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Law Times • OctOber 6, 2014 Page 11 www.lawtimesnews.com insurers score victory on atVs Matheson a reminder to farmers about coverage By marg. Bruineman For Law Times nsurance companies scored a big win recently with an On- tario Court of Appeal decision involving an uninsured all-ter- rain vehicle used for farming. Matheson v. Lewis raised the question of whether an unmodi- fied ATV owned by a farmer and used in farm operations was a self-propelled implement of hus- bandry while operated brief ly on a public road and therefore not subject to the province's compulsory motor vehicle liabil- ity insurance requirements. The Ontario Court of Appeal decided the ATV wasn't specifi- cally for farming, leaving Arthur Matheson barred from seeking a claim and without benefits to help him deal with his injuries and resulting in a big win for in- surance companies. "When you look at it, it seems like an unfortunate situation," says Daniel Strigberger, a partner with Miller Thomson LLP's Wa- terloo, Ont., office. Cattle and sheep farmer Matheson uses an ATV to get around his farmland situated on three parcels. As the fifth-gen- eration farmer was going from one parcel to the other in 2008, he drove onto a public road for a short period when someone hit him from behind and f led the scene. The court later convicted the other driver of careless driv- ing, obstruction of justice, and breach of probation. The crash left Matheson with serious and permanent physical and cognitive disabilities and he sued the other driver and his own insurance company for benefits. Matheson argued that because he had registered and used the ATV for farming, the mandatory insurance require- ment didn't apply. The defendants argued the ATV was an uninsured vehicle travelling on a public road when the accident occurred and that Matheson had lost the right to sue even though the other driver was at fault. "Within the legislative scheme governing automobile insur- ance, Mr. Matheson's ATV can- not have been both an off-road vehicle that required insurance when operated on land not oc- cupied by the owner and at the same time a self-propelled im- plement of husbandry that was excluded from Ontario's com- pulsory insurance regime. That the regulatory scheme classifies the Honda ATV model TRX 200 and other ATVs with steering handlebars and straddle seats as off-road vehicles leads to the im- mediate conclusion that they are not self-propelled implements of husbandry," wrote Justice Russell Juriansz in the Ontario Court of Appeal decision. "Even if the farmers' views were relevant in determining leg- islative intent, they only spoke to the widespread use of ATVs by farmers and not to their design or manufacture. The motion judge erred in giving controlling weight to this evidence. Mr. Matheson's ATV may have been a vehicle used in farming but it was not a vehicle manufactured or designed for a specific use in farming. Not all vehicles used in farming are excluded from Ontario's compul- sory insurance regime." "The Court of Appeal really took a very pragmatic approach, I think," says Strigberger. "The insurers in this case hit a grand slam, really." Paul Muirhead, a civil litiga- tor with Williams McEnery in Ottawa who acted for the insur- ance company for the vehicle that struck Matheson, notes that although there are very dramatic implications for the plaintiff, the decision is pretty straightforward. "If you're operating an off- road vehicle, then you have to have insurance," he says. "The courts will enforce vari- ous portions of the legislation that will compel people to have insurance." Bob Houston, a litigator at Burke-Robertson LLP who rep- resented Matheson, says the decision has a wide impact. In September, he applied for leave to appeal to the Supreme Court of Canada on the grounds that the impact in Matheson goes beyond Ontario given that other provinc- es have similar legislation. But the parties have since settled the case. "The whole matter has sub- sequently settled with the insur- ance people, so the application for leave has been withdrawn," says Houston. But the clear message coming out of Matheson is drivers need to have insurance if they're going onto the road for even a short pe- riod of time, says Paul Auerbach, a partner at McNally & Gervan LLP who works in civil litigation and insurance law. In normal circumstances, Matheson would have received compensation since the accident wasn't his fault. "I think the Court of Appeal felt they had their hands tied," says Auerbach. He thinks there may have been an argument had the farm- er registered the vehicle to his farm company and sought dam- ages as an individual. Although the case didn't name the insurance broker as a party, Auerbach sees brokers playing an important role. And as a result of the decision, he suggests they should take precautions in situ- ations in which a vehicle owner decides against having insurance by being clear, conservative, and getting it in writing. "The price that Mr. Mathe- son is paying is very high in- deed," he says. LT FOCUS CANADA & USA 1.800.265.8381 | EMAIL info@mckellar.com | www.mckellar.com The reason why we are Canada's largest and most comprehensive structured settlement firm has everything to do with our passion for service and performance— without exaggeration, we make life easier for you. Almost as accurate as McKellar. The world's most precise clock loses less than a second every five billion years... Untitled-2 1 2014-09-26 12:54 PM I All-terrain vehicles don't count as self- propelled instruments of husbandry, the Ontario Court of Appeal has found. Photo: homydesign/Shutterstock