Released June 19, 2015 | CanLII
This was a motion brought by Desjardins as intervener to have a coverage issue determined prior to trial regarding an excluded driver under one of its policies. The excluded driver had signed an OPCF 28A Excluded Driver form in 2007. The form had not been approved by the FSCO Superintendent, was not witnessed, and did not specify which automobiles were subject to the exclusion as required by the standard OPCF28A form. The policy was renewed and vehicles were added and removed on different occasions without the exclusion form being updated or again provided to the excluded driver. There was no evidence that Desjardins delivered copies of the OPCF28A endorsement to the excluded driver when he renewed his policy.
In 2010, the excluded driver was involved in a motor vehicle accident, which resulted in serious injuries to the plaintiff. The insurer for the owner of the plaintiff’s vehicle tendered $200,000 plus costs to the plaintiff based on its views of maximum potential liability, while the plaintiff’s family protection endorsement was left to pay the balance, up to $800,000 plus costs, of the million dollar family protection endorsement. The excluded driver, who also owned the car he was driving at the time of the accident, did not file a defence and was noted in default. His insurer, Desjardins, took an off-coverage position on the basis of him being an excluded driver.
In making its decision, the Court looked at the different OPCF 28A forms, diary notes from Desjardins’ underwriting file, and transcripts from the examinations and cross-examinations of Desjardins’ underwriter. The Court asserted that Desjardins had the onus of establishing the enforceability of the form signed by the excluded driver. The Court agreed that there was no obligation for Desjardins to bring the ongoing applicability of an Excluded Driver Endorsement to the attention of a driver when a policy is annually renewed. That being said, the Court found that strict compliance with the provisions of section 227(1) of theInsurance Act, requiring form approval by the Superintendent, is necessary where an insurer seeks to exclude coverage. The Court found that on the facts of the case, there was no way for anyone reading the certificate of insurance and the OPCF 28A signed by the excluded driver to know which vehicles were caught by the Excluded Driver Endorsement. On that basis, the Court determined that Desjardins could not rely on the form signed by the excluded driver and was obliged to defend and respond to any Judgment rendered in the action.
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