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“Go-Karts” and Compulsory Auto Insurance
Published in the January 2008 issue of Transportation Notes - View Article
This case arises out of an accident at an amusement park. Denis Potvin and his father were driving go-karts on a track owned and operated by the defendant Pineland Amusements. The accident is said to have taken place after father and son collided and the son lost control of his machine. Legal action was commenced by the mother as the Litigation Guardian of her son. Both Pineland and the father were named as defendants.
The father was insured under an auto policy issued by Kingsway General. He issued third party proceedings against Kingsway, seeking a ruling that the insurer had a duty to defend and indemnify him in the main action. Kingsway responded by denying that the policy provided coverage in respect of the go-kart.
The issue to be resolved was whether the go-kart is an “automobile” for the purposes of coverage. In accordance with the accepted test, this issue is to be resolved by asking three questions: Is the vehicle an “automobile” in ordinary parlance? If not, is it an “automobile” in the wording of the policy? If not, does the vehicle fall within the enlarged definition of any relevant statute?
The motions judge answered the first two questions in the negative, but did conclude that a go-kart comes within an enlarged statutory definition. Accordingly, he held that Kingsway was obliged to defend and indemnify. This decision was reversed by the Court of Appeal.
Part VI of the Insurance Act does provide a definition of “automobile”. That term includes every motor vehicle which is required to be insured under an auto policy. It also includes any vehicle which is designated as a automobile by regulation. It was common ground that the second part of the definition does not apply. Accordingly, the whole question is whether the go-kart was required to be insured under an auto policy.
To answer that question, one must consider the Compulsory Automobile Insurance Act (“CAIA”) which provides that “motor vehicle” has the same definition as that given in the Highway Traffic Act. This definition is extremely broad, including any vehicle “propelled or driven otherwise than by muscular power”. However, the question is not whether the go-kart is a motor vehicle, but whether it must be insured. The CAIA deals with compulsory insurance by stipulating that no motor vehicle shall be driven on a highway unless it is insured by a contract of auto insurance.
A go-kart cannot be driven on a highway legally as such a machine does not conform to the requirements of the applicable legislation. On the other hand, it is clearly physically possible to drive a go-kart on a highway. Each of the parties hung his hat on one of these propositions and, of course, argued for opposing results. The insurer argued that if the CAIA is read in context with the Highway Traffic Act the purpose of those pieces of legislation dictates the common sense result: there was no intention to suggest that a go-kart is a proper vehicle for driving on a highway and no intention to require insurance. However, the motions judge thought that these were irrelevant considerations.
The Court of Appeal found for the insurer, but without accepting the insurer’s argument. It rather decided the case on a narrower point. Citing a recent precedent from its own jurisprudence, the Court found that the proper question was whether the go-kart “required motor vehicle insurance at the time and in the circumstances of the accident”. As the go-kart was being driven on a track at an amusement park when the accident took place, insurance was not required and the claim for coverage was dismissed. Whether insurance might be required in the event of illegal use on a highway could be left as an open question.