Tag Archives: cycle

Judge Strikes Jury and Denies Defence Counsel the Right to a Second Examination for Discovery and Defence Medical

Written By: Nick Todorovic

Judge Strikes Jury and Denies Defence Counsel the Right to a Second Examination for Discovery and Defence Medical

Justice Lavine rules in favour of a brain-injured cyclist by striking the jury, refusing further defence medical, and disallowing an additional examination.  The ruling allowed the cyclist to move forward with his case to the November 2021 trial sittings and proceed by Judge alone.  Shortly following the ruling, a settlement was entered into between the Plaintiff and the Defendants. The issue of liability among the Defendants is set to proceed.

In June 2015, the Plaintiff was riding his bicycle when one driver opened their door causing him to swerve and a second driver struck him with their car. The Plaintiff commenced an action in May 2016 against the at-fault drivers. Examinations for discovery were completed in January 2017. The parties attended mediation in May 2019 where the Plaintiff served all their expert reports. Mediation failed and the trial record was filed in May 2019. The Defendants consented to the action being set down for trial. Two judicial Pre-Trials took place in July 2021 where the Plaintiff served updated economic loss reports. The Defendants attended both Pre-Trials without any defence medical reports. At pre-trial, the Plaintiff advises that he would be bringing a motion to strike the jury as no jury trials were proceeding in the November 2021 sittings. The Defendant, Kelly Smith, requested that the Plaintiff be re-examined on his economic loss claim and that he attends a defence neuropsychological assessment. The Plaintiff brought their motion to strike the jury and the Defendant, Kelly Smith, brought a countermotion to compel the Plaintiffs attendance at a second discovery on economic loss and to attend a defence neuropsychological assessment.

The motion was heard on September 27, 2021, before Justice Lavine provisionally struck the jury notice of the Defendants and denied the Defendant’s countermotion in its entirety. In coming to her decision to strike the jury, Justice Lavine reviewed the local conditions in the Central East Region and relied on Zmarzly v Huang, 2021 ONSC 5960 for the relevant principles to be applied and the summary of the particular conditions in that region. Justice Lavine reiterated that delay in obtaining a date for a civil jury trial constitutes prejudice and may, in the circumstances, justify striking the jury notice to ensure timely delivery of justice. Justice Lavine provisionally struck the jury notices and listed the trial to take place for the November 2021 sittings as a judge-alone trial.

Justice Lavine then dismissed the Defendant’s countermotion concluding that the Defendant, Kelly Smith, put no evidence before her of any substantial and unexpected change or deterioration in the Plaintiff’s condition that would allow the Defendant to conduct an additional examination for discovery on economic loss. The Defendant, Kelly Smith, could not provide any reason why an additional examination for discovery or defence medical examination was not scheduled before Pre-Trial. In coming to that conclusion, Justice Lavine noted that it is expected that Plaintiffs have fluctuating and evolving issues with the passage of time until the commencement of trial. Justice Lavine noted that the Plaintiff’s change in employment status was not particularly striking or unexpected. Justice Lavine concluded that the denial of a second examination for discovery and the denial of a defence neuropsychological examination at that stage of the proceeding was not necessary to ensure trial fairness.

Shortly after the release of Justice Lavine’s decision, the Plaintiff reached a favourable settlement. This decision is a stark warning to all parties about taking little to no steps in advance of a Pre-Trial. The Courts are taking a harsher stance on trial fairness when a party chooses to ignore the rules of civil procedure with the service of defence medical reports. The ruling is consistent with the Court system seeking to counter unneeded delays in what is an overburdened system.

Cambridge Today – Brain injury association’s program delivers 416 free bike helmets to Cambridge kids

“Brain injury association’s program delivers 416 free bike helmets to Cambridge kids”, published by Doug Coxson for Cambridge Today, discusses the Cambridge Lidz on Kidz event held on June 19, 2021. Volunteers from the Brain Injury Association of Waterloo Wellington and McLeish Orlando handed out bike helmets to Cambridge families who registered for the free Lidz on Kidz program.

The pandemic has brought on a renewed interest in cycling – more kids on more bikes requires more advocacy, education, and awareness around bike helmet safety.

Read the full article here.

Motorcycle Collisions – How Riders Can Stay Safe This Summer

Written By: Salvatore Shaw and Danny Garas, Summer Student

Motorcycle Collisions – How Riders Can Stay Safe This Summer

As the weather in Toronto begins to warm up, we begin to see more and more motorcycles on our roads and highways.

In 2005, 56% of motorcycle collisions in the U.S. occurred on urban roadways.[1] These numbers are likely comparable in Canada.

In 2013, the Globe and Mail reported that motorcyclists are “at least 15 times more likely to be involved in a crash than automobile drivers.”[2]

In November of 2017, the Toronto Sun also reported a frightening statistic – “motorcycles account for about 10% of motor vehicle deaths while making up only 2% of traffic on the roads.”[3] Even more worrisome is that injuries from motorcycle collisions are “10 times as severe as those resulting from collisions involving cars.”[4]

TIPS FOR RIDERS

Protect Yourself

In Ontario, helmets are mandatory.[5] The reason is that helmets lower the likelihood of a rider suffering a concussion or critical head or neck injury.

Riders want to make sure that they wear a proper-fitted helmet at all times when riding.

Sizing of your helmet will vary depending on the brand.[6] After measuring your head for a properly-sized helmet, you will notice that the first time you wear your helmet it will be slightly tight.[7] This is normal, as long as it is not causing you any pain. After wearing the helmet for 30 minutes and experiencing no issues, you’re ready to ride![8]

Helmet lifespan: most people recommend that used helmets be replaced every five years (or seven years from production)[9], assuming the helmet has not degraded in the sunlight. Of course, if the helmet has either been dropped or impacted in a previous fall/accident, the lifespan of the helmet will be shorter.

Helmet requirements can be found under regulation 610 of the HTA.[10] There are very limited exceptions.

Optimize Visibility

Riders must equip their motorcycle with at least two lights – a white light on the front and a red light on the back of the motorcycle.[11] Motorcycles with a sidecar must carry three lights: two on the front and one on the back.[12]

When riding, it is recommended that you wear “light and bright colored outerwear.”[13] Riders should refrain from wearing darker colours such as dark purple, grey, and black.

It’s not just about what you’re wearing, the colour of the motorcycle is also important! Researchers from the University of Kentucky, for example, determined that of all collisions where a driver collided with a rider due to failure to observe the motorcyclist, 36% of those motorcycles were black.[14]

In addition, the Ministry of Transportation recommends improving visibility by adding reflective tape to your helmet, clothing, and motorcycle.[15] This is especially helpful if riding at night!

Other Tips for Riders

  • Check the weather before going out.
  • On roads where there are more than two lanes, it is always recommended to pass motorists on the left side. The Ontario Ministry of Transportation warns that “passing on the right can be more dangerous.”[16]Part of the reason is that when passing on the left side, you are on the driver’s side (meaning a higher chance that they see you in their blind spot).
  • When riding a motorcycle, “lane sharing, splitting and filtering are prohibited[17]…because it’s dangerous.

On roads where there are more than two lanes, it is always recommended to pass motorists on the left side
[18]

·        When riding in groups, maintain a good amount of distance between each rider.[19]

When riding in groups, maintain a good amount of distance between each rider.[20]

  • Avoid riding too close to motorists or riding in their blind spots.

Avoid riding too close to motorists or riding in their blind spots.
[21]

  • Avoid riding on gravel roads or roads that are in poor conditions and bumpy. Drivers can more easily stabilize their vehicle after hitting a bump in the road, the same cannot be said for riders!

TIPS FOR DRIVERS: HOW MOTORISTS CAN HELP AVOID COLLISIONS WITH MOTORCYCLISTS

Share the Road

For some reason, motorists seem to get nervous when they spot a motorcyclist. Drivers need to remember that if a collision takes place between them and a motorcyclist, the rider is more likely to be injured. For this reason, extra caution must be displayed when driving around motorcyclists.

Treat motorcycles as other vehicles; they have a right to the full lane.[22] They brake faster than cars because they are smaller and lighter, so don’t tailgate![23]

Dooring: Be careful when opening the door on the driver’s side. It won’t be fun for a rider if they unexpectedly come into contact with your vehicle door.

Drive Safely

Don’t drive while distracted. Since motorcycles are much smaller than other vehicles, they are much harder to see. Don’t be glancing down at your phone or driving distracted, because this will decrease your likelihood of seeing a motorcyclist and impair your ability to react.

Check your blind spots whenever you are changing lanes or completing a turn.

INJURED IN A MOTORCYCLE COLLISION?

Sometimes, even the most cautious riders may be involved in a collision.

If you or a loved one has been seriously injured in a motorcycle collision, please contact one of the critical injury lawyers at McLeish Orlando LLP for a free consultation.

[1] Fatal Two-Vehicle Motorcycle Crashes, U.S. Department of Transportation, National Highway Traffic Safety Administration, September 2007, https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/810834 [PDF].

[2] Why I don’t ride motorcycles – as much – any more, the Globe and Mail, June 27, 2013, https://www.theglobeandmail.com/globe-drive/culture/commuting/why-i-dont-ride-motorcycles-as-much-any-more/article12834643/.

[3] Motorcycles are more dangerous than ever: Ontario study, Toronto Sun, November 20, 2017, https://torontosun.com/news/provincial/motorcycles-are-more-dangerous-than-ever-ontario-study.

[4] Ibid.

[5] Highway Traffic Act, RSO 1990 c H.8, at section 104 [HTA].

[6] How to Choose the Safest Motorcycle Helmet 2020, supra note 8.

[7] Motorcycle Helmet Size Guide – How to Measure & Fit the Right Helmet, Motosport, June 2, 2021, https://www.motosport.com/blog/motorcycle-helmet-size-guide-how-to-measure-fit-the-right-helmet.

[8] How to size and buy a motorcycle helmet, RevZilla, May 25, 2019, Andy Greaser, https://www.revzilla.com/common-tread/how-to-buy-and-size-a-motorcycle-helmet.

[9] Do Motorcycle Helmets Have an Expiry Date?, New Touring Rider, May 30, 2021, https://newtouringrider.com/do-motorcycle-helmets-have-an-expiry-date/; Lifespan of a Motorcycle Helmet, Crampbuster, May 1, 2017, https://www.crampbuster.com/motorcycle-helmet-lifespan/#:~:text=The%20industry%20standard%20states%20that,it%2C%20time%20to%20trash%20it; How to Choose the Safest Motorcycle Helmet 2020, Motorcycle Legal Foundation, March 24, 2020, https://www.motorcyclelegalfoundation.com/the-safest-motorcycle-helmet-you-can-buy/ [How to Choose the Safest Motorcycle Helmet 2020].

[10] Safety Helmets, RRO 1990, Regulation 610 (under HTA, RSO 1990 c H 8).

[11] HTA, supra note 5 at section 62(2).

[12] Ibid at section 62(3).

[13] Six ways of being visible when riding a motorcycle, KimpexNews, June 1, 2018, https://blog.kimpex.com/six-ways-of-being-visible-when-riding-a-motorcycle.

[14] Causes and Countermeasures Related to Motorcycle Crashes, University of Kentucky: College of Engineering, Kentucky Transportation Centre, March 2011, https://uknowledge.uky.edu/cgi/viewcontent.cgi?referer=https://www.google.ca/&httpsredir=1&article=1028&context=ktc_researchreports [PDF].

[15] Motorcycle Safety, Ministry of Transportation, Ontario, http://www.mto.gov.on.ca/english/safety/motorcycle-safety.shtml [Motorcycle Safety].

[16] The Official Ministry of Transportation (MTO) Driver’s Handbook: Changing Positions, Updated on May 8, 2019, https://www.ontario.ca/document/official-mto-drivers-handbook/changing-positions.

[17] Motorcycle Safety, supra note 15.

[18] Picture taken from Motorcycle Lane Splitting, Motorcycle Legal Foundation, September 30, 2019, https://www.motorcyclelegalfoundation.com/motorcycle-lane-splitting-guidelines/.

[19] Motorcycle Safety, supra note 15.

[20] Picture taken from Group Riding Best Practices, Rider Magazine, Jenny Smith, October 31, 2019, https://ridermagazine.com/2019/10/31/group-riding-best-practices/.

[21] Picture taken from Motorcycle Safety, supra note 15.

[22] Sharing the road with other users, Sharing the road with motorcycles and limited-speed motorcycles, Ministry of Transportation Ontario, Updated on March 20, 2020 https://www.ontario.ca/document/official-mto-drivers-handbook/sharing-road-other-road-users#section-1.

[23] Do Motorcycles Brake Faster Than Cars?, Brake Experts, https://brakeexperts.com/do-motorcycles-brake-faster-than-cars/.

What Should I do if I Get Into a Collision While Cycling?

Written By: William Harding and Cody Malloy, Summer Student

if I Get Into a Collision While Cycling?

With temperatures starting to rise, cyclists have started flocking to the streets to get a breath of fresh air.  As a matter of fact, the COVID-19 pandemic has changed the cycling industry in Canada.  Cycling has become so popular in Canada within the last year, that the industry is seeing massive supply shortages.

With an influx of cyclists on the roads, the safety of cyclists is paramount.  In 2020, three cyclists were killed on the busy streets of Toronto.  Cyclists must exercise diligence in looking out for their own safety on the road.

Even the most experienced and cautious cyclists can still find themselves in a collision, which is why all cyclists should have a plan of what they should do in the event they are involved in one.  Cycling collisions can be traumatic, but there are some simple tips that all cyclists should follow before going out for a bike ride and in the event that they are involved in a collision.

Before leaving home

Cycling safety starts before leaving your residence.  Before heading out, all cyclists should do the following:

  • Wear a helmet: helmets are required by law per Highway Traffic Act 104 for those 17 years of age and under. Cyclists of all ages are encouraged to wear helmets to reduce the risk of brain injuries sustained in a collision.  However, just because a cyclist does not wear a helmet when they are involved in a collision, this does not mean they can’t recover from a defendant’s negligence.
  • Wear appropriate clothing: make sure your clothing will not snag on your bicycle. Loose clothing can catch on a moving part of your bicycle, which could lead to an accident.
  • Check the weather: if it’s going to rain, slippery conditions and poor visibility for motorists increase the chances of a collision. You should also consider fluorescent clothing to make yourself most visible to other cyclists and motorists.
  • Bring your phone: not only can your phone help you in the event of getting lost, but it is absolutely essential to have your phone available in case of an emergency. You’ll want your phone to dial 911 and take pictures if you’re involved in a collision.

After a collision

In the event you’re injured in a collision with a motorist, here are six things you should do:

  • Call 911: request Police and Ambulance. If you or someone else is seriously injured, also request Fire, as they are also trained to give medical attention and may respond quicker than Ambulance.  When Police arrive on the scene, they will write an accident report.  Make sure you obtain the officers’ contact information, as they may need to be contacted for a statement when processing your claim.  If it is safe to do so, move off the street to avoid oncoming vehicles.
  • Document the collision scene: taking pictures of your injury and damage to your bicycle with your phone can help your claim down the road. Also, take pictures of the motorist’s vehicle and the scene of the collision.  This information is vital to a successful claim.  You can also draw rough diagrams of the collision scene on your phone’s notepad app to help you remember any important visual details, such as your direction of travel relative to the vehicle.  Make sure you note the time and location, and it’s best not to discuss fault with the motorist.
  • Get the motorist’s information: ensure you note the vehicle license plate number, the motorist’s name, and contact information, driver’s license number, and their insurance information (name of insurance company, the company’s contact information, and policy number). By obtaining this information, you will be able to more efficiently process your claim.
  • Talk to witnesses: talk to anyone who witnessed the collision and get their statement. Ensure you obtain their contact information as they may need to be contacted to help your claim.  You can write their statement down in a notepad app on your phone, or record their statement with their permission in a voice memo or even by video to get the most accurate depiction of what happened.
  • Get medical help: when Ambulance arrives on the scene, they will assess your injuries and advise on the next steps. If your injury is serious, they may transport you to the hospital.  Be sure to keep any receipts of any medical expenses you have to pay out of pocket.  Whether you go immediately to the hospital or you see a doctor within a few days after the collision, be sure to disclose all symptoms to a doctor or nurse.  Medical personnel will write detailed notes, and these can be crucial to your claim.
  • Call a lawyer: you should speak to a lawyer as soon as possible and certainly before contacting your insurance company. If a lawyer feels as though a municipality is to blame, the municipality must be given notice of the claim within 10 days, per the Municipal Act.

Why should I consult a lawyer?

The right lawyer will ensure your financial interests are looked after in processing your claim.  Not only will a lawyer ensure your out-of-pocket claims are covered, but they’ll also assess your loss of income and future cost of care.  Your lawyer will advise you on all remedial options against the motorist (such as claiming through the motorist’s auto insurance), as well as no-fault claims through your own auto insurance and Ontario’s Motor Vehicle Accident Claims Fund if the motorist did not have their own insurance.

McLeish Orlando has longstanding expertise in helping clients with successful cycling collision claims.  If you have been injured in a cycling collision, you should contact us for a free consultation.  A lawyer at McLeish Orlando will evaluate your case and determine how to best serve your needs.

June is Bike Month! – Clips & Tips with Patrick Brown

McLeish Orlando and Bike Law Canada are kicking off Bike Month together and celebrating all things to do with bikes.

This month, we hope to encourage you to get out and ride, learn a new skill,  or have fun with your family and explore your cycling communities.  Of course, no matter where or how you ride, we want to make sure you are protected and know your rights to the road.  That is why we have teamed up with Bike Law Canada, and enlisted the help of McLeish Orlando Partner, Patrick Brown, to tell you everything you need to know about cycling and the law.

Over the next 30 days, we will be releasing helpful “clips and tips” on some of our most commonly asked cycling safety and legal questions – everything from how to fit a helmet to steps to take if you have a crash – McLeish Orlando and Bike Law have got you covered with everything you need to know.  Do you have a specific cycling legal question?  Don’t hesitate to contact us and we would be happy to speak with you.  We hope everyone has a great Bike Month, follow along with us on this page and on our social media channels, and as always, ride safe and ride proud.

Helmets:

Taking the Lane:

Side Guards:

Click here for the Coroner’s review

Click here to find your MPP to write to them

Alcohol & Bikes:

Rider Cards:

Riding Side-by-Side & Tandem:

Municipal Liability:

Pedestrian-Cyclist Collisions:

How to Repair a Damaged Bike:

Language Matters:

Protecting the Cyclist Through Insurance:

Getting a Ticket: 

Bias:

Idaho Stop:

Video Cam Footage: 

Dooring:

Bike on Bike Crashes:

Vulnerable Road User Laws:

Book Club:

When You Need a Lawyer:

Cyclist Accident Benefits:

Tips for a Good Lawsuit:

Blog Resources:

What Should I Do if I Get Into a Collision While Cycling?

Call for Change – The Need for Mandatory Education of Truckers with Respect to Cyclist Safety

Contributory Negligence and Helmet Use: Recent Updates to the Law in Ontario

Cyclists, Pedestrians, and Their Rights to Accident Benefits

Obtaining the Name of the Person who Doored You

Drivers or Cyclists: Who Has the Right of Way?

Cyclists, Pedestrians, and Their Rights to Accident Benefits

Written By: Patrick Brown and Lori Khaouli

Cyclists, Pedestrians, and Their Rights to Accident Benefits

Cyclists, Pedestrians, and Their Rights to Accident Benefits

During the unprecedented COVID-19 outbreak, more and more people in Ontario are taking to cycling and enjoying the freedom that cycling brings. Unfortunately, infrastructure and traffic laws have failed to protect cyclists and ensure their safe passage on roadways. As a result, far too many of us are injured in collisions involving cars. It is important to know that you have rights to benefits that are there to help you and your family when recovering from personal injuries due to a motor vehicle crash.

In Ontario, if you are injured in a crash involving a motor vehicle, you are entitled to No-Fault Benefits (Statutory Accident Benefits). As the name suggests, you may receive these benefits even if you are at fault. Many cyclists and pedestrians don’t realize that they are entitled to these benefits whenever a vehicle is involved in the crash, including doorings. If a car is involved and no contact is made, you may still be entitled to benefits.

Which Benefits are Available to You?

There are several key benefits available to injured crash victims under Ontario’s Statutory Accident Benefits Schedule:

  • Medical Benefits: To help you pay for expenses arising from the crash, including medical treatment, required medications, dental, ambulance, and other treatment as necessary.
  • Rehabilitation Benefits: To aid in reducing the effects of the injury, such as home modification, physiotherapy, and chiropractic care.
  • Income Replacement Benefits: To replace your lost income from being unable to return to work.
  • Attendant Care Benefits: If you require assistance after the crash, this benefit will compensate for an attendant, aide, or long-term care facility.
  • Caregiver Benefit: If you are a primary caregiver in your household and are injured, this benefit compensates for the cost of hiring someone to help.

Depending on the nature and severity of your injuries, you may be entitled to other benefits including housekeeping and home maintenance expenses, death and funeral benefits, and even lost educational expenses.

How Can You Make a Claim for Accident Benefits?

As a cyclist or pedestrian injured in an accident involving a car, you can make a claim for benefits through your auto insurance policy. If you do not have auto insurance, a claim can be made through the policy of the driver involved in the collision.

When making a claim for accident benefits, the insurance company must be notified within 7 days of the crash in question. The insurance company will provide an Application for Accident Benefits package which must be completed and returned within 30 days.

HOW WE CAN HELP YOU

As vulnerable road users, it is important for cyclists and pedestrians to be aware of their rights when they are involved in a collision with a motor vehicle. Consulting a lawyer is not necessary to make an application for benefits, it can be made by you. However, if you suffer serious injuries, we do recommend that you consult a personal injury lawyer as you may have additional rights, and you may need to consider a lawsuit against the driver for additional compensation due to the harm they caused you. If you are not sure, feel free to give us a call. Our advice is free.

Ride safe!

Guelph Lidz on Kidz | McLeish Orlando Personal Injury Lawyers Toronto

Guelph Lidz on Kidz

On Saturday, May 23, 2020, The Brain Injury Association of Waterloo Wellington and McLeish Orlando Lawyers had planned to host our first ever Bike Rodeo! We had planned to invite the community to attend a completely free event with the hope that we can educate them on brain injury prevention, promote road safety and public awareness for cycling safety ahead of the summer months!

We had a great day planned – including a bicycle obstacle course running throughout the day. Children would have participated while learning about road rules and injury prevention. Most importantly, there would have been free children’s helmets and helmet fittings.

Due to the COVID-19 pandemic, we were unable to have this event but still wanted to educate the public and distribute helmets to children in need.

On July 11, 2020 we will be in Guelph to hand out the helmets that have been requested through our website. Once you request a helmet, we will contact you to arrange a contactless pick-up. Please note, this is for the Guelph and Wellington County area only.

More about Lidz on Kidz:

The mandate of the Lidz on Kidz program is to provide free educational sessions to generate awareness on the key messages on brain injury and prevention to the general public.

Lidz on Kidz is also a community effort dedicated to providing bicycle helmets to children whose families cannot afford helmets. If your child needs a helmet to ensure that he/she is safe while enjoying the exercise that bicycling can provide please contact the Brain Injury Association of Waterloo-Wellington at 

Obtaining the Name of the Person who Doored You

Written By: Patrick Brown and Ryan Marinacci, Law Student

YOU DON’T HAVE THE NAME OF THE PERSON WHO DOORED YOU? HERE IS SOME HELP

In the past, the Toronto Police Services Board refused to release the identities of drivers who door cyclists by stating that it is considered an “incident” as opposed to a reportable motor vehicle accident and by relying on the personal information exemption under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990.

WHY THIS MATTERS

When a cyclist is doored, failure to obtain the name and address of the driver can severely interfere with the cyclist’s ability to seek legal redress such as getting insurance benefits, compensation for their damaged bike, or being able to pursue a lawsuit.  For more on your cycling rights, visit Bikelaw Ontario and Cycle Toronto.

RECENT DECISION OPENS DOOR TO GET NAME AND ADDRESS

The Ontario Information and Privacy Commissioner recently ordered the Toronto Police Services Board to disclose the name and address of a cyclist who struck a pedestrian in Toronto (Police Services Board) (Re), 2020 CanLII 28073 (ON IPC).

For the purpose of releasing the names and addresses of the individuals involved, there is no principled reason to distinguish between a driver who doors a cyclist and a cyclist who hits a pedestrian.  Going forward, this decision should serve as a precedent for requiring the Police to release the identity of a driver who doors a cyclist.

So what to do?  If you are doored and you do not have the name of the person who doored you, prepare and send in a Freedom of Information Request (attached here):

  • Print, sign and date the letter, and insert the date of the dooring incident and any other identifying information you may have,
  • Print and complete the attached Access or Correction Request Form,
  • Print and attach the decision,
  • Pay the required $5.00 fee,
  • Wait for a response.

For those who want to know the basis for the decision please feel free to continue below.

The adjudicator had to determine whether the Police could refuse to disclose the identity of the cyclist under s. 38(2) on the basis that doing so would constitute an unjustified invasion of personal privacy.  This determination was made by turning to the criteria under sections 14(2) and (3).  Relevant here was s. 14(2)(d), the adjudicator found, which asks whether “the personal information is relevant to a fair determination of rights affecting the person who made the request.”

In order to engage s. 14(d), the appellant had to establish that,

  • the right in question is a legal right which is drawn from the concepts of common law or statute law, as opposed to a non-legal right based solely on moral or ethical grounds;
  • the right is related to a proceeding which is either existing or contemplated, not one which has already been completed;
  • the personal information to which the appellant seeks access has some bearing on or is significant to the determination of the right in question; and
  • the personal information is required in order to prepare for the proceeding or to ensure an impartial hearing.

On the facts, these criteria were easily met.  The adjudicator found that the cyclist’s name and address were relevant to a fair determination of the appellant’s rights, and stated,

[51]        …I am satisfied that he has met the four-part test in section 14(2)(d) because:

  • his right to sue is drawn from common law;
  • the right is related to a contemplated civil claim for damages;
  • the personal information to which he seeks access (i.e. the affected party’s name and contact information for service) has a direct bearing on a determination of his right to receive damages because he needs to identify the affected party in order to bring a successful claim; and
  • he needs the affected party’s name to prepare for the proceeding by serving him with his claim.

This factor heavily favoured disclosure and outweighed two concerns that militated against disclosure.  First, under s. 14(2)(h), the personal information had been supplied in confidence because the cyclist had voluntarily given a police statement.  Second, under s. 14(3)(b), the information had been obtained as part of an investigation into a possible violation of the law, and it did not matter that no charges were laid.

However, the appellant countered that the Act should not be used in a way that prevented individuals from exercising their legal rights.  Without the ability to obtain the identity of the proposed defendant, non-disclosure would effectively remove the appellant’s right to sue for the injuries sustained in the incident.

The adjudicator agreed, and stated,

[58]        I agree that the Act should not be used in a way that prevents individuals from exercising their legal rights, and find that the non-disclosure of the affected party’s name and address unduly impairs the appellant’s ability to pursue his right to seek damages.

In the result, the adjudicator ordered the Toronto Police to disclose the name and address of the cyclist.

Drivers or Cyclists: Who Has the Right of Way?

Written By: Nick Todorovic and Brock Turville, Student-at-Law

Every driver should be vigilant of cyclists on the road, whether driving in a bustling downtown core or in a quieter suburban neighbourhood. Failing to signal or check your blind spot and mirrors, even once, could lead to tragic consequences.

As reported by Ontario Public Health, although the injury and fatality rates have been decreasing for those inside vehicles, that has not happened for vulnerable road users, such as pedestrians and cyclists. The City and province are taking some steps to educate drivers and cyclists on their rights and obligations, but more progress must be made. A sound understanding of applicable laws and the right of way can help further reduce the number of cyclists getting struck down and killed each year.

Keeping a proper lookout

Some drivers do not see cyclists at all before impact, remaining entirely oblivious to their presence. Yet cyclists do not appear out of nowhere.

A reasonable driver monitors the space around them through continuous mirror and shoulder checks, both before and during any turn or maneuver. A reasonable and attentive driver knows that the traffic around them could change at any moment and adapts to those changes (just because the road was clear does not mean it will be 10 seconds later). A reasonable and defensive driver anticipates that a cyclist may appear “out of nowhere” and is ready to react.

These attitudes should prevail amongst motorists due to cyclist vulnerability. When pitted against a three thousand pound vehicle, cyclists may lose their life while the driver may sustain a small dent on their car.  Instead of viewing cyclists as being “in the way”, understand that cyclists under the law have just as much of a right to be on the roadway as you do.

One of the most problematic occurrences in the city is when drivers turn right across bike lanes. Another common maneuver that leads to collisions is left-hand turns in front of cyclists travelling in the opposite direction. Some cycling trails in downtown Toronto, including the off-street multi-use trails on Queens Quay, are high-collision areas where some drivers turn left or right into the paths of oncoming cyclists.

There is a misconception that drivers cannot enter a bike lane before turning right and that these lanes are solely for cyclists. This is wrong. Whether a driver can enter a bike lane before a turn and who has the right of way depends on the type of bike lane and any applicable signage.

Types of bike lanes

  1. Bike lanes with dashed white lines

A dashed white line leading up to the intersection means a driver can fully enter the bike lane before turning when it is safe to do so. Safe to do so means when they can enter the lane without impeding the flow of cyclists coming from behind. The same concept of changing car lanes applies. A cyclist ahead of the vehicle is entitled to maintain the lane. The cyclist approaching a right turning vehicle from behind has two options: wait behind the vehicle or pass on the left-hand side when it is safe.[1]

  1. Bike lanes with solid white lines extending to the intersection

 

A solid white line means cyclists have the right of way. Motorists must yield and may not enter the bike lane until the way is clear and they can safely turn into the opposing lane. [2] This applies to bike lanes with a solid white line that extends to the intersection. Put simply, drivers should not cross or enter the portion of the bike lane with a solid white line. These solid white lines transition to dashed white lines at intersections. This dashed portion is where drivers are permitted to cross the bike lane and complete their turn. Before doing so, motorists must yield to cyclists passing through the intersection on their right and should take care not to block the path of cyclists before completing their turn.

  1. Shared right turn bike lanes

 

These lanes can be confusing for drivers and cyclists. Most people do not know how they work.

Motorists that intend to turn right at these shared turn lanes should enter the green paint before the turn, preferably as far back as possible. This allows time to straighten out and to avoid making a sharp turn across the entire lane. Motorists may enter the bike lane only when it is safe to do so and the lane is clear of cyclists. Vehicles turning right should “hug” the curb as far to the right as possible so that cyclists can pass on the driver’s side.

Cyclists travelling through the intersection follow the “sharrow” marking on the left hand side of the bike lane, which is considered far safer and prevents cyclists from getting “right hooked” by vehicles.

The Toronto Star monitored activity at this intersection for two hours and identified 609 infractions by drivers and cyclists.[3] Many road users do not fully understand how these lanes work. Be patient and be prepared to yield.

Below is a diagram of how these lanes operate in theory:

Watch this video to see how these lanes work in practice.

  1. Bike boxes

Bike boxes are designated spaces for cyclists to stop in front of vehicles at a red light. Drivers must stop at the stop line behind the bike box. Vehicles are not permitted to stop within the bike box or turn right on a red light. When the light turns green, cyclists are entitled to proceed first.[4]

“Sharrows” or no bike lanes

On roads with “sharrows”, motorists may only pass cyclists if there is a 1-metre clearance. Drivers who fail to keep a 1-metre distance when passing cyclists face a fine of $110[5] and up to $500 and 2 demerit points if they choose to contest the charge and are subsequently convicted.[6] If there is not enough room to pass, keep a safe distance behind cyclists.

Stopping and parking in or near bike lanes

It is illegal for most vehicles to stop or park in a marked bike lane. The fine for doing so is $150.[7] Exemptions include ambulances, police or fire service vehicles (or any other vehicle responding to an emergency), loading or unloading of disabled persons from a Wheel-Trans vehicle, or vehicles actively engaged in public works (such as utilities works). Transit/school buses and taxis are also permitted to stop in bike lanes while loading and unloading passengers.[8]

Drivers and their passengers must take extra caution when exiting a vehicle near a bike lane to avoid “dooring” passing cyclists. Drivers could face a fine of $365 and 3 demerit points or up to $1,000 and 3 demerit points if they choose to contest a “dooring” charge and are subsequently convicted.[9]

To avoid dooring cyclists, you should perform the “Dutch Reach” when exiting your vehicle.

Conclusion

With all of that said, bike lanes were meant and do reduce injuries and death to cyclists. But they only work when people use them correctly and they are properly designed and repaired.  Not all drivers or cyclists are aware of who is entitled to go first. If there is confusion, it is often best to be patient, remain calm, and yield to cyclists even if you have the right of way. Drivers should ensure they signal, check all mirrors and blind spots, and keep a proper lookout for cyclists travelling in all directions. Always scan for cyclists as you approach an intersection and be prepared to slow down or stop at any time.

Equipped with this knowledge, it is hoped that drivers and cyclists will be able to travel safely and free from harm.

[1] https://www.toronto.ca/services-payments/streets-parking-transportation/cycling-in-toronto/safety-and-education/signs-and-pavement-markings/

[2] Ibid.

[3] https://www.thestar.com/news/gta/2018/06/26/we-spent-rush-hour-watching-cyclists-and-drivers-navigate-an-absolutely-terrifying-toronto-intersection-most-did-it-wrong.html

[4] Supra note 1.

[5] https://www.toronto.ca/services-payments/streets-parking-transportation/cycling-in-toronto/cycling-and-the-law/

[6] http://www.mto.gov.on.ca/english/safety/bicycle-safety.shtml

[7] Supra note 5.

[8] Ibid.

[9] Ibid.

McLeish Orlando Attended the 2020 Toronto Motorcycle Show

This past weekend, personal injury lawyers and staff from McLeish Orlando attended the 2020 Toronto Motorcycle Show. The show was well attended by eager riders looking forward to getting their bikes out for the season.

Similar to the 2019 Toronto Spring Motorcycle Show, that we attended in April 2019, we had the chance to speak to riders about the importance of understanding their insurance policies and the need for optional benefits. Many of the riders we spoke to still did not know about the 2016 statutory accident benefit changes. These insurance changes impacted how much money people have access to if they are seriously injured in a motorcycle accident. As personal injury lawyers, we know that the standard coverage amounts disappear very quickly when a person is seriously injured. We highly recommend that you call you insurance broker and purchase optional coverage.

While at the show we ran a giveaway for a $500 prepaid Visa to help riders FUEL UP for their next ride!  We invited people to subscribe to our quarterly motorcycle-focused e-newsletter! Please if you would like to receive the newsletter. We also invited attendees to sit down with our lawyers to ask any legal questions that they might have. Our lawyers and staff enjoyed the opportunity to speak to passionate riders!

Click here for a photo album from the event.

All of us at McLeish Orlando wish everyone a safe, warm, and long 2020 riding season! We look forward to seeing you all at the next show.

If you or a loved one is injured in a motorcycle accident, contact one of the personal injury lawyers at McLeish Orlando LLP for a free consultation.

Rocket Ride for Rehab

McLeish Orlando is excited to sponsor Toronto Rehab Institute’s first ever Rocket Ride for Rehab.

Don’t miss your opportunity to be a part of the premier, one-of-a-kind, spin event in the heart of the financial district! The event is taking place at First Canadian Place on the main floor, and the session is being led by instructors from Rocket Cycle. For more information about the event, click here.
All funds raised will support Toronto Rehab Foundation.
Click here to register for the event. Spin Session #1 is sold out, but there are still spots left for Spin Session #2!