ATV and Dirt Bike Are Considered Automobiles Pursuant to Legislation – Benson v. Belair Insurance Company Inc. and FSCO and Perneroski and Echelon General Insurance

January 10, 2020, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Benson v. Belair Insurance Company Inc. and FSCO and Perneroski and Echelon General Insurance

COURT OF APPEAL FOR ONTARIO

Date of Decision: October 25, 2019
Heard Before: Feldman, MacPherson and Simmons JJ.A.

DEFINITION OF VEHICLE: are ATV and dirt bikes not listed on insurance policies considered vehicles pursuant the Insurance Act; lex lori;  does jurisdiction of accident matter

In a recent Ontario Court of Appeal decision two appeals were heard together involving two separate accidents with different parties. These appeals were heard together because they both raise the same issue: Do the SABS Regulations and the definition of automobile in Part VI of the Insurance Act, apply differently if the accident occurs in Ontario or outside Ontario?

In Benson v. Belair Insurance Company, Mr. Benson was a resident of Ontario living in B.C. He was a passenger on an ATV that was owned by a BC resident on a public trail in B.C.  Mr. Benson Fell off the ATV and sustained catastrophic injuries. He was the named insured on an Ontario auto insurance policy, however the ATV was not a listed insured vehicle.

In the second case Perneroski v. Echelon Insurance Company Inc., Mr. Perneroski suffered a traumatic brain injury and was CAT impaired while crashing his dirt bike on a closed track in Georgia, USA. He owned the bike. As in Benson, Mr. Perneroski had his own auto insurance policy, however, the bike was not a listed vehicle on the policy.

In both cases the injured party applied for accident benefits from their insurers and in both cases the insurers denied coverage on the basis that the vehicles were not ‘automobiles’. Mr. Benson subsequently applied to FSCO who upheld the denial, to the Director’s Delegate, and finally moved for a judicial review at Divisional Court. His appeals were dismissed.  In Mr. Perneroski’s case, he brought a motion seeking a declaration of coverage and the motions judge found there was coverage contrary to the Benson Matter.

In both Cases the Court of Appeal found that coverage would exists if the accidents occurred in Ontario on the following basis:

• Pursuant to the SABs and ‘insured person’ includes the named insured or specified driver involved in an “accident in or outside Ontario involving the insured automobile or another automobile”
• Pursuant to the SABs Sec 2(3) and 3(2) “benefits shall be provided in respect of accidents that occur in Canada or the USA”
• In the SABs and accident is defined as “an incident in which the use or operation of an automobile directly causes impairment”
• It was previously held in Adams v. Pineland Amusements Ltd., 2007 ONCA 844 that one of the three ways to determine if a vehicle is an ‘automobile’ is if the “vehicle falls within an enlarged definition of automobile in a relevant statute”
• The Insurance Act defines automobiles to “include a motor vehicle required under any Act to be insured under a motor vehicle liability policy”. The dirt bike and ATV are both motor vehicles.
• All parties agree that the dirt bike and ATV are off-road vehicles as defined in the Off-Road Vehicles Act (ORVA)
• Pursuant to the ORVA off-road vehicles can only be driven without insurance on land occupied by the owner of the vehicle, or if it is driven on a sponsored closed course competition or rally. In any other case the off-road vehicle must be insured to be driven.
• In these cases the off-road vehicles were not being driven on land occupied by the owner of the vehicle, nor in a sponsored rally or competition.

Given the above facts, the ATV and dirt bike were considered “motor Vehicles” and “automobiles” under the Insurance Act and Off-Road Vehicles Act. On that basis both Perneroski and Benson are therefore “insured persons’ involved in “accidents” as defined in the SABs. On this basis they are both entitled to make claims for benefits under the SABs if the accidents had occurred in Ontario.

The Court of Appeal held that Ontario law governs. The Insurance Act defines automobiles to include motor vehicles required under any Act to be insured. The Legislation Act defines the word “Act” as an Act of the Ontario Legislature. On this basis it is incorrect to look to the statute of any jurisdiction other than Ontario to see whether insurance is required. The legislation of Ontario requires that ATVs and Dirt bikes be insured, this makes them automobiles and in turn entitles Benson and Perneroski to claim their benefits.

This decision is consistent with the SABs wording which clearly states  a) “insured persons” are named insureds involved in accidents inside or outside Ontario with the insured automobile or another automobile; and (b) benefits will be provided whether the incident occurs in Canada or the USA. 

Insurance coverage does not depend on whether an accident happens in Ontario or anywhere else in Canada or America. Coverage is independent of whether the automobile is listed as a vehicle under an insurance policy.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.