Stephen Birman calls for province-wide rules as scooters race ahead of the law
As spring approaches and e-scooters are poised to once again flood city streets, Thomson Rogers’ Stephen Birman isn’t mincing words.
“They’re pervasive, unregulated, and dangerous — it’s the Wild, Wild West,” says Birman, partner at the firm. “Those injured by e-scooters have rights, but there’s a lot of uncertainty around the law in this area because of the patchwork of rules that exist in Ontario.”
There’s no shortage of data to back up Birman’s concerns. At SickKids, emergency physicians have flagged a sharp uptick in e‑scooter and e‑bike injuries among children, with a recent hospital analysis and retrospective study showing these devices are sending more young patients to the ER with preventable, sometimes severe trauma.
National surveillance work using Canadian Hospitals Injury Reporting and Prevention Program (CHIRPP) data, along with Canadian Institute for Health Information reporting, tells the same story across the country: e‑scooter‑related injuries and hospitalizations are climbing.
Although e-scooters are illegal in Toronto, “we see them around every day and they are being widely sold,” Birman says.
“If e-scooters are truly illegal, there must be an enforcement mechanism. Right now, it feels like everyone is turning a blind eye to the problem in Toronto as everyone knows that e-scooters are sharing the road and people are getting hurt.”
At Thomson Rogers, Birman is seeing these files cross his desk. Top of mind is a serious case involving a minor who suffered a brain injury while riding an e-scooter without a helmet. The firm also represents pedestrians who are injured by e-scooters and have the right to sue their owners and operators.
Currently, there is no requirement for e-bikes and e-scooters to be registered and operators to be licensed in Ontario. Practically, this means that in many cases there is no access to first-party accident benefits that are typically available to victims of motor vehicle accidents. Compounding the issue, is that fact that often it’s young people or children suffering serious injury.
“These issues are real because people are getting hurt and ending up in trauma hospitals, meaning any costs associated with those injuries are being borne by the Ontario Health Insurance Plan and by the public,” Birman says, adding that instead of a province‑wide framework, Ontario has effectively outsourced the issue to municipalities.
This approach creates a patchwork of rules and carve‑outs, as for example some cities (unlike Toronto) permit e-scooters under the Ontario E-Scooter Pilot Program. This tension recently played out in Mississauga, where councillor Dipika Damerla tabled a motion calling for e‑bikes and e‑scooters to be treated more like motorized vehicles, with licensing and registration mandatory. The motion failed, but several councillors said they agreed with its spirit, arguing that more groundwork was needed before imposing a full licensing regime.
As time passes, Ontario is increasingly looking to be playing catch‑up compared with jurisdictions in Europe or, closer to home, in New Jersey, where licensing and registration requirements are already on the books. Even without such a system, some lawyers have argued that e-scooters must be insured under “motor vehicle” policies. Birman notes that he could not find a single insurance company in Ontario that offers insurance for e-scooters under a standard motor vehicle policy.
“We’ve already seen this argument from some insurers suggesting that e‑scooters over a certain speed and power need to be insured under a motor vehicle policy and that, if the owner of the scooter is suing and doesn’t have it insured, they could lose the right to sue,” he says. “We haven’t seen it tested in court yet, but it’s a very ironic position given that there is no coverage offered by the same insurers who are making the argument.”
Ultimately, there are several vacuums associated with e-scooters on Ontario roads. Birman adds his voice to the cry for government and regulators to create standardized rules that apply across the province for use of e-scooters, and for insurance companies to offer policies that enable people to access first-party accident benefits coverage. Until then, it falls to stakeholders like personal injury lawyers to do what they do best: pursue access to justice for injured people.
Once again, Birman is blunt in his assessment: “The current legal framework isn’t built to deal with this at all, but claims are already out there — there’s a lot of uncertainty out there.”
Notwithstanding the uncertainty, Birman recommends that those injured by e-scooters contact reputable counsel like Thomson Rogers.
“There might be certain obstacles to address in these cases, but we’re in a position to work through them and help accident victims obtain the compensation they deserve.”
This article was produced in partnership with Thomson Rogers LLP
