In Ottawa and across Eastern Ontario, off-road vehicles, such as ATVs, are a source of enjoyment for many. Unfortunately, many individuals are injured as a result of riding an off-road vehicle. Do these vehicles need to be insured? What benefits and damages are available to a person injured in an off-road vehicle accident? This article will provide a brief overview, explaining when off-road vehicles must be insured. We will also examine the issue of entitlement to accident benefits and the right to commence a lawsuit for damages against the at-fault party.
What is an “off-road” vehicle?
The Off-Road Vehicles Act (“ORVA”) is the provincial legislation that applies to off-road vehicles not operated on a highway. ORVA defines an off-road vehicle as:
a vehicle propelled or driven otherwise than by muscular power or wind and designed to travel,
(a) on not more than three wheels, or
(b) on more than three wheels and being of a prescribed class of vehicle
Section 3 of Ont. Reg 863 lists the prescribed vehicles. This includes: dune buggies, vehicles designed for use on all terrains (ATVs) that have steering handlebars and a seat designed to be straddled by the driver, utility vehicles, and certain listed models.
Do off-road vehicles have to be insured?
Under section 2(1) of the Compulsory Automobile Insurance Act (“CAIA”) an owner or lessee of a “motor vehicle” is required to have insurance in order to operate it on a highway. Under the CAIA, “motor vehicle” has the same meaning as in the Highway Traffic Act. The HTA provides the following definition:
“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.
Under section 15 of ORVA, off-road vehicles are required to be insured under a motor vehicle liability policy unless the vehicle is operated on land occupied by the vehicle’s owner. However, if the off-road vehicle is used on a highway, even briefly just for crossing, then it must be insured.
Is a person injured in an off-road vehicle accident entitled to accident benefits?
Under Ontario’s Statutory Accident Benefits Schedule (“SABS”), persons injured in a motor vehicle accident are entitled to no-fault accident benefits. In order for an injured person to be entitled to benefits, there must be an “accident” that involves the use or operation of an “automobile”. The SABS does not define “automobile”. Under section 224(1) of the Insurance Act, automobile is defined as including “a motor vehicle required under any Act to be insured under a motor vehicle liability policy” and “a vehicle prescribed by regulation to be an automobile”.
In Adams v. Pineland Amusements Ltd., a case involving a go-kart accident, the Ontario Court of Appeal set out the three-part test for determining whether a motor vehicle is an “automobile”:
- Is the vehicle an “automobile” in ordinary parlance? If not, then,
- Is the vehicle defined as an “automobile” in the wording of the insurance policy? If not, then
- Does the vehicle fall within any enlarged definition of “automobile” in any relevant statute?
The courts have held that ATVs are not “automobiles” in ordinary parlance. However, if the vehicle is defined as an “automobile” in the policy, then accident benefits will be available. If it is not defined in the policy, then the off-road vehicle may meet the third-stage of the test if it was required to be insured “at the time and place where the accident occurred”. In the case of Benson v. Belair Insurance Company Inc. the ATV was determined to be an “automobile” as it was required to be insured under ORVA and the claimant was held to be entitled to accident benefits.
The consequences of not being insured
If you operate an off-road vehicle on a highway and do not have insurance, you may be precluded from obtaining certain accident benefits as well as from bringing a tort claim against the at-fault party. In the case of Matheson v. Lewis, a farmer used an ATV on his property for farm work and was involved in an accident when he crossed a highway to check up on his sheep. Since his ATV was not insured and he was operating his ATV on a highway at the time of the accident, he was not entitled to income replacement benefits and he was barred from commencing a tort claim.
Have you been injured in an accident involving an off-road vehicle?
If you have been injured as a result of an off-road vehicle or ATV accident, either as a driver or as a passenger, contact our office today to speak with one of our personal injury lawyers. You may be entitled to accident benefits or to bring a claim against the driver who caused the accident. Contact us today for a free consultation: