Today, the Court of Appeal released its decision in Adams v. Pineland Amusements Ltd. The first line of the decision sums up the ruling: “This appeal decides that a go-kart operated on a private track is not an ‘automobile’ within the meaning of the standard Ontario automobile insurance contract.”
In the decision appealed from, the plaintiff had been injured while operating a go-kart on a private track. He alleged that he had lost control of his go-kart after colliding with another go-kart being driven by his father. He sued both his father and the operator of the go-kart track. The father, in turn, joined his automobile insurer in the suit, claiming that it insured him against his son’s claim.
On a motion by the insurer, Kingsway General Insurance Company, Mr. Justice Roydon Kealey held in favour of the father and ruled that Kingsway owed a duty to defend. He determined that a go-kart operated on a private track was an “automobile” within the meaning of the Ontario Insurance Act and that accordingly, liability coverage was available for the go-kart driver under the latter’s auto policy. The basis of Justice Kealey’s ruling was that the Compulsory Automobile Insurance Act invokes the definition of “motor vehicles” contained in the Highway Traffic Act. The latter definition is worded broadly enough to include a go-kart. Although it would not be lawful to operate a go-kart on a highway, it is physically possible to do so. Thus, Justice Kealey concluded that if operated on a highway, a go-kart would have to be insured and that therefore, it was an “automobile” for purposes of the Insurance Act.
The Court of Appeal overturned the decision. Kingsway had argued that because a go-kart could never be driven lawfully on a highway, the Compulsory Automobile Insurance Act should be interpreted as not applying to it. However, the Court of Appeal was not prepared to go this far.
Instead, it based its decision on Copley v. Kerr Farms Ltd., one of its own decisions from 2002. In that case, the question was whether a tomato wagon was an “automobile” for purposes of the Insurance Act. The Court had found that although it was possible to take a tomato wagon on the highway, the accident in this case had occurred in a farmer’s field and that “there was no requirement for the defendant to have [the tomato wagon] insured ‘at the time and place where the accident occurred’.” Thus, the question was not whether the go-kart would have been an “automobile” for insurance purposes if the accident had occurred on a highway, but whether it had to be insured at the time and in the circumstances of the actual accident that had taken place. The Court held that it did not.