Middleton v. Pankhurst, 2017 ONCA 835 (CanLII)
The Court of Appeal affirmed that the term “authorized by law” applies only to licencing and restrictions imposed by the Ministry of Transportation. A driver who operates a vehicle with alcohol in his system, in breach of his probation order, is not in violation of statutory conditions.
Date Heard: September 28, 2017 | Full Decision [PDF]
In January 2009, Cal Pankhurst was on probation from a guilty plea to careless driving. Mr. Pankhurst’s probation order prohibited him from driving with alcohol in his system. On January 24, 2009, Mr. Pankhurst consumed alcohol while ice fishing with his friend Tyler Middleton. While driving Mr. Middleton on his snowmobile on a road afterward, Mr. Pankhurst lost control of the snowmobile and both he and Mr. Milton were ejected, causing Mr. Middleton to suffer significant injuries.
Mr. Middleton probably personal injury lawsuit against Mr. Pankhurst and reached a settlement agreement. Mr. Pankhurst’s insurer, Aviva, refused to indemnify Mr. Pankhurst because, in its view, he was “not authorized by law” to drive at the time of the accident as he had alcohol in his system in breach of his probation order.
The trial judge found that Mr. Pankhurst was in fact authorized by law to drive because he had a valid driver’s licence and was not subject to any restrictions imposed by the MTO. Aviva appealed.
The Court of Appeal dismissed the appeal, and affirmed the trial judge’s decision that Mr. Pankhurst was authorized by law to drive. It reviewed its own decision in Kerluik v. Jevco Insurance Company, in which Justice Cronk concluded that the determination of whether an insured is authorized to operate a motor vehicle is restricted to a consideration of any restrictions imposed by the MTO. The Court noted that if Kereluik was effectively overturned, insurers could potentially deny coverage in any number of situations where there has been a criminal law violation.
Read the full decision [PDF]