Of Lotus Land and Outdated Bicycle Laws

Here out west you’ll find a “Beads and Granola” culture (thank you, Douglas Coupland), where our mild work ethic, sea-to-sky nature and hospitable year-round climate lures would-be lotus eaters from across the vast confederation. British Columbia’s fresh air and crisp scenery encourages outdoor activities of all kinds. Even our roadways are a balmy, unblemished asphalt invitation for physical enjoyment through bicycling.

So it’s somewhat surprising that despite a progressive vibe, BC’s cycling laws are among the least friendly in the country.

Even as BC’s capitol city boasts astonishing commuter stats—at 5.9% Victoria has basically three times more bike commuters than other Canadian cities outside of BC—the Motor Vehicle Act, RSB 1996 c. 318 is a misfit for BC’s cycling culture. While other jurisdictions have enacted legislation to protect cyclists as “vulnerable road users”, BC’s laws are largely dismissive of bicycles. Anyone who’s ever been surprised by the kiss of turbulence from a speeding cube van on their bike would probably agree that it’s Texas, not Lotus Land, that got it close to right. The Lone Star State mandates a three-foot minimum buffer distance for cars, and a six-foot distance for trucks, for passing bicycles. In BC, your best bet is doubling up your yoga mat and hoping you hit the curb right.

BC’s method has basically been to shoe-horn bicycles into the overall motor-vehicle scheme, forcing them to observe laws (such as restrictions on passing on the right) designed for much heavier and more dangerous vehicles, while adding a few further “shalls” and “shall nots” at s. 183. The British Columbia Cycling Coalition has long criticized BC’s poor legislative vision when it comes to bikes, and in some cases pointed out some discriminatory aspects. But special interest groups are far from alone in recognizing BC’s deficiencies.

In a 2012 decision, The Hon. Mr. Justice McKinnon determined Mr. Ormiston, a 16 year-old plaintiff, to be 30% at fault for his own injuries, while the John Doe driver of a mystery van was attributed 70% blame. John Doe had stopped midway down a hill along a featureless stretch of rural road. He pulled to the right shoulder just as the plaintiff cyclist was speeding up to attempt a pass. The teenager missed the van, but left the road after hitting a barrier. He took a fall off a steep embankment and was seriously injured.

The case engaged BC’s prohibition against passing on the right under s. 158 of the MVA. In reference to the law, which applies equally to all road users, Judge McKinnon observed:

[30] 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 manoeuvres that are prohibited under the Motor Vehicle Act. This situation strikes me as a case in point.

[31] 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.

[32] The simple act of dismounting from his bicycle and walking it past the vehicle would transform Mr. Ormiston from a “motorist” to a pedestrian, permitting different conclusions in respect to the duty owed by the driver.

You get the impression that the law doesn’t really make sense.

Last week, the BC Court of Appeal reversed the decision and released Ormiston v. ICBC, 2014 BCCA 276. In a 2 to 1 majority decision the appellate court overturned the trial judge’s finding of liability. In the process, the Court of Appeal pretty much snubbed not only Mr. Ormiston’s, but any others hope about the “passing on the right” restrictions under s. 158 of the MVA. Unless the legislation changes, cyclists are stuck.

[23] Under the Motor Vehicle Act a cyclist is required to ride as near as practicable to the right side of the highway (s. 183(2)(c)). […]

[24] The contention is that because cyclists must sometimes ride on the shoulder while vehicles cannot travel on that part of a highway, the shoulder must, where practicable, be a lane for cyclists within the meaning of s. 158(1)(b) such that, when riding on the shoulder, they are able to take advantage of the exception it provides and pass vehicles on a roadway on their right. […]

[25] While I doubt the legislative intention was to create by this somewhat convoluted statutory route what would be thousands of miles of unmarked and ill-defined bicycle lanes across the province, I do not consider s. 158 (1)(b) constitutes an applicable exception to the prohibition against passing on the right in any event. […] A roadway does not include the shoulder. […] It does not permit cyclists to pass vehicles on the right by riding on the shoulder. […]

[26] Ormiston did a foolish thing. Rather than wait until the driver’s intentions were clear, he decided to do what the Motor Vehicle Act prohibits – pass on the right. He decided to take a chance and he was injured. Had he waited, even a few seconds, there would of course have been no accident because the vehicle drove on after it had moved to the right of its lane.

[27] I conclude Dixon Ormiston was the sole author of his misfortune.

BC’s bicycle laws, as written, offer a rather difficult, if not overtly dangerous, challenge for cyclists. It should be less of an imposition to ask that a motorist check mirrors and blind spots before lurching to the shoulder from a stop in the middle of a highway than it is to extend options to vulnerable road users like in the Ormiston case.

On a side note, it’s morbidly interesting to consider how this could have unfolded if the van, which evidence suggested might have stopped to observe eagles, had been struck by a faster moving vulnerable road user, like a motorcyclist. I’m drawing a comparison with the recent criminal negligence case where one Ms. Czornobaj stopped along a provincial highway in Quebec to protect some ducklings. A motorcycle struck her parked vehicle resulting in the tragic fatalities of its passenger and rider. Ms. Czornobaj was convicted. If you agree that the carelessness (if certainly not the outcome) in these two fact patterns represent differences in degree, rather than kind, then it is hard to understand how one law can attach liability for criminal negligence, while another can be so cavalier.

Perhaps it is an oversimplification to compare these cases on their facts. But I don’t think it’s entirely too far fetched to make a point. In any event, the sad fact is that BC’s current laws do not reflect the best cycling practices, and they impose few provisions to protect cyclists—save for helmet laws which were introduced in the mid-1990s and impose penalties on cyclists rather than the operators of the machines which pose the clearer risks.

Some of the changes proposed by The British Columbia Cycling Coalition include:

• changing the name of the Motor Vehicle Act, since it applies to all modes of transport, not just motor vehicles,
• minimum passing distances,
• definitions of bicycle lanes and separated cycling facilities,
• legalization of bicycle specific signals,
• removal or update of the “as near to the right” clause.