Court of Appeal reverses ATV decision - ATVs for farming are not self-propelled implements of husbandry

About a year ago, I posted about an Ontario Superior Court decision that found that an ATV was a "self-propelled implement of husbandry" for the purposes of the Insurance Act.  A farmer was involved in an accident on the road while he was driving an uninsured ATV; the Court found that he was not barred from recovering damages for his injuries by the legislation that says no recovery is permitted where the person was operating an uninsured motor vehicle on a highway.  Self-propelled implements of husbandry are not considered motor vehicles.

The Ontario Court of Appeal has overturned this decision.  It found that the "motion judge correctly identified the purpose of the legislation before him but then adopted an interpretation that failed to give effect to that purpose.  He considered matters that were not pertinent to the excercise of statutory interpretation: whether the regulatory definitions were out of date, the views of the farming community, and the fact that Mr. Matheson was not at fault in the accident.  Consequently, he lost sight of the goal of determining the intent of the legislature."

The Court ruled that, " it was beyond the competence of the motion judge to conclude that Mr. Matheson’s ATV was a self-propelled implement of husbandry based on his opinion that the regulatory regime has not kept pace with changes in society, that ATVs need to be responded to appropriately by our laws, and that they need to be recognized as self-propelled implements of husbandry."  The applicable legislation, including the Off Road Vehicles Act, makes it clear that ATVs cannot be driven on land not occupied by the owner of the vehicle unless it is insured under a motor vehicle policy in accordance with the Insurance Act.  The Court commented that the Regulations "could not make clearer the legislative intent that a Honda ATV model TRX 200 is an off-road vehicle and not a self-propelled implement of husbandry."

Keep this in mind - "The issue is not whether farmers can operate ATVs used in agriculture on highways, but whether they can do so without insurance."  The answer is that they cannot operate ATVs on highways without insurance, at least not without being barred from recovery of damages for injury or death.

Read the decision at: Matheson v. Lewis.

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.

Farmer chasing ATV trespassers acquitted of dangerous driving

From the Judgment of Justice R. Green of the Provincial Court of Saskatchewan:

A farmer was charged with driving in a manner dangerous to the public on Church Road in the Rural Municipality of Fertile Belt, contrary to s. 249(1)(a) of the Criminal Code.  The farmer is now 54 years of age and works for a neighbour. He farmed his own land in the past, but now leases it. On October 3, 2010, in the latter part of the afternoon, he was helping the neighbour fix his combine. He heard some All Terrain Vehicles (ATVs) being operated in the distance, on a field he owned. These ATVs were being driven by three young males who were at the time they came to the farmer's attention driving around in mud on his field, which was to the south of Church Road.

The farmer took the neighbours 4x4 truck and drove, in 2-wheel drive on Church Road and then south into his field where the ATVs were.  At that point, the ATVs scattered.  The farmer followed one of the ATVs over Church Road and back north into another of his fields, in which a crop of canola had just been swathed.

A police constable arrived on the scene at 4:36 p.m., and found the ATV wedged under the front driver’s side bumper of the truck.  The farmer was seated in his vehicle. After attending to the young male ATV driver, and viewing the scene, the officer arrested the farmer at 5:08 p.m. for dangerous driving.

The Crown submitted at trial that the farmer chased after the young male on Church Road and rammed his ATV.   The farmer claimed that, as he pulled up beside the young male on Church Road, the young male accelerated his ATV and swerved into the truck and turned in front of it.  He said, as this was happening, he slammed on his brakes and skidded in a straight direction for a number of feet.

Ultimately, the Judge stated, the issue was not whether he is satisfied beyond a reasonable doubt that the collision on Church Road happened as the farmer described, but rather whether it is possible that it did.   Considering: (1) his finding that it is possible the farmer was travelling as slowly as 35 to 40 kilometres per hour on Church Road when he collided with the ATV; (2) the lack of any expert evidence on accident reconstruction of what happened between the two drivers on Church Road; and (3) the reality that the young male was an inexperienced ATV driver who admitted he may have swerved before the truck reached him, the judge concluded that it is possible the collision happened as the farmer described, with the young male swerving into the driver’s side of the truck, the farmer slamming on the brakes and the young male accelerating and turning into the path of the truck. 

With respect to the degree of care exercised by the farmer, the Judge ruled that he was not satisfied that the degree of care exercised by the farmer in driving on Church Road was a marked departure from the standard of care that a reasonable person would have exercised in these circumstances.  Whatever the farmer's liability might be civilly for the collision, the Judge was nevertheless not satisfied beyond a reasonable doubt that his driving was a marked departure from the standard a reasonable person would have observed in these circumstances.

On this basis, the farmer was acquitted of the dangerous driving charge.

Read the decision at: R v Tranberg.