Accident Benefits Entitlement

Pocket Bike Rider Injured in a Collision on Private Property Entitled to Claim Statutory Accident Benefits From Her Automobile Insurer.

On January 13, 2008, Cassandra Bouchard sustained serious injuries when she was riding a pocket bike. The pocket bike was owned by Kristin Stratton and was being ridden on his property. The pocket bike was not insured. Ms. Bouchard applied for accident benefits through her own automobile insurer, Motors Insurance.

Pocket bikes are restricted-use vehicles which are not intended to be ridden on public roads; are not street legal because they do not have VIN numbers; and drivers of the bikes are not required to be licensed or wear protective equipment. Pocket bikes are usually less than 50 cm (20 in), and up to 1 m (3 ft 3 in) length. The bike usually packs a 39–50 cc two-stroke engine with a maximum of 4.5–6 horsepower. Its maximum speed varies between 30 to 64 km/h.

Motors Insurance denied Cassandra’s application and took the position that a pocket bike was not an “automobile” and therefore her injuries were not sustained in an “accident” as required by section 3(1) of the SABS which states:

” … “accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device …”

Defining the word “automobile” is not a simple task. The SABS do not define the word “automobile” but it is woven together by a group of interacting legislative and regulatory provisions contained in the Insurance Act, the Compulsory Automobile Insurance Act, the Highway Traffic Act and the Off-Road Vehicles Act. Further, the Court of Appeal in Adams v. Pineland Amusements Ltd. et al 88 O.R. (3d) 321 sets out a three part test for defining an “automobile” which asks:

• Was the vehicle an automobile in common parlance? If the answer is “no” then,
• Is the vehicle defined as an automobile in the wording of the insurance policy? If the answer is again “no”, then
• Does the vehicle fall within any enlarged definition of “automobile” in any relevant legislation.

An affirmative answer to any of these three questions classifies the vehicle as an automobile insured by the Standard Automobile Insurance Contract.

The parties agreed that a pocket bike was not an “automobile” in common parlance and is not defined as an automobile in the wording of an insurance policy. The crux of the issue was whether the pocket bike fell within any enlarged definition of “automobile” in any relevant legislation or is an automobile by virtue of its being required to be insured by any Act pursuant to section 224(1)(a) of theInsurance Act.

The Highway Traffic Act, R.S.O. 1990 c.H.8 defines a motor vehicle as “an automobile and any other vehicle propelled or driven otherwise by muscular power”. Given the nature of a pocket bike, the Arbitrator considered the definition of an off-road vehicle in the Off Road Vehicles Act, R.S.O. 1990 c.O.4 Section 1 defines an off-road vehicle as a “vehicle propelled or driving otherwise than by muscular power… on not more than three wheels”. Based on these definitions, the Arbitrator concluded that the pocket bike fell met the third category of the Adams test.

Arbitrator Ashby then considered whether the pocket bike was required to be insured by any Act. Section 15(1) of the Off Road Vehicles Act requires off-road vehicles to be insured unless it is being operated on land occupied by the owner of the vehicle.

As expected, Motors Insurance argued the pocket bike was not required to be insured as it was being ridden on property occupied by the bike’s owner Mr. Stratton. However, Mr. Stratton’s evidence was that in addition to riding the bike on his property he also rode it at his friend’s house.

Arbitrator Ashby relied on this evidence to conclude the pocket bike did not meet the narrow exception provided by section 15(1) as it was not solely ridden on Mr. Stratton’s property and therefore it was required to be insured under the Act. Her reasoning for this decision is as follows:

Subsection 15(1) of the Off-Road Vehicles Act states: “No person shall drive an off-road vehicle unless it is insured under a motor vehicle liability policy in accordance with the Insurance Act.” The only exception to this rule is an off-road vehicle driven on lands occupied by its owner as set out in subsection 15(9). It is a very narrow exclusion. Clearly the legislature intended that off-road vehicles be insured unless they were used solely on lands occupied by the owner. I agree 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. In my view, the consequence of the owner of the pocket bike driving it at “my friend’s house” was the necessity to insure it.”

As a consequence, Arbitrator Ashby ruled that Cassandra Bouchard was involved in an accident within the meaning of subsection 3(1) of the Schedule and entitled to Statutory Accident Benefits. Motors Insurance did not appeal this decision.

This decision raises some interesting issues in light of the increased use and operation of motorized Scooters and E-Bikes on our roads. While these vehicles may be street legal, many do not require insurance. This raises the question; what benefits are you entitled to in the event of an accident and how does riding an uninsured vehicle affect your right to sue the at fault driver for damages. Given FSCO’s approach in this case it is likely we have not seen the end of these novel approaches to defining an “automobile”.

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