Cyclists

In the summer months, cycling is a fun, healthy and inexpensive alternative to driving. Cyclists must be cautious as they face many risks on the road. Even while wearing the appropriate safety gear, the injuries to a cyclist struck by a vehicle can be extremely significant.

It is important for every cyclist to understand their rights and to know where they can receive assistance in case of an accident.

Unlike motor vehicle drivers, cyclists are not required to have insurance to cover their bicycles and actions. Despite this, cyclists are not without legal recourse in the event of injury. In the event of a collision with a vehicle, cyclist are granted multiple ways of getting appropriate compensation and protection under the law.

While each person’s situation is unique, the general rule is that in a collision with a vehicle, an injured cyclist can receive compensation from one of the following means:

• the insurance of a provider, their own insurance, and/or the insurance of a spouse
• Insuracne of vehicle involved in the crash
• the Ontario Motor Vehicle Accident Claims Fund.

Compensation

A cyclist injured by a vehicle can sue the driver and owner of the vehicle for compensation in the form of monetary damages. If a claim against the driver is commenced, their insurance company will respond and cover the driver up to the policy limit.

The Highway Traffic Act imposes a reverse onus on a driver whose vehicle collides with a cyclist. In an accident involving a cyclist, it is the responsibility of the driver of the car to first prove that the collision did not arise from the driver’s negligence or improper conduct. This is different from a typical claim, where it is the injured person’s responsibility to demonstrate that someone else is responsible for their injury.

In a situation where the at-fault driver does not have insurance or if it is a hit-and-run accident, a cyclist can have their damages covered by their own auto insurance or the auto insurance of their spouse (or parents if the cyclist is a dependent), if that insurance includes the standard Family Protection Coverage OPCF-44R provision.

Subject to certain restrictions under the Insurance Act, the cyclist can sue the driver and owner of a vehicle for potential damages (compensation) that include the following:

• Pain and suffering, loss of enjoyment of life, and loss of amenities;
• Past and future loss of income or earning capacity;
• Loss of household and handyperson capacity;
• Future cost of care; and
• Certain out of pocket expenses not paid by the no fault benefit insurance company.

The damages are to compensate the cyclist for the harms and losses that the negligent vehicle driver caused.

In a collision where the cyclist is not wearing a helmet, a cyclist can still obtain benefits or sue the driver for causing them injury. The defendant may, however, try to prove that the cyclist’s injuries would be lessened if they had been wearing a helmet.

In the event that none of the above situations apply, a last resort for damages can be found through the Ontario Motor Vehicle Accident Claims Fund. A cyclist can make a claim to the Ontario Motor Vehicle Accident Claims Fund, but only to a maximum of $200,000 in compensation.

If there is a hit-and-run that causes injuries, a cyclist should do their best in getting the license plate number, or having a witness around that can support the police report. A cyclist with proof of a hit and run can make a claim under the Motor Vehicle Accident Claim Fund. A cyclist should get an ambulance or go to a hospital themselves to get a doctor's report as evidence. Always keep this in mind and get checked out by paramedics.

The City’s duty to cyclists

It is also important to note that the City owes a duty to cyclists to provide Safe Passage. The Ontario Court of Appeal has recognized that roadways are to be used by cars and cyclists equally. Under s.44 of the Municipalities Act 2001, the City is responsible to keep roadways in a state of repair, and they must ensure that the road is “kept in such a reasonable state of repair that those requiring to use it may, exercising ordinary care, travel upon it with safety”.

This standard of care has been recognized as the law in Ontario by the Court of Appeal in Johnson v. Milton (Town). The state of repair includes “any aspect of the road and its environs” including “the surface of the road, alignment of the road, obstacles on the side of the road and signage.”

Our courts have held various municipalities responsible for failing to live up to their duty to cyclists. These include: failure to erect proper signage, failure to maintain proper surface and unsafe railway tracks on the street.

To be successful in an action for damages in connection with accident on a municipal highway, that onus is on the cyclist to prove, on a balance of probabilities, that:

1. That the road was in a state of disrepair at the time of the accident; and

2. The non-repair of the highway was the cause of the accident[1].

If these elements are met, the onus shifts to the municipality to establish that the condition of non-repair existed notwithstanding all reasonable efforts on the part of the municipality.

Time limits for a potential claim against the City require fast action. An injured party must give the City Clerk written notice of a potential claim within 7 days. Immediate contact should be made with a lawyer to get the notice in.

Insurance Benefits

Insurance benefits are different then claims for damages, damages refers to compensation by another party not the insurance company. Cyclists have the option of making a claim for no-fault benefits. A cyclist is entitled to benefits, regardless of who is at fault for the collision. Even if an idividual is struck while on a bicycle, the ride of that bicycle is entitled to auto insurance benefits.

The types of accident benefits available include weekly benefits which address a variety of personal circumstances:

1. Income replacement benefits for employed and self-employed individuals;
2. Non-earner benefits for students, individuals who are not gainfully employed, retired people, etc.; and
3. Caregiver benefits for individuals who provide care to family members.

Other types of accident benefits available include benefits for medical and rehabilitation care, lost income, lost education, visitor expenses, housekeeping and home maintenance benefits, or attendant care.

If a cyclist is hurt, but not working, they can receive non-earner benefits. As well, if the cyclist’s injuries impact their ability to look after their children, the cyclist can also elect to claim a caregiver benefit.

An injured cyclist is entitled to receive medical and rehabilitation benefits for expenses which are not covered by OHIP or other health or disability plans.

The benefits available will depend on a number of factors including:

• The seriousness of the injury suffered, with the types of injuries ranging from a “minor injury” to “catastrophic impairment”;
• The residual effects of the injuries suffered and their impact on the injured person’s function over time; and
• The level of benefits chosen when purchasing and/or renewing automobile insurance. Options available include:
  • Income replacement benefits ranging from $400 to $1,000 per week;
  • Enhanced medical/rehabilitation and attendant care benefits (increasing the benefits available under each category by $1,000,000 for a total of $2,000,000 of additional coverage); and
  • Indexation for benefits which are otherwise paid in a fixed amount.

Who pays the benefits depends on the circumstances of the accident.

No-fault benefits can be obtained through a cyclist’s insurer, if the cyclist has auto insurance. This can involve any policy of auto insurance under which the cyclist is a listed driver, or a spouse’s insurance, or the insurance of anyone the cyclist might be dependent on. In the event that the cyclist does not have auto insurance, a claim can be made through the insurance policy of the owner of the vehicle involved in the collision. If the at-fault driver is not insured or if it is a hit-and-run situation, the Ontario Motor Vehicle Accident Claims Fund would be the last resort for a claim.

General Bicycle Safety

Under the Highway Traffic Act [HTA], the term “vehicle” includes a bicycle, which generally means cyclists must follow the same rules of the road as other vehicles.

Section 104(2.1) states that regulation-compliant helmets are also required on roadways or sidewalks in Ontario for those under 18 years of age. Section 104(2.2) states that parents have a responsibility to ensure their children under the age of 16 comply with the regulation.

Section 74 requires that bicycles must be equipped with a functioning “alarm bell, gong or horn” and sounded whenever it is reasonably necessary to alert pedestrians.

Section 64(3) requires a rear-wheel braking system on a bicycle that will enable the ride to make the braked wheel skid on dry, level and clean pavement.

Finally, there are also rules for cyclists about lighting and reflectors to ensure that they are visible to other vehicles in dark conditions. Section 62(17) requires that if cycling on a highway when it is dark or 30 minutes from dusk or dawn, a cyclist must carry a lighted lamp displaying a white or amber light on its front and a red light or a reflector on its rear. It is important to note that warning signal lamps, commonly known as “four-way flashers”, that produce intermittent flashes of red light are prohibited under section 62(14).

Conclusion

Bicycles are vehicles, and so the riders are protected when they are injured by another's vehicle. Cyclist are granted multiple ways of getting appropriate compensation and protection under the law, whether from: the at-fault driver’s insurance, their own insurance, the municipality, or as a last resort, the Ontario Motor Vehicle Accident Claims Fund.