R. v. Hajivasilis (I.),

• Jurisdiction: Ontario
• Judge: Cavarzan,Doherty,Epstein,O'Connor,Sharpe
• Neutral Citation: 2013 ONCA 27
• Date: 25 October 2012
• Court: Court of Appeal (Ontario)

R. v. Hajivasilis (I.) (2013), 302 O.A.C. 65 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JA.008

Her Majesty the Queen (appellant) v. Ioannis Hajivasilis (respondent)

(C55233; 2013 ONCA 27)

Indexed As: R. v. Hajivasilis (I.)

Ontario Court of Appeal

O'Connor, A.C.J.O., Doherty, Sharpe and Epstein, JJ.A. and Cavarzan, J.(ad hoc)

January 21, 2013.

Summary:

The respondent was charged with failing to report an accident (Highway Traffic Act, s. 199(1)). The accident occurred in a supermarket parking lot. A Justice of a Peace noted that the accident had occurred on private property in a parking lot. He dismissed the charge, holding that s. 199 did not apply to an accident that occurred on property that did not fall within the definition of "highway" in the Act. He relied on Shah v. Becamon (Shah) (Ont. C.A.). Mocha, J., dismissed the Crown's appeal, holding that the Justice of the Peace had correctly followed the obiter dicta in Shah. Rouleau, J.A., granted the Crown leave to appeal. As the appeal raised the correctness of the obiter dicta in Shah, a five-judge panel was constituted to hear the appeal.

The Ontario Court of Appeal allowed the appeal, set aside the order below and directed a new trial. The court held that the obiter in Shah limiting the operation of the entire Act to "highways" was wrong and should not be followed. Many provisions of the Act were by their terms limited to "highways". Other provisions, however, were not so limited. Nothing in the overall structure of the Act or its purpose compelled the reading of the word "highway" into sections in which it did not appear. Section 199 was one such section. Therefore, the reporting requirement in s. 199 generally applied even if the accident did not occur on a "highway" as defined in the Act.

Courts - Topic 8

Stare decisis - Authority of judicial decisions - General principles - Precedents - Court of Appeal - Weight - In Shah v. Becamon (Ont. C.A.), the court held that the graduated licence scheme set out in the Highway Traffic Act applied only to the operation of a motor vehicle on a "highway" as defined in the Act - The court further held that the shopping plaza parking lot where the accident occurred was not a "highway" within the definition in the Act - The court stated in obiter dicta that the entire Act, including the graduated licence system, was limited to "highways" - An appeal dealing with a charge under s. 199 of the Act (failure to report an accident), raised the correctness of the obiter dicta in Shah - The Ontario Court of Appeal (five-judge panel) held that the obiter in Shah limiting the operation of the entire Act to "highways" was wrong and should not be followed - The obiter reached well beyond the specific issue raised in Shah - It played no role in the reasoning of the court necessary to decide the specific issue before it - Nor was there any analysis, beyond a reference to the title of the legislation, to any of the Act's provisions other than those concerned with the graduated licensing scheme - The bald assertion that no part of the Act reached beyond highways did not reflect a full consideration of the entirety of the Act or the implications of limiting the entire act to "highways" as defined in the Act - It was not the kind of obiter that should be regarded as authoritative - See paragraphs 1 to 4 and 16 to 22.

Courts - Topic 10

Stare decisis - Authority of judicial decisions - General principles - What constitutes obiter dictum - [See Courts - Topic 8 ].

Courts - Topic 83

Stare decisis - Authority of judicial decisions - Prior decisions of the same court - Court of Appeal - [See Courts - Topic 8 ].

Highways - Topic 10

General and definitions - Definitions - Street, highway or road - [See Motor Vehicles - Topic 44 ].

Motor Vehicles - Topic 44

General and definitions - Definitions - Highway defined - The respondent was charged with failing to report an accident (Highway Traffic Act, s. 199(1)) - The accident occurred in a supermarket parking lot - A Justice of a Peace noted that the accident had occurred on private property in a parking lot - He dismissed the charge, holding that s. 199 did not apply to an accident that occurred on property that did not fall within the definition of "highway" in the Act - Mocha, J., dismissed the Crown's appeal - The Ontario Court of Appeal allowed the Crown's appeal - Many provisions of the Act were by their terms limited to "highways" - Other provisions, however, were not so limited - Nothing in the overall structure of the Act or its purpose compelled the reading of the word "highway" into sections in which it did not appear - Section 199 was one such section - It made perfect sense and was consistent with the object of the Act if it was read as written - Therefore, the court concluded that the reporting requirement in s. 199 generally applied even if the accident did not occur on a "highway" - See paragraphs 23 to 53.

Motor Vehicles - Topic 2910

Regulation of vehicles and traffic - Accidents - Reporting of - General - [See Motor Vehicles - Topic 44 ].

Words and Phrases

Highway - The Ontario Court of Appeal discussed the meaning of the word "highway" as found in s. 1(1) of the Highway Traffic Act, R.S.O. 1990, c. H-8 - See paragraphs 9 to 53.

Cases Noticed:

Shah v. Becamon (2009), 246 O.A.C. 24; 94 O.R.(3d) 297; 2009 ONCA 113, not folld. [para. 1].

R. v. Mansour, [1979] 2 S.C.R. 916; 27 N.R. 476, refd to. [para. 10].

Gill v. Elwood, [1970] 2 O.R. 59 (C.A.), refd to. [para. 10].

Sked v. Henry (1991), 28 M.V.R.(2d) 234 (Ont. Gen. Div.), refd to. [para. 10].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 20].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 23].

R. v. Berg (1956), 116 C.C.C. 204 (Ont. Co. Ct.), refd to. [para. 24].

R. v. Soules (S.) (2011), 278 O.A.C. 247; 105 O.R.(3d) 561; 2011 ONCA 429, refd to. [para. 24, footnote 4].

Temelini v. Ontario Provincial Police Commissioner et al. (1999), 120 O.A.C. 380; 44 O.R.(3d) 609 (C.A.), refd to. [para. 46].

Minister of National Revenue v. Craig (2012), 433 N.R. 111; 347 D.L.R.(4th) 385; 2012 SCC 43, refd to. [para. 49].

Minister of National Revenue v. Shell Canada Ltd., [1999] 3 S.C.R. 622; 247 N.R. 19, refd to. [para. 49].

R. v. Raham (J.) (2010), 260 O.A.C. 143; 99 O.R.(3d) 241; 2010 ONCA 206, refd to. [para. 50].

Hydro-Electric Power Commission of Ontario v. Bruell Float Service Ltd. (1974), 3 O.R.(2d) 108, affd. [1976] 1 S.C.R. 9; 3 N.R. 508, refd to. [para. 50].

Statutes Noticed:

Highway Traffic Act, R.S.O. 1990, c. H-8, sect. 1(1) [para. 9]; sect. 199(1) [para. 5].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 23].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 353 to 358 [para. 23].

Williams, Glanville, Learning the Law (7th Ed. 1963), pp. 82 to 84 [para. 21].

Counsel:

Matthew Asma, for the appellant;

Ioannis Hajivasilis, acting in person;

Adam Little, appearing as amicus curiae.

This appeal was heard on October 25, 2012, before O'Connor, A.C.J.O., Doherty, Sharpe and Epstein, JJ.A., and Cavarzan, J.(ad hoc), of the Ontario Court of Appeal. The decision of the court was delivered by Doherty, J.A., on January 21, 2013.