Do Excluded Drivers have access to AB Coverage? See Court of Appeal Ruling

A recent Court of Appeal decision1 has clarified two issues that are of relevance to insurers involved in priority disputes.

Both appeals involved individuals who were claiming accident benefits although they were listed as excluded drivers in their parents' policies.

The first issue relates to whether excluded drivers in a household may be entitled to accident benefit coverage from the insurers who issue the given policy.

The second issue relates to what is the appropriate standard of review for an insurance arbitrator's decision involving specialized expertise.

Case No. 1

Mr. Rupolo was injured while riding as a passenger in his girlfriend's car. The car was insured by State Farm. Mr. Rupolo applied to his parents' insurer, The Dominion, for accident benefits. The Dominion took the position that Mr. Rupolo was not an "insured person" for the purposes of the SABS as he and his parents had previously signed an Excluded Driver Endorsement due to his poor driving record. The form indicated that Mr. Rupolo would have no coverage if he drove either of his parents' vehicles:

"except for certain accident benefits, there would be no coverage under the policy for property damage and bodily injury, damage to the automobile(s) and most accident benefits..."2

The arbitrator interpreted this to mean that there could be accident benefit coverage. The SABS legislation was to be given a broad and liberal interpretation, and any ambiguity would be resolved in the claimant's favour:

"...there is sufficient ambiguity to an individual reading the OPCF 28A to think there would still be full accident benefits if not driving the excluded vehicle and even limited accident benefits if driving the excluded vehicle."3

...as long as he was not injured while driving one of the vehicles in respect of which he was an excluded driver.

The arbitrator concluded that Mr. Rupolo was entitled to accident benefits from The Dominion as long as he was not injured while driving one of the vehicles in respect of which he was an excluded driver. If he was a passenger in someone else's vehicle or simply a pedestrian, he would be entitled to claim accident benefits from his parents' insurer.

Dominion appealed the arbitrator's decision to the superior court, which concluded that Mr. Rupolo was not an insured person. The superior court judge applied a standard of 'correctness'.

Case No. 2

Another case involving similar circumstances was launched by a claimant named Mr. Bortolus, who...