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
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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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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