The Effect of Excluded Driver Endorsements

In certain circumstances, an insurance company or a person insured under a motor vehicle policy may request the execution of an Excluded Driver Endorsement, also known as the “Ontario Policy Change Form 28A” or “OPCF 28A” in Ontario.

By signing this form, the owner of the insured vehicle and the excluded driver both agree that the excluded driver will not drive the insured vehicle. The form further states that if the excluded driver is operating the vehicle:

  1. The policy will not provide insurance required by law for the vehicle;
  2. The policy will not provide coverage for any damage or injuries caused by the excluded driver;
  3. The owner of the vehicle and the excluded driver may be personally responsible for damage or injuries caused by the excluded driver; and
  4. The excluded driver will not receive coverage for “most Accident Benefits”.

A copy of the OPCF 28A can be viewed here.[1]

The signature of both the owner of the vehicle and the excluded driver are required in order to properly execute the form.

An OPCF 28A typically results in a reduced insurance premium for the car owner. Most often high-risk drivers in a household are asked to sign the OPCF 28A. High-risk drivers typically include young drivers or those with convictions and/or at-fault accidents on their record.

If an excluded driver is caught driving the vehicle in question, they may be charged with driving without insurance. Subsection 1(3) of the Compulsory Automobile Insurance Act, RSO 1990, c C.25 is clear that the vehicle is “deemed to be an uninsured vehicle…while it is being operated by an excluded driver” unless the excluded driver is insured under another policy not subject to OPCF 28A. 

If the insurance company discovers that the excluded driver has been driving the vehicle, the insurance company has the right to cancel the policy. This is clearly stated in the OPCF 28A. The insurance company may also refuse to renew the policy on the basis that there has been a breach of a statutory condition (namely material misrepresentation or breach of the contract). Should this happen, it can make it much more difficult (and expensive) for an individual to obtain another motor vehicle insurance policy.

If you have been injured in a motor vehicle accident by an excluded driver on the offending vehicle, it may affect the amount of money you are able to recover in a lawsuit. If an OPCF 28A was in effect at the time of the accident, the insurance company has “no duty to defend or indemnify”[2] the excluded driver – not even up to minimum limits of $200,000.00. This means that the excluded driver will be considered to be an uninsured driver at the time of loss.

Should you be injured by an excluded driver but have your own policy of motor vehicle insurance, you may be able to bring a claim against your own insurance company under the uninsured/underinsured provisions of your policy.

For those injured individuals without their own insurance (most often pedestrians or cyclists), they may have no recourse against any insurance company. Instead, the only option they have is to bring a claim against the Motor Vehicle Accident Claims Fund (“the Fund”). Claims against the Fund only have maximum available limits of $200,000.00. 

If you are an excluded driver on a vehicle and you were driving that vehicle at the time of the accident, the insurer has the right to deny your accident benefits claim. However, if you were injured while in another vehicle or as a pedestrian, you can access accident benefits through the policy under which you are an excluded driver in these instances.[3]

[1] Insert hyperlink:

[2] Royal & Sun Alliance Insurance Co of Canada v Intact Insurance Co, 2017 ONCA 381, 2017 CarswellOnt 6826 (WL Can).

[3] The Dominion of Canada General Insurance Company v State Farm Mutual Automobile Insurance Company, 2018 ONCA 101, 141 OR (3d) 129, 2018 CarswellOnt 1280 (WL Can).

Written by

Heather Colman is an associate lawyer at Greg Monforton and Partners in Windsor, Ontario practicing exclusively in plaintiff-side personal injury litigation. She has a B.A. (Honours) and J.D. from the University of Windsor and is a member of the Ontario Trial Lawyers Association.