As I have written in previous articles, cycling as a primary mode of transportation is increasing in popularity in urban settings especially in Vancouver. While there are a number of dedicated bike lanes, the number of streets without dedicated bike lanes far outweigh the number of streets with them.

Section 183 of the Motor Vehicle Act establishes that cyclists have the same rights and duties as motorists. For instance, a cyclist has a duty to following the same rules of the road that drivers are subject to which includes obeying speed limits, stopping at stop signs and riding on the correct side of the street.

One issue which is commonly debated is whether cyclists can legally pass vehicles on the right.

A previous blog post on this topic reviewed a Court of Appeal decision (Ormiston v. ICBC) where the practice of cyclists passing vehicles on the right was found to be negligent.

This issue was also addressed again by the Court of Appeal in Ilett v. Buckley which concerned an appeal by the defendant motorist of the trial judge’s finding that the cyclist was not at fault for the collision where he was passing vehicles on the right.

The cyclist in this case was not riding on the shoulder of the roadway when he was passing slower moving vehicles on the right. As the cyclist was approaching the intersection, he saw a large gap in the line of vehicles in his direction, but he could not see vehicles in the opposite direction due to a large truck that blocked his view. This large truck also blocked the view of the defendant motorist who was in the opposite direction wanting to turn left at this gap in traffic. The accident occurred when the defendant commenced her left turn at the gap in traffic and struck the cyclist who was traveling straight through passing vehicles on the right.

The Court of Appeal overturned the trial judge’s decision finding the defendant motorist 100% at fault and instead allocated fault 50/50 between the cyclist and the defendant motorist stating:

[5]             Mr. Ilett was riding on the shoulder of Admirals northbound.  He was passing to the right of the slow-moving vehicles.  Other cyclists were riding on the shoulder in the same way.  He considered the shoulder to be a cycle lane.  The road was flat for 300 yards leading to the intersection.  He was seen approaching the intersection by the driver of the vehicle that was stopped behind Ms. Buckley’s vehicle, Messa Mattina; he was visible to her for a significant distance.  Mr. Ilett scanned the traffic as he rode and he saw the large vehicle at the intersection ahead.  He saw the gap in the northbound traffic ahead of that vehicle opening.  He did not apply his brakes to slow his bicycle.

[6]             The large vehicle precluded Ms. Buckley and Mr. Ilett from seeing each other as she began her turn and he closed on the intersection.  Accepting Ms. Mattina’s testimony, the judge found that Ms. Buckley commenced her turn slowly but, before she could see Mr. Ilett approaching, she accelerated across the northbound traffic lane.  Nearly the whole of the front half of her vehicle was across the shoulder when, after hearing a screech of brakes, Mr. Ilett crashed into it.  His momentum was such that he was carried over the hood of the vehicle and onto the pavement beyond.  The impact caused him to suffer various injuries.  He was taken to hospital.

In finding the cyclist should bear 50% responsibility for this crash the Court of Appeal noted as follows:

[23]         He was riding on the shoulder of the road at speed, passing the slow-moving northbound vehicles.  He failed to recognize, as he should have, that he was not riding in a designated cycle lane and, at least under the Act, was not permitted to pass vehicles on the right as he was.  He was approaching an intersection.  He saw the gap in the northbound traffic open ahead of a large vehicle which would permit a southbound vehicle on Admirals to turn left onto Seenupin.  He could not see whether the intersection was clear because the large vehicle was obstructing his vision.  He made no attempt to slow down to see whether the intersection was clear – whether any vehicle was turning into the gap that had opened.  He proceeded to pass the large vehicle on its right, entered the intersection, and immediately collided with Ms. Buckley’s vehicle.

[24]         It is difficult to see on what basis the judge found in effect that, by virtue of s. 174, Ms. Buckley had a duty to yield to Mr. Ilett such that he effectively had the right of way when under s. 158 of the Act he was not permitted to pass the large vehicle on the right and enter the intersection as he did.  It cannot be that one applicable section of the Actis to be taken to be a factor in establishing the standard of care but another section that would apply in the circumstances is not.  It is not for the court to pick and choose between interrelated sections that apply.  Rather it must be the whole of those sections, and the extent to which taken together they bear on the circumstances, that may be considered a factor in determining the standard of care.  To do otherwise would appear to amount to legal error. ..

[33]         As stated, the cause of the accident was primarily that neither Ms. Buckley nor Mr. Ilett saw each other before the collision.  That was because neither exercised the measure of caution necessary to discharge their duty to make a reasonable effort to ensure they could proceed as they intended safely.

[34]         It is not possible to establish different degrees of fault in the circumstances of this case such that in accordance with s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333, liability is to be apportioned equally.

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