Recent Court of Appeal Decision Holds Cyclist Entirely at Fault for Passing Vehicle on the Right

The British Columbia Court of Appeal recently found a cyclist to be solely at fault for an accident occurring when the cyclist attempted to pass a motor vehicle on the right. Following the Court of Appeal decision, leave to appeal to the Supreme Court of Canada was dismissed with costs.

In Ormiston (Litigation guardian of) v. Insurance Corp. of British Columbia, 2014 BCCA 276, the Plaintiff, Mr. Ormiston, was riding his bicycle to school, as he normally did, on a two-lane paved rural road.  At the bottom of a long steep hill, he encountered a van in front of him, slowing with its brake lights flashing on and off, to the point of eventually being all but stopped.  After thinking for a moment, Mr. Ormiston attempted to quickly pass the van on the right. The van abruptly veered to the right and, while it did not strike Mr. Ormiston, it caused him to run across the shoulder into and over the concrete barrier and then down a rocky embankment. The van drove off from the scene, possibly unaware of the accident, and was never identified.

Both the trial judge and the majority of the Court of Appeal agreed that under the Motor Vehicle Act, cyclists, like drivers of motor vehicles, are not permitted to pass on the right. The Motor Vehicle Act, at section 158(1), provides only three exceptions to that rule, none of which applied in these circumstances.

However, the trial judge found the unidentified driver to be 70 percent at fault for the accident, on the basis that the van’s veering motion constituted driving without reasonable consideration for others. The Court of Appeal disagreed, finding that there was nothing to suggest to the driver that a cyclist may have been behind the van, and would attempt to pass on its right side. It was therefore difficult to see why the unidentified driver should be faulted for moving across the lane without checking his mirrors. Therefore, in a somewhat surprising move, the Court of Appeal overturned the trial judge’s decision and held Mr. Ormiston to be completely at fault for the accident.

Of additional interest is the dissenting opinion of one of the three judges on the presiding panel of the Court of Appeal. Mr. Justice Willcock reasoned that, since the Motor Vehicle Act creates a specific obligation for cyclists to ride as near to the right-hand side of the road as possible, cyclists are required to ride off the roadway on the right side of the highway, where it is safe to do so. Accordingly, Mr. Ormiston was not in breach of the Motor Vehicle Act when he passed on the right and the trial judge’s decision allotting 70% liability against the unidentified driver should not have been changed. Of course, Mr. Justice Willcock was in the minority, so his opinion is merely informative and not binding.

The takeaway from this case is that, despite what common experience may dictate, cyclists, as with motor vehicles, are not entitled to pass on the right unless one of the three exceptions under the Motor Vehicle Act applies.

It is important to note that the facts of this case are somewhat unique. The accident occurred on a rural road with no other traffic. The unidentified driver of the van had no reason to suspect that a cyclist was around. Furthermore, there was no actual contact between the van and Mr. Ormiston. The outcome may have been different if the accident had occurred in a busy municipality, where it can be expected that cyclists are prevalent. Motorists should not take this case to mean they can turn right in front of cyclists with reckless abandon.

Nevertheless, the fact that the Court of Appeal attributed all fault against the 16 year-old cyclist, who suffered serious injuries, is noteworthy. It remains to be seen whether this case represents the beginning of a trend of holding cyclists to a higher standard, or simply a one-off decision.

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