Canada: Ormiston v. ICBC: Yet Another Case For Recognizing Paved Shoulders As Lanes Of Travel For Cyclists?

In the recent case of Ormiston v. Insurance Corp. of British Columbia¹, the British Columbia Court of Appeal held that a cyclist who was injured while attempting to pass a motor vehicle on the right could not recover damages from the driver.

The Court of Appeal held that the driver had no reason to expect the cyclist to pass on the right, despite the fact that the driver had just overtaken the cyclist. While legislation allows cyclists to pass drivers on the right in limited situations, none of those situations applied. In the majority's view, the cyclist was the author of his own misfortune.

The Accident

The plaintiff - a 16 year old boy - was cycling to school on a two-lane, paved rural road. There was a fog line on the right side of the lane, separating the lane from the shoulder.

A van passed the plaintiff at the top of a hill. As the van made its way down the hill, the driver braked intermittently and then slowed to a near stop halfway down the hill. The van's left tires were almost on the centre line of the roadway, leaving three feet on the right between the van and the fog line. The cyclist, who was behind the van, could not tell why the van slowed down and slowed down as well.

After pausing for a moment, the plaintiff decided to pass the van on the right, between it and the fog line. As he began to pass, however, the van suddenly veered to the right, two feet over the fog line and onto the shoulder. The van did not hit the cyclist, but caused him to careen into the concrete barrier on the edge of the shoulder, fly over it, and fall down a rocky embankment.

The driver fled the scene, leaving ICBC, the public insurer, as the defendant to the action.

Decision at Trial Level

The trial judge found both the driver of the van and the cyclist at fault for the accident, and apportioned liability 70% to the driver and 30% to the cyclist.

The trial judge found that stopping the van in the middle of the road and swerving onto the shoulder constituted driving without reasonable consideration for others, contrary to section 144 of British Columbia's Motor Vehicle Act (MVA).

The trial judge also found that passing the driver on the right was a breach of the prohibition against such a manoeuvre in section 158 of the MVA. While section 158 provides three express exceptions to this general prohibition, on a strict reading of that section, none of the exceptions applied in the circumstances.

In addition to finding that none of the exceptions applied to the plaintiff, the trial judge was clearly of the view that section 158 of the MVA was not appropriately applied to cyclists:

It seems very odd to me to lump cyclists with motorists. Anyone with a passing knowledge of cycling and driving can appreciate in certain situations a cyclist could safely perform manoeuvres prohibited by the [MVA]. This situation strikes me as a case in point.

Despite the plaintiff's breach of the MVA, the trial judge found that it had not been completely unreasonable for him to attempt to pass the driver. Liability was apportioned accordingly.

Court of Appeal

The Court of Appeal disagreed with the trial judge and found the plaintiff to have been the author of his own misfortune.

Notwithstanding a clear apportionment of liability on the driver, the Court of Appeal took issue with the fact that the trial judge did not expressly state the driver was negligent, or that the driver's negligence caused the accident. The Court of Appeal went on to hold that the driver was not negligent, despite the trial judge's finding that he or she had slowed down and suddenly swerved onto the shoulder.

The Court of Appeal also held that there was "no evidentiary basis on which to find [that] the driver ought to have known a cyclist may have been behind the vehicle". This was despite the fact that the driver had just passed the cyclist moments before the accident. The Court concluded:

[The plaintiff] did a foolish thing. Rather than wait until the driver's intentions were clear, he decided to do what the Motor Vehicle Act prohibits - to pass on the right. He decided to take a chance and he was injured.

Should a paved shoulder be considered a "lane" for use by cyclists ?

Plaintiff's counsel argued that section 183(2)(c) of the MVA requires cyclists to ride "as near as practicable" to the right side of a "highway".

Under the MVA, a "highway" is any right of way. Therefore, a shoulder is part of a "highway". Because cyclists must ride as near to the right as is practicable, they must ride on the shoulder in some circumstances. Vehicles, as opposed to bicycles, are required to travel on the right side of a "roadway". A "roadway" does not include a shoulder, so vehicles cannot drive on it. Where cyclists are allowed to ride on the shoulder of "highways" in order to be as far to the right as practicable, bicycles can fit into the "laned roadway" exception to section 158 and pass on the right.

This argument was rejected both at trial and by the majority at the Court of Appeal on the basis that the exception used the language "laned roadway" and that the definition of "roadway" expressly excluded the paved shoulder.

Justice Willcock, in dissent, agreed with the argument reasoning that cyclists are required to stay as close as practicable to the right of a "highway" and "highways" include shoulders. Cyclists must ride on the shoulder where possible, otherwise there would be no need for the roadway/highway distinction in the MVA.

This argument has some attraction as it appears to address the practical reality that in order to safely flow with other forms of traffic, cyclists must sometimes ride on the paved shoulder. It must be noted that this argument may not succeed in Ontario and other provinces whose legislative schemes are different from those in British Columbia.

In our view, some surprising findings of fact lead to the dismissal of the plaintiff's claim on appeal. The driver had just passed the cyclist, yet was not expected to have foreseen him. The driver of the van was not faulted for leaving its lane of travel, and the cyclist was found entirely at fault for the accident.

The statutory provisions cited suggest that current legislation may not adequately address the practical realities of modern road usage in all provinces. Roads today have more bicycles on them than ever before. Provincial legislatures should consider allowing cyclists to ride and overtake on paved shoulders where necessary. While this may give rise to some increase in municipal maintenance costs, it would be a small price to pay to accommodate cyclists and keep our roads safe for all.

The appeal was perhaps also a missed opportunity to consider how common law principles might be applied to recognize the shared responsibility of motorists and cyclists to keep roads reasonably safe for all users. Unfortunately, leave to appeal this decision to the Supreme Court of Canada was denied in February 2015.

Footnote

1. 2014 BCCA 276 (CanLII)

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