As the weather warms and cyclists join the network of vehicles travelling on Ontario’s roadways, it is important to remind cyclists of the risks they face riding on public roadways, of their responsibilities as cyclists, and of their rights if they are injured. It is imperative that cyclists can access justice if they have been injured, and our team is here to help.
The Risks
Cycling on public roadways can bring with it significant risks. On average, we lose 74 Canadians each year in cycling collisions, with 73% of those accidents involving motor vehicles.[1] However in 2022, the Ontario Provincial Police alone investigated 259 cycling deaths, a stark increase from previous years.[2] The Canadian Automobile Association and Statistics Canada reports that approximately 7,500 cyclists are seriously injured in Canada each year.[3]
So what is causing all these accidents between motorists and cyclists? The Ontario Provincial Police report that motor vehicle speeding is the number one cause of cyclist to motor vehicle accidents. Other leading causes include distracted drivers, aggressive driving, or driving while impaired.[4]
The Responsibilities
For cyclists, there are many safety measures they can, and should take to protect themselves. For example:
- wearing an appropriately fitting helmet;
- wearing bright colours or reflective clothing;
- ensuring you have operational lights and a bell;
- obeying all traffic laws;
- yielding to traffic when required;
- being predictable in your maneuvers;
- leaving 1 metre of space between yourself and a vehicle;
- using hand signals;
- not cycling within crosswalks; and
- looking before turning.
The Rights
Despite taking reasonable safety measures, the unfortunate reality is that many cyclists are still seriously injured as a result of negligent motor vehicle drivers. It is important for those injured to know that access to justice can be achieved with the help of our experienced team of lawyers, who have combined decades of experience in handling bicycle accident injury cases.
In Ontario, the usual process of commencing a tort claim for personal injury requires the plaintiff (the injured person) to prove on a balance of probabilities that 1) the defendant owed them a duty of care, 2) the defendant breached the standard of care, and 3) that breach of the standard of care caused the injuries they are suffering. However, the law in Ontario has taken a different approach when it comes to personal injury cases involving cyclists and motor vehicles.
The Reverse Onus
Highway Traffic Act imposes what is called a “reverse onus” on situations where a cyclist is injured by a motor vehicle while cycling on a public roadway.[5] This means instead of the plaintiff bearing the burden of proof, the law presumes the motor vehicle driver is at fault for causing the accident. The cyclist, also considered a pedestrian under the Highway Traffic Act, only needs to prove that the accident occurred and caused their injuries.[6] The motor vehicle driver then faces the burden of proving that the injuries sustained by the cyclist were not caused by the driver’s negligence.
The reverse onus does not apply to private roadways, which includes parking lots or private property. That means that if you are a cyclist who is injured by a motor vehicle while riding on private property, then you cannot rely on the reverse onus.
Despite this reverse onus, cyclists must know that under the Negligence Act, their claims for damages could be reduced if they are found to be contributorily negligent. This means that if a cyclist fails to take reasonable steps to protect themselves from injuries that might be caused by another person’s negligence, then any damages awarded will likely be reduced by apportioning damages to the degree of fault between the defendant driver and the cyclist plaintiff.
A finding of contributory negligence does not discharge the reverse onus. The Court has recently reiterated that in order for a defendant to discharge the reverse onus, they must prove there was no negligence or misconduct on their own part.[7] Simply put, a finding of contributory negligence can decrease an award or settlement for damages, but it does not permit the defendant to escape liability.
Illustrations
For example, in a case where the plaintiff was riding a bicycle, the Court held that the defendant motorist was liable for the accident. However, the Court also held that as the cyclist was not wearing a helmet, which is a reasonably prudent step to take for a cyclist, their contributory negligence was assessed at 10%. Meaning, the plaintiff was found to be 10% at fault for the accident, causing their damages award to be reduced by 10%.[8]
One further example can also act as a reminder to cyclists, particularly those within urban areas. At times, it may be convenient for cyclists to use the path of a crosswalk to cross a roadway. However, under the Highway Traffic Act, it is a provincial offence to ride a bicycle across a roadway within a crosswalk.[9] In the case Pelletier v Ontario, the Court held that a cyclist was contributorily negligent for cycling in a crosswalk, which resulted in a 40% deduction in his award for damages.
Although the law does favour cyclists, having Bogoroch & Associates LLP’s team with over 30 years of experience in personal injury law is imperative to ensure your injuries and losses are vigorously advocated for.
If you or your loved one is the victim of a hit and run accident, please contact any of our personal injury lawyers at Bogoroch & Associates LLP for a free consultation.
Contact a personal injury lawyer near me by calling 1-866-599-1700 or visit our Contact page for all inquiries.
[1] Statistics Canada, Circumstances surrounding cycling fatalities in Canada 2006 – 2017. https://www150.statcan.gc.ca/n1/pub/82-625-x/2019001/article/00009-eng.htm
[2] https://www.cbc.ca/news/canada/toronto/opp-says-cyclist-deaths-up-300-per-cent-1.6561129
[3] https://globalnews.ca/news/6953000/cyclist-safety-southern-alberta/
[4] Supra, note 2.
[5] Highway Traffic Act, R.S.O. 1990, c. H-8, section 193(1).
[6] Barniske v Mohamed, 2003 CanLII 15942 (ONSC).
[7] Sanson v Paterson, 2022 ONSC 2972 at paras 100 – 101.
[8] Desrochers et al v. McGinnis et al, 2022 ONSC 2020 (CanLII), at paras 102 – 103.
[9] Highway Traffic Act, R.S.O. 1990, c. H-8, section 144(29).
