Part 2 of a 3-part blog series on ATV liability, based on a presentation by Robert Murphy at the 2024 County of Carleton Law Association Civil Litigation conference on November 15, 2024. Click to read Part 1.
How do you determine fault in an ATV accident? It can be difficult because the rules of the trail might not be engrained in each of us the same way the rules of the road are.
Ultimately, in a personal injury lawsuit, it is up to a judge or jury to determine whether an ATV operator fell below the standard of care expected of a reasonable ATV operator in the same circumstances. If they have – that operator has at least some fault to bear.
Luckily, the judge or jury are not left to re-invent the wheel. There are different guideposts that can assist with the fault determination.
For one, there is provincial legislation that provides some rules for ATV operation. The Off-Road Vehicles Act (“ORVA”) and O. Reg. 316/03: Operation of Off-Road Vehicles on Highways.
For Municipal highways there is another place to look for rules: the Municipality’s by-laws themselves. Many municipalities have by-laws regulating ATV operation on their highways. Municipal ATV by-laws typically regulate:
- Which highways allow ATVs;
- Maximum speed;
- Time of day the ATVs can operate; and
- Time of year the ATVs can operate.
In an ATV accident, a proven violation of the ORVA, O. Reg 316/03, or a municipal by-law, is not dispositive of the fault. That said, these laws provide a useful formulation of reasonable conduct on an ATV.
We can also turn to the warnings found on ATVs and within ATV owners’ manuals for assistance with determining the standard required of a reasonable ATV operator. It’s important to note that a violation of any one of these warnings might be a breach of the standard of care, but not necessarily. Judges and juries will look to all the facts to determine whether an ATV operator fell below the standard of care required of them.
Lastly, we can also look at case law for guidance. In R v Gabriel, 2020 ONSC 6028 (a criminal law case), the Court observed that an ATV operator fell below the standard of care when:
- She took two passengers on her ATV, a vehicle not meant to accommodate passengers;
- She permitted one of her passengers on the vehicle without a helmet;
- She drove at night on a roadway which prohibited ATVs;
- She drove impaired by alcohol; and
- The act and manner of driving her driving lead to the roll-over of the ATV.
This case is a good example of conduct that is obviously below the standard of care of a reasonable ATV operator.
The ATV owner might also have fault or responsibility depending on the case. More on that next week.
At Bergeron|Clifford we represent injured victims of ATV accidents and their families. If you or someone you love has been injured in an ATV accident, call us today.
ROBERT MURPHY
Rob attended law school at Queen’s University and graduated with his Juris Doctor in 2020. He summered at and completed his articles with Weaver, Simmons LLP, a full-service firm in Northern Ontario. During his articles Rob had the opportunity to see personal injury files from both the plaintiff side and the defence side. After articles, Rob practiced injury law and general litigation with Kelly + Kelly Lawyers in Pembroke, until Kelly + Kelly’s civil litigation practice joined Bergeron Clifford in 2023.
