Construction dumpster near accident (photo: Jun Nogami)

If a cyclist dies as a result of a dumpster in a bike lane, should the city be sued?

by Ron Johnson for Post City Posted: August 7, 2024 Photo: Construction dumpster near accident (photo: Jun Nogami)

Less than two weeks ago, a cyclist was killed after being hit by the driver of a large dump truck near Queen’s Park on Bloor Street East. Hundreds showed up for a memorial ride last week. Although all the facts have not come to light yet to draw any definite conclusions, a massive construction dumpster shown completely blocking the separated bike lane near the collision site has raised some serious questions about the city’s responsibility.

The dumpster had been illegally dropped in the bike lane the morning of the incident, but it wasn’t until after someone was killed that the city decided to take action and fine the company. In a Toronto Star article, a city spokesperson said “Under the POA, a Part 1 offence notice may carry a maximum penalty of $1,000 if the accused is found guilty at trial. If the accused elects to pay the fine out of court, the set fine for each of these offences is $200.”

Is that enough of a disincentive to prevent such tragic outcomes?

According to lawyer David Shellnutt, this situation is just one of many at construction sites throughout Toronto. And, the fine by the city of Toronto is likely not a coincidence.

“This is for sure because the public has made such a large outcry on this case that they’re actually doing something,” he said. “I’ll take it, I guess.”

The incident, marking the fifth cyclist fatality in Toronto this year, and has spurred public outcry and highlighted ongoing safety concerns for cyclists navigating city streets.

To gain insight into these issues, we spoke with Shellnutt, a prominent lawyer specializing in bicycle-related cases for The Biking Lawyer.

“I’ve got a number of cases where there has been an obvious road hazard that the city knew about for a long time, and people have been injured by these things. There’s no fines, no real consequences,” he said, emphasizing the city’s often lax response to known hazards. Shellnutt pointed out that, in some cases, hazards were removed only after someone was injured, and even then, the responsible parties were not fined.

The construction on Bloor Street West, where the fatality occurred, has been a particular point of contention. Witnesses on Reddit described the chaotic scene, noting the presence of large vehicles and construction equipment that created dangerous conditions for cyclists. One commenter noted, “There’s a giant dumpster currently occupying that lane and parked cars sort of turning the westbound bike lane into a dead end. Not sure if the cyclist swerved into the road because of the blockage but the truck is in the westbound car lane quite a bit before the intersection.”

Shellnutt suggested that part of the problem lies in the lack of proactive measures from the city.

“They should follow what other municipalities do, like Montreal, and have a mobility squad tasked with inspecting construction sites daily. If we had an enforcement team regularly checking these sites, a lot of these issues could be prevented,” he explained. According to Shellnut, implementing such a system would be a cost-effective measure, given the number of construction projects in the city, and what happens if neglected.

The legal landscape in these cases often involves complex interactions between the city and construction companies. Shellnut explained that when accidents occur due to construction-related hazards, the city typically deflects responsibility onto the construction companies through indemnity clauses in their contracts.

“What that usually means is that the city of Toronto is off the hook, and the contractor picks up the litigation,” he said. While this can sometimes expedite compensation for victims, Shellnut argued that it allows the city to shirk its responsibility to maintain safe roadways.

Moreover, Shellnutt is challenging the city’s reliance on the legal clauses by taking on cases where repeated complaints about dangerous conditions were ignored.

“We’ve seen cases where streets under construction for years were constantly flagged as dangerous, and no one did anything. We’re suing the city because they owe a duty to ensure that roadways are clear and free of hazards. You can’t just wash your hands of it,” he asserted.

The recent incident on Bloor Street West has brought these issues into sharp focus. Despite the city’s efforts to build more bike lanes and promote cycling as a mode of transportation, Shellnut believes that more needs to be done to ensure these lanes are safe and free of hazards.

To quote a line from a well-known movie, “If you build it, they will come.” But, if you fail to make it safe, that’s on you, explained Shellnutt.

“If you build it and encourage people to use it, you can’t put them in harm’s way. If you create something, it has to be free of hazards,” he said, citing a precedent from a Supreme Court case in British Columbia that held the city responsible for not clearing a pathway between angled parking and sidewalks during winter, creating large snow windrows, resulting in injury. Coincidentally, Shellnutt said the city of Toronto intervened in the case.

As Toronto continues to expand its cycling infrastructure, Shellnutt emphasized the need for a holistic approach to safety that includes regular inspections and accountability, and used a comparison to cars and trucks around the GTA as a way to illustrate the point.

“If there’s a hazard for motor vehicles on the 401, it gets cleaned up immediately. The same priority should be given to bike lanes and other mobility devices. We need to underscore the unique safety challenges faced by cyclists and ensure they are protected,” he concluded.

The tragic death of the cyclist on Bloor Street West is a stark reminder of the urgent need for improved safety measures and accountability in Toronto. As the city benefits from the increasing popularity of cycling and sinks more money into infrastructure to promote it, it must also address the infrastructure and enforcement gaps that put cyclists at risk on the daily.

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