FSCO has allowed the insurer’s appeal in a controversial decision about whether a pocket bike was an “automobile”.
In Bouchard v. Motors, Cassondra Bouchard had a friend named Kristin Stratton, who owned a couple of pocket bikes (described as gas powered miniature motorcycles). Stratton would ride the bikes on his own property and on a friend’s property. On Jan. 13, 2008, Bouchard was riding one of the pocket bikes on Kristin’s property, when she collided with one of Kristin’s other pocket bikes and sustained injuries.
Working with an agreed statement of facts, the arbitrator determined that the issue was whether the pocket bike was required to be insured under a motor vehicle liability policy. First, she found that the pocket bike was an off-road vehicle under the Off Road Vehicles Act. Next, she noted that pursuant to section 15 of the Act, the pocket bike was required to be insured under a motor vehicle liability policy unless it was driven on land occupied by the owner (Stratton) of the bike.
Here’s the best part: Even though the accident happened on Stratton’s land, the arbitrator found that it was nevertheless required to be insured. Her decision apparently turned on the evidence that Stratton would drive his pocket bikes at a friend’s house. She stated, “[c]learly the legislature intended that off-road vehicles be insured unless they were used solely on lands occupied by the owner.” [emphasis added] In other words, because Kristin had operated the vehicle on a friend’s property in the past, the pocketbike was became an automobile forever. There was no turning back.
Director’s Delegate Evans disgreed. He found that the Court of Appeal’s “time and circumstances” analysis from Copely v. Kerr Farms applied in this case — meaning the arbitrator was required to determine the issue based on whether the bike was being operated on land occupied by the owner “at the time of the accident”.
Apparently this is the first decision of three that Director’s Delegate Evans will release on this issue. Stay tuned!