On the road, again. Just can’t wait to get on the road again. The life I love is making music with my friends and I can’t wait to get on the road, again. On the road, again. Goin’ places that I’ve never been.  Seein’ things that I may never see, again. And I can’t wait to get on the road, again.” Nelson, Willie. (1980) “On the Road, Again” on Honeysuckle Rose [Original Motion Picture Soundtrack], Los Angeles, CA: Columbia Records.

I must admit that prior to writing this piece, all I knew about Recreational Vehicles [RVs] is my best friends and I have always wanted to take a Winnebago for a road trip to Vegas, for pretty much the same reasons Willie Nelson described in the above song…and a few others. The rest of my knowledge on the topic would fit on the back of a cocktail napkin. To supplement my rather sizable deficit on the subject, I relied on all kinds of RVing websites and articles so I would have a better understanding of the legal stakes involved in owning one of these suckers. First and foremost, I needed to clarify what an RV is and whether or not it qualifies as a ‘vehicle’ or a ‘residence’ under the letter of the law. The other issue that needed to be parsed is which provincial statutes covered its status. As previously touched on in our discussion on recreational boating [see “Hook, Line and Sinker: Recreational Boating and Liability in Ontario”, July 14, 2014], RVs face a similar challenge that certain size boats or yachts face: are they transportation or a home to someone?

To help us unravel the mystery of the RV’s status, I first consulted the Ministry of Transportation’s website. Strangely enough, it was not that informative, though it did state RVs are ‘vehicles’ as per their criteria. Other than that, it basically advises RV owners on what class of license they need to drive the various types of recreational vehicles available on the market. Please note that these licenses are contingent on the size and weight of the vehicle. As such, depending on the type of RV you own, you may just need a Class “G” license, or possibly a Class “A” or Class ‘D” license.

According to CAA, RVS are the same as motor homes and they provide ‘Motor Home and RV Insurance’ to owners. CAA divides RVs into 3 categories: motorized RVs, towable RVs and park models.

Motorized RVs combine transportation and living quarters within a single unit. They are built on (or an integral part of) a self-propelled motor vehicle chassis. The CAA’s insurance policy covers 3 classes of motorized RVs: Class “A”, Class “B” and Class “C”. A Class “A “motor home has a bus-style shape and chassis. The lower end of this kind of RV are mostly front gas engine equipped, while more expensive ones have a diesel engine in the rear coach. At the high end of this class are the half million dollar models employed by movie stars on sets or musicians like Willie Nelson, but the lower end still often costs no less than $65,000. Class “B” RVs are camper vans. This unit is built using a conventional van to which a raised roof is added. They provide basic amenities in a very compact space and are available with a wide variety of optional equipment. Finally, we have Class “C” RVs also referred to as “mini-motor homes”. These RVs are built on an automobile manufactured chassis with an attached van cab section. They are easily recognizable by their bed-over-cabin design and maximum length of around 30 feet. They are mostly gas powered and can sleep up to 8 adults.

Towable RVs are designed to be towed by a motorized vehicle and do not require the driver to obtain a special license classification or highway movement permit. There are 4 types of towable RVs: travel trailers, fifth wheel trailers, folding camping trailers and truck campers. Travel trailers are sometimes referred to as a conventional travel trailers; units that are designed to be towed by a car, van or pickup truck by means of a bumper or frame hitch. The 18-foot and larger variety offers full bathroom facilities, including a separate shower and fully equipped galley. Fifth wheel trailers are known as “fivers” in the business. They are often the vehicle of choice for most RV owners. Slide-out room extensions are common in larger models, while some are even equipped with built-in washers and dryers. These two-level units are designed to be towed by a special hitch in the bed of a pick-up truck. Folding camping trailers are lightweight and have sides that collapse for easy towing and storage. Also known as “fold-down, “pop up” or “tent” trailers, they popular with young families who desire the most cost-effective RV solution. They are often equipped with a pair of double beds (including a dinette-to-bed feature) and minimal cooking facilities. Finally, we have truck camper trailers. These are relatively inexpensive truck add-ons which are a great solution for those who already own an appropriately sized pick-up truck. Though there are drawbacks in terms of compressed living quarters, they offer a mobility solution that is not found in other towable RVs. For people who love to camp in many different areas and want minimal prep time to travel from site to site, these are ideal.

Lastly, we have the park models. Park models come as either ‘model trailers’ or ‘recreational units’. The former are built to RV specifications, while the latter are built for seasonal use in a single location. The typical park model trailer is known as ‘102’. Basically, it is similar to a large conventional travel trailer and is designed to be towed by a special or heavy duty tow vehicle. Surprisingly enough, owners don’t need a special highway movement permit and can use their SUV minivan or pickup truck to tow the unit. They are designed for seasonal use and are built on a single chassis mounted on wheels. They require onsite-hook-ups to local utilities. Recreational units aren’t that different from their park model counterparts. These units are designed to facilitate occasional relocation, with living quarters for a temporary residence or seasonal use. As they are equipped with numerous appliances, they do require connection to on-site utilities to operate them and all internal fixtures.

Insurance-wise, there appears to be a difference between the types of policies that cover motorized RVs and towable RVs. While motorised homes can include personal liability coverage of up to $2 million, towable RVs don’t. Why? Because it’s illegal to have passengers in towable trailers. But, you can have passengers ride in the camper portion of a truck camper, though. According to Go Rving Canada, recreational vehicles are a booming business. I was most surprised to see that the majority of RV owners are under the age of 55, so it appears that its not just Grandma and Grandpa that are buying RVs now. As per their 2012 sales data, sales for motor homes went up 13.6% last year and 13.2% for towable trailers, which remain the most popular RV in Canada. Apparently, RV ownership has reached record levels, with buyers aged 35-54 making up most of that growth.

As more and more Ontarians join Canada’s growing and buoyant community of RVers, it becomes that much more important to figure out liability issues surrounding RV owners. Are they liable as motor vehicle drivers? Or just as home owners? When someone is injured on an RV they visit or by an RV on the highway: what recourse do they have as visitors, passengers or innocent bystanders in an incident involving an RV?  What provincial statutes are RVs covered by and what does the common law say about the liability of RV owners in Ontario? In order to answer that question, we need to look at what RVs are: vehicles people live in or a residence attached to a vehicle which tows it. That makes them: part motor vehicle, part residence.

Bearing that in mind, we begin our analysis by looking at the rights and responsibilities of RV owners as ‘drivers’. As drivers, they are subject to Ontario’s Highway Traffic Act, 1990 [HTA]. Recreational Vehicles or “mobile homes” 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 and includes “trailers, accessories and equipment of the motor vehicle. As noted in our previous discussion on Bill 171 [see “Behind the Eight Ball: Bill 171 and the Implications of Redefining “Catastrophic Impairment” for Ontario’s Disabled Accident Victims”, June 2, 2014], Ontario has averaged over 200, 000 motor vehicle collisions per year for the last ten years. According to the Ontario Road Safety Annual Report (ORSAR), approximately 100 of these [give or take] involved motor homes. Despite their rarity, motor vehicle collisions involving mobile homes or towable trailers can be quite serious. The size, weight, wider turning radius and [at times] relative inexperience of their drivers can make RVs potentially dangerous to the motorists around them. RV-related accidents can have serious consequences. Passengers suffer injuries not only from the collision between the two vehicles, but more commonly from falling objects and equipment that was improperly secured in their motor home or camper. A victim can end up with everything from a few broken ribs or fractures to brain trauma or spinal cord injuries.

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, RV 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 is contingent on the nature and severity of the injuries suffered in the collision. For example, a fractured ankle will get you up to $3,500 in medical and rehab costs under the MIG. A broken leg can get you up to $50,000, but the “catastrophic” loss of that limb may qualify for 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.

Than we have the responsibility RV owners have as ‘occupiers’ and how liable they are for any harm that befalls those visiting their residence. As ‘occupiers’, they are subject to Ontario’s Occupier’s Liability Act, 1990. As per section 1 (c) of the Act, “premises” includes trailers and portable structures designed or used for residence, business or shelter.” Consequently, section 3 of the Act requires a general ‘duty of care’ which RV owners must provide for their visitors and their personal property. Under the Act, if a person gets injured or sustains a loss, they may be able to sue the occupier for those damages.

In order to prove negligence, the plaintiff must prove four things: a prima facie duty of care was owed to them, that the applicable standard of care was breached by the RV owner, the damage or loss resulting from the breach, and if the damage or loss that occurred was reasonably foreseeable. Please note that a negligence suit will not be successful if the injury could not have been prevented, even when ‘reasonable care’ was exercised.

As previously examined in our review of social host liability [see “The Great Canadian Summer: Duty of Care and Occupier’s Liability in Ontario”, July 7, 2014], tort law covers four types of occupants: trespassers, licensees, invitees and contractual entrants. The common law establishes separate levels of proof for different classes of entrants. Under the law, a visitor or ‘licensee’ is a person who has permission to be on the property i.e. RV, but whose presence does not financially benefit the ‘occupier’. The ‘standard of care’ owed a licensee involves ensuring that ‘reasonable care’ to protect them from unusual dangers about which the ‘occupier’ knows.  Liability for any harm befalling the licensee is initially established by proving there’s been a breach in the ‘duty of care’ set out in the statute. That ‘duty of care’ is a function of the ‘special relationship’ that exists between landlords and tenants, businesses and clients or  family and friends, as per the ‘test of proximity’ applied by the Supreme Court of Canada in Crocker v. Sundance Northwest Resorts Ltd. (1988), 51 D.L.R. (4th) 321 (S.C.C.) and Childs v. Desormeaux [2006] 1 S.C.R. 643, 2006 S.CC 18. The next step is the “objective test of reasonableness’ or what the ‘standard of care’ must be  as per the criteria established in Waldick v. Malcolm (1991), 83 D.L.R. (4th) 114 (S.C.C.).  Finally, if that ‘standard of care’ was breached, was the injury or loss foreseeable or was the damage too remote too foresee as per the precedent set in Cooper v. Hobart (2001), 206 D.L.R. (4th) 193 (S.C.C.)  later re-examined in Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, 2008 SCC 27. If counsel can prove ‘proximity’, ‘duty of care’, a breach in the ‘reasonable standard of care’ and that the ensuing harm caused to the passenger was ‘foreseeable’, than the ‘occupier’ or RV owner may be liable [depending on the nature and gravity of the injury ] for general and/or special damages.

As initially explained in the previous discussion on social host liability [see “The Great Canadian Summer: Duty of Care and Occupier’s Liability in Ontario”, July 7, 2014], RV owners may fall back on doctrine of volenti in a negligence suit. Under volenti, an ‘occupier’ is absolved of liability if the harm or loss suffered by a licensee came as a result of “risks willingly assumed’. Despite its popularity, few defendants ever use this defence successfully since the precedent set in Waldick entails quite a narrow judicial interpretation of the doctrine. In any case, an ‘occupier may consider it as a means of potentially off-setting their social host liability or to show the

 the contributory negligence of the claimants suing them.

In certain cases, the injured licensee does not prove negligence on the part of the RV owner, but rather contributory negligence. As per the precedent established in Bow Valley Jusky (Bermuda) Ltd v. Saint John Shipbuilding Ltd., (1997), 153 D.L.R. (4th) 385 (S.C.C.), plaintiff’s have a duty to mitigate”, which is premised on the notion that the plaintiff cannot recover from the defendant damages which they themselves could have avoided by adopting more ‘reasonable’ measures. Canadian courts see a big difference between a house guest suing you because they leaned on the bathroom counter of the RV to do their make-up and it collapsed on their foot because it was poorly installed and that same house guest smashing through your shower door because they had one too many coolers during your BBQ.

Judging from the current sales stats, though, such incidents don’t seem to be much of a deterrent to RV ownership. According to Go RVing Canada, RV ownership is on the rise and no amount of beer-fuelled slip and falls will be changing that, least not for the foreseeable future. Nevertheless, because of their size and weight, motor vehicle accidents that involve RVs can be horrendous for anyone unfortunate enough to be involved with injuries ranging from something minor to catastrophic and permanent. Although they are rare, the damage caused by an RV can be quite costly, much like the negligence suits that can arise from injuries sustained by anyone visiting one. If you or your family has been involved in a recreational vehicle-related accident and require clarity about the status of recreational vehicles or benefits that can be claimed in your case, please consult a qualified personal injury lawyer who is familiar with the relevant provincial statutes and common law. Trust them to fight for the benefits you’re entitled to and you and your family will be back ‘on the road, again’, in no time.