[1] PEDLAR J.: — This is a motion pursuant to rule 21.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for the determination, before trial, of a question of law raised by a [page222] pleading in an action. The specific questions addressed in the amended notice of motion are

[2] All counsel were extremely helpful to the court in the presentation of both their oral submissions and their written material. I will quote from some of that written material, from time to time, in this ruling. All counsel represented their clients' interests vigorously, yet with courtesy and a level of professionalism and competence that is a credit to the legal profession.

[3] This challenging legal issue is rooted in a decision the plaintiff Arthur Matheson made on October 11, 2008, to travel from one part of his farm to another by driving his Honda all-terrain vehicle for approximately 30 seconds, or less, on a public road in the course of his farming, in order to check on his flock of sheep, who are pastured on his property.

[4] The action is also rooted in another decision of Arthur Matheson, not to insure that Honda all-terrain vehicle, which he had owned since November 1997, under a motor vehicle liability policy, in spite of the advice of his insurance agent.

[5] Arthur Matheson is a 55-year-old fifth generation full-time farmer. He has lived his entire life on a working farm in Lanark County. The farm is approximately 500 acres in size and he leases another 400 acres. The farm operation is geared towards the raising of beef cattle and sheep on the farm.

[6] On the fateful day of October 11, 2008, Arthur Matheson, in the course of his normal farming practice, needed to go and check on sheep that were just up the road less than half a kilometre from his house. His evidence is that, depending on how busy he was, he would either walk up the road or use the Honda all-terrain vehicle ("ATV"). He states that the portion of the farm where the sheep were at the time was accessible without leaving the farm, but it was faster just to go out on the front driveway, turn left, and drive up the road, which would take about 30 seconds or less. [page223]

[7] The material filed includes pictures of the road in front of the plaintiffs' farm. It is a gravel road, wide enough for two vehicles to pass and is flat and straight at the relevant location. While driving on that gravel road, at or near a gated entrance to one of his fields, he was struck from behind by a truck driven by the defendant Gary Wayne Lewis. As a result of that collision, Arthur Matheson has been left with permanent cognitive and physical deficits which, all parties agree, amount to a catastrophic injury.

[8] Gary Wayne Lewis was convicted of careless driving, breach of probation and obstruction of justice as a result of this collision. Arthur Matheson was not charged after the accident under the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 or any other statute. The investigating police officer, Dennis St. Louis, states in his affidavit that he concluded the ATV was a "self-propelled implement of husbandry" as defined in s. 1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 and, therefore, did not have to be insured under a motor vehicle liability policy at the time of the accident. That conclusion is, of course, not binding on this court and is one of the central issues to be resolved in this ruling.

[9] When Arthur Matheson purchased the ATV in November 1997, he registered it with the Ministry of Transportation. At the time of the registration, he completed an exemption declaration confirming that the ATV was for "farm use only". His evidence is that in the 11 years he owned the ATV, it was only ever used for farming. He states that he routinely used it to access and repair fencing and for rounding up cattle and sheep. He states it was almost always equipped with a hitch for towing so that it could be used to pull a small cart. The cart was used to carry supplies, such as fencing materials, wire, chainsaws and other tools. The ATV was also equipped with front and rear carriers when he purchased it. Those were bolt-on options available from the manufacturer. Those carriers were used to transport salt for livestock as well as tools and anything else that was needed at a remote part of the farm.

[10] Arthur Matheson's evidence is that during the years he owned the ATV, he frequently used it instead of his tractor, mainly because an ATV can be operated for a fraction of the cost due to its fuel efficiency. He states he always used the ATV as a tool for farming and always considered it as such.

[11] The essential issue, which is one of mixed fact and law, to be determined on this motion is whether Arthur Matheson's ATV on October 18, 2008 was a "self-propelled implement of husbandry". If so, it would be specifically excluded from Ontario's [page224] compulsory insurance regime. If not, he would be in breach of such regime. The implications of such a ruling are significant to the plaintiffs as explained below.

[12] In addition to the evidence of Arthur Matheson, referred to above, the plaintiffs are relying on evidence that they have filed regarding the evolving nature of the use of ATVs in the practice of farming over the years. I am prepared to take judicial notice of the fact that farming, like most other industries, businesses and professions, has undergone significant changes and advances in the use of equipment and technology. Many tasks that were previously accomplished by muscle power, whether by humans or horses, are now done by machinery. Most modern dairy farms are computer driven and enormous changes have taken place in recent years related to everything from feeding, to milking, to the handling and disposal of waste products, some of which is even used to produce electricity on a significant scale.

[13] At para. 12 of Arthur Matheson's affidavit, sworn February 28, 2012, based on his information, knowledge and belief, he states that ATVs are widely considered farming tools. He states he cannot think of a farmer under the age of 70 in Lanark County who does not own an ATV for farm use. As a practical matter, he states an ATV is now considered necessary farm equipment as much as a tractor.

[14] At para. 13 of his affidavit, Arthur Matheson refers to a document obtained from Honda Canada's website referring to the history of the Honda ATV. Some of the most relevant excerpts from that document, as contained in para. 13, are as follows:

[15] At para. 14, Arthur Matheson states that he can confirm that in his own experience as a farmer, ATVs are considered to be indispensable farm tools, exactly as described by Honda. Although the information from the Honda website is their own promotional material and contains references to some uses of an ATV, which Arthur Matheson did not himself use his for, I find his observation to be reasonable that ATVs are part of everyday life in virtually all farming operations in Ontario and are designed to perform a multitude of specific farm tasks, including those listed at para. 15 of his affidavit, such as

[16] For instance, the rounding up of cattle and sheep is a specific task for which an ATV is ideally suited. That task would otherwise have to be performed on foot or with the aid of a trained animal such as a cutting horse or a dog specifically trained for that task. There is no truck, farm tractor or other self-propelled farm implement that could handle that task with anywhere near the speed, agility, convenience, stability, traction and economy of operation. The inconvenience of keeping, training [page226] and maintaining animals for that specific purpose, compared to the obvious advantages related to time and convenience and cost of operation, etc. for an ATV is another example of why they have grown to be so popular for farm use.

[17] The plaintiffs also refer to the California Farm Bureau definition of "self-propelled implement of husbandry" as "a vehicle used exclusively in the conduct of agricultural operations". Arthur Matheson states in his affidavit that he believes that definition is a common sense one that reflects the reality of modern agriculture and the role of the ATV in modern farming.

[18] The plaintiffs have also filed affidavits from other members of the Lanark County agricultural and business community in support of their position. Gary Whyte, who operates Lanark Farm Supplies, and has done so for the last 30 years, sold Arthur Matheson the ATV in question in this action. He states that, in his view and experience, ATVs are designed for a number of specific farm uses, including fence repair, attending to cattle and accessing more remote areas of the farm more cheaply and economically than can be done using a tractor. He also states he believes that almost 100 per cent of the farmers in and around Lanark County own one or more ATVs for farming purposes.

[19] The plaintiffs also rely on the affidavit of Paul Carson, who works at Carson's Farm Supply in Lanark County, and who has been in the business of selling ATVs and farm equipment for over 25 years. He states that in his experience, they frequently sell ATVs to farmers instead of farm tractors. Based on his experience and knowledge of ATVs and the ATV market, he believes that ATVs are designed for specific farm uses, including checking and repairing fences and distributing feed to cattle and sheep.

[20] He also states that ATVs are preferred by farmers to tractors in many instances because they take less fuel to operate, they are easier to operate, they are four-wheel drive vehicles and they get into wetter or more difficult ground more easily than tractors can. Their small size and maneuverability make them perfectly designed for many farm uses, some of which he has specifically mentioned.

[21] The plaintiffs also filed an affidavit from Shawn Gardiner, of Lanark County, who is employed as a sales associate at Carleton Place Marine, where he has worked for over five years. He states that based on his knowledge and experience selling ATVs in Lanark County, he does not believe there is any farmer operating a farm without one. He also states that based on his knowledge and experience of ATVs and the market, ATVs are [page227] considered vital pieces of farm equipment and are routinely used for all kinds of specific farm uses, including hauling feed, checking and mending fencing, and herding cattle and sheep. He also states that in his experience, the inclusion of cargo racks is unnecessary for most recreational users of ATVs, but they are extremely valuable for farm use, in particular for moving feed and hay bales from place to place.

[22] The defendants submit that the plaintiff's ATV was an automobile and a class of off-road vehicle and, as a result, was required to be insured if ever driven off of the plaintiffs' property. The implications for the plaintiffs are significant because of the structuring of the Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996.

[23] The Ontario automobile insurance regime provides for the payment of specified statutory accident benefits, irrespective of fault, for the happening of an accident. The qualifying language provides that an accident benefit insurer shall pay statutory accident benefits to an insured person who sustains an impairment as a result of an accident. Accident is defined to mean an incident in which the use or operation of an automobile directly causes an impairment.

[24] In the factum of the defendant, Lanark Mutual Insurance Company ("Lanark Mutual), at para. 55, they explain that in the case at bar, two motor vehicle policies were available for the payment of statutory accident benefits, i.e., Lanark Mutual's policy number 32B11-929 (covering the plaintiff's car and truck) and Intact Insurance's policy covering the Lewis vehicle. Because of the operation of s. 268(2) of the Insurance Act, it was the Lanark Mutual policy that responded to the plaintiff's application for statutory accident benefits.

[25] As explained, at para. 56 of their factum, the broad range of available statutory accident benefits are as follows:

[26] All the defendants take the position that Ontario's automobile insurance regime includes severe civil sanctions on persons who drive uninsured automobiles on public roadways.

[27] At para. 58 of their factum, Lanark Mutual submits that in the case at bar the relevant sanction is found at s. 30(1) (a) [of the Statutory Accident Benefits Schedule], which provides that an insurer (in this case, Lanark Mutual) is not required to pay certain specified accident benefits to a person (in this case, the plaintiff) who is the driver of an automobile at the time of the accident if the driver knew, or reasonably ought to have known, that he or she was operating the automobile while it was not insured under a motor vehicle liability policy. The accident benefits that are not to be paid in these circumstances are the following, namely,

[28] The defendants, Gary Wayne Lewis and GMAC Leasco Limited, submit that the plaintiffs are statute-barred from bringing this action by operation of s. 267.6(1) of the Insurance Act. Their position is that section of the Insurance Act is a bar to recovery of loss or damage from bodily injury where a plaintiff was in contravention of the Compulsory Automobile Insurance Act at the time of the accident. Their claim is that the plaintiff Arthur Matheson did not meet the exceptions for an uninsured vehicle to be operated on a public highway, therefore, the plaintiffs' claim for damages as against them should be dismissed as statute-barred.

[29] The Compulsory Automobile Insurance Act provides in s. 2(1) that no owner or lessee of a motor vehicle shall operate the motor vehicle on a highway unless the motor vehicle is insured under a contract of automobile insurance. That Act gives [page229] motor vehicles the same meaning as under the Highway Traffic Act of Ontario.

[30] The Highway Traffic Act, s. 1, defines "motor vehicles" to include an automobile, a motorcycle, a motor-assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine.

[31] A "self-propelled implement of husbandry" is defined in s. 1 of the Highway Traffic Act as "a self-propelled vehicle manufactured, designed, redesigned, converted or reconstructed for a specific use in farming".

[32] Lanark Mutual submits that in the case at bar, the ATV in question falls within an enlarged definition of "automobile". Because the Statutory Accident Benefit Schedule does not include a definition of the term "automobile", and that Schedule is a regulation made under the Insurance Act, resort should then be made to the provisions of the Insurance Act for any definition of automobile.

[33] They submit that the Insurance Act includes a definition of "automobile" in both ss. 1 and 224(1). The combination of the two definition sections results in an "automobile" being defined to include

[34] Lanark Mutual submits that an ATV is an automobile as it fits all three portions of that definition from the Insurance Act. However, because the extended definition of "automobile" under the Compulsory Automobile Insurance Act refers to the Highway Traffic Act, the exception under that definition claimed by the plaintiffs herein would still need to be addressed. A self-propelled implement of husbandry is an exception to the general definition of motor vehicle in the Highway Traffic Act.

[35] The Off-Road Vehicles Act, R.S.O. 1990, c. O.4 in ss. 15(1) and 15(9) provides that no person shall drive an off-road vehicle unless it is insured under a motor vehicle liability policy in accordance with the Insurance Act. This does not, however, apply where the vehicle is driven on land occupied by the owner [page230] of the vehicle. The Off-Road Vehicles Act contains a definition of off-road vehicle and the following vehicles are expressly classified as "off-road vehicles" within the meaning of that Act [in R.R.O. 1990, Reg. 863 (Off-Road Vehicles Act), s. 3]:

[36] Lanark Mutual submits that the plaintiff's ATV was one of the prescribed classes of off-road vehicle by reason of both paras. 1.1 and 3 of s. 3 of O. Reg. 863.

[37] Lanark Mutual submits that also relevant to the analysis is s. 191.8(1) of the Highway Traffic Act, which provides that no person shall drive an off-road vehicle on a highway except in accordance with the regulations and any applicable municipal by-laws. "Off-road vehicle" means an off-road vehicle within the meaning of [s. 1 of] the Off-Road Vehicles Act (Highway Traffic Act, s. 191.8(1) and (5)).

[38] Lanark Mutual submits that O. Reg. 316/03 made under the Highway Traffic Act dealing with the operation of an off-road vehicle on a highway. Ontario Reg. 316/03 provides that all off-road vehicles shall be insured in accordance with s. 2 of the Compulsory Automobile Insurance Act and s. 15 of the Off-Road Vehicles Act (O. Reg. 316/03, s. 17).

[39] At paras. 82 and 84 of their revised factum, Lanark Mutual states:

[40] Lanark Mutual submits that the failure to insure the ATV is a contravention of s. 15 of the Off-Road Vehicles Act and so the s. 2(2) has no application. [page231]

[41] The fact that the insurance industry has required ATVs driven on a public road to be insured under an automobile insurance policy, not a farm policy, is not determinative of this issue.

[42] I note that the case of Neto v. Liberatore, [2005] O.J. No. 4031, 2005 CanLII 33787 (S.C.J.), referred to by the defendants, does not consider the issue before this court of whether an all-terrain vehicle can be found to be a self-propelled implement of husbandry and, therefore, excepted from the definition of motor vehicle under the Highway Traffic Act.

[43] R.R.O. 1990, Reg. 863 to the Off-Road Vehicles Act specifically excludes self-propelled implements of husbandry from the requirements of the Off-Road Vehicles Act (R.R.O. 1990, Reg. 863, s. 2(1)). That regulation contains very similar wording to the Highway Traffic Act in defining "self-propelled implement of husbandry" [in s. 1] to mean "a self-propelled vehicle manufactured, designed, redesigned, converted or reconstructed for a specific use in farming and used for farming purposes".

[44] In this case, there is no claim by the plaintiffs that this vehicle was converted, redesigned or reconstructed for a specific use in farming. The plaintiffs submit that it was designed and manufactured for such use.

[45] At para. 95 of their factum, Lanark Mutual referred to the Ontario Court of Appeal case of R. v. Van Berlo, [2010] O.J. No. 1307, 2010 ONCA 242, where it was held that a vehicle that is "manufactured" or "designed" for a specific use in farming has an objectively discernable character or function that does not depend at all on the particular use intended by the end user. Lanark Mutual submits then in the case at bar there is no such objectively discernible character or function relating to the plaintiff's ATV that compels one to the conclusion that the plaintiff's ATV was not an ATV, but rather a self-propelled implement of husbandry.

[46] At para. 30 of the plaintiffs' factum, they quote the same Court of Appeal case pointing out that the Court of Appeal held that a "specific use in farming" does not need to be the only use for a self-propelled vehicle. They quote the following paragraph from that decision [Van Berlo, at para. 18]:

[47] I find it to be [a] 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.

[48] The same lack of informed objective, accurate, discernment may also not be present in a full-time 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.

[49] 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 full-time farming community, based on the evidence in this case. These vehicles are clearly now an integral part of virtually all full-time farming operations. They need to be recognized as such and responded to appropriately by our laws.

[50] The Ontario Ministry of Transportation, Farm Guide: Farm Equipment on the Highway (Toronto: Queen's Printer for Ontario) 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.

[51] 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 [page233] 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.

[52] Section 10 of the Interpretation Act, R.S.O. 1990, c. I.11 provides that every Act shall be deemed to be remedial and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

[53] At para. 52 of the revised factum of Lanark Mutual, they quote the Supreme Court of Canada in the often-cited case of Rizzo & Rizzo Shoes Ltd. (Re)  (1998), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 1998 CanLII 837, which addresses the proper approach to be taken regarding statutory interpretation, as stated at para. 21 of that decision:

[54] At para. 53 of the revised factum of Lanark Mutual, they state the principle of the Ontario Court of Appeal in R. v. Van Berlo, supra, which emphasizes the importance of using a narrower interpretive approach when looking at exceptions within Acts, to avoid undermining the broad purpose of those Acts.

[55] The Compulsory Automobile Insurance Act of Ontario is clearly intended to protect innocent victims of automobile accidents from having no means of seeking damages from persons who might have caused those damages without having the protection of automobile insurance. The removal of the right to sue someone who has harmed you through their own negligence, or the removal of the right to significant benefits under the current "no fault" portions provided by the Statutory Accident Benefits Schedule, is intended to be a very harsh civil penalty, in an attempt to achieve the end of making sure that innocent victims of accidents are protected. It is a far reaching and far more serious penalty than any fine. The object of the Compulsory Automobile Insurance Act, according to its true intent, meaning and spirit is to protect the public, and specifically innocent people who are injured in motor vehicle accidents. The means implemented to attempt to achieve that end include this extremely harsh civil sanction. It is, of course, essential to have people on a broad base paying premiums into a fund that can be used towards that same purpose. In this particular case, if the defendants succeed in their position, the injured party who was [page234] not at fault in the accident would be denied significant benefits, including the right to claim any damages from the negligent party. The plaintiff Arthur Matheson made a calculated decision not to pay what would have been modest insurance premiums on this particular piece of machinery, in view of its character and use. The primary purpose of insuring that vehicle would be to protect himself from liability if he were negligent and protect the innocent victim of his negligence. The secondary purpose would be for him to make a modest contribution towards the funds available in support of the entire insurance scheme.

[56] I find that an interpretation that deems the Compulsory Automobile Insurance Act to be remedial and gives it a fair, large and liberal construction and interpretation such as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit, while reading the words of the Act in their entire context and grammatical and ordinary sense harmoniously with the scheme of the Act, and object of the Act, and the intention of Parliament, is best achieved by finding in favour of the plaintiffs here.

[57] I find the Honda ATV being operated by the plaintiff Arthur Matheson on October 11, 2008, at the time of this accident, was a "self-propelled implement of husbandry", and was, therefore, excluded from Ontario's compulsory insurance regime.

[58] The motion for summary judgment of the defendants GMAC Leasco Limited and Gary Wayne Lewis is dismissed with costs payable to the plaintiffs.

[59] I find that the plaintiffs are not statute-barred by bringing this action by operation of s. 267.6(1) of the Insurance Act. I also find that the plaintiff Arthur Matheson's claims against Lanark Mutual Insurance Company for statutory accident benefits, and specifically income replacement benefits, are not foreclosed by operation of s. 30(1)(a) of the Statutory Accident Benefits Schedule.

[60] The plaintiffs are entitled to their costs against Lanark Mutual Insurance Company.

[61] If counsel cannot agree on costs, then I will receive written submissions from the plaintiffs within 30 days with a ten-day right of reply to the responding parties. Such written submissions to be limited to four typed pages and a draft bill of costs.

[62] I would again thank counsel for their assistance in dealing with this very interesting matter and I thank them for the manner in which they did so.