The Legal Position of Cyclists Passing on the Right

The facts of the case were simple enough. A car was turning left at an intersection. A car proceeding straight was in a lane that widened to accommodate a second lane for right-turning vehicles. This is called a “de facto lane”: wide enough to accommodate two lanes of traffic, but not separated from the lane next to it by a white line marking.

Cyclists live and breathe in de facto lanes. They lay awake dreaming about de facto lanes. These lanes represent a natural invitation to pass on the right because there is physical space to do so.

At trial, the driver of the left-turning vehicle was found completely at fault after an accident occurred. However, she successfully appealed on the basis that the other driver could not properly pass vehicles on the right in the de facto lane because she could not fit herself within the strict confines of the Motor Vehicle Act that prohibits passing on the right except when the vehicle ahead is turning left, when passing on a roadway with several lanes or when passing on a one-way street when there is enough room. The trouble lies in the court’s finding that a de facto lane is not one of the exceptions to the prohibition against passing on the right.

By way of background, many cyclists were concerned about a decision from the Court of Appeal in 2010 wherein a cyclist was faulted for riding between the through lane and the de facto right lane. That case is thought to have at least acknowledged the existence of de facto lanes, but left some uncertainty as to whether or not a de facto lane was one of the exceptions to the general prohibition against passing on the right found in the Motor Vehicle Act.

Inasmuch as the Motor Vehicle Act provides that cyclists have the same obligations as motorists, this decision is highly problematic. The reality of a cyclist’s daily commute is that it features routine travel to the right side of vehicular traffic, often while overtaking vehicles in heavy traffic situations. British Columbia’s highest court has confirmed this is now only legally possible when there is a marked lane in which to pass, and only then when it is safe. No one would quarrel with the latter proposition – that the passing must be safe – but the narrow definition of a laned roadway puts cyclists in the unenviable position of having to routinely break the law when passing in a widened lane not marked by a white line.

Once again, I’m left wondering why anyone ever thought it was a bright idea to enact a law that states that motorists and cyclists have the same legal obligations. In my humble opinion, this was de facto a bad move and needs to be revisited by the legislature.

David Hay in a litigation lawyer and partner at Richards Buell Sutton, LLP. He has a special interest in bike injury law and can be contacted at 604.661.9250 or dhay@rbs.ca