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A great deal of responsibility is placed on cyclists to watch out for their own safety. Under the Highway Traffic Act, a bicycle is a vehicle and has the same rights and responsibilities as other road users and the driver of a bicycle must be as conscientious as the driver of a car.

The Courts have tended to apportion liability for car–bike accidents between everyone involved, sometimes including the municipality. For example, in Evans v. Toronto (City), 2004 Carswell 4721, the Ontario Court of Justice upheld the claim of a cyclist against both a driver who opened his door into traffic and the City who failed to maintain the road in good repair.

What was unique in Evans was the court’s finding that, where the city has designated a bike route, it has a higher obligation to protect the safety of cyclists. As Justice Winer wrote wrote at paragraph 17-18:

“I agree that cyclists should have an equal share of the road that is safe, especially when the City has adopted a bicycle-friendly policy and encourages cycling.

The designation as a bike route must mean something, some indication that the street is somewhat safer than the unsigned streets. The road, at this location, is not bicycle friendly. It leaves very little room for a cyclist to maneuver, very little margin for error. Sure, a skilled cyclist can pass in safety, but roads should be safe for the ordinary cyclist. At one time, cycling was quite rare in the City, but with the proliferation of bicycles and the City’s encouragement for health reasons, reducing congestion, less burning of fossil fuels, the City should have done something more positive about bike safety at this location.”

Justice Winer concluded that the City “should have done something to make the road safer” and apportioned 25% of the liability to the City. The Plaintiff was found 25% liable due to her failure to wear a helmet and to check the interior of cars along her route. The remainder of the liability was apportioned to the driver.

We don’t know of any decisions on the liability of trucks that lack side guards, but they could be found liable for negligence if the evidence proves they reduce harm to cyclists. We support Olivia Chow’s proposal that such guards should be mandatory.

By Meredith James and Dianne Saxe

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