Class-action lawsuit launched against Manitoba's photo radar

A class-action lawsuit has been filed against the Manitoba government for speeding tickets issued in construction zones.

Lawyer Norman Rosenbaum, who also has an outstanding class-action suit against the City of Winnipeg for the same claim, told CBC News that he launched the legal action because the province and city have " unjustly enriched themselves" through the fine revenue.

'Money is received without justification and the person paying the money has been deprived of the money [when] there is no legal reason that they should have been deprived of their money.' —Norman Rosenbaum, Winnipeg lawyer

"Money is received without justification and the person paying the money has been deprived of the money [when] there is no legal reason that they should have been deprived of their money," he said.

There were 60,000 photo radar tickets issued in 2008, according to Attorney General Dave Chomiak. In 2007, there were 3,000 of the tickets issued, he said.

Chomiak announced during question period in the Manitoba legislature on Wednesday that the government has decided to reconsider issuing photo radar tickets in construction zones, and whether to refund fines already paid.

Photo radar on hold in construction zones

Photo radar is being removed from construction zones while officials from the province and city meet to determine if and how refunds can be issued, Chomiak said.

Under provincial law, the temporary speed limit in construction zones is 60 kilometres per hour. A sign declaring the temporary speed limit must be set up at the start of a construction zone as well as a notification of the return to the regular limit at the end.

Earlier this week, the province announced it was dropping about 860 outstanding tickets after learning of improper sign placement in construction zones where photo radar was being used.

A sign telling drivers of the lower speed had only been placed at the beginning of the construction zones.

Tickets up for review

On Wednesday, Chomiak said all 60,000 tickets could be up for review. That includes those issued in construction zones when workers were not present.

Earlier this year, provincial court judge Norm Sundstrom dismissed nine photo radar tickets issued in such cases.

Although the drivers had exceeded the 60 km/h limit, they were not going faster than the regular 80 km/h speed limit for that particular roadway. With no workers present, the regular speed limit should apply, Sundstrom ruled.

Initially, Chomiak disagreed with that ruling and said his office would continue to prosecute those tickets.

Manitoba Conservative justice critic Kelvin Goertzen has been going after the province to refund the fines that people have paid. He said the government's change of heart is due to public pressure and he is encouraging people to keep emailing and phoning their local politicians and the attorney general.

Lawsuit filed Friday

Rosenbaum's suit against the city was filed in February. The one against the province was filed Friday. They are essentially identical in their claims.

'There was no possibility, properly prosecuted, that there could have been fines imposed.' —Norman Rosenbaum, Winnipeg lawyer

The plaintiff named on the suit against the province is Tyler Weaver, who received a $297 fine last June. The lawsuit states that Weaver was driving on Lagimodiere Boulevard on a Sunday morning. There were signs on the street limiting speed to 60 km/h when construction workers were present, but there were no workers on the road that morning.

Rosenbaum says the Highway Traffic Act is clear: A driver is only breaking the law by exceeding the posted limit when construction workers are actually working.

"There was no possibility, properly prosecuted, that there could have been fines imposed," he said in an interview.

What about safety?

The issue of safety seems to have been lost in the photo radar debate, say workplace safety advocates in Manitoba.

Chris Lorenc, head of the Manitoba Heavy Construction Association, said the matter has become too political and the purpose of the law has washed over.

"We regard safety as the No. 1 issue on any work site, and we think the vacillation and confusion around this debate is very destructive to promoting an attitude of safety in society," he said.

Lorenc believes anyone who paid a ticket should be refunded if the police didn't follow the law in setting up the reduced speed zone, but he said the rules should not be eased in the future.

State your case

Jodi Koffman, whose challenge of the system led to a Sundstrom's decision, urged people to fight their tickets.

The University of Manitoba law grad, who was a student when she initiated the challenge, said people need to state their case. Even if you are guilty, if you have an excuse, let the judge know, she suggested.

"The magistrate does let you plead guilty with an explanation, so you can always say, 'Yeah, I blew through that red light, but the thing is, these are the reasons why.' In those circumstances, the magistrate will look at the totality of the situation, and will, in some circumstances, reduce your tickets," Koffman said.

Everyone has 30 days to appeal a ticket, she added.

Lynne Kowal said she will do exactly that. She admitted exceeding the speed limit on Lagimodiere Boulevard recently, even going through a red light.

"We have a son — we had a son," she said, getting emotional. "Now this is going to get way out of line here, because I'm going to start crying. My son just passed away."

At the time of her ticket, Kowal was racing over to see her ill son, before he died.

Begging for a reduction worked for Gary Green, who got three construction zone tickets in a week.

"I just went hat in hand, and I just looked the guy right in the eye, and I said, 'Look, I'm the sole income earner for my family. This is a lot of money. I just can't do this.' And he kind of looked at me, and went, 'OK,'" said Green.

It works more often than people realize because the court officials who weigh these cases are people, too, said Koffman, who had no idea her court case would trigger such a firestorm.

She was working at the university law centre when a client came in with a speeding ticket that was issued in a construction zone. The client believed it was issued unfairly "and the more that we looked at the law together, the legislation, we realized we did have a case," said Koffman.

"We fought it and won."