Description

The following article was written by David W. Hay (http://www.rbs.ca/lawyers/hay.html). David is a litigator whose preferred areas of practice include personal injury, commercial, entertainment and insurance litigation. He has extensive experience in cycling advocacy work and has advised cyclists and cycling advocacy groups for years.

David's preferred areas of practice are: Personal Injury, Commercial, Entertainment and Insurance Litigation.

Legislative Slumber

The introduction of Bill 50 (the Motor-Vehicle Amendment Act #2) in 1995 was at the time a great coup for the cycling community. The Bill's primary design was to save lives and make roads safer for the rapidly growing bicycling community. It contained legislation intended to modernize our bicycle laws, most of which dated back to 1957. Clearly the legislation was laudable and represented a major milestone in the transition towards a more cycling friendly society. Since 1995 education, public awareness and infrastructure programs have clearly resulted in harm reduction. However, the question I am often asked in my practice, (at least enough that I would remark on it) is: "What has the legislature done for cycling lately?"

Over the last few years I have been studying legislative change related to mountain biking on Crown land. The essence of my effort in that regard is to keep the North Shore free of buzz crunching regulatory control. Where that goes is anybody's guess. For present purposes let me confine my comments to the streets.

The introduction and designation of bike lanes throughout the Province was obviously a positive development for cyclists. From a legal perspective the bike lane was thought to be a sanctuary. If one were riding in the bike lane and involved in a collision with a car, no one questioned the motorist would be liable. However, recently insurers have started to question the sanctity of the bike lane. In my view, these questions arise naturally from the Motor-Vehicle Act's silence around bike lanes.

Let me provide an example. A client of ours was proceeding westbound on Pender Street in a bike lane. The location of the bike lane on Pender changes, depending on the time of day and whether or not parking is allowed. In any case, the cyclist continued in a straight line and as he entered the intersection of Pender and Nicola he was struck by a car, also westbound but turning right onto Nicola.

In the old days, when a smoke was a smoke, groovin' was groovin', and bike lanes were sacred, liability would never have been a question. But the insurance adjuster in this case thought that the cyclist was passing the vehicle on the right, contrary to Section 158 of the Motor-Vehicle Act. He also was not convinced that the bike lane constituted a "unobstructed lane of travel", and as such as an exception to the passing on the right prohibition. The adjuster also questioned whether or not the bike lane extended into the intersection. Fortunately, this story had a happy ending but only after significant stick handling and persuasion. Much angst might have been avoided by easy reference to a provision of the Motor-Vehicle Act which relates directly to bike lanes. Of course, there is no such provision.

Such a provision would effectively allow cyclists to pass on the right, whether in an intersection or not, in circumstances where the cyclist is found to have been in a bike lane. Another means would be to characterize a bike lane as "an unobstructed lane on the side of the roadway" in keeping with the present exception to the passing on the right prohibition. Complete legislative silence allows for confusion on the roadway and unnecessary debate after the fact.

If the foregoing considerations are at all thought provoking, consider the new bike lanes. Take Richards Street, for example. As I look out my window and watch motorists change lanes back and forth across the bike lane, I can't help that think the 90s are beginning to look like the 50s.