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.

In Smeltzer v Merrison, the Defendant had passed a lane of stopped traffic on the right, in an attempt to turn right at an intersection. The lane with the stopped traffic widened into two lanes approaching the intersection, thus creating a “de facto” lane. The Plaintiff had turned left through a gap in the lane of stopped traffic, resulting in a collision with the Defendant. The Plaintiff’s claim was dismissed at trial, however the British Columbia Court of Appeal ruled that the Defendant was negligent in passing on the right in the “de facto” lane, as it was not a “laned roadway” as per the definition of Section 158 of the Motor Vehicle Act. As such, the Court of Appeal ruled that the Defendant should bear some responsibility for the accident.

[14]   Despite the recognition of a de facto lane in MacLaren, I do not consider the concept can afford any further exception to the three for which s. 158(1) provides.  In MacLaren, a cyclist was injured at an intersection which he entered passing on the right of vehicles where there was what was said to be a de facto lane to his right, being a widened part of the road that accommodated vehicles turning right, but was not marked.  He was faulted for riding between two lanes instead of positioning himself between the vehicles he passed on the right.  It was specifically said (at para. 28) that no determination was being made with respect to whether s. 158 permitted the cyclist to pass on the right. 

[15] I am unable to accept that s. 158(1)(b) permitted Ms. Merrison to pass two or three cars and the truck on the right as she contends.  The exception is confined to passing on the right where there are two marked lanes for vehicles proceeding in the same direction and only then when passing can be undertaken in safety.  Here, there was only one such lane regardless of whether there was what might be called a second de facto lane.  I recognize this means drivers proceeding to turn right at the intersection, as Ms. Merrison was, could not align their vehicles to enter the 100-foot marked lane until it was virtually reached, if there were vehicles ahead in the “through” lane that were not turning left, but that is what the Act provides and it appears to me to be with good reason.  If it were otherwise, drivers would be entitled to pass on the right wherever the road is sufficiently wide for two vehicles to pass.  Drivers do not expect to be passed on the right when they are not travelling on a road with more than one designated lane.  They generally expect to be able to turn off of the road to their right, whether into intersecting streets or driveways, or to pull over to the side of the road or off the road altogether without being obstructed by vehicles passing to their right.

[16] As quoted from his reasons, the judge said that, while he had not lost sight of the provisions of the Act, he was concerned with a de facto lane of travel, not a “laned roadway” within the meaning of the Act such that only some of the sections were of interest.  I am unable to accept he was correct in law to consider Ms. Merrison passing on the right was not prohibited by s. 158, as it appears he did, on that basis.  As the judge said, she was not travelling in a “laned roadway” within the meaning of the Act: s. 158(1)(b) did not apply.  If she entered a de facto lane, meaning the road became wide enough to permit her to pass the cars and the truck ahead of her on the right, she was, in the circumstances, prohibited from passing them.  She was required not to pass the vehicles in front of her until she entered the marked right-turn lane.

[17] I consider Ms. Merrison was negligent in passing the three cars and the truck on the right in contravention of s. 158.  She was negligent because it was reasonably foreseeable that passing on the right, in contravention of a statutory prohibition, could be dangerous to other motorists on the road.  Her negligence was, on what the judge said, compounded by her failure to proceed cautiously while maintaining a proper lookout.  Had Ms. Merrison not proceeded to pass on the right as she did, the collision would not have occurred.  It follows that her negligence was a cause of the accident and the injury Ms. Smeltzer suffered.