Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 29

FSCO A12-003878

BETWEEN:

ADDISEN ELLEN

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

Before: Anne Sone

Heard: July 9, 2014, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on July 10, 2014.

Appearances: Rikin Morzaria for Mr. Ellen Janet Young for Belair Insurance Company Inc.

Outline:

The Applicant, Addisen Ellen, was injured in a motor vehicle incident on August 26, 2005. He applied for statutory accident benefits from Belair Insurance Company Inc. (“Belair”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Addisen Ellen applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Preliminary Issue:

The preliminary issue is:

Is the Polaris Predator all-terrain vehicle that was operated by Mitchell McLennan on August 26, 2005 an “automobile” under the Schedule so that Addisen Ellen was involved in an “accident” within the meaning of the Schedule?

Result:

The Polaris Predator all-terrain vehicle operated by Mitchell McLennan on August 26, 2005 was an “automobile” under the Schedule so that Addisen Ellen was involved in an “accident” within the meaning of the Schedule.

EVIDENCE AND ANALYSIS:

Agreed Statement of Facts:[^2]

This incident occurred on Friday, August 26, 2005, at approximately 7:30 p.m., in the Town of Georgina.
The Applicant, Addisen Ellen, age two, was operating a child’s John Deere Gator HPX, manufactured by the toy company Peg Perego, westbound along a dirt trail. His mother, Jocelyn Ellen, accompanied him.
At the same time, Mitchell McLennan, age seven, was operating a 2005 Polaris Predator 90 ATV (Polaris ATV) eastbound along the same dirt trail.
There was a collision involving the two children and Addisen Ellen was injured.
The Polaris ATV operated by Mitchell McLennan has four wheels, steering handlebars and a seat designed to be straddled by the rider. It was a 90 cc vehicle, meaning the displacement of the engine was 90 cubic centimetres. It had a rider capacity of one rider with a maximum weight of 165 pounds.
The Polaris ATV’s safety information in the owner’s manual made it clear that it was not to be driven by persons under the age of 12 because “[k]ids under the age of 12 have an increased chance of losing control, which could result in severe injury or death. Adult supervision is required.”
The Polaris ATV was not insured under a motor vehicle liability policy at the time of the incident.
The incident occurred on eight acres of vacant land, which at that time was owned by The Ontario Mission of the Deaf. The Director of The Ontario Mission of the Deaf was Derek Rumball.
The property was not open to the public for use and there were “No Trespassing” signs throughout the property according to Kevin McLennan, the father of Mitchell McLennan.
Also according to Kevin McLennan, he and his family had permission to use the property.
Residents in the area used the vacant land as a short-cut between various houses. According to Jocelyn Ellen, she and Addisen had gone through the field many times and there were no “No Trespassing” signs that she was aware of.
On the day the incident occurred, Addisen Ellen and his mother were on a dirt trail running between their home to a nearby home.
The Director of the Ontario Mission of the Deaf, Derek Rumball, indicated in a letter dated May 30, 2005, addressed to Kevin McLennan, that Mr. McLennan and his immediate family had permission to be on the property of The Ontario Mission of the Deaf in Keswick.
In this letter, Mr. Rumball also states that he appreciates Mr. McLennan’s “willingness to keep the property up to municipal standards.”
Mr. Rumball has also indicated that he believed Mr. McLennan was helping cut down some weeds on the property because the Township of Georgina was requiring that this be done.

In addition, the parties agree on the following:

The Predator ATV meets the definition of an off-road vehicle under the Off-Road Vehicles Act.³
Subject to an exception Belair submits applies, the Predator ATV is required to be insured under a motor vehicle liability policy.

Legal Framework:

Accident benefits are available only if injuries arose from a motor vehicle accident. The Schedule defines an accident as follows:

2(1) In this Regulation,

“accident” means an incident in which the use or operation of an automobile directly causes an impairment … (“accident”)

The main issue here is whether the Predator ATV meets the definition of an “automobile” under section 2(1) of the Schedule.

In Grummett v. Federation of Insurance Co. of Canada,⁴ the judge referred to the “ordinary parlance test,” (which had been raised in courts before). He described it as a three-stage analysis used to decide whether a particular vehicle is an “automobile” for insurance purposes.

The “ordinary parlance” test asks the following questions:

Whether the vehicle in question is “in ordinary parlance” an automobile?
If not, whether the vehicle in question is defined as an “automobile” in any insurance policy?
If not, whether the vehicle falls within any enlarged statutory definition of “automobile”?

I will use these questions to guide my analysis.

Is the ATV an automobile “in ordinary parlance”?

The Applicant did not argue that the Predator ATV would be considered an “automobile” in ordinary parlance, as the Predator ATV’s primary purpose is not the transportation of passengers on highways. I find that the Predator ATV would not be considered an automobile “in ordinary parlance.”

Is the Predator ATV defined as an automobile in any insurance policy?

The parties have agreed that the Predator ATV was not insured,⁵ and therefore it was not defined under any insurance policy.

Does the Predator ATV meet the statutory definition of “automobile” under the relevant statutes?

As the ATV does not qualify as an “automobile” under the first two steps of “the ordinary parlance” test, the issue is whether the ATV can be described as an automobile in any Act.

Section 1 of the Insurance Act in Ontario provides two separate definitions for “automobile”, as follows:

In this Act, except where inconsistent with the definition sections of any Part,

“automobile” includes a trolley bus and a self-propelled vehicle, and the trailers, accessories and equipment of automobiles, but does not include railway rolling stock that runs on rails, watercraft or aircraft.

Under subsection 224(1) of the Insurance Act,

“automobile” includes:

(a) a motor vehicle required under any Act to be insured under a motor vehicle liability policy, and

(b) a vehicle prescribed by regulation to be an automobile;

In Regele v. Slusarczyk,⁶ the Ontario Court of Appeal considered the two competing definitions, and concluded that the overriding definition of “automobile” is that found in subsection 224(1). (that is, “a motor vehicle required under any Act to be insured under a motor vehicle liability policy”).

The Ontario Court of Appeal revisited the issue of defining “automobile” in Adams Amusements Ltd. v. Pineland.⁷ In this case, a person was injured while driving a go-kart on a private track. The Court approved the three-part test set out in Grummett. With respect to the conditions set out under subsection 224(1) of the Insurance Act, the Court stated: “The proper question was whether [the go-kart] required motor vehicle insurance at the time and in the circumstances of the accident.” In the Adams case, the Court found that the go-kart did not require automobile insurance, at the time and in the circumstances of that particular incident.

Is any Motor Vehicle Required to Be Insured an “Automobile”?

As noted above, paragraph 224(1)(a) of the Insurance Act defines an “automobile” to include “a motor vehicle required under any Act to be insured under a motor vehicle liability policy”.

When are Off-Road Vehicles Required to Be Insured?

Subsection 15(1) of the Off-Road Vehicles Act requires “off-road vehicles” to be insured when operated:

No person shall drive an off-road vehicle unless it is insured under a motor vehicle liability policy in accordance with the Insurance Act.

Subsection 15 (2) of the Off-Road Vehicles Act also prohibits an owner of an off-road vehicle from permitting the vehicle to be driven unless it is insured under a motor vehicle liability policy.

Is an ATV an “Off-Road Vehicle”?

Section 1 of the Off-Road Vehicles Act, defines an “off-road vehicle” to mean a vehicle propelled or driven by otherwise than by muscular power or wind and designed to travel, (a) on not more than three wheels, or (b) on more than three wheels and being of a prescribed class of vehicle.

One of the prescribed classes⁸ is the following:

Vehicles designed for use on all terrains, commonly known as all-terrain vehicles that have steering handlebars and a seat that is designed to be straddled by the driver.

This clearly includes the Predator ATV in this case.

Are ATVs Driven on Land “Occupied” by the Vehicle Owner Exempt from the requirement to be insured?

Under subsection 15(9) of the Off-Road Vehicles Act, an off-road vehicle need not be insured where the vehicle is driven on land “occupied” by the owner of the vehicle.

What is the Definition of Occupier, Generally?

Section 1, (the definition section), of the Off-Road Vehicles Act provides how a person can be an “occupier.” It states as follows:

“occupier” includes,

(a) a person who is in physical possession of the land, or

(b) a person who has responsibility for and control over the condition of land or the activities there carried on, or control over persons allowed to enter the land,

even if there is more than one occupier of the same land;

The Ontario Court of Appeal in Haliburton (County) v. Gillespie⁹ considered the statutory definition and found four ways a person can be an “occupier”. These four ways are, if the person:

is in physical possession of the land;
is responsible for and has control over the condition of the land;
is responsible for and has control over the activities there carried on; or
has control over persons allowed to enter the land.

In Gillespie, the Court noted that Off-Road Vehicles Act had two purposes:

the identification and control of off-road vehicles, and
public safety.

The Court of Appeal also noted that merely having the right to use land and to invite guests does not make a person an occupier. The Court cited the following fact scenarios as examples of situations where a person was not an occupier:

an adjacent landowner with a right-of-way over the area in question;
and tenants who enjoy the right to use common areas in shopping malls and parking lots even where tenants have the right to invite patrons to use or park in the common areas and may exercise some control over the common areas and the activities carried on there.

The Court stated that these cases typically turn on the terms of lease agreements that determine which party has responsibility for upkeep.¹⁰

What are indicators of Physical Possession of Land?

Indicators of “physical possession” include the ability to:

(a) control who uses the land,

(b) interfere with the use of the land by others, and

What are indicators of Responsibility for and Control over Condition of the Land?

The mere voluntary assumption of maintenance of land through activities such as mowing grass is not sufficient to make a person an occupier.¹²

A licencing provision in a lease that permitted a tenant to use common land, combined with “essentially voluntary assistance” with snow removal was also not sufficient to render a party an occupier because the voluntary removal did not change the legal relationship between the parties.¹³

Was Kevin McLennan an Occupier of the Land?

There is no evidence that Kevin McLennan:

was in physical possession of the land;
had control over the activities carried on the land, or
had control over persons allowed to enter the land.

The only branch of the occupier test that might apply to Kevin McLennan is the second branch: whether he was responsible for and had control over the condition of the land.

This second branch of the “occupier” test is conjunctive. That is, for Belair’s argument to succeed, Kevin McLennan must “be responsible for and have control over the condition of the land” to be an occupier.

The question is whether these two conditions are met in this case.

Was Kevin McLennan Responsible For the Condition of the Land?

In a letter from Derek Rumball, Director of the Ontario Mission of the Deaf to Kevin McLennan dated May 30, 2005, Mr. Rumball noted (as a follow-up to their phone conversation) that Kevin McLennan and his immediate family “have permission to be on the property”. Mr. Rumball also stated that he appreciated Kevin McLennan’s “willingness to keep the property up to municipal standards”.¹⁴ Both parties agree that Mr. Rumball also mentioned that Kevin McLennan was “helping cut down some weeds on the property because the Township of Georgina was requiring that this be done.”

I find that this evidence falls short of proving a legally binding contract transferring the responsibility for the condition of the land from the Ontario Mission of the Deaf to Kevin McLennan. I also note that the letter itself does not state that Kevin McLennan was granted permission to use the land in exchange for his promise to keep the land up to municipal standards. There is also no evidence that if Kevin McLennan was unwilling to maintain the property, the permission to use the land would be revoked.

In addition, there is no evidence that Kevin McLennan did in fact maintain the entire eight-acre parcel of land. Accordingly, Kevin McLennan is a person who assumed the maintenance of land on a voluntary basis, and not as a result of a change in his legal relationship with the owner of the property. Like the parties in the cases cited above of Mark v. Bhangari and Crisostimo v. Rosenthal, Kevin McLennan’s maintenance activities did not make him “responsible” for the land within the meaning of the Off-Road Vehicles Act.

Did Kevin McLennan Have Control Over The Condition of The Land?

With respect to the second part of the conjunctive test for an occupier, there is no evidence that Kevin McLennan had any control over the condition of the land. Neither the letter from Mr. Rumball, nor his subsequent evidence provides any indication that the Ontario Mission of the Deaf intended to give such control to Kevin McLennan.

Therefore, I find that Mr. McLennan is not an “occupier” under the test.

I also note that this conclusion reinforces the “public safety” objective of the Off-Road Vehicles Act, which imposes obligations on riders of vehicles who are likely to encounter other members of the public.

In this case, where Jocelyn Ellen, two-year old Addisen Ellen, and other residents in the area used the land as a short-cut between houses, the objectives of the Off-Road Vehicles Act suggest that Kevin McLennan was not an occupier of the land, and was required to insure the Polaris ATV.

Was the Polaris ATV an “automobile” within the meaning of the [Insurance Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html)?

Belair referred me to cases where an off-road vehicle was not required to be insured at the time of the accident, and was therefore not an automobile. However, these sorts of cases are very fact-specific, and I find that the cases that Belair has raised are distinguishable from this one on their facts.

In CAA Insurance Company and Turner,¹⁵ Mr. Turner was injured while operating a three-wheeled golf course maintenance vehicle, in the course of his employment as a groundskeeper for a golf club. On appeal, it was found to be an off-road vehicle, but did not require insurance because it was operated on land occupied by the golf club.

In Bray v. ING Insurance Company of Canada,¹⁶ the applicable Ontario law did not require insurance on an ATV involved in an accident in British Columbia.

In Bouchard and Motors Insurance Company,¹⁷ a gas-powered miniature motorcycle (pocket bike) was found to be an off-road vehicle. At the time of the accident, it was being operated off-road, on land occupied by the bike’s owner. The Arbitrator found that since the pocket bike had been driven from time to time at a friend’s house, it was required to be insured.

On appeal,¹⁸ Director’s Delegate Evans found that the bike was not required to be insured despite its having been occasionally operated on other land. He based his analysis on the statement of the Ontario Court of Appeal in Copley v. Kerr Farms¹⁹ that the proper question was whether the motor vehicle “required motor vehicle insurance at the time and in the circumstances of the accident.” Therefore, he found this vehicle not be an automobile.

On further appeal, the Divisional Court,²⁰ found Copley directly applicable, and the Appellant’s past use of the pocket bike did not affect what had occurred at the time of the accident.

In support of its position, Belair has also referred me to the following statement from the Ontario Court of Appeal decision in Gillespie:²¹

While the right to allow certain individuals (like guests) onto the land will point somewhat toward occupation, if others also have that right then occupation is less likely.

I find that the statement “point somewhat toward occupation” provides very weak support to Belair’s case. In addition, I note that in the very next sentence that the Court states as follows:

Stronger control over precisely who is permitted or excluded or over the state of the land or the activities carried on there will be required to establish liability as an “occupier”.

I find that the Polaris ATV was an “automobile” within the meaning of the Insurance Act based on the following analysis. Firstly, as an off-road vehicle, the Polaris ATV was required to be insured by a motor vehicle liability policy at the time of the collision, unless it was operated on land occupied by the owner of the vehicle. Secondly, I have found, for the reasons set out above, that Kevin McLennan, the owner of the Polaris ATV, was not an occupier of the land on which the collision occurred. Therefore, the Polaris ATV was required to be insured at the time of the collision, and was an “automobile”.

Was the incident giving rise to Addisen Ellen’s Injuries an “accident” within the meaning of the Schedule?

Under the Schedule, an “accident” means an incident in which the use of operation of an automobile directly causes an impairment. As I have found that the Polaris ATV operated by Mitchell McLennan on August 26, 2005 was an “automobile” as defined under the Schedule, it follows that Addisen Ellen was involved in an “accident” within the meaning of the Schedule.

February 17, 2015

Anne Sone Arbitrator

Date