03 Mar Ormiston v. I.C.B.C
Liability between a young cyclist and an unknown motorist was determined in the case of Ormiston v. I.C.B.C., 2012 BCSC 665; Ormiston v. Insurance Corporation of British Columbia, 2014 BCCA 276.
Mr. Ormiston was cycling to high school on the downhill portion of his route. A van passed him at the top of the hill. The van slowed down and Mr. Ormiston caught up to it as he descended. When the van pulled to the far left of its lane, Mr. Ormiston decided to pass it on the right. He attempted to pass on the left of the fog line because the shoulder had rocks and gravel, making it an unsafe surface. As he cycled past the van, the van sharply corrected towards the right-hand side of its lane. The van struck Mr. Ormiston’s bicycle, causing him to fall down an embankment. Mr. Ormiston suffered serious personal injuries, including a concussion, a fractured right jaw, a dislocated left jaw, injury to his right ankle and leg, and various bruises and abrasions.
At trial, ICBC argued that Mr. Ormiston was at fault because he had violated the legislation prohibiting passing on the right. The trial judge apportioned liability, finding Mr. Ormiston 30% at fault. The unknown driver was found to be 70% at fault for driving without reasonable consideration for others.
ICBC appealed. The Court of Appeal reversed the trial judge’s decision and found Mr. Ormiston 100% at fault. As a result, his claim for compensation was dismissed.
To date, there has not been much judicial interpretation of this case and its effect on the interpretation of the legislation prohibiting passing on the right. However, it does suggest that cyclists need to exercise caution, especially when passing on the right when there is no bicycle lane. Keep in mind that each case is fact-specific and there are other cases where a cyclist passing on the right has made a successful claim. For example, see, Hildebrand v. Flint, 2000 BCSC 1876 and Hallatt v. Levien, 2006 BCSC 353.