2017 Harvest

2017 Harvest

Tuesday, July 23, 2013

Ontario judge rules that, under "changing nature of farming", ATV was "self-propelled implement of husbandry"

A farmer used an ATV to travel on a public gravel road for approximately 30 seconds to get to a pasture to check on his sheep.  He was struck from behind by a truck and suffered permanent cognitive and physical deficits which amounted to a catastrophic injury for accident benefits purposes.  The driver of the truck was convicted of careless driving and other charges; the farmer was not charged.

The farmer sued the truck driver and his own insurance company (which apparently denied him benefits) and a motion was brought before trial to determine whether or not the ATV was a motor vehicle requiring insurance or was a "self-propelled implement of husbandry" which did not have to be insured in order to be used legally on a public highway.  This question arose as a result of arguments made by the Defendants: 1) the truck driver argued that the farmer's claim for damages for bodily injury was barred by the Insurance Act where the injured party was in contravention of the Compulsory Automobile Insurance Act (i.e. driving a vehicle without insurance); and, 2) the insurer argued that certain benefits were not payable to its insured because the Insurance Act made an exception where the driver knew, or reasaonably ought to have known, that he or she was operating an automobile while it was not insured. 

There is a statute in Ontario called the Off-Road Vehicles Act which generally requires an ATV to be insured in accordance with the Compulsory Automobile Insurance Act.  However, a regulation to that statute specifically excludes "self-propelled implements of husbandry", which are defined as self-propelled vehicles "manufactured, designed, redesigned, converted or reconstructed for a specific use in farming and used for farming purposes."  The farmer argued that the ATV had been designed and manufactured for farming use.

The Court agreed, providing the following analysis of the test applicable to self-propelled implements of husbandry:

I find it to be matter of common sense that to accurately, objectively, discern that the character of a self-propelled vehicle demonstrates that it was designed for a specific use in farming, and used for farming purposes, would require that the person making such objective assessment of that character, or use, be reasonably well informed about agricultural life, specifically animal husbandry. It is, again, only common sense that to objectively discern the character or function of any implement related to agriculture requires an understanding of farming. That objective discernment may not accurately exist in the person of a Bay Street lawyer living in Rosedale, or in a downtown high rise condominium, in Toronto. I find that such objective, accurate discernment does exist, not just in Arthur Matheson, but in the other persons well versed in the agricultural community in Eastern Ontario, such as Gary Whyte, Paul Carson and Shawn Gardiner, as well as the investigating officer, Dennis St. Louis, who is a member of the Ontario Provincial Police in this rural region.

The same lack of informed objective, accurate, discernment may also not be present in a fulltime farmer from Lanark County if he were asked to provide an opinion on an issue specifically related to urban living in a major Ontario city.
 
The issue, in this case, relates to the changing nature of farming, with which the statutory and regulatory definitions have not kept pace. While ATVs are also purchased by many people strictly as recreational vehicles, that is not true of the fulltime farming community, based on the evidence in this case. These vehicles are clearly now an integral part of virtually all fulltime farming operations. They need to be recognized as such and responded to appropriately by our laws.
 
The Ontario Ministry of Transportation “Farm Guide: Farm Equipment on the Highway” publication does not provide an exhaustive list of self-propelled implements of husbandry, but it does provide some examples. The definition of “implement” is also not exhaustive and includes items that are never, or extremely rarely, self-propelled, such as balers, ploughs, wagons, etc. It is of no real assistance in resolving this case, particularly the references to conversion of equipment which is not the issue here.
 
I find that any reasonably informed person about farming in Ontario, particularly beef and sheep husbandry, would readily discern the character and function of the vehicle driven by the Plaintiff, Arthur Matheson, on October 11, 2008, as being an implement manufactured and designed for a specific use in farming and animal husbandry. This is not a question of a specific use intended by this Plaintiff only. Based on the evidence provided in support of the Plaintiff, as referred to above, these machines are marketed and sold widely to farmers, as confirmed by the affidavits of people in the business of actually selling these machines, along with other farm implements.

Read the decision at: Matheson, et al, v. Lanark Mutual Insurance Company, et al.