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Bicycle safety is a two-way street

Well maintained and regularly serviced bicycle paths and lanes could make it more difficult for people injured while cycling to win suits against the city, says Toronto municipal lawyer Stefan Rosenbaum.

The regulations for maintaining roadways and bicycle paths — Minimum Maintenance Standards (MMS) in Toronto under the City of Toronto Act — were updated in May, says Rosenbaum, an associate with Shibley Righton LLP.

Other municipalities are governed by regulations under the Ontario Municipal Act, he tells AdvocateDaily.com

The MMS sets the standards for maintenance and if the city follows its prescribed schedules for checking and repairs, it becomes very difficult for plaintiffs to win an award if injured in a mishap on a bicycle path. Following the standard mitigates the city's exposure in claims brought forward, Rosenbaum explains.

"It's very difficult to attack a city's maintenance plan on the grounds that it was inadequate,” he says. “It has to be more on the operational side. In other words, how the policy was implemented."

The frequency of maintenance checks is, in part, determined by the budget and by usage, Rosenbaum says.

"Cities need to look at usage to determine where they’re going to focus their energies and budgets," he says. "All bikeways and roadways aren't created equal."

The city can rely on its maintenance schedule as a defence, even if a pothole was discovered later to have caused a mishap.

"If the city followed the policy and just missed the pothole, it's difficult to attribute liability to the city," Rosenbaum says.

"The city gets into trouble when it doesn't keep up the minimum standards. If, for example, they pull the records and realize the area hadn't been inspected within the allotted time periods," he says.

"There's no over-arching general principle that it can be distilled down to other than: did the city meet the minimum maintenance standards?" Rosenbaum says. "If it did, it can rely on that as a complete defence to negligence."

He says the increase in claims in the Toronto area is, in part, reflective of the city’s push to get more people to rely on other modes of transportation besides motor vehicles. Some neighbourhoods are seeing strong growth in the number of cyclists.

"Obviously, the more people on the road, the more incidents there will be and more claims the city will see," Rosenbaum says.

"I’m seeing more plaintiffs bringing claims in relation to injuries they suffered while biking and even skateboarding, as well,” he says.

"It's definitely an area of law that will increase as time goes on and as more people cycle to work," Rosenbaum says.

A bicycle is defined under Ontario's Highway Traffic Act as a vehicle and is considered the same as a car and, by extension, the city owes a duty to cyclists to ensure bike lanes and paths are appropriately maintained, he says.

"No matter where people are cycling, lighting is an important issue — particularly in parks,” Rosenbaum says.

He says the consequences can be much more serious if a cyclist hits a pothole in a poorly lit area than if a motorist does.

"Cities have broad jurisdictions. There are so many paths, sidewalks and roads that the city can't be there 100 per cent of the time," Rosenbaum says.

"A city isn't the insurer of all the travellers of its streets,” he says. “It just needs to take reasonable steps to ensure users are safe."

If the municipality meets the requirements of its policy, which was made in good faith based on the resources available, "it's hard to attack that," Rosenbaum says.

"It's very difficult for somebody who's suing to say the city should have been inspecting more often because the courts give deference to those policies."

He says courts will most likely set a higher standard for busy bicycles routes compared to lightly travelled ones, but "if the city has a policy that it has followed, it's quite difficult to attack it and say, for instance, 'you should have checked more often and you would have noticed this pothole.'"

Rosenbaum says while the city takes steps to ensure the roads and paths are safe, cyclists also have responsibilities in taking precautions to prevent injuries.

"If someone is biking without a light in the middle of the night in a park and there's a mishap — even if the city is found liable — there will be a significant contributory negligence factor in there," he says.

"The first question is whether the city is liable and then the court looks at what factors the plaintiff contributed," Rosenbaum says. "The three big ones are not having a bell or a light and not wearing a helmet."

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