What Cycling Lawyers Want You to Know

By Molly Hurford 

It’s a grim topic but a necessary one as cyclists: Hoping for the best, safest riding possible, but acknowledging that riding can be dangerous. Here, two Ontario-based bike lawyers are sharing their best tips for staying as safe as possible and understanding your rights as a cyclist. You might be surprised by what they have to share!

Understand that it’s not about you

Let’s start with some tough love: Unfortunately, as cyclists, we can do everything right and still end up hurt—and big change needs to come from higher up, not from us adding more lights and mirrors to our bikes. Toronto-based lawyer Patrick Brown, a partner at McLeish Orlando LLP, is the founder of Bike Law Canada and a founding member of Cycle Toronto. And after two decades defending cyclist’s rights, he’s seen it all. “You can be the safest cyclist, but you’re only as safe as that idiot behind the wheel who fails to understand that driving a fast two-ton vehicle requires the utmost care and attention. Distracted driving has gone up significantly since mobile devices have come into play,” he says.

“At the present time, there is limited ability for law enforcement to catch distracted drivers nor do we have the penalties necessary to deter such behaviour. I see the horrible things that happen to cyclists. So at times, I can have a more jaded view than just seeing the great things about cycling,” Brown adds. “The most significant problem is with the infrastructure and the way our laws are developed. The laws are auto-centric and need revision. There is bias in the system against cyclists. When we reviewed all of the cycling deaths for a four-year period and we had to decide what recommendations we should list first, it was very evident from all stakeholders that the primary thing that had to be addressed was creating complete streets, meaning that road design infrastructures have to be designed for all road users.”

Know your legal requirements

In Ontario, there are a few lesser-known laws cyclists should know about. “You have to have a sound device on your bike to ride on the road. That can be a horn, that can be a bell, and frequently cyclists wear whistles when they’re doing urban riding just because they’re that much more attention-getting than any bell, though a whistle is not strictly compliant with the Highway Traffic Act,” says Ian Brisbin, an avid cyclist and personal injury lawyer with Martin & Hillyer. “You also need to have front and rear reflectors and within a half-hour after dawn or before dusk, or in poor lighting conditions, your bike must be equipped with front (white) and rear (red) lights.”

This matters because it is important to be able to demonstrate that you are in compliance as completely as you possibly can, if there is an incident. “In terms of civil liability, if for example you don’t have a light on your bike, that is not necessarily determinative of fault if you should be in a crash,” Brisbin says. “But, it sure makes it more complicated. And you’re always better off protecting your life and your health than having a lawsuit.”

You don’t have to wear a helmet, but it’s a good idea 

Only children under 18 are required to wear helmets in Ontario, but wearing one is a good idea regardless. “In the world of civil litigation, it’s helpful to be able to say, ‘Look, I was wearing a helmet.’ But in Ontario, adults aren’t required to wear helmets,” Brisbin says. “The media often will point out when a cyclist isn’t wearing a helmet, even if it has nothing to do with what happened. I called in a journalist friend who wrote an article about a high-profile cyclist death in Hamilton: He made a point of saying that he was not wearing a helmet. I emailed him to point out that the cyclist had been hit from behind in circumstances in which it was clear that a helmet wouldn’t have made a difference. As a cyclist, I’ll do anything I can do to take an argument out of the equation, especially if it’s something that may give me the tiniest chance of a better outcome—like wearing a high-vis helmet. I’m going to choose to do it.”

How to handle an altercation with a car

“When we’re involved in a collision of any kind with a driver, because we are so vulnerable, as a cyclist it’s difficult to stay calm. You’ve gone through a potentially life-threatening experience which for the driver may be one of relatively minor consequence,” Brisbin says. “Once they’ve established that they haven’t seriously hurt you or something, it’s immediately downgraded to a minor irritant, where for us, the adrenaline is flowing because we just came inches from a profoundly different outcome. In those cases, try to take a moment to collect yourself and make sure that you’re not injured and, and then treat it like any other motor vehicle collision.”

“Don’t expect that you’re going to get a full forensic investigation from the police. Don’t expect that they are going to get all the witnesses who are favorable to you. Don’t expect the scene to be photographed and evidence preserved,” Brown says. “If you make those assumptions, you can find yourself with little recourse when the evidence is lost and memories fade. A complete and impartial investigation doesn’t always happen. When it comes down to head injuries and concussion-like symptoms, reporting is key.”

After a bike crash when a car is involved, here’s what Brown recommends doing:

  1. Move to safety and make sure that you’re visible if on an active roadway
  2. Call 911 (always ride with a phone!) and require a police report
  3. Immediately seek medical attention, even if you’re not obviously hurt
  4. Get the business card of the police officer
  5. Obtain the contact information of all witnesses
  6. Take photos and videos of the scene, all visible license plates, your bike, and your injuries
  7. Collect full insurance info, and don’t negotiate with the driver
  8. Leave your bike, helmet and gear in their post-crash state, don’t take it in for repair
  9. Do not post about the crash on social media
  10. Call a lawyer with an expertise in cycling incidents before talking to insurance companies
  11. (If you’re on a sanctioned group ride, make sure someone sends an accident report to the OCA!)

It’s critical to report incidents like this even if you are uninjured because your report could change traffic laws and ultimately help save lives. “Whatever you do, make sure to report it to the authorities even if you’re OK, because change doesn’t happen without data,” Brisbin says. “And making sure that our cycling collision statistics actually reflect reality out there helps us convince policymakers that there are problems to be addressed.”

Don’t tough it out

After a crash—whether it’s in a collision with a car or in a group ride or training alone (especially if you have the add-on insurance with your OCA membership!)—don’t be a hero and pretend that you’re invincible. “Whether it’s headaches, dizziness, tinnitus, nausea, fatigue, memory problems… Go to a doctor and report your symptoms on a regular basis,” Brown says. “Sometimes these symptoms can linger for months or years, and if you don’t report it, you’re not going to get the treatment or help you need. The cyclists that I represent are notoriously stoic. They can have superman or superwoman syndrome and they assume that after a crash, that their injuries are going to get better and to gut it out and wait till they disappear. Unfortunately, if the symptoms don’t get better, and you haven’t been reporting your symptoms, you can run into big problems. Not only maybe limiting your recovery by getting treatment, you may find it more difficult to prove the symptoms are related to the crash because they were never reported or noted in your medical records. It becomes very easy for an insurance company and their lawyers to suggest the injury was not significant or caused by something else.”

If you get pulled over on your bike, stay calm

There have been incidents in Ontario in recent years where groups of cyclists were pulled over for (legally) riding two abreast. But if that does happen, getting argumentative rarely helps your situation. “When dealing with police, some cyclists are very well-versed on their legal rights and responsibilities, while the same is not necessarily true for the police,” says Brisbin. “For example, it is not at all uncommon to have police pull over cycling clubs or ride groups and say that you can’t ride two abreast. In some cases, they’re right. In many cases, they’re wrong.”

“Knowing the cycling laws and by-laws for your area is helpful, and I encourage people to understand the particular cycling laws that apply to where they live. But often the police don’t know those rules, and it can turn into a messy confrontation,” he adds. “My goal in any of these interactions is to live, either literally or figuratively, to ride another day. And you can always fight a ticket later.”

If you’re worried about this happening, you may want to consider riding with a helmet or handlebar-mounted camera that can record your ride and any incidents that occur. But while you are entitled to record interactions, whether with police or drivers, Brisbin notes that it is important to bear in mind the inflammatory effect that turning a camera on can have. Running the camera for your entire ride makes it easier to capture any incidents without making an interaction more tense.

Get involved with road safety for all riders

This article is largely focusing on serious cyclists who spend their free time riding on the roads and trails in Ontario for fun and fitness. But it’s important to remember that cycling is a much more socially diverse activity. “You’ve got people who commute, people who ride on the track, mountain bikers, single speed bike couriers, parents riding with kids…. there’s this vast community of people who ride,” Brisbin says. “And it’s critical that we make space to hear all of them. It’s really important that we recognize that my experience should I get stopped by a police officer on my bike as a white man in my forties can be very different than the experience of someone who doesn’t look like me getting stopped on a bike by that same officer. I really want to emphasize that in Ontario, our community includes a vast array of experiences. And so it’s a difficult but really important task to make sure that we consider all of those experiences on equal footing when we’re trying to make policy and to decide how best to make Ontario bike-friendly.”

About the writer:

Molly Hurford is a journalist in love with all things cycling, running, nutrition and movement-related. When not outside, she’s writing about being outside and healthy habits of athletes and interviewing world-class athletes and scientists for The Consummate Athlete podcast and website, and most recently launched the book ‘Becoming A Consummate Athlete.‘ She’s the author of multiple books including the Shred Girls, a young adult fiction series and online community focused on getting girls excited about bikes. Molly is a little obsessed with getting people psyched on adventure and being outside, and she regularly hosts talks and runs clinics for cyclists and teaches yoga online and IRL… And in her spare time, the former Ironman triathlete now spends time tackling long runs and rides on trails or can be found out hiking with her mini-dachshund DW and husband, cycling coach and kinesiologist Peter Glassford.