Law Times

www.lawtimesnews.com Law Times / January 14, 2008 Page 11 I f you think you know what an "automobile" is, check out the Ontario Court of Ap- peal's December ruling in Adams v. Pineland Amusements Ltd., yet another case that devotes scarce judicial resources to the type of question that takes three years of law schools to formulate — and kindergarten common sense to answer. "There are a number of stat- utes bearing on the question, and that's what make this such an un- clear area of the law," says Frank McNally of Ottawa's Forbes Singer Smith Shouldice, which represented Ronald Potvin, one of the defendants. Of course, those in kinder- garten don't have to deal with a maze of legislation. And to the credit of Justice Roydon Kealey of the Superior Court of Justice, who decided Adams at first in- stance, he proved quite adept at dealing with common sense. The daunting question facing Kealey was whether a go-kart op- erated on a private track was an "automobile," within the mean- ing of the standard automobile- insurance contract. The case arose when Denis Potvin was injured while driv- ing a go-kart on a track owned and operated by Pineland. He claimed to have lost control of his kart after colliding with one driven by his father, Ronald. Potvin's mother and litigation guardian, Barbara Adams, sued Pineland and her husband. Ronald had an automobile insurance policy with Kingsway General Insurance Co,, represent- ed by Patricia Lawson of Ottawa's Nelligan O'Brien Payne LLP. He issued a third party claim against Kingsway and brought a motion seeking determination whether the policy covered the go-kart. Kealey's common sense proved sound. The Court of Ap- peal agreed with him that a go- kart was not an automobile in ordinary parlance, and that the definition of "automobile" in the Kingsway policy did not include go-karts. Rather, it was the three years of law school that did Kealey in. Justice Russell Juriansz, writ- ing for a unanimous bench composed also of justices John Laskin and Susan Lang, ruled that Kealey had mucked up his interpretation of the interac- tion of three provincial statutes: the Insurance Act, the Compul- sory Automobile Insurance Act (CAIA), and the Highway Traffic Act (HTA). The governing definition was found in s. 224(1) of the Insur- ance Act, which defined "auto- mobile" as including "a motor vehicle required under any act to be insured under a motor vehicle liability policy." As it turns out, the CAIA re- quires motor vehicles to be in- sured. It defines "motor vehicles" as having the same meaning as the phrase has under the HTA. For its part, the HTA includes vehicles that are "propelled or driven otherwise than by muscu- lar power" — like go-karts. "Hence, as the motion judge recognized, the question boils down to whether a go-kart is re- quired to be insured under a mo- tor vehicle liability policy," is how Juriansz framed the issue. The CAIA prohibits the opera- tion of an uninsured motor vehicle on a highway. Kealey, however, based his conclusion on the fact that it was physically possible to drive a go-kart on a highway. "Therefore, it follows that a motor vehicle (which includes a go-kart), if operated on a high- way, would have to be insured, unless regulations under the CAIA exempt such an insur- ance obligation," Kealey wrote. "However, they do not." "It cannot be disputed that a go-kart is a motor vehicle, which is capable of being operated on a highway. The question of wheth- er it is lawful to do so is irrele- vant. If operated on a highway, being a motor vehicle, a go-kart would require insurance under s. 2(1) of the CAIA." "Therefore, it is an automo- bile in my opinion." Steve Stieber of Toronto's Stie- ber Berlach LLP says the trial de- cision shocked him. "The ruling was unusual, to say the least," he saya. "You can't have a kid driving a go-kart onto a highway and then say that be- cause the go-kart needed insur- ance it was therefore a motor vehicle." As Juriansz saw it, much like Stieber, Kealey had put the horse before the cart. "There is a difference between an illegal act not obviating the motor vehicle insurance regime where it already applies and an il- legal act invoking the application of the motor vehicle insurance re- gime in the first place," Juriansz wrote. "Put another way, by perform- ing an illegal act, an individual cannot make the motor vehicle insurance regime apply to him or her where it would not other- wise." Indeed, because Ronald's go- kart was running on a private track and not on a highway, the question whether the kart would require motor vehicle insurance had it been on a highway was ir- relevant. "The proper question was whether it required motor vehicle insurance at the time and in the circumstances of the accident," Juriansz wrote. "It did not, and therefore was not an 'automobile' within the scope of Roland's auto- mobile insurance policy." Lawson says justice was done. "Kealey's decision was danger- ous because it could have opened the door to an electric wheelchair, a scooter, or an airplane taxiing on a runway being recognized as au- tomobiles. And that's clearly not what's intended by auto policies," she said. What's an 'automobile' in insurance law? 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David Dempster Ivan Luxenberg Steve Stieber says you "can't have a kid driving a go-kart onto a highway and then say that because the go-kart needed insurance it was therefore a motor vehicle." BY JuLiuS meLnitzeR For Law Times LT LT-Jan 14 08.indd 11 1/10/08 8:07:09 PM

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