It has been two years since Mayor John Tory announced Vision Zero, a plan to reduce traffic deaths to zero by 2021. Unfortunately, since that date the number of pedestrian and cyclist deaths in Toronto has not dropped. According to data compiled by various sources, there have been ninety-three pedestrian or cyclist deaths in Toronto since June 13, 2016. This figure represents fatalities only, and does not even capture the countless accidents where a cyclist or pedestrian survives but is left to deal with serious and catastrophic injuries for the rest of their life.
Recently, this issue has come to the forefront with three deaths resulting from vehicle accidents occurring in less than a week.
What makes these losses so much more difficult to fathom is the fact that they could have all been easily prevented:
If you poll 100 people within the City of Toronto you’ll find widely differing opinions of the rights of cyclists vs. motorists. Some say motorists should be more careful, being fully aware that they must share the road with cyclists but often refusing to do so. Others have said that cyclist should be licensed as there is no real recourse by police against a cyclist who is caught disobeying traffic laws. I’ll leave that debate to another forum, and focus only on the legal rights of the parties.
Under the Ontario Highway Traffic Act (“HTA”), bicycles are defined as a vehicle that has one, two or three wheels; has steering handlebars and pedals and does not have a motor.
A cyclist must share the road with all other vehicles and is treated like a car or truck. Like other users of the road, cyclists are required to obey all traffic laws and have the same rights and responsibilities as drivers.
Ordinarily in a civil action (a lawsuit between private parties), the plaintiff (the individual who brings a case against another in a court of law) has the onus of proving that the defendant was negligent on a balance of probabilities (i.e. that it is more likely than not that the defendant was negligent).
However, according to section 193(1) of the HTA, in the case of a motor vehicle vs. cyclist or pedestrian accident the usual onus is reversed. In situations where a motor vehicle hits a cyclist or pedestrian, the driver of the motor vehicle is presumed to be negligent unless he/she can prove that the loss/damage did not arise entirely or solely through his/her negligence.
This provision was enacted some years ago by the Ontario government in recognition of the vulnerability of cyclists and pedestrians vs. multi-ton vehicles.
It is important to note, however, that s.193 leaves it open for a motorist to counter a finding of fault by showing that a cyclist or even pedestrian failed to take reasonable steps to look out for his/her own safety and thus contributed to the acccident. For example, if the pedestrian were jaywalking, or the cyclist were riding his/her bike within the pedestrian crosswalk or disobeying street signs. In the examples above, despite the reverse onus, most of the fault may be placed on the pedestrian or cyclist.
The Protecting Vulnerable Road Users Act is a private member’s bill which was first introduced by Cheri DiNovo, NDP MPP for Parkdale-High Park in December 2017. The bill has been re-introduced by MPP Catherine Fife for the government’s consideration.
This bill is intended to strengthen existing road safety laws, create stiffer penalties, and introduce new measures to make Ontario roads safer.
If passed, the bill would add penalties to all driving offences under the HTA that result in the death or serious injury of a vulnerable road user.
The bill identifies the following individuals as “vulnerable road users”:
One of the proposed changes is to create a new offence of careless driving causing death or bodily harm. This offence would carry a maximum penalty of a $50,000 fine, up to two years in jail, and a licence suspension of up to five years.
The current offence of careless driving only carries a maximum fine of $2,000, six months in jail, and a licence suspension of up to two years.
The new Bill 37 would apply to 40 offences where a vulnerable road user is killed or seriously injured. It is also proposed to add mandatory minimum added penalties of licence suspension, community service, completion of a driving course, and the requirement for the offender to be present at the sentencing hearing when the victim impact statement is read.
As the law currently stands, drivers charged in fatal accidents are able to avoid serious consequences by pleading guilty to less serious offences. Under the proposed bill, this tactic would be impossible.
It is unclear whether such changes would actually result in reducing the number of pedestrian and cyclist deaths, but what is clear is that the government needs to do more towards protecting vulnerable road users.
If you or a loved one have been injured in a bicycle or pedestrian accident we offer a free consultation to allow you to have all your questions answered and learn about your options for seeking compensation. Please contact the experienced Toronto personal injury lawyers at Jasmine Daya & Co. online or at 416-967-9100.