Tag: section 158(1) Motor Vehicle Act

BC Court of Appeal Sends Strong Message To Cyclists Who Pass Vehicles on the Right

Reasons for judgement were released today by the BC Court of Appeal addressing the practice of cyclists passing vehicles on the right finding, absent limited circumstances, that it is negligent to do so.
In today’s case (Ormiston v. ICBC) the Plaintiff was involved in a 2009 cycling collision. As he proceeded down hill a vehicle ahead of him in his lane of travel “was almost stopped at the centre line”. The Plaintiff had room on the right side of the vehicle and attempted to pass. As the Plaintiff did so the motorist veered to the right causing the Plaintiff to lose control.
The motorist left the scene and remained unidentified. The reason for the sudden veering motion remained unknown.  The Plaintiff sued ICBC pursuant to section 24 of the Insurance (Vehicle) Act. ICBC admitted that the collision occurred and involved an unidentified motorist, however, ICBC argued the Plaintiff was fully responsible.
At trial both the cyclist and motorist were found partly to blame.  The BC Court of Appeal overturned this result finding the cyclist was full to blame for passing a vehicle on the right.  In reaching conclusion the Court provided the following reasons:
[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)).  “Highway” is broadly defined to include any right of way designed to be used by the public for the passage of vehicles (s. 1).  That, it is said, includes the shoulder such that sometimes cyclists must ride on it to be as near as practicable to the right side of the highway.  Vehicles are required to travel on the right-hand half of the roadway (s. 150(1)).  “Roadway” is defined as the improved portion of a highway designed for use by vehicular traffic but does not include any shoulder (s. 119).  Vehicles cannot travel on the shoulder.
[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.  It does appear that what may be practicable could vary considerably having regard for the differing widths of the shoulder over any given stretch of a highway, or from one highway to the next, as well as the condition of the surface.  One cyclist may have a much different view than another as to what is practicable in any given instance.
[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.  As defined, the exception applies to a laned roadway being a roadway divided into marked lanes for vehicles travelling in the same direction.  The markings divide the roadway; the lanes marked are on the roadway.  A roadway does not include the shoulder.  The shoulder could not be an unobstructed lane on a laned roadway.  The “laned roadway” exception has, as the judge said, no application here.  It does not permit cyclists to pass vehicles on the right by riding on the shoulder.  It must follow the driver of the vehicle would have had no reason to expect a cyclist like Ormiston would attempt to pass on the right by riding on the shoulder.  That must be particularly so here when the shoulder was not fit for a bicycle because it was strewn with gravel and Ormiston was riding as far to the right of the highway as he considered practicable.
[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.  I do not consider there to be any basis in law to hold the driver of the vehicle liable in negligence.

Cyclist Found 50% at Fault For Crash After Passing Vehicle on the Right

Further to my recent article on this topic, cyclists passing a stopped vehicle on the right can be faulted for a resulting collision.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Kimber v. Wong) the Plaintiff cyclist was approaching a T intersection.  A vehicle was stopped in his lane of travel leaving a gap for the Defendant who was driving in the opposite direction intending to make a left hand turn.  The Cyclist passed the stopped vehicle on the right.  At the sane time the Defendant turned resulting in collision.

Mr. Justice Pearlman found both parties equally to blame for the incident.  In doing so the Court provided the following reasons:

[66] By passing to the right of the stopped eastbound vehicles, Mr. Kimber put himself in a position where he was not visible to a left-turning driver and where his own view of traffic turning across his path was blocked by the vehicles to his left.

[67] The plaintiff maintains that he was the dominant driver with the right of way as he approached the intersection and that under s. 174 of the Motor Vehicle Act, and that Ms. Wong, as the servient driver intending to turn left, was required to yield the right of way to him.

[68] As Madam Justice Ballance observed in Henry v. Bennett, 2011 BCSC 1254 at para. 73:

The dominant/servient driver analysis in Walker is predicated on the footing that the dominant driver has proceeded lawfully …

[69] Here, that analysis does not apply where Mr. Kimber was in breach of s. 158 of the Motor Vehicle Act and his common law duty to take reasonable care by keeping a proper lookout.

[70] However, that does not absolve Ms. Wong from liability.  Ms. Wong made the left turn knowing cyclists using the oncoming lane often rode to the right of vehicles.  She knew she had to keep a lookout and would have to yield to any oncoming traffic, including cyclists that presented an immediate hazard.

[71] She began her turn from a point where she was unable to see beyond the windshield of the vehicle stopped at the western entrance to the intersection.   She made a continuous accelerating turn and did not stop or pause when she reached the point, just across the centre line, where she had a sight-line that would have enabled her to see the plaintiff.  Had she inched forward or stopped when she had a clear sight-line, the plaintiff would have passed safely in front of her and the accident would have been avoided.

[72] I find that in heavy traffic and where her view of the eastbound lane was limited, Ms. Wong was negligent in failing to inch forward until she could see whether there was an obstacle to her safely completing her left-hand turn.

[73] I turn now to consider whether the plaintiff was contributorily negligent.  As he passed stopped traffic on the right, Mr. Kimber ought to have been alert to the potential danger.  He failed to keep a proper lookout before entering the intersection.  He failed to take reasonable care for his own safety or that of other road users.  Here, the plaintiff could have pulled into the line of slow moving or stopped vehicles and then taken his turn to pass through the intersection.  Alternatively, the plaintiff ought to have been alert to the danger of passing stopped traffic at the intersection and ought to have brought his cycle to a stop to the right of the red Hyundai where he could observe traffic turning into the intersection.  Had he done so the collision would have been avoided.  I find that the plaintiff was also negligent and that his negligence was a cause of the accident.

[74] The apportionment of liability requires a consideration of the degree to which each party is at fault.  Fault is apportioned on the basis of the nature and extent of the departure from the respective standards of care of each of the parties:  Cempel v. Harrison Hot Springs, [1997] B.C.J. No. 2853 at para. 24 (B.C.C.A.).

[75] Here, the plaintiff and the defendant were both familiar with the intersection where the accident occurred.  For her part, the defendant was aware of the risk of cyclists approaching to the right of oncoming eastbound traffic but made her left turn without maintaining a proper lookout for a known risk.

[76] For his part, the plaintiff ought to have slowed down and entered the line of eastbound vehicles before passing through the intersection, or if he remained to the right of the line of stopped vehicles, he ought to have stopped alongside the stationary Hyundai before proceeding into the intersection, where he would have had an unobstructed view of the hazard ahead.

[77] In my view, the plaintiff and the defendant are equally at fault.  I apportion liability 50 percent to each of the plaintiff and the defendant.

Cyclist Assessed 30% Fault For Passing Slow Moving Vehicle on the Right

(Update July 8, 2014 – the below decision was overturned on Appeal with the BC Court of Appeal finding there was no evidence to prove negligence on the motorists part)
Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, dealing with the issue of fault following a collision caused by an unidentified motorist.
In last week’s case (Orminston v. ICBC) the Plaintiff was involved in a 2009 cycling collision. As he proceeded down hill a vehicle ahead of him in his lane of travel “was almost stopped at the centre line”. The Plaintiff had room on the right side of the vehicle and attempted to pass. As the Plaintiff did so the motorist veered to the right causing the Plaintiff to lose control.
The motorist left the scene and remained unidentified. The Plaintiff sued ICBC pursuant to section 24 of the Insurance (Vehicle) Act. ICBC admitted that the collision occurred and involved an unidentified motorist, however, ICBC argued the Plaintiff was fully responsible.
Ultimately Mr. Justice McKinnon found both parties at fault. In assessing 30% of the blame to the Plaintiff the Court provided the following comments:

[26]Section 158(1) limits the ability of a “motorist” to pass on the right. It is permissible only in three specific instances, none of which existed at bar. Even when permitted, the move cannot be made if it would be “unsafe” to do so and if the movement caused the vehicle to “drive off the roadway”. “Roadway” is defined in section 119(1) and does not include the shoulder. Section 158(2) stipulates that a motorist must not overtake or pass if the movement cannot be made safely, or if it involves driving off the roadway. The latter, says defence, makes it clear that the plaintiff was not entitled to use the shoulder, at any point, or for any purpose, in attempting to pass. ..

[36]This unidentified vehicle was not near any intersection nor any roadway that might lead a cyclist to believe there was a possibility of a turn into his line of travel. It was descending a steep hill but for unknown reasons came to almost a complete stop at the centre of the road. In my view the facts at bar are not at all similar to those cited in Janzen

[41]I accept that this unidentified driver was almost stopped at the centre line when he/she made a sudden veering motion that took the vehicle over the fog line onto the shoulder. Such an action, at the very least, constitutes driving without reasonable consideration for others. Clearly Mr. Ormiston also bears some responsibility for this collision, given the provisions of the Motor Vehicle Act to which I have referred. It remains to ascertain the extent to which each is liable.

[42]In Salaam v. Abramovic, 2010 BCCA 212, the British Columbia Court of Appeal offered the following comment about assessing statutory obligations in respect to liability:

[18] While the statutory provisions provide guidelines for assessing fault in motor vehicle accident cases, they do not, alone, provide a complete legal framework

[21] …In the end, a court must determine whether, and to what extent, each of the players in an accident met their common law duties of care to other users of the road. In making that determination, a court will be informed by the rules of the road, but those rules do not eliminate the need to consider the reasonableness of the actions of the parties. This is both because the rules of the road cannot comprehensively cover all possible scenarios, and because users of the road are expected to exercise reasonable care, even when others have failed to respect their right of way. While s. 175 of the Motor Vehicle Act and other rules of the road are important in determining whether the standard of care was met, they are not the exclusive measures of that standard.

[43]In Shinkaruk v. Crouch, 2011 BCSC 1762, Saunders J. followed these general statements of principle, noting:

[18] A breach of the Motor Vehicle Act is not in itself determinative of liability; all of the surrounding circumstances may be taken into account.

[44]In my respectful view, given the provisions of the Negligence Act, R.S.B.C. 1996, c. 333 and the facts that I have found, the defendants bear the greater liability. I find them 70% responsible for the losses claimed. The plaintiff will be assessed 30%.

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:

[13] 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.

[14] 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.

[15] 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.

[16] 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.

[17] 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.

Driver Partly At Fault For Failing to Engage Turn Signal in Timely Fashion


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, deciding the issue of fault for a two vehicle collision.
In today’s case (Tang v. Rodgers) the Plaintiff was travelling on West 33rd Avenue in Vancouver when he was struck by the Defendant’s vehicle.  There was one lane in the Plaintiff’s direction of travel at the scene of the collision.  The Plaintiff attempted a right hand turn into the driveway to his residence.  At this time the Defendant was attempting to pass the Plaintiff’s vehicle on the right and a collision occurred.
There was conflicting evidence at trial but ultimately the Court found that both motorists were to blame.  The Defendant was faulted for passing on the right when it was unsafe to do so.  The Plaintiff was found 25% at fault for failing to engage his right hand turn signal in a timely fashion.  In arriving at this apportionment Madam Justice Brown provided the following reasons:

[21]         Section 158 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, prohibits passing to the right in most circumstances.  Mr. Rodgers was negligent in passing on the right without ensuring that it was safe to do so.  Mr. Tang was moving slowly in the travel lane when Mr. Rodgers decided to pass.  Mr. Rodgers did not know what Mr. Tang was doing and thought he was confused.  Mr. Rodgers took a significant risk.

[22]         Mr. Tang was also negligent.  Section 167 of the Motor Vehicle Act provides that a driver of a vehicle must not turn the vehicle to the right from a highway at a place other than an intersection unless the driver causes the vehicle to approach the place as closely as practicable to the right hand curb or edge of the roadway.  Mr. Tang did not do so.  Rather, as some drivers do, he placed his vehicle to the left before turning right.  His vehicle was not as close as practicable to the right hand curb or edge of the roadway.  Second, Mr. Tang did not shoulder check or look to his right before turning right.  Finally, Mr. Tang only turned his right turn signal on immediately before the accident, which was too late to give warning to those behind him.

[23]         The circumstances of this case are very similar to the circumstances that were before Mr. Justice Curtis in Boyes v. Mistal, [1990] B.C.J. No. 1755, 1990 CanLII 528 (SC), aff’d 1992 CanLII 1954 (BCCA).  There Mr. Justice Curtis said:

Mrs. Boyes did not give sufficient warning when she signalled.  Like many drivers she signalled and turned almost simultaneously, too late to warn Mr. Mistal.  Nor did Mrs. Boyes turn from as close as practicable to the right hand edge of the roadway, she turned when there was more than a car width to her right – thereby risking the sort of collision that did occur.  Mrs. Boyes is at fault in the collision for these reasons.

I find Mr. Mistal’s fault to be the greater.  Mrs. Boyes was occupying the only lane of travel, she never left her lane, and had a right to be there.  Mr. Mistal chose to pass Mrs. Boyes when she slowed down on the basis of what he assumed was happening.  She had not signalled and Mr. Mistal should have known that in choosing to pass a vehicle which was obviously intending some maneuver not yet signalled, in its own lane, he was taking a significant risk.  I find Mr. Mistal to be 75% at fault and Mrs. Boyes 25%.

[24]         I, too, conclude that Mr. Rodgers’ fault was the greater.  I find Mr. Rodgers 75% at fault and Mr. Tang 25% at fault.

The Standard of Care For Drivers Approaching Flashing Green Lights


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the issue of fault for intersection crashes governed by a flashing green light.
In today’s case (Nonis v. Granata) the Plaintiff was involved in a collision with the Defendant’s vehicle.  The crash happened at a busy intersection in Burnaby, BC.  The Plaintiff approached an intersection which was governed by a stop sign in his direction of travel.  He left the stop sign and attempted to drive through the intersection which consisted of 6 lanes of travel.  Vehicles were stopped in the first 5 lanes.  As the Plaintiff entered the 6th lane the Plaintiff failed to see the Defendant’s oncoming vehicle and the collision occurred.
The Defendant was not speeding.  He was faced with a flashing green light as he approached the intersection and had the right of way.   Despite this the Defendant was found 25% at fault for the crash for not taking appropriate care in all of the circumstances.  In reaching this verdict Madam Justice Fisher provided the following reasons addressing motorists responsibility when approaching a flashing green light:

[12] A driver approaching a flashing traffic signal also has a duty to proceed with caution.  Section 131(5) provides that when a flashing green light is exhibited by a traffic control signal at an intersection,

(a) the driver of a vehicle approaching the intersection or signal and facing the signal must cause it to approach the intersection or signal in such a manner that he or she is able to cause the vehicle to stop before reaching the signal or any crosswalk in the vicinity of the signal if a stop should become necessary, and must yield the right of way to pedestrians lawfully in a crosswalk in the vicinity of the signal or in the intersection …

[13]         Although this section has been held to advantage pedestrians, the presence of a flashing green light may be considered in assessing the potential liability of a dominant driver involved in a collision with another vehicle: Gautreau v. Hollige, 2000 BCCA 390.  Accordingly, in the circumstances of this case, I am entitled to consider the flashing green light as a factor in assessing the driving of the defendant and his obligation to respond to the danger that was presented by the plaintiff…

[28] The defendant, while the dominant driver, proceeded toward an intersection with a flashing green light in circumstances where the traffic in the immediate two lanes to his left had either stopped or was barely moving.  In my view, he had a duty – consistent with s. 131(5) of the Act – to slow down sufficiently to be able to cause his vehicle to stop should this become necessary.  This he did not do.  His evidence was that he was driving at approximately 40 kilometres per hour.  Had he slowed down, he would have had a sufficient opportunity to avoid the collision, as he would have been in the same position as the vehicles to his left.  His failure to keep a proper lookout contributed to the accident….

[33] For all of these reasons, it is my view that both parties were at fault for this collision.  Because the defendant was the dominant driver, I consider him to be less at fault.  Although he failed to slow down, he was not speeding, as were the defendants in both Andrews and Hynna. Under the Negligence Act, I find the plaintiff 75% at fault and the defendant 25% at fault.

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ERIK
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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