The Confusing New Legislation Governing E-Cargo Bikes
The Ontario Government recently enacted a regulation governing large electric cargo bikes meant for commercial use. Or rather, the government tried to do that, but unfortunately it appeared to leave out the key provision stating that it applies only to heavy commercial e-cargo bikes. Because this is not stated in the legislation, the regulation likely applies to all e-cargo bikes. Legislation is presumed to be correct. So while judges can interpret ambiguous legislation, they generally cannot “read in” new wording that isn’t there, even if that means the legislation doesn’t do what was intended. As a result, there are many new rules that owners of e-cargo bikes will want to be aware of (at least until the regulation is amended). I’ll highlight a few of them here. Much of the language in this legislation is vague, making it unclear what exactly cyclists are supposed to do in many circumstances.
Right from the start, there is confusion about what an e-cargo bike is. The legislation lists a number of features defining an e-cargo bike, including that it “has a platform, basket or container for carrying cargo, parcels or goods.” This means that any e-bike with a pannier or a little wicker basket on the front is now governed by this regulation. It also states that an e-cargo bike “does not have any structure that fully encloses the occupant area” which presumably means the area where the person operating the bike sits, but could conceivably mean the place where a passenger would sit. Unfortunately, this is the only time the word “occupant” appears in the regulation, so it’s very difficult to say whether it refers to the cyclist or the passenger. Many e-cargo bikes have an enclosed passenger area (for instance, roll bars and a rain cover to protect the passenger), and it is not clear what the status of such bikes is. However, to be on the safe side, I’d assume that they are considered e-cargo bikes. It does not seem to say that bikes are prohibited from having passenger enclosures, just that e-cargo bikes are defined as not having them, so again it’s not clear what the bike would be if it wasn’t considered an e-cargo bike.
Section 3 prohibits the use of e-cargo bikes unless they’re used in accordance with this new regulation, and if they’re used in a municipal jurisdiction, they must also be “permitted by and in accordance with a municipal by-law.” This appears to ban the use of all e-cargo bikes until municipalities pass a by-law regarding them. However, it simply isn’t clear what counts as a municipal by-law for the purposes of this section. For example, Toronto’s bike by-law defines a bicycle as “a bicycle, tricycle, unicycle, and a power-assisted bicycle which weighs less than 40 kilograms and requires pedalling for propulsion, or other similar vehicle.” An e-cargo bike could be considered similar to a power-assisted bicycle, so it isn’t clear whether Toronto needs to pass a new bylaw specifically allowing e-cargo bikes, or whether they are already captured by the existing bylaw. This means that it isn’t clear to a cyclist who wants to obey the law whether they’re allowed to ride their e-cargo bike.
Section 5(1) states “Where bicycle lanes are provided on a highway, a cargo power-assisted bicycle shall only be operated in the bicycle lanes.” On its face, this seems clear, but what if a bike lane is blocked or unsafe to ride in (an all-too common occurrence)? What if the cyclist wants to make a left turn? This generates a great deal of confusion about what a cyclist is supposed to do. Cyclists generally ride in the bike lane unless it isn’t safe or possible to do so, so it isn’t clear what problem this provision is trying to solve.
Section 7(2) states that
“A cargo power-assisted bicycle shall not be operated on a sidewalk, trail, path or walkway or in a public park or exhibition ground at a speed that is markedly greater than the speed of the pedestrians who are proximate to the cargo power-assisted bicycle.”
On a path like London’s Thames Valley Parkway, this means that you cannot drive faster than the pedestrians around you are walking. In other words, you need to slow to a walking speed whenever you are “proximate” to a pedestrian. The problem is that the legislation is not clear about what “proximate” means, so it isn’t clear when cyclists need to slow down. 100m away? 10m away? There is no guidance given.
Section 8 deals with who and what is allowed in e-cargo bikes. You cannot have passengers unless the bike is manufactured to carry passengers. Again, this section is not entirely clear. Lots of e-cargo bikes are designed to carry passengers, but only with a passenger seat that’s added after the fact. It isn’t clear if this is prohibited, or if it means that you can carry someone so long as the bike is manufactured such that it is capable of carrying passengers with aftermarket additions. You cannot tow a “person, vehicle or device”, meaning that trailers are prohibited. But, if you recall that the definition of an e-cargo bike apparently includes an e-bike with a pannier or basket, it looks like you’re now breaking the law if you tow your kids in a trailer while also having a basket on the front of your e-bike. Section 8(5) states that “No person operating a cargo power-assisted bicycle shall leave it in a location that is intended for the passage of vehicles or pedestrians.” Again, it is not entirely clear what this means. Are parking spaces intended for the passage of vehicles or just the storing of vehicles? Is the space on a sidewalk near a bike rack intended for the passage of pedestrians, or for the storing of bicycles? You also aren’t allowed to transport dangerous goods on your e-cargo bike, and whatever you do transport must be secured.
Section 10 states that everyone on an e-cargo bike must be wearing a helmet. I’ll leave my thoughts on mandatory helmet laws for another post, because this one is long enough.
Section 11 says that
Every operator of a cargo power-assisted bicycle shall stop when required to do so by a police officer and shall, on the demand of the police officer,
(a) surrender his or her driver’s licence, if he or she has one and has it in his or her possession, for reasonable inspection by the officer; or
(b) provide the officer with his or her correct name, address and date of birth.
The word “or” here is important. It means that you can choose between giving the police your driver’s licence or telling them your name, address and date of birth. I always recommend avoiding giving the police your driver’s licence if possible. Technically, you aren’t supposed to get demerit points for infractions when you’re on your bicycle, but if you give the police your licence, it can happen, and it is very difficult to have them removed.
Finally, section 12 creates a duty to report an accident to “a pedestrian, animal or vehicle that results in personal injury or property damage”. If you have auto insurance, you are likely insured while on your bike, and your insurance policy may be affected if you do not report an accident.
In short, the omission of the provision stating that the regulation only applies to heavy, commercial cargo bikes means that these rules likely apply to all e-cargo bikes. As a result, owners of e-cargo bikes now have a number of new rules to contend with, many of which are confusing. If you are wondering what your legal obligations are as an e-cargo bike owner, consider speaking with a lawyer who is knowledgeable in cycling issues.
 This article represents the views of the author at the time of publication and should not be relied upon as legal advice or interpreted as the position of Lerners LLP generally.
 The consultations and messaging from the government have indicated that it is not meant to apply to smaller non-commercial cargo bikes.