Court of Appeal Decision Places Heavy Burden on Cyclists Passing On the Right
Earlier this month, the British Columbia Court of Appeal released its reasons in the case of Ormiston v. ICBC, 2014 BCCA 276. In this case, an injured cyclist was found totally at fault for an accident that occurred while the cyclist was passing a vehicle on its right, contrary to the Motor Vehicle Act. As a cyclist myself, I agree that cyclists must endeavour to follow the rules of the road - however, this case highlights problems with the legal framework that governs how motorists and cyclists are to share the road, and the associated problems in adjudicating negligence cases involving cyclists.
The facts of the case are as follows:
- The plaintiff was riding his bike down a hill on a paved rural road.
- The road was marked with a center line and with a "fog line," a white line on the right hand side of the road that divides the road from the shoulder.
- The cyclist was travelling to the left of the "fog line," on the roadway because the shoulder was unsafe to drive on, due to debris.
- A van passed the plaintiff at the top of the hill, and near the bottom of the hill, the van stopped in the middle of the road.
- The cyclist then proceeded to drive past the stopped van, on the right.
- As he was passing the van, the van suddenly moved to the right, cutting off the cyclist and causing him to run into the shoulder, striking a concrete barrier, and falling down a rocky embankment.
From my own perspective as a cyclist, the Plaintiff's actions in this case appear reasonable. The vehicle had stopped on the roadway, after passing the cyclist moments earlier. The cyclist had two other options besides passing on the right. The first was to pass the vehicle on the left, which would have exposed him to oncoming traffic, and could have left him in even greater peril had the stopped vehicle resumed moving. The second option would have been for the cyclist to simply wait behind the stopped vehicle for an indefinite amount of time.
While at trial, the judge found that the driver was 70 per cent liable in the these circumstances, the Court of Appeal disagreed, finding that the cyclist was entirely to blame for the accident. In reaching this conclusion, the court relied on section 183 of the Motor Vehicle Act, which states that a cyclist "has the same rights and duties" as a motorist under the Act, and on section 158(1), which prohibits a vehicle from passing on the right except for in limited circumstances. I have excerpted portions of the Court's reasoning below:
 It is contended that the driver should not have moved across the lane in which the vehicle was being driven without checking the rear-view mirrors, although there is of course no evidence and for that matter no finding that was not done. But, while vehicles must always be driven with due care and attention, in the absence of an evidentiary basis on which to find the driver knew or ought to have known a cyclist may have been behind the vehicle, and would attempt to pass on its right side, in the same lane, as Ormiston did, it is difficult to see why the driver should be faulted for moving across the lane without checking the vehicle’s mirrors in this instance. In any event, while it is apparent the driver did not see Ormiston accelerate to pass on the right, it cannot be said that if he or she had seen him in the rear-view mirrors following behind, the vehicle’s move to the right of its lane, for whatever the reason may have been, would not and should not have been made. It was the vehicle’s lane.
 Under the Motor Vehicle Act a cyclist is required to ride as near as practicable to the right side of the highway (s. 183(2)(c)). “Highway” is broadly defined to include any right of way designed to be used by the public for the passage of vehicles (s. 1). That, it is said, includes the shoulder such that sometimes cyclists must ride on it to be as near as practicable to the right side of the highway. Vehicles are required to travel on the right-hand half of the roadway (s. 150(1)). “Roadway” is defined as the improved portion of a highway designed for use by vehicular traffic but does not include any shoulder (s. 119). Vehicles cannot travel on the shoulder.
 The contention is that because cyclists must sometimes ride on the shoulder while vehicles cannot travel on that part of a highway, the shoulder must, where practicable, be a lane for cyclists within the meaning of s. 158(1)(b) such that, when riding on the shoulder, they are able to take advantage of the exception it provides and pass vehicles on a roadway on their right. It does appear that what may be practicable could vary considerably having regard for the differing widths of the shoulder over any given stretch of a highway, or from one highway to the next, as well as the condition of the surface. One cyclist may have a much different view than another as to what is practicable in any given instance.
 While I doubt the legislative intention was to create by this somewhat convoluted statutory route what would be thousands of miles of unmarked and ill-defined bicycle lanes across the province, I do not consider s. 158 (1)(b) constitutes an applicable exception to the prohibition against passing on the right in any event. ...
The “laned roadway” exception has, as the judge said, no application here. It does not permit cyclists to pass vehicles on the right by riding on the shoulder. It must follow the driver of the vehicle would have had no reason to expect a cyclist like Ormiston would attempt to pass on the right by riding on the shoulder. That must be particularly so here when the shoulder was not fit for a bicycle because it was strewn with gravel and Ormiston was riding as far to the right of the highway as he considered practicable.
 Ormiston did a foolish thing. Rather than wait until the driver’s intentions were clear, he decided to do what the Motor Vehicle Act prohibits – pass on the right. He decided to take a chance and he was injured. Had he waited, even a few seconds, there would of course have been no accident because the vehicle drove on after it had moved to the right of its lane.
In short, the Court reasons that a cyclist who chooses to pass on the right does so entirely at their own peril, because the rules of the road, as they are set out in the Motor Vehicle Act, create no expectation in the driver that a cyclist can be in their lane on the right. There is a disconnect here between the actual rules of the road set out in the Act, and the realities of safe cycling. According to these rules, a cyclist may be continually passed on the left by traffic, but then must adjust their speed in accordance with each passing vehicle, so as to never retake them. In my opinion, if a vehicle passes a cyclist, and then slows or stops, they ought to expect that the cyclist may retake them, and drive in consideration of this fact, with awareness of the cyclist's presence. This seems to me a fair way to share the road, and one that places mutual obligations on cyclists and drivers.
Of the three members of the Court of Appeal hearing this case, there was one dissenting judge, whose ruling I tend to agree with. Justice Willcock upheld the trial court's decision, imputing some liability on the driver. These reasons impute an obligation on motorists to expect cyclists to pass on the shoulder while they are slowed or stopped. This obligation, I expect, would be heightened in circumstances where the motorist had only moments earlier passed the cyclist in the same lane, as was the case here. Justice Willcock writes:
 Drivers of vehicles should expect cyclists on the shoulder of the highway. They cannot turn onto the shoulder or veer toward it without exercising appropriate care. When they do so in circumstances in which there is a cycle to be seen, they will be liable for the resulting damage.
Justice Willcock also gives an interpretation to section 158(1)(b), which accords with my own view's on safe cycling. In short, the Justice finds that where a paved roadway and the shoulder are divided by a painted white line, the cyclist ought to be able to consider the paved shoulder to the right of the line as a separate "lane" in which they are permitted to pass:
 Section 158(1)(b) does not refer to a lane “in which a vehicle may be driven,” which would unequivocally exclude the shoulder, but rather, to “a lane on the side of the roadway on which the driver is permitted to drive.” [Emphasis added.] While motor vehicles must be driven on the roadway and cannot be driven on the shoulder, cyclists are directed and permitted to ride on the shoulder where it is possible to do so. Where, as in this case, there is a fog line dividing the roadway from the shoulder, the shoulder must be considered to be a lane on the side of the roadway on which cyclists are permitted to drive. From the perspective of a cyclist, Lindholm Road is a “laned roadway” because there are two or more marked lanes for the travel of cyclists in the same direction. In my view, the Motor Vehicle Act allows cyclists to pass vehicles on the right when they are riding on a paved portion of the highway, in a lane demarcated by a fog line, on the side of the roadway on which they are permitted to drive.
Ultimately, this case shows the limits of using the provisions of the Motor Vehicle Act to adjudicate negligence claims involving cyclists. The Act does not address in any real way how cyclists and motorists are to share the road, apart from treating a cyclist simply as another motorist. As a result, no special consideration is given to the multitude of other ways in which cyclists and motorists may safely share the road.
Photo Credit: Bob Dass: https://www.flickr.com/photos/54144402@N03/9254698480