Ms. Simonov (the Applicant), was involved in an incident on September 12, 2012. She was riding on a “golf cart” being driven inside an airport terminal, and fell off. She sought accident benefits from TD Home and Auto Insurance Company (“TD”).
Normally, “was this an accident” is a lengthy legal discussion. Fortunately, in the appeal decision in Buckle Director’s Delegate Evans concluded that a golf cart, until it was driven onto the highway, did not need to be insured under a motor vehicle liability policy; at least until it was driven on the highway it was not an “automobile”. The arbitrator found there was no significant difference between the cart in which the applicant was a passenger and the golf cart referred to in the Buckle decision.
Both are four-wheeled, motorized, and designed to transport people on private property for convenience. Conversely, in the Buckle case, the golf cart was driven on a highway, and until it was driven on the highway, it was not considered an ‘automobile’, and did not require insurance.
The Applicant provided no evidence: she did not submit any materials supporting that the use or operation of a cart within an airport terminal meets the definition of motor vehicle within the meaning of the Schedule, or that the cart in this case would be required to have automobile insurance according to the Insurance Act. So this was an easy one.
What is the test that she would have to meet? The trigger for Accident Benefits Coverage is an incident in which the use or operation of an automobile directly causes an impairment. Some cases turn on if the automobile was being put to its “normal use”. Some cases turn on if the incident directly causes an impairment. This case turns on what is an automobile.
The test is a simple, three part test most succinctly summarized b the Court of Appeal in Adams v. Pineland Amusements Ltd., 2007 ONCA 844 (CanLII):
1) Is the vehicle an automobile in the 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 statutes?
Oddly, few cases turn on if the vehicle is an automobile in ordinary parlance. If there is one thing people can agree with, it is when an automobile is clearly an automobile. Likewise, once there is a policy of motor vehicle liability insurance attached to a vehicle, most parties can agree that the vehicle is an automobile.
Buckle (Appeal P11-00009) gives the full analysis of why a golf cart is not an “automobile” under any of the above branches of the Pineland Amusements test. In Buckle, there is a fulsome analysis of the Off Road Vehicle’s Act. From that statute, it is apparent that golf carts are specifically carved out of the requirement for insurance. The rub is that the off road vehicles act is not applicable to vehicles driven on a “highway”. Once they cross that legal bright line, they are required, through interaction of the Highway Traffic Act and the Compulsory Automobile Insurance Act to have a policy of automobile insurance attached to them.
Pineland Amusements outlines the test. Still, you can see that there are so many statutory and common law elements that help define “what is an automobile”, that this is one of the more complicated areas of coverage.