December 08, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
BM v Aviva Insurance Canada, LAT 17-000907, 2017 CanLII 69451 (ON LAT)
Decision Date: October 13, 2017
Heard Before: Adjudicator Meray Daoud
WAS THE INCIDENT AND ACCIDENT: motor cycle operated on a close track’ does not require to be insured’ does not fall within definition of ‘automobile’; incident not an accident
The minor applicant, BM., was injured in an incident on July 9, 2016. He applied for benefits from Aviva but when they were denied, and mediation failed, he applied for arbitration at the LAT. This is a preliminary issue hearing. If BM is unsuccessful at this hearing, he will not be entitled to any benefits sought under the Schedule with respect to injuries that resulted from the incident on July 9, 2016.
- Is the motorcycle that BM was operating an automobile within the meaning of section 224(1) of the Insurance Act?
- Was the motorcycle required to be insured under the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 (“CAIA”) or the Off-Road Vehicles Act (“ORVA”)?
- Was the incident an accident within the meaning of section 3(1) of the Schedule?
- The motorcycle, which was involved in the incident on July 9, 2016, is not an “automobile” as defined, and as such, BM was not involved in an “accident” as defined by section 3(1) of the Schedule. BM is not entitled to accident benefits under the Schedule.
The parties agreed that on July 9, 2016, BM was riding his 2009 CRF250R motorcycle at a privately owned and operated training and racing facility called Runway Park. This facility has multiple tracks and hosts racing events throughout the year. According to the owner’s manual of the motorcycle, the motorcycle is designed, manufactured and sold for close course competitions only. The motorcycle was not listed under any insurance policies with Aviva, and it was not registered or plated with the Ministry of Ontario. On the day of the incident, BM paid a “drop-in fee” on a practice day, to access the tracks. He also signed a waiver. As he was riding his bike along the outdoor dirt track, he made an unsuccessful jump and fell off his motorcycle. As he was recovering from the fall, another rider came over that same jump and struck BM, causing him to sustain injuries.
The Arbitrator reviewed definitions, the evidence and the law and determined that in order for BM to have been involved in an accident, it must have involved the use or operation of an automobile. The definition of automobile is a three part one and the parties agree that the first two parts are met. The analysis is to be focused on the third question - does the vehicle fall within any enlarged definition of an automobile in any relevant statute?
Based on the parties’ submissions, it appears they agree that the motorcycle involved in this case was not one that was prescribed by any regulation to be an automobile and as such, does not fit under the second part of this definition. Therefore, s.224 (1)(a) is what remains to be determined; whether the motorcycle was required to be insured under a motor vehicle liability policy.
There are two statues to consider, the Compulsory Automobile Insurance Act (“CAIA”) and the Off Road Vehicles Act (“ORVA”). The CAIA is applicable when the vehicle is being driven on highways. The ORVA is applicable to vehicles driven off of highways, unless these vehicles are operated on land occupied by the owner of the vehicle.
The parties agree that the incident did not occur on a highway, but on a privately owned track, therefore the ORVA is the applicable statute in this case, and that the land which the motorcycle was being operated, was not occupied by the owner of the motorcycle. Generally, vehicles under ORVA are required to be insured, however there are exemptions to the requirement of insurance under the ORVA for a designated class of vehicles, namely:
e. Off road-vehicles driven or exhibited at a closed course competition or rally sponsored by a motorcycle association.
Aviva submits that the motorcycle falls within the designated class of vehicles which are exempt. The parties agree that the motorcycle, in this case does not fall under the first four exemptions. The question turns on whether the motorcycle was driven at a “closed course competition”.
The Arbitrator reviewed the law and determined that the motorcycle was being driven within a closed course competition, and as such, falls within the designated class of vehicles which are exempt from the requirement of being insured, under the ORVA. On that basis the motorcycle is not an “automobile”, as it was not required under any Act to be insured under a motor vehicle accident policy. Considering that the motorcycle involved in this incident does not meet the definition of an “automobile”, therefore BM was not involved in an accident as defined in section 3(1) of the schedule.
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