BC Court of Appeal Decision on Passing on the Right

'Except Bicycles': Legal Opinion by David Hay, Partner with Richards Buell Sutton LLP

A recent decision from the Court of Appeal for British Columbia has rattled cyclists throughout the land. Ormiston v. ICBC was a claim for damages arising out of serious injuries suffered by a cyclist on his attempt to pass a vehicle on the right. The vehicle's driver left the scene and was never identified.

The facts leading to the accident were simple enough. Dixon Ormiston, 16 years old at the time of the accident, was riding down a long steep hill on a two lane rural road. He had been passed by a vehicle fitting the description of a van with tinted windows prior to his descent down the hill. There was one lane of travel for traffic in each direction. There was a fog line separating his lane from the shoulder. The shoulder was said to have had loose gravel strewn across it. 

As Mr. Ormiston proceeded down the hill he noticed ahead of him the van come almost to a complete stop. He didn't know why the van was stopped, but thought that he could negotiate his way past the van on the van's right. There was roughly three feet between the van and the fog line and his intention was to pass the van without crossing the fog line.

Mr. Ormiston accelerated and just as he reached the rear passenger door the van suddenly moved to the right across the fog line in what appeared to Mr. Ormiston to be "split second". There was no contact between Mr. Ormiston and the van. However, the movement of the van forced Mr. Ormiston into the shoulder and against the concrete barrier over which he then fell down an embankment.

The case went to trial. The trial judge acknowledged that Motor Vehicle Act, specifically section 158, limits the ability of a cyclist to pass on the right to three specific instances or exceptions. It bears reference here.. 

Section 158 states as follows:

Passing on right

1. The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle, except

(a) when the vehicle overtaken is making a left turn or its driver has signalled his or her intention to make a left turn,

(b) when on a laned roadway there is one or more than one unobstructed lane on the side of the roadway on which the driver is permitted to drive, or

(c) on a one way street or a highway on which traffic is restricted to one direction of movement, where the roadway is free from obstructions and is of sufficient width for 2 or more lanes of moving vehicles.

2. Despite subsection (1), a driver of a vehicle must not cause the vehicle to overtake and pass another vehicle on the right

(a) when the movement cannot be made safely, or

(b) by driving the vehicle off the roadway

Clearly, on the facts of this case exceptions b) and c) did not apply. Given the definition of a laned roadway in s. 158 (1)(b), ie. a road that is divided into two or more marked lanes for vehicles proceeding in the same direction, the trial judge held, that exception would not be available to drivers of vehicles. However, in a piece of judicially reasoning I had personally hoped for many years, the trial judge said this: 

"It seems very odd to me to lump cyclists with motorists. Anyone with a passing knowledge of cycling and driving can appreciate that in certain situations a cyclist could safely perform maneuvers that are prohibited under the Motor Vehicle Act. This situation strikes me as a case in point.

The defence says Mr. Ormiston ought to have stopped and waited for the vehicle to do whatever it was going to do? What if the driver was stopped for five minutes while he/she watched eagles? Is Mr. Ormiston obliged to wait in that situation? If he can't pass on the right then presumably he has to negotiate a pass on the left which would expose him to oncoming traffic, a much more dangerous move on this winding road than passing on the right."

The trial judge concluded that the unidentified driver was 70% at fault  while Mr. Ormiston was 30% at fault. Mr. Ormiston's fault lay in the fact that he might have been alerted to the actions of a lead vehicle such as slowing but chose to pass regardless and that he ought to have been alive to the potential danger. The driver was found responsible for the sudden veering motion taking the vehicle over the fog line. Such a move showed a lack of "reasonable consideration for others".

Unfortunately for Mr. Ormiston, the Court of Appeal disagreed with the trial judge and reversed his finding, holding Mr. Ormiston 100% at fault for the accident. 

The majority decision is premised on three central notions:

1. The Trial Judge was wrong to conclude that the law regarding passing on the right was any different for cyclists than motorists;

2. The space between the van and the fog line or, the shoulder itself, did not constitute an unobstructed lane of travel such that Mr. Ormiston could avail himself of that exception to the general legislative prohibition;

3. The gravel on the shoulder rendered it unrideable and the cyclist's presence in the shoulder was for that reason unforeseeable.

Interestingly, after the Appeal was heard the court invited counsel back to ask whether or not the cyclist could legally pass the vehicle on the right if he had been riding in the shoulder. Counsel for Mr. Orminston said he could on the basis that the shoulder met the definition of unobstructed lane of travel. The Court disagreed. The Court noted that the term "roadway" as used in section 158 and generally in the Motor Vehicle Act is different than "highway". "Highway" specifically includes the shoulder whereas "roadway" does not. According to the reasons for judgement, this was further support for the fact that the cyclist's presence could not have been foreseeable. 

Three judges sat on the appeal. One of them dissented from the majority. First, because the van had passed Mr. Ormiston, the dissenting judge noted that the cyclist's presence was indeed foreseeable. 

In addition, the dissenting judge actually found that cyclists are required to ride on a paved shoulder where that can be done safely given the legislative obligation to ride "as near as practicable to the right side of the highway". In this regard, cyclists are clearly different than motorists. His Lordship went on to find that insofar as cyclists are concerned an unobstructed lane of travel on the side of the roadway must include the shoulder. He stated:

"where, as in this case, there is a fog line dividing the roadway from the shoulder, the shoulder must be considered 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 cyclist 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."

At the end of the day, in my respectful view, the dissenting judgment more closely reflects a cyclist's daily reality. There are many instances when cyclists must pass a line of vehicles in the shoulder. This is accepted conduct and there can be no question, given the growth of the cycling population, that the presence of cyclists in the shoulder passing slower moving vehicles would be foreseeable giving rise to a duty of care. It is also conduct no one would regard as illegal. In a previous decision the same court recognized that the space between moving traffic in the curb lane and parked cars on the right is an obstructed lane of travel for cyclists. Conceptually, the shoulder of a roadway seems no different, given the requirement to confine a bike as for to the right as practicable.

The decision serves as another reminder that the Motor Vehicle Act is antiquated and replete with ambiguities. What emerges from the decision is that there is no general duty owed of care owed by motorists to cyclists who are passing on the right in the shoulder. One wonders if this was the true intent of the legislature and whether or not this decision might increase the clamour for comprehensive legislative change.