During the second weekend of 2020, much of Ontario suffered from strong winds and heavy rainfall, causing havoc for motorists across the province. The last thing I wanted to do was leave my house. Especially not on an e-scooter.
On January 1, 2020, the Ontario Legislature launched a five-year pilot program with broad rules for the use of Electric Kick Scooters (e-scooters) on municipal roads. Among other things, the rules include several vehicle and safety requirements. These e-scooters must have:
- Maximum speed capacity of 24 km/h;
- Maximum weight of 45 kg;
- Maximum power output of 500W;
- Front and rear lights;
- Two wheels with a maximum diameter of 17 inches; and
- No pedals or breaks
Only one rider is allowed to use an e-scooter and that rider must be standing at all times. No baskets or cargo are allowed on the e-scooter.
Under the pilot program, municipalities must now pass by-laws to allow their use and determine where they can operate safely in their borders.
When I first read about this new pilot program, the insurance lawyer in me naturally wondered whether these devices would require automobile insurance when being operated on municipal roads. I think they might.
Automobile Insurance Requirements in Ontario
The pilot program is silent on automobile insurance, which could lead many people to assume that automobile insurance is not required for using e-scooters on roads. But what does the law have to say about this issue?
My analysis acknowledges that automobile insurance policies provide insurance for automobiles. There is no question that an e-scooter is not an automobile in ordinary parlance. It does not look, feel, sound, smell, or taste like an automobile. It looks more like a cool toy.
However, section 224 (1) of the Insurance Act has an expanded definition of “automobile”:
“automobile” includes,
(a) a motor vehicle required under any Act to be insured under a motor vehicle liability policy, and
(b) a vehicle prescribed by regulation to be an automobile; (“automobile”)
This means that if an Act requires a particular motor vehicle to be insured, it becomes an “automobile” for insurance purposes.
There are two issues here:
- Is an e-scooter a “motor vehicle” and, if so:
- Must an e-scooter be insured under an automobile policy when it is being driven on a municipal road?
The Insurance Act does not define “motor vehicle”. I turn next to section 1 of the Highway Traffic Act, which states as follows:
“motor vehicle” includes 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; [emphasis added]
Is an e-scooter propelled or driven otherwise than by muscular power? I believe so. Some quick online research on e-scooters reveals that they are propelled by an electric motor, which gets its power from a rechargeable battery that is mounted to the scooter. Depending on the type and model of the scooter, the motor might power the front wheel or both wheels, thereby propelling the scooter forward.
Assuming that an e-scooter meets the definition of “motor vehicle” under the Highway Traffic Act, it would also meet the definition of “motor vehicle” under the Compulsory Automobile Insurance Act, which adopts the HTA definition of “motor vehicle”.
This is where it gets interesting.
Section 2 (1) of the CAIA requires all motor vehicles that are being driven on highways (which includes municipal roads) to be insured under an automobile policy:
Compulsory automobile insurance
2 (1) Subject to the regulations, no owner or lessee of a motor vehicle shall,
(a) operate the motor vehicle; or
(b) cause or permit the motor vehicle to be operated,
on a highway unless the motor vehicle is insured under a contract of automobile insurance.
So if e-scooters are “motor vehicles” and they are being driven on municipal roads, the CAIA requires them to be insured under an automobile policy. And if the CAIA requires them to be insured under an automobile policy when driven on municipal roads, it appears that these e-scooters suddenly become “automobiles” for the purpose of Ontario’s Insurance Act.
Yikes!
What does this mean for E-scooters?
If an e-scooter is an “automobile” for insurance purposes, using these vehicles on municipal roads opens up all sorts of issues:
- An e-scooter would be required to be insured under an automobile policy while it is being driven on an Ontario road;
- The owner or lessee of an e-scooter could be charged with an offence under the CAIA if their e-scooters are being operated without insurance;
- If the owner or lessee of an e-scooter is injured in an automobile accident while contravening section 2 of the CAIA, they would not be allowed to sue a negligent motorist for personal injuries pursuant to section 267.6 of the Insurance Act;
- Where the use or operation of any e-scooter on a municipal road directly causes an impairment, the person would likely be entitled to claim accident benefits – even if the e-scooter was uninsured and even if the incident did not involve any other automobiles.
With this in mind, will automobile insurers consider insuring e-scooters under automobile policies? Will the Legislature carve out insurance requirements for e-scooters? Will I ever be able to leave the house with an e-scooter?
See more on the Pilot Program.
