There’s a place I know about where the dirt road runs out. And we can try out the four-wheel drive. Come on now what do you say. Girl, I can hardly wait to get a little mud on the tires.

Paisley, Brad. (2003) “Mud on the Tires” on Mud of the Tires [Record], Franklin, TN:

Arista Records.

 ‘Off –roading’ is as much a part of summertime cottage or country life as farming, fishing and family picnics. But don’t let the lyrics above fool you. Although my mother grew up in a small town in the Ottawa Valley and I spent enough time there in my youth, my understanding of country living was limited to some weekends and the odd March Break at Grandma and Grandpa’s farm and whatever I could glean from re-runs of “Dallas” or “The Dukes of Hazzard”. For all intents and purposes, my sisters and I were what our family referred to as ‘city slickers’ with only basic knowledge of rural life. If what I originally knew about RVs would fit on the back of a cocktail napkin [see “On the Road, Again: Clarifying the Liability of Recreational Vehicles in Ontario”, August 18, 2014] , then what I knew of about owning All-Terrain Vehicles [ATVs] prior to researching this piece would fill a matchbook.  Again, I relied on a number of sources to fill in the blanks. Basically, I needed to define exactly what an ATV is, who and what is required to drive one and what the liability issues are for drivers, especially regarding motor vehicle accidents.  The other matter of interest is what provincial statutes cover ATVs and what the common law says when it comes to getting injured on one or injuring others while driving one in Ontario.

To wrap my head around what ‘off-roading’ is I consulted statutes that legislate it. As per   section 1 the Off-Roads Vehicle Act, 1990, [ORVA] an ‘off-road vehicle or ORV means “a vehicle propelled or driven otherwise than by muscular power or wind and designed to travel,

(a) on not more than three wheels, or

(b) on more than three wheels and being of a prescribed class of vehicle; (“véhicule tout terrain” [italics mine] or “all terrain vehicles”)

Although the ORVA provides only a cursory description of an all-terrain vehicle, the Highway Traffic Act, 1990 [HTA], specifically Ontario Regulation 316/03 [HTA Regulation 316/03] gives more detail. Buying a new ATV can cost anywhere between $5,000-$12,000, but used ones go for about $3,000.

As per the Ministry of Transportation’s [MTO] guide Smart Ride. Safe Ride: What You Need to Know to Operate an ATV in Ontario, ATVs can be used for off-roading’ or ‘on-roading’. There are 3 types of ATVs: single riders, ‘two-ups’ or ‘side-by-side’ ATVs. Single rider ATVs have: four wheels, the tires of which are all in contact with the ground; have steering handlebars; have seats that are designed to be straddled by the driver and are designed to carry the driver only and no passengers. The ‘two-up’ is similar, except it has a passenger seat directly behind the driver. Please note a single rider ATV that has been modified to carry a passenger by installing an after-market seat and pegs is not considered a ‘two-up’ ATV.

Side-by side vehicles have a driver and passenger seating beside each other, similar to a car. They are usually built with a hood, a steering wheel and foot pedals, instead of motorcycle-type handle bars and thumb throttle. All 3 types of ATVs must be registered and display a rear license plate. They must also be insured as per section 15 (1) of the Off-Roads Vehicle Act, 1990 which states: “no person shall drive an off-road vehicle unless it is insured under a motor vehicle liability policy in accordance with the Insurance Act.” To drive all 3 you must also carry their vehicle’s registration or a true copy and they must also wear an approved motorcycle helmet that is securely fastened under the chin with a chin strap. Finally, all 3 types of ATVs must

meet the requirements of the federal Motor Vehicle Safety Act, 1993 and U.S. ANSI standards.

If the above description doesn’t seem that peculiar, than the fact that you can [with some exceptions] be pre-pubescent and allowed on one of these bad boys without any license certainly is. Yes, you heard me, Mom and Dad. According to section 4 of the HTA Regulation 316/03, a child of 12 years of age can legally drive an ATV off-road. Children under 12 years of age may also so do if “they are under the close supervision of an adult.” Now, if that doesn’t give a parent pause…but, I digress. When it comes to ‘off–roading’, these driving pre-teen sensations and their older counterparts, can only directly cross a highway in any of these 3 vehicles (where permitted), if they are at least 16 years old and hold a valid G2 or M2 license or greater . However, that right is not unlimited and varies from district to district. For a list of highways in Ontario where all 3 kinds of ATVs are permitted or prohibited from crossing, please check the ORVA, Regulation 863, Schedule 1 at: e-laws.gov.on.ca.

When it comes to ‘on-roading’, drivers face a different set of requirements from MTO. An ATV that weighs 450 kg or less and that has an overall width not greater than 1.35m (minus mirrors) may travel along some provincial highways and on municipal roads, only if the municipality has a bylaw permitting their use. An ATV is allowed to travel on Highways 500 to 899, 7000 series highways, the Queen Elizabeth Way, and sections of the Trans-Canada Highway. Like with ‘off-roading’, drivers who want to ‘on-road’ must be 16 years old and hold a valid G2 or M2 license or greater, if they want to directly cross a highway in any of these 3 vehicles (where permitted).

In order to go ‘on-roading’, a driver  must be at least 16 years old and hold a valid G2 or M2 driver’s license or greater. Passengers are prohibited from riding on an ATV that is being driven on a road. As such, ‘two-up’ and ‘side-by-side’ vehicles are prohibited from provincial highways and municipal roads, even if the driver is not carrying a passenger.

As per MTO, ‘on-roading’ drivers must travel at speeds that are less than the posted speed limit ATV speed limits and rules of the road are outlined by MTO as follows:

• 20km/h is the maximum speed an ATV can travel on roads with a posted speed limit of 50km/h

   or less.

• 50km/h is the maximum speed an ATV can travel on roads with a posted speed limit of more

   than 50km/h.

• Municipalities may set lower speed limits or additional rules for ATVs

• An ATV must be driven in the same direction as traffic and travel on the shoulder of the road

• If the shoulder is unsafe or impassable, it can be driven on the travelled portion of the road

• An ATV travelling along a road must have its headlights and tail lights on.

Undoubtedly, ATVs are a fun way to explore the natural beauty of the province and familiarise yourself with its amazing landscape. Unfortunately, such adventures don’t always pan out for participants and can end badly. When someone is injured on an ATV or by an ATV: what recourse do they have as drivers or passengers? In order to ascertain that, we need to look at what the provincial statutes and/or common law says regarding liability.

We begin our analysis by looking at the rights and responsibilities of ATV owners and drivers. As previously indicated, they are subject to the Highway Traffic Act, 1990, since ATVs or “all terrain vehicles” meet the criteria for “motor vehicle” set out in both section 1 of the Act and section 1 of the Compulsory Automobile Insurance Act, 1990 which stipulates that “motor vehicles” has the same meaning as in the HTA. ATV owners are also bound by HTA Regulation 316/03 and the Off-Road Vehicles Act, 1990.

Before we look at what happens in the case of a motor vehicle accident involving an ATV or what a personal injury lawyer can do for victims of one, I would like to point out certain ‘anomalies’ I came across in my research. For starters, section 29 of HTA Regulation 316/03 includes a rather ‘unique’ exception for what is referred to as “far northern Ontario and unorganized territory”. I checked MTO’s website and it confirmed that “an ATV must be registered and display a rear license plate, except in exempt areas such as far northern Ontario.”

I read all of section 29 and never got clarity on what constitutes an ‘unorganized territory’ other than a list of areas it provides in Schedule C. Please note that drivers operating ATVs in these areas listed under Schedule C are exempted from all the same requirements as drivers in other parts of Ontario, including the prohibition of driving on highways. Judging from the location of some of these communities and the wording used in article 4 of Schedule C, it appears the highways listed are either close to or cutting through aboriginal reserve land that falls under the jurisdiction of band councils responsible for administering everything in their communities from schools to roads. That would explain why MTO doesn’t have the same  authority in these areas.

The other oddity is the description of ATVs provided in the provincial statutes. There are 3 types of ATVs available for purchase, 2 of which allow for a passenger. Yet, section 1 (d) of HTA Regulation 316/03 specifically states that an ATV “is designed to carry a driver only and no passengers.” Ironically enough, it’s the ORVA’s exceedingly vague definition of ‘off-road vehicles” that actually allows for the inclusion ‘two-up’ ATVs and ‘side-by-side’ ATVs.

To get an idea of ATV accident stats, I consulted the latest 2011 Ontario Road Safety Report (ORSAR) and was arguably annoyed that it lumps all ORVs together, so there is no way of knowing whether a collision involved an ATV or say a dirt bike. Looking at the numbers it gave for the past 5 years, it confirmed that the general trend indicates a drop in injuries and fatalities in ORV-related collisions. Of interest was the fact that 2009 saw sharp increases in injuries for both drivers and passengers, but not in fatalities.

In any case, if the ORSAR data is accurate, then ORVs have only been involved in about 2% of Ontario’s collisions for the past decade. Now, that number may seem low, but what if I told you how many of those collisions involve children? Interestingly enough, ORSAR doesn’t provide stats on the driver or passenger’s ages, but the Children’s Hospital of Eastern Ontario [CHEO] does. According to CHEO, the rate of ATV-related injuries among children and youth is quite high. Between 1996 and 2006, CHEO admitted more than 130 patients with ATV-related injuries, averaging about one child per month. FACT: according to the Canadian Paediatric Society, more than 60% of the patients seen for ATV-related injury in Canada were not wearing a helmet. The average age of those injured was 13, with 3x as many males as females, and included both drivers and passengers. The Canadian Paediatric Society recommends that children under 16 not operate ATVs, as they don’t possess the physical size, strength and coordination to drive safely. They also don’t have the ability to judge possible hazards or to anticipate the consequences of their actions. ATVs are mighty machines that can reach speeds of over 90 km/h. They can be difficult to control and require complex skills to drive properly. Loss of control, collisions or rollovers can happen very quickly and result in serious injuries, such as brain trauma, spinal and abdominal trauma, as well as fractures.

As per the 2010 Statutory Benefits Schedule [SABS] included in the Insurance Act, 1990, there are 3 classes of injury: minor, non-catastrophic and catastrophic. Actually, there are really only two types of injuries since the inclusion of the Minor Injuries Guideline (MIG) to the SABS in 2011. The reality is the SABS currently provides no technical definition for “non-catastrophic impairments”, so they occupy this gray zone between MIG and CAT criteria which personal injury lawyers and the victims they go to bat for have to navigate cautiously and often at great expense. Under the Act, ATV drivers and passengers and/or the those in the vehicle they hit or were hit by are entitled to statutory accident benefits, such as medical and rehabilitation benefits, attendant care benefits and income replacement benefits, to name but a few. Of course, the amounts victims receive depends on the nature and severity of the injuries suffered in that particular motor vehicle accident. For example, a fractured arm can get you up to $3,500 in medical and rehab costs under the MIG but “catastrophic” and “permanent cognitive and physical deficits” like those that can occur if an ATV is struck from behind [see Matheson v. Lewis 2014 ONCA 542] or the severe spinal injury a child can suffer if an ATV rolls over can bring in a max of $1,000,000. In any case, those benefits are yours whether or not you’re at-fault in the collision as indicated by your insurance coverage.

The only benefits you may not be able to recover are those related to any relevant violation to either the Highway Traffic Act and/or the Criminal Code, like you would find in a drunk -driving case. To be sure, ATVs and alcohol do not mix. According to the data provided by the 2011 ORSAR, 26% of ORV-related collisions involved alcohol. Whether the drivers are “off-roading” or “on-roading”  there are severe penalties for any who opt to DUI and breach the relevant provincial or federal statutes. It follows drivers caught with blood alcohol concentration [BAC] level greater than .08, or who fail or refuse to provide a breath or blood sample to police will be charged under the Criminal Code and subjected to the following consequences under the HTA:

On-Road:

 • driver’s license suspension at roadside for 90 days

• vehicle impoundment at roadside for 7days;

• $150 administrative monetary penalty;

• further suspension period upon conviction (one year for first offence)

• the requirement to complete the Back on Track remedial measures program followed by the

   installation of an ignition interlock device installed in any vehicle they drive for min. 1 year.

Drivers caught with a BAC level in the “warn range” of .05 to .08 face the following penalties:

  • escalating roadside license suspensions from 3 to 30 days;
  • a 150$ administrative monetary penalty;
  • remedial alcohol education or treatment programs (for a second or subsequent occurrence); and
  • a 6 month ignition interlock condition on their driver’s license (for a third or subsequent

   offense).

Off-Road:

• Drivers operating a single rider. Two-up or side-by-side ATV off-road vehicle on Crown land,   private property or a trail system while impaired and/or with a BAC level greater than .08 will face criminal charges, if stopped by police.

• All drivers aged 21 and younger are required to have a BAC of zero at all times when driving. If they are caught with any amount of alcohol in their system, they face an immediate 24-hour license suspension and a 30-day suspension and fine of up to $500 upon conviction.

ATVs are a great way to enjoy Ontario’s great outdoors and judging from the amount of trails available and clubs that have been created in the last couple of decades it appears to be an activity that is gaining in popularity. Nevertheless, because of their size and weight, motor vehicle accidents that involve ATVs can be traumatizing for anyone unfortunate enough to be involved, especially children. Injuries resulting from an ATV-related collision range from minor cuts and bruises to paralysis, especially when there’s alcohol involved. Needless to say, the impact these types of accidents can have on your life or the life of your loved ones can be significant and [in some cases], even life-altering. If you or your family has been involved in an ATV-related accident and would like to get some clarity around what insurance benefits you can lawfully claim under Ontario’s Statutory Benefits Accident Schedule, please consult a qualified personal injury lawyer who is familiar with the relevant provincial statutes and common law and empower them to seek the compensation you are entitled to.