December 22, 2010 by Canadian Underwriter
An all-terrain vehicle (ATV) driven in B.C. does not count as an “automobile” under Ontario law, the Financial Services Commission of Ontario (FSCO) has determined.
In Alana Bray and ING Insurance Company of Canada, Alana Bray was injured in June 2001 as a result of falling from an ATV she was operating in British Columbia, near the Whistler Ski Resort.
As a dependent of her mother, Bray applied for accident benefits from her mother’s insurer, ING Insurance Company of Canada.
ING denied benefits, saying the ATV in B.C. did not fall under the definition of an “automobile” under Ontario’s statutory accident benefits scheme.
A FSCO arbitrator found the relevant part of the Statutory Accident Benefits Schedule (SABS), Section 224(1), has a two-pronged test for defining an “automobile.”
The first definition states: “a motor vehicle required by any act to be insured under a motor vehicle liability policy.”
The second says: “a vehicle prescribed by regulation to be an automobile.”
The arbitrator noted an ATV is required to be insured in B.C., but not in Ontario.
Bray argued the ATV is an automobile because the first test in s. 224(1) of the SABS refers to “any act,” and the B.C. Motor Vehicle (All Terrain) Act requires ATVs to be insured.
ING said the “any act” refers only to Ontario legislation, which does not require ATVs to be insured; hence, an ATV is not an automobile.
The arbitrator agreed with ING, noting that the “any act” reference is to legislation passed by the Ontario Legislature only.