the officer admitted he was solely relying on Highway Traffic Act authority to conduct a random sobriety check — which doesn't exist on private property. The public protection interest that justifies roadside stops disappears once a driver reaches their private driveway.

Key Takeaway

Police cannot follow you onto private property for random Highway Traffic Act stops — their statutory authority ends at the property line.

If you're charged after being stopped on private property, examine whether the officer had reasonable grounds for the stop or was just conducting a random check. The distinction between public roads and private property creates a significant Charter protection that courts will enforce.

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