A go-kart is not an automobile. Car insurance does not provide coverage to an insured involved in a go-kart accident.

20. January 2008 0

A man insured under a standard Ontario automobile insurance policy injured his son while go-karting. His son sued him and the operator of the go-kart track for injuries suffered in the accident.  The father sued his automobile insurer for coverage under his automobile policy.  A motion’s judge determined that a go-kart did not constitute an automobile in ordinary parlance and therefore was not covered by the policy.  The Court of Appeal upheld the motion’s judge decision on the basis that a go-kart was not an automobile pursuant to section 224(1) in Part VI of the Insurance Act, R.S.O., 1990, c I.8.

Adams v. Pineland Amusements Ltd., [2007] O.J. No. 4724, Ontario Court of Appeal, Laskin, Juriansz and Lang JJA., December 5, 2007

Denis Potvin was injured while driving a go-kart on a track owned and operated by Pineland Amusements Ltd. (“Pineland”). He lost control of his go-kart, he alleged, after colliding with a go-kart driven by his father, Roland Potvin (the “Insured”). Denis’s mother and Litigation Guardian, Adams, commenced an action against Pineland and the Insured for damages for injuries suffered by Denis. Pineland filed a cross-claim alleging that the Insured caused or contributed to the injuries of his son. The Insured had an automobile insurance policy with the Insurer (the “Policy”). The Insured issued a Third Party Claim against the Insurer, stating that it had a duty to defend and indemnify him in the main action and in the cross-claim by Pineland. The Insurer issued a Statement of Defence to the Third Party Claim alleging that the Insured’s policy did not cover the go-kart. The Insurer brought a motion seeking a determination as to whether the Policy covered damages for injuries from the go-kart accident and whether the Insurer had a duty to defend. The Motion Judge answered both questions in the affirmative. The determination of both questions turned on whether a go-kart was an “automobile”.

The Ontario Court of Appeal found that the Policy did not cover the claim made by Adams and that it did not cover damages for injuries resulting from a go-kart accident in the circumstances of the case. The Insurer did not have a duty to defend the Insured in the main action or in the cross-claim by Pineland. The Third Party Claim was dismissed with costs.

The question of whether a go-kart is an automobile was decided pursuant to the three-part test set out in Grummet v. Federation Insurance Co. of Canada (1999), 46 O.R. (3d) 340 (S.C.J.):

“1. Is the vehicle an ‘automobile’ in ordinary parlance?

If not, then,

2. Is the vehicle defined as an ‘automobile’ in the wording of the insurance policy?

If not, then,

3. Does the vehicle fall within any enlarged definition of ‘automobile’ in any relevant statute?”

An affirmative answer to any of these questions leads to the conclusion that the vehicle is insured by the standard Ontario automobile insurance contract.

The Motions Judge decided that a go-kart is not an automobile in ordinary parlance and that the definition of “automobile” in the Policy did not include go-karts. These findings were not challenged on appeal and the only issue was whether the go-kart fell within any enlarged definition of “automobile” in any relevant statute.

The governing definition is set out in section 224(1) in Part VI of the Insurance Act, R.S.O. 1990, c. I.8. Part VI deals with automobile insurance and section 224(1) defines “automobile” as follows:

“(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.”

Section 224(1)(b) did not apply and therefore, under section 224(1)(a), a vehicle that is neither an automobile in ordinary parlance nor specifically defined to be one under a policy will be an “automobile” if it is required to be insured under a motor vehicle liability policy.

The Motions Judge concluded that because it was possible for a go-kart to be driven on a highway and, notwithstanding the fact that it would be illegal to do so, section 2 of the Compulsory Automobile Insurance Act prohibits the operation of a motor vehicle “on a highway unless the motor vehicle is insured under a contract of automobile insurance”. On that basis, the Motions Judge found that a go-kart is an automobile.

The Court of Appeal disagreed with the Motion Judge’s reasoning. The Court of Appeal found that this particular go-kart was not operated on a highway, but on a private go-kart track. Therefore, the question whether the go-kart would require motor vehicle insurance if it were illegally driven on a highway did not arise. The proper question was whether it required motor vehicle insurance at the time and in the circumstances of the accident. It did not and therefore was not an “automobile” within the scope of the Policy.

This case was originally summarized by Cameron B. Elder and edited by David W. Pilley.

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