Q&A - Passing on the Right

I agree with you here, this is a very difficult situation where I suspect that the Motor Vehicle Act fails to keep up with the times.

Section 158 of the Motor Vehicle Act deals with passing on the right:

Passing on right

158 (1) The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle, except

(a) when the vehicle overtaken is making a left turn or its driver has signalled his or her intention to make a left turn,

(b) when on a laned roadway there is one or more than one unobstructed lane on the side of the roadway on which the driver is permitted to drive, or

(c) on a one way street or a highway on which traffic is restricted to one direction of movement, where the roadway is free from obstructions and is of sufficient width for 2 or more lanes of moving vehicles.

(2) Despite subsection (1), a driver of a vehicle must not cause the vehicle to overtake and pass another vehicle on the right

(a) when the movement cannot be made safely, or

(b) by driving the vehicle off the roadway.

The simple situation is (1)(a) where it says that you can pass a left turning vehicle if it is safe to do so and you don't move off of the roadway to do it.

"roadway" means the portion of the highway that is improved, designed or ordinarily used for vehicular traffic, but does not include the shoulder, and if a highway includes 2 or more separate roadways, the term "roadway" refers to any one roadway separately and not to all of them collectively;

Strangely, a cycle lane is a designated use lane not meant for vehicular traffic. This means that it is not part of the roadway.

"vehicle" means a device in, on or by which a person or thing is or may be transported or drawn on a highway, but does not include a device designed to be moved by human power, a device used exclusively on stationary rails or tracks, mobile equipment or a motor assisted cycle;

"designated use lane" means a lane of highway in respect of which a traffic control device indicates that the lane is reserved for the exclusive use of persons, organizations, vehicles or cycles or classes of persons, organizations, vehicles or cycles prescribed under section 209.1 or specified in a bylaw or resolution of the council of a municipality under section 124.2;

(1)(b) deals with laned roadway:

"laned roadway" means a roadway or the part of a roadway that is divided into 2 or more marked lanes for the movement of vehicular traffic in the same direction;

Again, a cycle lane is not part of laned roadway, so this part would not apply.

Finally, (1)(c) says that you can pass on the right on a one way street if it is at least two lanes wide. The part about staying on the roadway would still apply here along with passing safely, but that's all.

In trying to learn more about this, I received an answer from the MOTI telling me that the Ministry does not mark bicycle lanes on highways under their control. This was something done by municipalities via section 124.

which starts by saying:

Municipal powers

124 (1) The council of a municipality may, by bylaw not inconsistent with or derogatory to this Part, provide for the following:...

I will observe that they can mark a cycle or designated use lane, but they cannot permit the use of it contrary to what is set out in Part 3 of the Motor Vehicle Act which is what I've referred to above.

I've tried to find case law on the subject and get it onto my site.

Unfortunately, I have yet to find a case that describes this situation.

Chances are good that the MVA needs an overhaul to bring it into line with current day practices. Until that happens, the rules appear to operate contrary to the intent.