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matters that were not pertinent to the excercise of statutory interpretation: whether the regulatory definitions were out of date, the views of the farming community, and the fact that Mr.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.

Wheel off wood chipper case sent back for new trial

Ontario Ministry of Transportation (MTO) officers investigated a truck stopped along a highway.  Attached to the truck was a wood chipping machine that was missing its right wheel.  The hub of the wheel was located at the end of a scrape mark in the pavement, but the wheel was not found.  The wheel hub had the eight wheel-fastening bolts shorn from where the wheel should have been attached.

The truck belonged to a tree services company.  The MTO charged the company and the person that was present with the truck with offences under the Highway Traffic Act (HTA) - the company was charged with a "wheel-off" offence and the individual was charged with driving an unsafe vehicle.

The Justice of the Peace at trial acquitted both defendants, finding that the wood chipper was not a vehicle (an essential ingredient of each charge).  A wood chipper was being towed, but was not a "thing used for transporting people or goods on land".  The Crown appealed the decision, arguing that the JP erred in not taking a purposive or purpose-based approach to the interpretation of the charging provisions. 

On appeal, a judge of the Ontario Court of Justice agreed that the purposive approach is to be applied and results in a finding that the wood chipper was, in fact, a vehicle for the purposes of the HTA.  However, the judge also noted that there were other defences that could have possibly been raised by the defendants at trial, but that were not necessary for the trial judge to deal with (given the ruling on a wood chipper not being a vehicle).  Both charges were sent back for a new trial.

Read the decision at: Ontario (Ministry of Transportation) v. Tsapoitis.

“Self-propelled implement of husbandry” - Conviction Upheld

The Ontario Court of Appeal has upheld the convictions of Petrus Van Berlo on charges related to the unlicensed use of an alleged farm vehicle on the highway.  The appellant was convicted of offences that required the vehicle in question to be a “motor vehicle”, such as permitting the operation of motor vehicle on a highway without a permit. The definition of “motor vehicle” in the Highway Traffic Act (HTA) excludes a “self-propelled implement of husbandry”. Thus, the appeal turned on whether Mr. Van Berlo’s vehicle came within this exception, as a self-propelled implement of husbandry. If so, the parties agreed that the appeal must succeed and the convictions must be set aside. If not, the appeal would fail.  The Court of Appeal dismissed the appeal.

The term “self-propelled implement of husbandry” is defined in s. 1.1 of the HTA.:

“Self-propelled implement of husbandry” means a self-propelled vehicle manufactured, designed, redesigned, converted or reconstructed for a specific use in farming.

The Court agreed that the vehicle in question was self-propelled, but found that it had not been "coverted ... for a specific use in farming".  The appellant purchased the vehicle on August 11, 2002 for $2,000.  It was a 1976 Chevrolet pick-up truck.  His intention was to modify it for use in his irrigation operations.  He then spent $16,000 on the vehicle so it could tow farm equipment from farm to farm and from field to field, and so it could be used in the fields for irrigation purposes.  He had the gasoline engine replaced with a diesel engine for more power.  The gearing was changed and the two-wheel drive was converted to four-wheel drive. Large tread snow tires were installed to facilitate driving through fields of mud and sand.  Finally a hitch, ten times heavier than a regular trailer hitch, was installed at the rear of the vehicle to allow for the pulling of various pieces of farm equipment.

In the Court of Appelal's view, to be “converted for a specific use in farming” a vehicle must be changed significantly enough that, viewed objectively, its essential character or function has been transformed for that specific use, although it may retain some limited capacity for other functions.  The transformation cannot just be for general use in farming, it must be for a specific use.  In this case, the Court found that the changes were not of the sort that creates a "self-propelled implement of husbandry":

When this interpretation is applied to the facts of this case, I conclude that the appeal must fail. As the Ontario Court of Justice found, the changes made by the appellant really do not change the character of the vehicle. The appellant installed a more powerful engine, changed the gearing, converted the vehicle from two to four-wheel drive, and installed large tread snow tires and a stronger rear hitch. Whether taken separately or together, these modifications do not change the vehicle from a truck into something different. Although these changes make the vehicle more powerful and therefore better able to perform some functions, such as pulling loads, these functions remain essentially the same. Nor do the changes point to the specific use of irrigation. At best, they are for general use in farming. Viewed objectively rather than through the lens of the subjective intention of the appellant, the changes are neither significant enough to change the essential character or function of the vehicle, nor can they be described as for the specific use of irrigation in the appellant’s farming operation. In other words, the appellant cannot bring the vehicle within the defined exception.

Read the decision at: R. v. Van Berlo.