Thursday, December 13, 2007

Go-Kart not an Automobile

In a decision released on December 5th 2007, the Ontario Court of Appeal has ruled that a go-kart operated on a private track is not an “automobile” within the meaning of the standard Ontario automobile insurance contract.

Denis Potvin was injured while driving a go-kart on a track owned and operated by the Pineland Amusements Ltd. He lost control of his go-kart after colliding with a go-kart driven by his father, Roland Potvin. Denis suffered injuries and sued Pineland and his father for damages related to the injuries.

Roland made a third party claim against his automobile insurer, Kingsway General Insurance Company, alleging Kingsway had a duty to defend and indemnify him pursuant to the insurance policy. Kingsway defended the third party claim on the basis that the automobile insurance policy did not cover the go-kart.

Kingsway brought a motion seeking determination, prior to trial, whether the automobile insurance issued to Roland covered damages for injuries from the go-kart accident.

The question before the motion judge was whether a go-kart is a vehicle that requires to be insured under a motor vehicle liability policy pursuant to the provisions of Compulsory Automobile Insurance Act. Section 2 of this Act prohibits the operation of a motor vehicle on a highway unless the motor vehicle is insured under a contract of automobile insurance.

The motion judge held as under:

"It cannot be disputed that a go-kart is a motor vehicle, which is capable of being operated on a highway. The question of whether it is lawful to do so is irrelevant. If operated on a highway, being a motor vehicle, a go-kart would require insurance under s. 2(1) of the CAIA. Therefore, it is an automobile in my opinion."

The Appeal Court disagreed with the motion judge’s conclusion and held as under:

"….. the motion judge erred in basing his conclusion on the possibility that a go-kart could conceptually be driven on a highway. This particular go-kart was operated not on a highway, but on a private go-kart track. 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 Roland’s automobile insurance policy.

For full text see: Adams v. Pineland Amusements Ltd

- Shashi K. Raina, Toronto

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