How Will Reforms to Impaired Driving Laws Impact Ontario Insurance Coverage?

Driving into the THC Fog

On April 13, 2017, the Federal Government announced long-anticipated plans to legalize marijuana in Canada. Along with that announcement came the most sweeping proposed reforms to Canada’s impaired driving laws seen in decades. This article will attempt to forecast possible insurance coverage pitfalls if and when these laws are in place, based on the current law in Ontario.

Generally, you purchase insurance to cover a specific type of risk. If you operate a vehicle outside of the conditions of your policy, it may be found to be void – including the duty of an insurer to defend against third party claims after an accident. Operating outside your policy might include misrepresenting the vehicle (for example if it has been significantly modified), failing to renew a driver’s licence or plate permit, operating the vehicle as a taxicab or for another commercial purpose under an ordinary driver’s insurance policy, or operating a large truck or motorcycle with only a G-class ordinary automobile licence.

Statutory condition 4(1) made under Regulation 777/63 of the Insurance Act RSO c.I.8, specifically provides:

The insured shall not drive or operate or permit any other person to drive or operate the automobile unless the insured or other person is authorized by law to drive or operate it.

 

How Impaired Driving Currently Impacts Coverage

Currently Ontario drivers with a learner’s class permit – like a G1 or G2 – are licensed to drive only when they have zero detectable alcohol in their blood. Alcohol can stay in your blood stream for 12 hours. This means if you drive the morning after drinking, your insurance may be voided – although this is a very fact-dependent conclusion, relying heavily upon an insured’s reasonable belief; see: Tut v. RBC General Insurance Company, 2011 ONSC 823, aff’d: Tut v. RBC General Insurance Company, 2011 ONCA 644.

A fully-licensed G-class driver in Ontario must not operate a motor vehicle while under the influence of drugs or with an amount of alcohol present in their blood greater than 80mg/100ml.

Refusal to provide a breath sample may also affect a person’s insurance coverage.

 

Proposed Reforms to Impaired Driving Laws

For the first time, the Government of Canada has proposed prescribing limits to the amount of THC – an inebriating component of cannabis – detected in a person operating a motor vehicle. The Government is also proposing prohibiting any detectable levels of many other drugs while operating a motor vehicle.

The proposed changes include attempts to close loopholes in our current laws and providing for easier roadside testing by authorities, including:

  • allowing mandatory roadside saliva swab testing;
  • allowing blood tests taken by professionals on the scene who are not doctors;
  • allowing breathalyser testing of any driver (omitting to the current requirement for “reasonable suspicion” of impairment); and
  • changing the definition of impaired driving with blood alcohol levels over 80mg/100ml from “while operating a motor vehicle” to “within two hours of operating a motor vehicle” (an attempt to close legal loopholes where people claim to have drunk alcohol immediately before driving or immediately following an accident to account for an anticipated failed sobriety test).

People operating motor vehicles will be committing a criminal offence if they are found to have THC levels in their blood above 2ng/ml. Drivers with levels above 5mg/ml or levels above 2.5ng/ml combined with blood alcohol levels over 50mg/100ml will face more significant penalties.

The penalties are also generally going up, especially in the case of repeat offenders who may now be sentenced up to 10 years (up from the current five), and will now be eligible to be deemed “dangerous offenders” in appropriate circumstances.

The Department of Justice website hosts a detailed description of these proposed changes.

 

How Changes to Impaired Driving Laws may Impact Coverage

While the Ontario Government has not yet commented on the proposed federal reforms, it is very likely the government would treat THC levels similar to alcohol with respect to learners’ permits. We should expect the government to forbid any level of THC with these licence classes.

Based on the current state of the law in Ontario, we ought to anticipate that insurers may deny coverage in cases where a person refuses a roadside test, is found to have a prohibited drug in their system when tested, or tests beyond the allowable prescribed THC levels.

How does this affect current coverage issues? Currently only alcohol contains very specific language with respect to allowable levels. With respect to drugs an insured has to be found to be operating a motor vehicle “while under the influence of drugs.”

The current test is very difficult to prove in court. By specifically prohibiting specific drugs other than cannabis, and by providing for new testing and prescribed levels of cannabis, that bar is being lowered significantly. This may increase the rate of insurance coverage denials.

The proposed reforms are not yet law. These need to be debated vigorously, and these consequences ought to be considered. Critics have already pointed out the unreliability of THC testing. Constitutional challenges may ultimately test whether or not it is appropriate to find people guilty of impaired driving if they consumed alcohol after an accident or even simply after driving. Given the destructiveness of impaired driving, policy considerations on both sides ought to make for compelling legal arguments before the Supreme Court one day.

Perhaps now is the time for the Government of Ontario to take a hard look at our current insurance regulations and proactively debate regulatory change in anticipation of the effect these laws may have on Ontarians – before we are reacting to a floodgate of insurance denials affecting innocent victims.

It is important to note that an insurer’s duty to provide coverage is a very serious, fact-dependant issue. Often even where a condition has been violated an insured is able to demonstrate they acted reasonably in the circumstances. We strongly urge anyone who is denied coverage by an insurer to immediately consult with a lawyer to investigate challenging the denial.

Sig Pantazis
Written by

Sig Pantazis currently practices in all areas of law with a focus on Personal Injury and Environmental. Sig joined Nicholson Read Personal Injury Lawyers in 2011 following his call to the bar. He obtained his Bachelor of Technology at the Memorial University of Newfoundland, and graduated from the University of Ottawa Law School.