Summer is around the corner and so are the nifty little vehicles that we have come to love – the e-scooter. Since January 2020, municipalities around Ontario have rolled out e-scooter pilot programs across major cities like Ottawa, Hamilton, Oshawa, and Waterloo (with the notable exception of Toronto) to encourage affordable, fast, convenient, and environment-friendly transit. As futuristic as they make one feel, things can go downhill quickly when you hit a pothole, a pedestrian, or worse, a personal injury lawyer. This is why it is essential to know the emerging liability issues surrounding e-scooters.
But first things first – are e-scooters even considered a ‘vehicle’ under the Highway Traffic Act? In R v Davies, the Ontario Court of Justice held that they are not vehicles under the Highway Traffic Act but are vehicles under the Criminal Code simply because of the difference in terminology. The Criminal Code of Canada defines a “motor vehicle” as “a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.” Whereas, in the Highway Traffic Act, it is difficult to bring an e-scooter within the ambit of the term motor vehicle:
“motor vehicle” includes an automobile, a motorcycle, a motor assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine; (“véhicule automobile”).
The Ontario pilot program also identifies e-scooters as vehicles with certain other stipulations for their use:
1. E-scooters should have a maximum speed limit of 24km/hour.
2. The maximum weight of the vehicle that is permissible is 45 kg.
3. Maximum power output is 500 watts.
4. E-scooters must only possess two wheels and brakes, a horn or bell, at least one white light on the front, one red light on the rear, and reflective material on the sides. They must not have pedals, a seat, and a basket.
Additionally, the program requires operators:
- 1. To be at least 16 years old.
- 2. Stand at all times while riding
- 3. Wear a bicycle helmet if under the age of 18.
Operators must not carry any cargo or passengers. In the event of violations, the penalties can range from $250 to $2500 under the Highway Traffic Act since e-scooters are deemed similar to bicycles.
Even though the prevailing bylaws do not mandate helmets, and e-scooter companies may or may not provide helmets, riders must be extremely cautious about wearing helmets. Currently, there is no e-scooter insurance available to riders, which means that riders are exposed to direct liability in the event of an accident. To make things even more complex, e-scooter riders are compelled to sign lengthy rental agreements that also waive off any liability that may arise from accidents and injuries. These waivers have broad applicability and can even identify municipalities as “released parties” as is the case with the Bird Canada and Neuron Canada rental agreements. This means users lose the right to sue their municipalities for any accidents or injuries during the use of the e-scooter. In fact, riders also bear the onus of defending and/or indemnifying Neuron entities from fines penalties, and costs arising from the rider’s negligence.
Now as has been held in Zaky v. 2285771 Ontario Inc., 2020 ONSC 4380, not all waivers of liability are enforceable. The circumstances under which a waiver is signed are crucial to the enforceability of a waiver. Waivers that are ambiguous, poorly worded, or not clearly brought to the attention of the signatory can be deemed unenforceable. In the context of e-scooters, while waivers might be generally enforceable, it remains to be seen if e-scooter companies can be held liable for not mandating that riders wear a helmet or even, failing to provide one. Lawsuits against e-scooter companies across North America are rapidly gaining traction on account of faulty manufacturing, equipment failures, and hardware defects. It remains to be seen whether Canadian courts will uphold waivers of liability when the product/service in question is ridden with defects. In the meantime, riders must exercise caution while using these vehicles.
