No gas required. No license required. No insurance required. This is one of the key marketing points for this growing mode of transportation. And, as a result, it is no surprise that the electronic bicycle or e-bike is transforming the transportation landscape in Ontario. With the surge in sales felt even before the pandemic, this will no doubt continue with commuters now looking for alternatives in the face of safety concerns over crowded public transportation. This is why now, more than ever, it is important to scrutinize the e-bike beyond its monetary and ecological attributes.
The e-bike is a complicated beast. It is a “motor vehicle” and not a “motor vehicle” at the same time, and the classification makes all the difference. Under the Criminal Code, the e-bike is a “motor vehicle” caught under the definition in section 2: “motor vehicle” means a vehicle that is drawn, propelled or driven by any means other than muscular power. The consequence of this is that a person operating an e-bike while intoxicated could be charged for impaired driving. He or she would be subject to Criminal Code penalties from mandatory fines to imprisonment if convicted.
In contrast, under the Highway Traffic Act, the e-bike is not a “motor vehicle”. It is classified as a power-assisted bicycle which is specifically excluded from the definition of “motor vehicle” found in section 1. The e-bike does not fall in the category of a motor-assisted bicycle – which would have been captured by the definition – because, among others, it weighs more than 55 kg.
The e-bikes that are popularly sold in Ontario must meet the definition of “power-assisted bicycles”. The Highway Traffic Act, the Motor Vehicle Safety Regulations made under the Motor Vehicle Safety Act as well as the Ontario Regulation 369/09 see to this and have set out the parameters of what constitutes a “power-assisted bicycle”. These include features like steering handlebars, working pedals, electric motor not exceeding 500 watts, maximum speed of 32 km/hour, maximum weight of 120 kg, and a permanent label from the manufacturer stating that the e-bike is a power-assisted bicycle.
The outcome of not falling within the definition of “motor vehicle” in the Highway Traffic Act is that a person operating an e-bike while intoxicated will not be subject to penalties for impaired driving found in the Highway Traffic Act. In R. v. Pizzacalla 2014 ONCA 706, the Court of Appeal refused to enforce Highway Traffic Act offences of driving with a suspended license, without a helmet and without a license plate, on the basis that the HTA specifically excludes e-bikes from its purview. By extension, one might expect that a person operating an e-bike while intoxicated will not be subject to penalties for impaired driving found in the Highway Traffic Act either. This means avoiding license suspensions, treatment programs, or the installation of an Ignition Interlock Device, all of which are penalties found in the HTA. That said, the Criminal Code driving offences, including dangerous driving, driving while impaired, and refusing a sample are all still operative, because the e-bike is a “motor vehicle under the Criminal Code.
The other outcome is that the e-bike is exempt from the mandatory insurance requirement for “motor vehicles” pursuant to the combined operation of the Highway Traffic Act, the Compulsory Automobile Insurance Act and the Insurance Act. The cost savings are no doubt substantial but the consequence has the potential to be more. The e-bike driver should be aware that in the event of a single e-bike accident, there will be no insurance coverage towards property damage for damages occasioned to the e-bike, which may cost several thousand dollars, or to damage occasioned to other property, and of perhaps greater concern, no coverage for physical injuries. This is the case regardless of the fact that the e-bike driver may carry an auto insurance policy for his or her automobile(s). Striking a pedestrian with an e-bike and causing them injury would not be covered under the standard automobile insurance policy. One would need to turn to one’s property insurance coverage, which excludes motor vehicles from coverage, to gain protection from such claims.
Access to accident benefits under the Statutory Accident Benefits Schedule is limited to a person involved in an “accident” which is defined as an incident in which the use or operation of an automobile directly causes an impairment. Where the e-bike or power-assisted bicycle is not considered a “motor vehicle” or “automobile” under the Highway Traffic Act, the Compulsory Automobile Insurance Act and the Insurance Act, benefits under the Statutory Accident Benefits Schedule cannot be accessed.
In the event of an accident involving an e-bike and another vehicle (that properly meets the definition of “motor vehicle” in the Highway Traffic Act), access to insurance coverage may be triggered by the involvement of a motor vehicle, thereby creating access to coverage in tort law and for statutory accident benefits.
We anticipate the laws surrounding the e-bike will continue to evolve especially with its increased popularity. One issue that has gone before the courts in the recent years has been the question of the impact of modification to the e-bike’s classification. Does the e-bike cease being a power-assisted bicycle when operated with the pedals removed? Does it become more like a motorcycle and thus a “motor vehicle” under the Highway Traffic Act? The answer at this time appears to be no although not consistently so. We sense however that the question will come back to the courts again and again, and it is only a matter of time that the answer may be obliged to change.