Adams v. Pineland Amusements Ltd. et al.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Laskin, Juriansz and Lang, JJ.A.
• Citation: 2007 ONCA 844,(2007), 231 O.A.C. 177 (CA)
• Date: 13 October 2007

Adams v. Pineland Amusements Ltd. (2007), 231 O.A.C. 177 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. DE.025

Barbara Adams (plaintiff/respondent) v. Pineland Amusements Ltd. and Roland Potvin (defendants/respondents) and Kingsway General Insurance Company (third party/appellant)

(C46535; 2007 ONCA 844)

Indexed As: Adams v. Pineland Amusements Ltd. et al.

Ontario Court of Appeal

Laskin, Juriansz and Lang, JJ.A.

December 5, 2007.

Summary:

A son was injured while driving a go-kart on a private track. The plaintiff (son's mother and litigation guardian) sued the track owner and the son's father for damages. The father issued a third party claim against his auto insurer alleging that it had a duty to defend and indemnify him in the main action and in a cross-claim by track owner. The insurer defended, alleging that the automobile insurance policy did not cover the go-kart. The insurer brought a motion seeking determination, prior to trial, whether the automobile insurance issued to the father covered damages for injuries from the go-kart accident and whether it had the duty to defend the father in the main action or in the cross-claim. The determination of both questions turned on whether a go-kart was an "automobile".

The Ontario Supreme Court, in a decision reported at [2006] O.T.C. 1475, answered both questions in the affirmative. The insurer appealed.

The Ontario Court of Appeal allowed the appeal, set aside the decision below, answered both questions in the negative, and dismissed the father's third-party claim.

Insurance - Topic 5006.1

Automobile insurance - Compulsory government schemes - General - Automobile defined - The Ontario Court of Appeal held that a go-kart operated on a private track was not an "automobile" within the meaning of the standard Ontario automobile insurance contract - The governing definition was that set out in s. 224(1)(a) of the Insurance Act which stated that "automobile" included a motor vehicle required under any Act to be insured under a motor vehicle liability policy - A go-kart could not be registered as a motor vehicle and could not be legally driven on a highway - The proper question was whether it required motor vehicle insurance at the time and in the circumstances of the accident - It did not, and therefore was not an "automobile" within the scope of the automobile insurance policy in issue.

Cases Noticed:

Grummett v. Federation Insurance Co. of Canada et al., [1999] O.T.C. 59; 46 O.R.(3d) 340 (Sup. Ct.), refd to. [para. 7].

Copley et al. v. Kerr Farms Ltd. (2002), 159 O.A.C. 66; 59 O.R.(3d) 346 (C.A.), refd to. [para. 16].

Counsel:

Patricia Lawson, for the appellant;

Frank McNally, for the respondent Roland Potvin.

This appeal was heard on October 13, 2007, before Laskin, Juriansz and Lang, JJ.A., of the Ontario Court of Appeal. Juriansz, J.A., released the following decision for the court on December 5, 2007.