BC Court of Appeal Discusses Prohibition For Motorists "Passing on the Right"
Section 158 of the Motor Vehicle Act prohibits drivers from passing vehicles on the right except in limited circumstances. Reasons for judgement were released this week by the BC Court of Appeal discussing this prohibition in the context of a personal injury lawsuit.
In this week’s case (Smeltzer v. Merrison) the Defendant was travelling Northbound. There was one Northbound lane of traffic which was backed up with other vehicles. The traffic lane widened as it approached in intersection creating two “de-facto” lanes.
The Defendant passed the stopped vehicles on the right intending to make a right hand turn at the upcoming intersection. At the same time the southbound Plaintiff made a left hand turn through a “gap” in the backed up Northbound traffic intending to enter a parkade. At this time a collision occurred.
The Plaintiff sued for damages and had her case dismissed at the trial level. She appealed. The BC Court of Appeal agreed that while the Plaintiff should have kept a proper lookout and was partially to blame for the collision the Defendant also bore some responsibility. The Court found the Defendant should not have been passing on the right in the “de-facto” lane as it was not a “laned roadway” and doing so in these circumstances was negligent. In finding the Defendant partly at fault the BC Court of Appeal provided the following reasons:
 Dickson, an appeal of a cyclist’s conviction for passing on the right, contains the most complete discussion of s. 158 to which we are referred. I would respectively endorse what was said there. Section 158(1) prohibits one vehicle passing another on the right: “The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle…” There are only three exceptions. Essentially, passing on the right is permitted when the overtaken vehicle is turning left, when passing on a laned roadway, or when passing on a one-way street where room permits. A “laned roadway” is defined. It means a road that is divided into two or more marked lanes for vehicles proceeding in the same direction. The exceptions are qualified by subsection (2) which prohibits any passing on the right when it cannot be done safely or by driving off the road.
 Despite the recognition of a de facto lane in MacLaren, I do not consider the concept can afford any further exception to the three for which s. 158(1) provides. In MacLaren, a cyclist was injured at an intersection which he entered passing on the right of vehicles where there was what was said to be a de facto lane to his right, being a widened part of the road that accommodated vehicles turning right, but was not marked. He was faulted for riding between two lanes instead of positioning himself between the vehicles he passed on the right. It was specifically said (at para. 28) that no determination was being made with respect to whether s. 158 permitted the cyclist to pass on the right.
 I am unable to accept that s. 158(1)(b) permitted Ms. Merrison to pass two or three cars and the truck on the right as she contends. The exception is confined to passing on the right where there are two marked lanes for vehicles proceeding in the same direction and only then when passing can be undertaken in safety. Here, there was only one such lane regardless of whether there was what might be called a second de facto lane. I recognize this means drivers proceeding to turn right at the intersection, as Ms. Merrison was, could not align their vehicles to enter the 100-foot marked lane until it was virtually reached, if there were vehicles ahead in the “through” lane that were not turning left, but that is what the Act provides and it appears to me to be with good reason. If it were otherwise, drivers would be entitled to pass on the right wherever the road is sufficiently wide for two vehicles to pass. Drivers do not expect to be passed on the right when they are not travelling on a road with more than one designated lane. They generally expect to be able to turn off of the road to their right, whether into intersecting streets or driveways, or to pull over to the side of the road or off the road altogether without being obstructed by vehicles passing to their right.
 As quoted from his reasons, the judge said that, while he had not lost sight of the provisions of the Act, he was concerned with a de facto lane of travel, not a “laned roadway” within the meaning of the Act such that only some of the sections were of interest. I am unable to accept he was correct in law to consider Ms. Merrison passing on the right was not prohibited by s. 158, as it appears he did, on that basis. As the judge said, she was not travelling in a “laned roadway” within the meaning of the Act: s. 158(1)(b) did not apply. If she entered a de facto lane, meaning the road became wide enough to permit her to pass the cars and the truck ahead of her on the right, she was, in the circumstances, prohibited from passing them. She was required not to pass the vehicles in front of her until she entered the marked right-turn lane.
 I consider Ms. Merrison was negligent in passing the three cars and the truck on the right in contravention of s. 158. She was negligent because it was reasonably foreseeable that passing on the right, in contravention of a statutory prohibition, could be dangerous to other motorists on the road. Her negligence was, on what the judge said, compounded by her failure to proceed cautiously while maintaining a proper lookout. Had Ms. Merrison not proceeded to pass on the right as she did, the collision would not have occurred. It follows that her negligence was a cause of the accident and the injury Ms. Smeltzer suffered.