Where and when an accident occurs will determine whether or not an off-road vehicle such as a pocket bike must be insured, the Ontario Superior Court has ruled.
Under Ontario’s Off-Road Vehicles Act, an off-road vehicle must be insured unless it is driven “on land occupied by the owner.”
And so what happens when your client is injured in an accident on the bike owner’s land (a circumstance in which insurance for the bike is not required), but the owner of the pocket bike previously drove the bike off the property (suggesting that the bike should be insured)?
Cassondra Bouchard was involved in a collision and injured in January 2008 while driving a pocket bike owned by Kristin Stratton. At the time of the accident, Bouchard was driving the pocket bike on Stratton’s leased property.
According to an agreed statement of facts, Stratton had previously used the pocket bike on his own property and on the property of a friend. However, at the time of the injury to Bouchard, she was driving the bike on Stratton’s property.
Initially, an Ontario arbitrator ruled that Bouchard was entitled to collect auto insurance benefits because the bike was involved in an “accident.” An accident requires the pocket bike to come under the definition of an insured “automobile.”
Ontario legislation dictates that the pocket bike counts as an automobile if it must be insured. However, the Off-Road Vehicles Act contains an exemption that says a vehicle does not have to be insured if it is driven “on land occupied by the owner.”
An arbitrator initially found that since Stratton also drove the pocket bike on his friend’s property, it was required to have been insured -- even though the accident involving Bouchard ultimately occurred on Stratton’s property, where the exclusion would apply.
In coming to this conclusion, the initial arbitrator found that “it would be an absurd result if each time an owner was to drive the vehicle on lands other than those she or he occupied insurance had to be procured.”
On appeal, this initial decision was reversed.
The Ontario Superior Court upheld the reversal, noting that Ontario’s legislation is based on the present tense. That is to say, where was the pocket bike at the time when the accident occurred?
“The pocket bike was being operated on Mr. Stratton’s property when the incident occurred,” the court found. “In those circumstances and at the time, the ORVA [Off-Road Vehicles Act] did not require Mr. Stratton’s pocket bike to be insured under an automobile insurance policy.
“Therefore, Ms. Bouchard was not operating a motor vehicle and was not involved in an accident within the meaning of Section 2(1) of the SABS [Statutory Accident Benefits Schedule].”
