Under-Licenced - Overweight - No Insurance!!

[Stan Birch]

While there has been a whole lot of wild speculation offered hereabouts, as to whether it is adviseable to summarily ignore the clearly stipulated restrictions of your drivers licence; there are a whole lot of con-artists out there, for their own purposes, attempting to convince you that the law doesn't really matter.

Amongst the most prominent advocates of snubbing the law, are insurance salesmen from Wayfarer Insurance. At the outset, while Wayfarer Insurance offers assurances that no matter what; they will cover anything and EVERYTHING, even if you are involved in an accident while driving an overweight vehicle prohibited by your class of drivers licence. Keep in mind that Wayfarer Insurance is NOT an insurance company; and they insure nothing. They are just an independent sales office.

As for Wayfarer's proclamation that THEIR insurance policies are crafted to circumvent Statute Law of Ontario; don't bet yer $100.000 motorhome on that! In a Province where the exact wording each and every insurance contract issued in the Province of Ontario is governed down to the very last comma by Statue Law; even amongst insurance companies Provincial approval, is required for changing so much as a comma within the contract, insurance sales people like Wayfarer really have no say in the matter.

So, rather than speculate; if you are not entirely sure if you can get away with driving a rig of greater weight than your licence permits, it might be economically advisable to spend a little time in pursuing the following legal decision:


FSCO (Financial Services Commission Ontario) A02 B 001163

BETWEEN:

PETER KING
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer
DECISION ON A PRELIMINARY ISSUE

Before : Robert Kominar
Heard : March 19, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Bruce Kelly for Mr. King

Patrick Ho for Dominion of Canada General Insurance Company

Issues:

The Applicant, Peter King, was injured in a motor vehicle accident on March 7, 2001. He applied for statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule. [See note 1 below.] Dominion denied initial entitlement to weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. King applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act , R.S.O. 1990, c.I.8, as amended.


The preliminary issue is:

1. Is Mr. King excluded from receiving income replacement benefits pursuant to s.30(1)(b) of the Schedule because, at the time of the accident, he possessed a G2 class driver's licence and was operating a vehicle which required an operator to possess, at minimum, a D class driver's licence ?

Result:

1. Mr. King is excluded from receiving income replacement benefits by virtue of s.30(1)(b) of the Schedule.

EVIDENCE AND ANALYSIS:

This preliminary issue hearing proceeded by way of written submissions and an agreed statement of facts, followed by oral submissions and argument on March 19, 2003.

The relevant facts here are simple and uncontested. Mr. King was involved in an automobile accident on March 7, 2001, at which time he was driving a Freightliner Truck which weighed more than 11,000 kilograms. At the time of the accident Mr. King possessed a valid G2 class Ontario driver's licence.

Driver's licences are provided for in law in Ontario in Part IV of the Highway Traffic Act , R.S.O. 1990, c.H.8, and in Ontario Regulation 340/94 made under that statute. Section 2(1) of the regulation sets out the prescribed classes of motor vehicles that one is granted authority to drive while one holds a particular class of driver's licence. For the purposes of this arbitration, the parties agree that operators who possess a valid G2 class licence are authorized to drive vehicles not exceeding 11,000 kilograms gross weight or registered gross weight.

Applicant's Argument:

The applicant argues that absent any definition of "valid driver's licence" in the Schedule , the definition of that same phrase in the regulations made under the Highway Traffic Act should be adopted. The applicant further argues that the change in the criteria for general exclusions in Bill 59 indicates an intention on the part of the legislator to limit the circumstances where this exclusion applies, i.e., specifically to individuals who do not possess any form of valid driver's licence at the time of an accident.

Insurer's Argument:

The insurer responds that the exclusion provisions of the current SABs should be interpreted consistently with those of previous SABs and that even though the wording of the exclusion has changed in Bill 59, the intention of the legislator is still the same; to deny certain benefit coverage to specific classes of people who are driving automobiles in an unauthorized manner. In order to be entitled to income replacement benefits, Mr. King needed to have held a valid driver's licence that authorized him to drive the specific vehicle he was driving at the time of the accident.

Analysis:

The dispute between Mr. King and Dominion arises over the proper interpretation of s.30(1)(b) of the Schedule . S.30 deals with general exclusions from entitlement to the following accident benefits: income replacement benefits, non-earner benefits, lost educational expenses, visitor expenses, and housekeeping and home maintenance benefits. The relevant portions of s.30 for these purposes are the following:


30.(1) The insurer is not required to pay an income replacement benefit, a non- earner benefit or a benefit under section 20, 21 or 22 in respect of a person who was the driver of an automobile at the time of the accident,
. . .

(b) if the driver was driving the automobile without a valid driver's licence;


What, on the surface, appears to be a rather simple issue turns out to be more complex, as there is no definition in Bill 59 of the phrase "valid driver's licence." Although the Schedule does not stipulate a definition for the phrase, Ontario Regulation 340/94 made under the Highway Traffic Act, in its definition section, says:

1.(1) In this Regulation
...

"valid driver's licence" means a driver's licence that is not expired, cancelled or under suspension.


In this case Dominion and Mr. King urge me to adopt quite different interpretations of the proper meaning and scope of this exclusion provision. In essence, Mr. King's argument is that he is not excluded from receiving income replacement benefits because he was in possession of a valid driver's licence at the time of the accident, albeit not one of an appropriate class to be operating the vehicle in question with proper legal authority. Mr. King concedes that he was not operating the vehicle at the time of the accident within the scope of the driving privilege granted to him in his G2 licence; nevertheless, he argues that he did possess a valid driver's licence at the time, in that his G2 licence was not expired, cancelled or suspended.

Dominion, on the other hand, argues that the exclusionary clause, s.30(1)(b), should be read as meaning that the driver of an automobile, at the time of an accident, must possess a valid driver's licence that is of an appropriate class to legally authorize that person to drive the specific vehicle involved in the relevantly specific circumstances. In other words, Dominion argues that Mr. King did not have a valid licence to be driving the Freightliner Truck at the time of the accident , as his licence was only "valid" for driving vehicles weighing less than 11,000 kilograms. In support of this interpretation, Dominion further argues that the definition of "valid driver's licence" found in the Highway Traffic Act's regulations is not relevant and should not be imported or relied upon in any way to interpret the identical phrase when found in the Schedule.

To further thicken the context here it is relevant to note that the framing of this particular exclusionary clause changed in Bill 59 from the text it had in both Bills 68 and 164. There is an exclusionary clause in Bill 68, s.17, that grants Insurers relief from paying weekly income benefits; and as well one under Bill 164, s.58, that grants Insurers relief from paying income replacement benefits if "the driver was not authorized by law to drive the vehicle." As noted above, in Bill 59, the wording of this general exclusion was amended to provide that Insurers are not required to pay income replacement benefits if the driver was driving "without a valid driver's licence."

There is no doubt that the change in the wording in Bill 59 is distinct. The question I have to determine is what interpretation to give to the exclusion in the light of this change in statutory language in the current version of the SABs, alongside the stipulated definition of the phrase "valid driver's licence" found in a different regulation made under a different statute than the SABs?

It is helpful to briefly review the relevant case law that has dealt with exclusion clauses.

The leading judicial decision dealing with the issue is Vanderwal v. State Farm Mutual Automobile Insurance Company (1994), 20 O.R. (3rd ) 401, a decision of the Divisional Court. The facts were different than in the present case in that Mr. Vanderwal was involved in an accident while driving a motorcycle. At the time of the accident he possessed a class R beginner's licence, which authorized him to drive his motorcycle on roads that had posted speed limits not exceeding 80 kilometres per hour. The accident took place while Mr. Vanderwal was driving on a road with a higher posted speed limit.

For the Insurer to be warranted in excluding Mr. Vanderwal from the benefits that he claimed, it was necessary to conclude that driving the motorcycle on this particular road with an R class licence amounted to "not being authorized to drive," as that was the exclusionary criterion in effect at the time. The trial judge found that the exclusion should apply only to individuals whose licence had been suspended by operation of law. However, on appeal, the Divisional Court overturned the decision, stating that "any lawful authority which the respondent had to drive a motorcycle on a highway in this province was entirely dependent upon the licence which the Minister of Transportation had seen fit to issue to him." More specifically the Court noted that the then exclusionary section of the Schedule , [See note 2 below.] s.17(1)(d), focussed on the actions of the driver at the time of the accident, and therefore it was irrelevant whether he may have been authorized to drive the motorcycle in other circumstances.

* * * * * * * * * *

Note 2: Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996 , Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98

Following this decision, the exclusion issue was dealt with at the Commission in Hyrski and Zurich Insurance Company, a decision of Arbitrator Naylor, upheld on appeal by Director's Delegate Draper. [See note 3 below.] Mr. Hyrski, like Mr. Vanderwal, was driving a motorcycle. However, in his case he had a G class licence that did not authorize him to drive a motorcycle in any circumstances. At the time of the accident he was taking the motorcycle for a test drive before deciding whether to purchase it. Arbitrator Naylor, agreed with the approach taken by the Divisional Court in Vanderwal , and emphasized that the exclusion clause relates specifically to what was happening at the time of the accident.

* * * * * * * * * *

Note 5: (FSCO A96-000274, September 30, 1996)

In summary, the consistent outcome of judicial and arbitral decisions dealing with general exclusions has been the common sense one that a driver needs to have legal authority to drive the specific automobile, at the specific time, in the specific circumstances they find themselves in or they risk being excluded from certain accident benefits.

Mr. King acknowledges, through his counsel, that if the wording of the exclusion clause had remained as it was in Bills 68 and 164, he properly could be excluded from receiving income replacement benefits. The question is whether the changed language in Bill 59 alters that.

Exclusions Under Bill 59:

The SABs under Bill 59 introduced a new framing of the exclusionary clause. Whereas before the test was whether the driver was "authorized to drive the automobile," now the test became "whether the driver was driving the automobile without a valid driver's licence."

Arbitrator Wilson has considered the new wording of the exclusionary clause under Bill 59 in two cases:


Note 8: (FSCO A02-001141, February 12, 2003).

Mr. Sesay's argument in support of his position was similar to Mr. King's herein. Mr. Sesay argued that, although he was driving beyond the scope of his G1 licence, he nevertheless possessed a "valid driver's licence."

Arbitrator Wilson found that the exclusion applied in the circumstances that Mr. Sesay admitted prevailed at the time of the accident . In effect, the new language of the exclusion clause simply clarifies that the way one becomes "authorized to drive" in Ontario is to have a "valid driver's licence" to drive in specific circumstances. The arbitrator stated:


In my mind, the phrase "not authorized to drive" is equivalent to "driving an automobile without a valid driver's licence." A licence is the normal means by which legal permission to drive on public highways is granted. A person driving without a valid licence is prima facie not authorized to drive on a public road. Vanderwal makes it clear that driving beyond the scope of one's licence also constitutes driving without a valid licence. [emphasis added] [See note 9 below.]


* * * * * * * * * *
Note 9: Sesay, supra note 8, at p. 7. Emphasis added.


The most recent arbitration decision dealing with general exclusions is Manzanares and Pembridge Insurance Company (Pafco Ins. Co.) , [See note 10 below.] a decision by Arbitrator Sampliner. Mr. Manzanares was operating a vehicle alone while in possession of a valid G1 level driver's licence which required him to have a fully licenced driver with him in the front seat at all times. Arbitrator Sampliner noted that a common sense interpretation of the exclusionary provision could potentially support Mr. Manazanares' argument that he did have a valid driver's licence. However, of overriding importance was the legislative purpose of encouraging safe driving through such programmes as graduated licencing. The arbitrator followed the general line of judicial and arbitral reasoning up through Sesay which holds that a driver must be licenced to do what he or she is doing at the time of the accident. It is simply not sufficient to be authorized to drive some other vehicle, at some other time, in some other conditions.

* * * * * * * * * *

Note 10: (FSCO A02-000401, May 27, 2003).


The general tenor of the exclusion clause cases has been to encourage drivers to act in accordance with the driving privileges that have been granted to them under the specific terms of their licences. I agree with the consistent approach that the case law has traced so far. Clearly, licences are granted for specific purposes. In Ontario, there is no general licence that grants a driver the authority to drive any vehicle in any manner at any time under any conditions. In fact, the various classes, levels, endorsements and conditions driver licences are now subject to is tortuously complex. To interpret driving without a "valid driver's licence" in the abstract way that Mr. King's counsel suggests seriously discounts the social value of the policy encouraging people to comply with the terms, conditions and limitations of their drivers' licences. I am not prepared to find that the legislator intended such a result.

Therefore, even if I were to accept the argument made on behalf of Mr. King, i.e., that the definition of "valid driver's licence" is the same in the Schedule as it is in regulations made under the Highway Traffic Act , it still is the case, in my view, that the licence that is not "expired, cancelled or suspended" must be one that would authorize the actions the driver was engaged in at the time of the accident. After all, the text of the exclusion provision does reference "the vehicle" and not generic driving activity. To interpret the phrase "driving the automobile without a valid driver's licence" to mean that being in possession of " any" sort of valid licence suffices would lead to a carnival of absurdities that would be inconsistent with general role of exclusion clauses, i.e. to deny certain benefits to drivers who engage in specified unauthorized and often dangerous actions. There is no interpretive ambiguity here open to be resolved in Mr. King's favour.

* * * * * * * * * *

Note 11: . Driedger in Construction of Statutes, 2nd ed. (Toronto, Butterworths, 1983), at p. 105, sets out the applicable parameters of statutory interpretation as follows:

The words of the individual provision to be applied to the particular case under consideration are then to be read in their grammatical and ordinary sense in the light of the intention of Parliament embodied in the Act as a whole, the object of the Act and the scheme of the Act, and if they are clear and unambiguous and in harmony with than intention, object and scheme and with the general body of the law, that is the end.

* * * * * * * * * *

<span class="ev_code_RED">Based on the explicit admission that Mr. King was driving a vehicle heavier than he was authorized to drive by the terms of his driver's licence at the time of the accident, I find that Mr. King is excluded from receiving income replacement benefits.</span>

[Stan Birch]

While there has been a whole lot of wild speculation offered hereabouts, as to whether it is adviseable to summarily ignore the clearly stipulated restrictions of your drivers licence; there are a whole lot of con-artists out there, for their own purposes, attempting to convince you that the law doesn't really matter.

Amongst the most prominent advocates of snubbing the law, are insurance salesmen from Wayfarer Insurance. At the outset, while Wayfarer Insurance offers assurances that no matter what; they will cover anything and EVERYTHING, even if you are involved in an accident while driving an overweight vehicle prohibited by your class of drivers licence. Keep in mind that Wayfarer Insurance is NOT an insurance company; and they insure nothing. They are just an independent sales office.

As for Wayfarer's proclamation that THEIR insurance policies are crafted to circumvent Statute Law of Ontario; don't bet yer $100.000 motorhome on that! In a Province where the exact wording each and every insurance contract issued in the Province of Ontario is governed down to the very last comma by Statue Law; even amongst insurance companies Provincial approval, is required for changing so much as a comma within the contract, insurance sales people like Wayfarer really have no say in the matter.

So, rather than speculate; if you are not entirely sure if you can get away with driving a rig of greater weight than your licence permits, it might be economically advisable to spend a little time in pursuing the following legal decision:


FSCO (Financial Services Commission Ontario) A02 B 001163

BETWEEN:

PETER KING
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer
DECISION ON A PRELIMINARY ISSUE

Before : Robert Kominar
Heard : March 19, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Bruce Kelly for Mr. King

Patrick Ho for Dominion of Canada General Insurance Company

Issues:

The Applicant, Peter King, was injured in a motor vehicle accident on March 7, 2001. He applied for statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule. [See note 1 below.] Dominion denied initial entitlement to weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. King applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act , R.S.O. 1990, c.I.8, as amended.


The preliminary issue is:

1. Is Mr. King excluded from receiving income replacement benefits pursuant to s.30(1)(b) of the Schedule because, at the time of the accident, he possessed a G2 class driver's licence and was operating a vehicle which required an operator to possess, at minimum, a D class driver's licence ?

Result:

1. Mr. King is excluded from receiving income replacement benefits by virtue of s.30(1)(b) of the Schedule.

EVIDENCE AND ANALYSIS:

This preliminary issue hearing proceeded by way of written submissions and an agreed statement of facts, followed by oral submissions and argument on March 19, 2003.

The relevant facts here are simple and uncontested. Mr. King was involved in an automobile accident on March 7, 2001, at which time he was driving a Freightliner Truck which weighed more than 11,000 kilograms. At the time of the accident Mr. King possessed a valid G2 class Ontario driver's licence.

Driver's licences are provided for in law in Ontario in Part IV of the Highway Traffic Act , R.S.O. 1990, c.H.8, and in Ontario Regulation 340/94 made under that statute. Section 2(1) of the regulation sets out the prescribed classes of motor vehicles that one is granted authority to drive while one holds a particular class of driver's licence. For the purposes of this arbitration, the parties agree that operators who possess a valid G2 class licence are authorized to drive vehicles not exceeding 11,000 kilograms gross weight or registered gross weight.

Applicant's Argument:

The applicant argues that absent any definition of "valid driver's licence" in the Schedule , the definition of that same phrase in the regulations made under the Highway Traffic Act should be adopted. The applicant further argues that the change in the criteria for general exclusions in Bill 59 indicates an intention on the part of the legislator to limit the circumstances where this exclusion applies, i.e., specifically to individuals who do not possess any form of valid driver's licence at the time of an accident.

Insurer's Argument:

The insurer responds that the exclusion provisions of the current SABs should be interpreted consistently with those of previous SABs and that even though the wording of the exclusion has changed in Bill 59, the intention of the legislator is still the same; to deny certain benefit coverage to specific classes of people who are driving automobiles in an unauthorized manner. In order to be entitled to income replacement benefits, Mr. King needed to have held a valid driver's licence that authorized him to drive the specific vehicle he was driving at the time of the accident.

Analysis:

The dispute between Mr. King and Dominion arises over the proper interpretation of s.30(1)(b) of the Schedule . S.30 deals with general exclusions from entitlement to the following accident benefits: income replacement benefits, non-earner benefits, lost educational expenses, visitor expenses, and housekeeping and home maintenance benefits. The relevant portions of s.30 for these purposes are the following:


30.(1) The insurer is not required to pay an income replacement benefit, a non- earner benefit or a benefit under section 20, 21 or 22 in respect of a person who was the driver of an automobile at the time of the accident,
. . .

(b) if the driver was driving the automobile without a valid driver's licence;


What, on the surface, appears to be a rather simple issue turns out to be more complex, as there is no definition in Bill 59 of the phrase "valid driver's licence." Although the Schedule does not stipulate a definition for the phrase, Ontario Regulation 340/94 made under the Highway Traffic Act, in its definition section, says:

1.(1) In this Regulation
...

"valid driver's licence" means a driver's licence that is not expired, cancelled or under suspension.


In this case Dominion and Mr. King urge me to adopt quite different interpretations of the proper meaning and scope of this exclusion provision. In essence, Mr. King's argument is that he is not excluded from receiving income replacement benefits because he was in possession of a valid driver's licence at the time of the accident, albeit not one of an appropriate class to be operating the vehicle in question with proper legal authority. Mr. King concedes that he was not operating the vehicle at the time of the accident within the scope of the driving privilege granted to him in his G2 licence; nevertheless, he argues that he did possess a valid driver's licence at the time, in that his G2 licence was not expired, cancelled or suspended.

Dominion, on the other hand, argues that the exclusionary clause, s.30(1)(b), should be read as meaning that the driver of an automobile, at the time of an accident, must possess a valid driver's licence that is of an appropriate class to legally authorize that person to drive the specific vehicle involved in the relevantly specific circumstances. In other words, Dominion argues that Mr. King did not have a valid licence to be driving the Freightliner Truck at the time of the accident , as his licence was only "valid" for driving vehicles weighing less than 11,000 kilograms. In support of this interpretation, Dominion further argues that the definition of "valid driver's licence" found in the Highway Traffic Act's regulations is not relevant and should not be imported or relied upon in any way to interpret the identical phrase when found in the Schedule.

To further thicken the context here it is relevant to note that the framing of this particular exclusionary clause changed in Bill 59 from the text it had in both Bills 68 and 164. There is an exclusionary clause in Bill 68, s.17, that grants Insurers relief from paying weekly income benefits; and as well one under Bill 164, s.58, that grants Insurers relief from paying income replacement benefits if "the driver was not authorized by law to drive the vehicle." As noted above, in Bill 59, the wording of this general exclusion was amended to provide that Insurers are not required to pay income replacement benefits if the driver was driving "without a valid driver's licence."

There is no doubt that the change in the wording in Bill 59 is distinct. The question I have to determine is what interpretation to give to the exclusion in the light of this change in statutory language in the current version of the SABs, alongside the stipulated definition of the phrase "valid driver's licence" found in a different regulation made under a different statute than the SABs?

It is helpful to briefly review the relevant case law that has dealt with exclusion clauses.

The leading judicial decision dealing with the issue is Vanderwal v. State Farm Mutual Automobile Insurance Company (1994), 20 O.R. (3rd ) 401, a decision of the Divisional Court. The facts were different than in the present case in that Mr. Vanderwal was involved in an accident while driving a motorcycle. At the time of the accident he possessed a class R beginner's licence, which authorized him to drive his motorcycle on roads that had posted speed limits not exceeding 80 kilometres per hour. The accident took place while Mr. Vanderwal was driving on a road with a higher posted speed limit.

For the Insurer to be warranted in excluding Mr. Vanderwal from the benefits that he claimed, it was necessary to conclude that driving the motorcycle on this particular road with an R class licence amounted to "not being authorized to drive," as that was the exclusionary criterion in effect at the time. The trial judge found that the exclusion should apply only to individuals whose licence had been suspended by operation of law. However, on appeal, the Divisional Court overturned the decision, stating that "any lawful authority which the respondent had to drive a motorcycle on a highway in this province was entirely dependent upon the licence which the Minister of Transportation had seen fit to issue to him." More specifically the Court noted that the then exclusionary section of the Schedule , [See note 2 below.] s.17(1)(d), focussed on the actions of the driver at the time of the accident, and therefore it was irrelevant whether he may have been authorized to drive the motorcycle in other circumstances.

* * * * * * * * * *

Note 2: Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996 , Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98

Following this decision, the exclusion issue was dealt with at the Commission in Hyrski and Zurich Insurance Company, a decision of Arbitrator Naylor, upheld on appeal by Director's Delegate Draper. [See note 3 below.] Mr. Hyrski, like Mr. Vanderwal, was driving a motorcycle. However, in his case he had a G class licence that did not authorize him to drive a motorcycle in any circumstances. At the time of the accident he was taking the motorcycle for a test drive before deciding whether to purchase it. Arbitrator Naylor, agreed with the approach taken by the Divisional Court in Vanderwal , and emphasized that the exclusion clause relates specifically to what was happening at the time of the accident.

* * * * * * * * * *

Note 5: (FSCO A96-000274, September 30, 1996)

In summary, the consistent outcome of judicial and arbitral decisions dealing with general exclusions has been the common sense one that a driver needs to have legal authority to drive the specific automobile, at the specific time, in the specific circumstances they find themselves in or they risk being excluded from certain accident benefits.

Mr. King acknowledges, through his counsel, that if the wording of the exclusion clause had remained as it was in Bills 68 and 164, he properly could be excluded from receiving income replacement benefits. The question is whether the changed language in Bill 59 alters that.

Exclusions Under Bill 59:

The SABs under Bill 59 introduced a new framing of the exclusionary clause. Whereas before the test was whether the driver was "authorized to drive the automobile," now the test became "whether the driver was driving the automobile without a valid driver's licence."

Arbitrator Wilson has considered the new wording of the exclusionary clause under Bill 59 in two cases:


Note 8: (FSCO A02-001141, February 12, 2003).

Mr. Sesay's argument in support of his position was similar to Mr. King's herein. Mr. Sesay argued that, although he was driving beyond the scope of his G1 licence, he nevertheless possessed a "valid driver's licence."

Arbitrator Wilson found that the exclusion applied in the circumstances that Mr. Sesay admitted prevailed at the time of the accident . In effect, the new language of the exclusion clause simply clarifies that the way one becomes "authorized to drive" in Ontario is to have a "valid driver's licence" to drive in specific circumstances. The arbitrator stated:


In my mind, the phrase "not authorized to drive" is equivalent to "driving an automobile without a valid driver's licence." A licence is the normal means by which legal permission to drive on public highways is granted. A person driving without a valid licence is prima facie not authorized to drive on a public road. Vanderwal makes it clear that driving beyond the scope of one's licence also constitutes driving without a valid licence. [emphasis added] [See note 9 below.]


* * * * * * * * * *
Note 9: Sesay, supra note 8, at p. 7. Emphasis added.


The most recent arbitration decision dealing with general exclusions is Manzanares and Pembridge Insurance Company (Pafco Ins. Co.) , [See note 10 below.] a decision by Arbitrator Sampliner. Mr. Manzanares was operating a vehicle alone while in possession of a valid G1 level driver's licence which required him to have a fully licenced driver with him in the front seat at all times. Arbitrator Sampliner noted that a common sense interpretation of the exclusionary provision could potentially support Mr. Manazanares' argument that he did have a valid driver's licence. However, of overriding importance was the legislative purpose of encouraging safe driving through such programmes as graduated licencing. The arbitrator followed the general line of judicial and arbitral reasoning up through Sesay which holds that a driver must be licenced to do what he or she is doing at the time of the accident. It is simply not sufficient to be authorized to drive some other vehicle, at some other time, in some other conditions.

* * * * * * * * * *

Note 10: (FSCO A02-000401, May 27, 2003).


The general tenor of the exclusion clause cases has been to encourage drivers to act in accordance with the driving privileges that have been granted to them under the specific terms of their licences. I agree with the consistent approach that the case law has traced so far. Clearly, licences are granted for specific purposes. In Ontario, there is no general licence that grants a driver the authority to drive any vehicle in any manner at any time under any conditions. In fact, the various classes, levels, endorsements and conditions driver licences are now subject to is tortuously complex. To interpret driving without a "valid driver's licence" in the abstract way that Mr. King's counsel suggests seriously discounts the social value of the policy encouraging people to comply with the terms, conditions and limitations of their drivers' licences. I am not prepared to find that the legislator intended such a result.

Therefore, even if I were to accept the argument made on behalf of Mr. King, i.e., that the definition of "valid driver's licence" is the same in the Schedule as it is in regulations made under the Highway Traffic Act , it still is the case, in my view, that the licence that is not "expired, cancelled or suspended" must be one that would authorize the actions the driver was engaged in at the time of the accident. After all, the text of the exclusion provision does reference "the vehicle" and not generic driving activity. To interpret the phrase "driving the automobile without a valid driver's licence" to mean that being in possession of " any" sort of valid licence suffices would lead to a carnival of absurdities that would be inconsistent with general role of exclusion clauses, i.e. to deny certain benefits to drivers who engage in specified unauthorized and often dangerous actions. There is no interpretive ambiguity here open to be resolved in Mr. King's favour.

* * * * * * * * * *

Note 11: . Driedger in Construction of Statutes, 2nd ed. (Toronto, Butterworths, 1983), at p. 105, sets out the applicable parameters of statutory interpretation as follows:

The words of the individual provision to be applied to the particular case under consideration are then to be read in their grammatical and ordinary sense in the light of the intention of Parliament embodied in the Act as a whole, the object of the Act and the scheme of the Act, and if they are clear and unambiguous and in harmony with than intention, object and scheme and with the general body of the law, that is the end.

* * * * * * * * * *

<span class="ev_code_RED">Based on the explicit admission that Mr. King was driving a vehicle heavier than he was authorized to drive by the terms of his driver's licence at the time of the accident, I find that Mr. King is excluded from receiving income replacement benefits.</span>

[Skip298]

Stan,,say what you want, Im sure some of it is factual and might even work in civil court.. Your example....
G2 licence.......its one step over a G1 and two over a learners permit and its not a full "G" licence....he was barely qualified to drive a car..let alone a freightliner truck,, which by the way is air brake equipped..So he would and should be elimitated in those circumstances..It doesnt mention in the decision if there was an accompanying qualified driver..I assume there wasnt..had there been one, this case would have never got to court,he would have been qualified (except the "A" endorsement)

This decison is for a medical benefits compsenation case.. not for coverage or replacement of property of an accident attributed to a qualifed driver that was slightly and/or unintentionally overweight..

While "some" of the issues can be compared to some of us, I dont think it applies to us at all...a gross overweight issue may get into court but not the normal RVer, when prosecuting on overweight issues the crown looks at the total weight,,they wont even proceed on a case where the overload is less than a few hundred Kgs....I would also agree with your remarks about insurance companies and "payouts". I think your'e going overboard, again. dammit stan come up to the Bruce, unwind, relax..do some fishing and have a beer,, dc

[George Miklas]

Stan, good information. Keep it up! BTW: both my wife and I hold CDLs. We're covered.

George

[Stan Birch]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Skip298:This decison is for a medical benefits compsenation case.. not for coverage or replacement of property of an accident attributed to a qualifed driver that was slightly and/or unintentionally overweight.. </div></BLOCKQUOTE>
Hey Skip'

Legal successs in avoiding responsibility for Medical Benefits on the part of Insurance Companies based upon a contractual breach, is somewhat of new precedent within Ontario law.

At the outset, Ontario Insurance Laws were crafted to deflect and offload accident-related medical expenes in favour of. . . . ?

[Skip298]

I wonder if this driver was operating his own rig...and not employed by a company as a driver?..If he was Employed, the company would have made sure he was licenced properly(maybe)..If he was employed the company insurance would have covered him as well as the gov'ts welfare/disability trough..enough said, I agree with you 100% on the insurance companies download and deflect but not in the other discussion, as I said, its a completely different scenario worthy to ... BTW one of my daughters is going thru that insurance BS now...she was injured in an not at fault collision...and couldnt work, her company laid her off(yearly shut down), insurance company is playing her around big time..

[Stan Birch]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Skip298:
Say what you want, Im sure some of it is factual and might even work in civil court.. Your example.... This decison is for a medical benefits compsenation case.. not for coverage or replacement of property of an accident attributed to a qualifed driver that was slightly and/or unintentionally overweight.. </div></BLOCKQUOTE>
A person has a FAR better chance of collecting medical benefits than physical damage to a vehicle, since the exclusions under medical coverage are much less restrictive.

To collect medical, the only current requirement is that you have a "valid drivers licence"; but under the remainder of the policy, you must be "authorized by law" to drive the vehicle.

In DAVID HYRSKI Applicant and ZURICH INSURANCE COMPANY, back 1996 when the old "authorized by law" exclusion also applied to medical benefits, the Applicant was denied coverage:

The facts are not in dispute. They are summarised, as follows:

1. Mr. Hyrski was aged 20 at the time of the accident.
2. He held a valid licence to drive a car: a class G licence.
3. He did not hold a licence to drive a motorcycle: a class M licence.
4. At the time of the accident, Mr. Hyrski was operating a 1989 Yamaha motorcycle owned by Daniel B. Jan. The single vehicle accident occurred on Palmer Road, a highway within the meaning of the Highway Traffic Act.
5. A motorcycle is an automobile and a motor vehicle as defined in the Insurance Act and the Highway Traffic Act.
6. Mr. Hyrski was familiar with the safe operation of motorcycles and was competent to drive the motorcycle.
7. At the time of the accident, Mr. Hyrski was considering buying a motorcycle. He was taking the motorcycle for a test run, with a view to possible purchase.

An ordinary and grammatical reading of the phrase authorised by law to drive indicates that the applicant must have legal authority to drive at the relevant time. Although Mr. Hyrski had a Class G drivers licence to operate a car, the statute requires that at the time of the accident Mr. Hyrski was authorized by law to drive the automobile. Unfortunately, at the relevant time, Mr. Hyrski had no legal authority to operate the motorcycle he was driving, because he did not have a valid motorcycle licence. Therefore, the exclusion applies.

I accept that this result is harsh. I am sympathetic to Mr. Hyrskis unfortunate situation. However, I am bound to apply the provisions of the Schedule as enacted by the Legislature.

I find that the exclusion set out in subsection 17(1)(d) applies in respect of Mr. Hyrski. He is therefore disqualified from weekly benefits under the terms of the policy

Both court and arbitration cases have equated the term authorised by law to drive under the Insurance Act regulations with driver licensing requirements. A relationship between the two statutory schemes is suggested by the use of parallel language, with both referring to the authority to drive a motor vehicle/automobile. The reference to licensing in the exemption set out in s. 17(2) of the Schedule also suggests that the exclusion is concerned with licensing requirements.

The scope of subsection 17(1)(d) was recently considered by the Ontario Divisional Court in Vanderwal v. State Farm Mutual Automobile Insurance Company, (1994) 20 O.R. (3d) 401. Application for leave to appeal to the Court of Appeal filed October 19, 1994; appeal abandoned.

The plaintiff in Vanderwal was injured in a motorcycle accident. He held a valid Class R beginners drivers licence, which permitted him to operate a motorcycle, subject to certain restrictions. These included a prohibition on driving on a highway with a speed limit of more than 80 kilometres an hour. When the accident occurred, the plaintiff was driving his motorcycle on a highway which had a speed limit of 100 kilometres an hour. The Divisional Court, on appeal, held that the applicant was not authorized by law to drive:

On the facts of this case, any lawful authority which the respondent had to drive a motorcycle on a highway in this province was entirely dependent upon the licence which the Minister of Transportation had seen fit to issue to him.

...while it is true that the respondents class R licence authorized him to drive a motorcycle, ...s. 17(1)(d) focuses in on the time of the accident and requires a determination as to whether, at that specific time, the driver was or was not authorized by law to drive the motor vehicle. In our view, the words at the time of the accident are clear and unambiguous. They refer to the moment in time when the accident occurred.

Regrettably for the respondent, at the time of the accident, having regard to the circumstances which then existed, he was not authorized by law to drive his motorcycle. Instead, he was specifically prohibited by law from doing so by virtue of condition (3) of his licence, which condition appeared on the face of the licence.

* * * *
BTW, Hyrski launched an Appeal, which was also unsucesssful.

[Skip298]

Using your case law posts, one could reasonabley draw the conclusion that.......sooner or later its going to be tested in the courts, and again logic seems to indicate that the insurance company will end up not paying...I am more than convinced that all of us that take on the driving of these rigs should be better qualified to do so. I dont think though that we should have to endure or meet the qualifications and restrictions that are placed on the "A" class licence, I would think a "D" would be sufficient.. in a comparison, it might interest you to know that a train engineer is not required to have a drivers licence..and he is certainly hauling a long heavy load which does cross all kinds of highways etc. I once investigated a truck/train collision and was doing well until the RXR police arrived...(they take precedence and control) the engineer had been banned for LIFE from driving a MV on his 4th conviction for impaired driving....dc

[rehcuobbob]

Also, we are talking of rigs in excess of app 25,000 pounds, wayyyyyy above my rig! I think Chad had a good read on the confusion that exists with licensing requirements, within the MOT!!

I know that I quizzed my insurers when renewing my policy and they really did not know what the answer was. This was at ING, who bought out my employers personnal lines business, Zurich Ins. I spent forty five years in claims and I would not attempt to pronounce myself on the issue. I drive and tow with my Class "GM" Ontario Lic. and I've got a signed written note from the licensing office that this covers me while driving my rig.

Bob

[Stan Birch]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Bob Boucher:
Also, we are talking of rigs in excess of app 25,000 pounds, wayyyyyy above my rig!

I drive and tow with my Class "GM" Ontario Lic. and I've got a signed written note from the licensing office that this covers me while driving my rig. </div></BLOCKQUOTE>
We are not only talking about 11,000 kg (24,000 lbs.)rigs; but trailers exceeding 4,600 kg (10,000 lbs.). Those restrictions are printed right on your drivers licence.

I don't know what kind of note you have from the licencing office; but I'm sure that no employee at the Ministry has the authority to summarily abrogate Statute Law of Ontario. The clear unambiguous wording of Statute Law will take precedence over any interpretive memorandum a government employee.

If your rig is destroyed in an accident, and the weight of your rig exceeds that permitted by your licence; an insurance company will defend the claim on the basis of Statute Law; and won't be bound by any unauthorized permission provided by someone at the Ministry of Transportation.

[rehcuobbob]

Stan:

The MOT employee did not abrogate anything, I had my weight ticket for the loaded trailer showing 8648 pounds.

Your case law as quoted is, you will admit, two cases of extremes, in one instance the fellow is driving a tractor hauler and the other deals with a twenty year old driving a motorcycle on the wrong license.

My lifetime experience in the business tells me that if you are up front on all aspects of your application and you keep your insurers updated on any changes in equipment, you will be problem free. If in doubt, call them and request a written confirmation of their information. It is for this reason that I have always recommanded that you carry all your insurance with the same underwriter as opposed to saving a few dollars by allowing yourself or your broker to seek the cheapest company. This removes any conflict on overlapping coverage and makes it easy to deal with one adjuster if something goes amiss. That includes your residential insurance where liability and contents coverages really overlap.

Legal interpretation does not lend itself to dogmatism as each situation is different and will give rise to widely varying srutiny from the insurer. As a for instance, an adjuster or examiner who is faced with a claim involving a driver who excaped a D.U.I. on a technicallity will tend to be a lot more stringent in applying various other restrictive limitations and conditions that may apply, such is human nature!

In closing, I can say that in my forty five years of claims settlement I never cheated a soul out of a nickel and I onlu wish that I could say the reverse would apply!!!

Bob

[Stan Birch]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Bob Boucher:
Your case law as quoted is, you will admit, two cases of extremes, in one instance the fellow is driving a tractor hauler and the other deals with a twenty year old driving a motorcycle on the wrong license. </div></BLOCKQUOTE>
I don't accept the premise that the case of the motorcycle driver is an extreme, compared to driving an overweight vehicle. The law as it applies to bikers, merely serves to protect bikers from themselves; whereas the the weight-restriction laws pretty obviously crafted to protect *others* on the road.

The courts don't really have the authority to merely dismiss clearly worded laws passed by Provincial Legislature. While they may consider the intent and legislative history of the law; in this situation, the legislative history of Ammendments points to an ever-increasing restrictions in the area of "authorized by law".

In the recent past, this clause was at one time much more liberal, i.e. "qualified or authorized by law" to drive . . With that wording, even if you were not authorized by law to drive an overweight vehicle, the exclusion could be circumvented by going to the MOT and passing a test for the kind of vehicle you were operating; which would prove that you were "qualified" to operate the restricted vehicle. But in recent years, the word "qualified" has been deleted, and replaced by the clear simple "authorized by law" requirement. So from any historical perspective, the intent of for the new wording in making the exclusion even more restrictive, is clear.

[rehcuobbob]

I took part in a steering committee on the amandment to the driver definition as it existed.

We objected to the changes in definition to protect the driver who inadvertently becomes unauthorised by law to operate a vehicule, cases such as forgetting to renew your driver's license, easy to do, . It would be sad to see an unscrupulous company refuse indemnity to an otherwise fully qualified, violation and accident free client!! Would'nt happen on my shift but not so sure of others.

Bob

[Stan Birch]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Skip298:
BTW one of my daughters is going thru that insurance BS now...she was injured in an not at fault collision...and couldnt work, her company laid her off (yearly shut down), insurance company is playing her around big time.. </div></BLOCKQUOTE>
While I'm not at all up-to-date on the current status of "no-fault" medical and income-replacement benefits available under the Insurance Act of Ontario; I seem to recollect that the new legislation at that time, placed a virtually unrestricted onus upon insurance companies to pay **NOW**; and continue to pay now; and if there was any factual dispute on entitlement, the only lawful relief offerred to insurance companies, was that were entitled to launch an Action in an effort to recover any inappropriately paid benefits.

The basic premise of all of the recent no-fault benefit-nonsense, has been to off-load potential medical and welfare-oriented-scenarios from the Provincial welfare programs to insurance companies.

The FSCO website at:

http://www.ontarioinsurance.com/engl...native_ENG.pdf

Within the bottom-line aspect of Ontario Law that discourages sleazy insurance companies from screwing their customers with impunity; is the matter of "Failing to Deal in Good Faith" aspect of the Law. So far, failure to deal in "Good Faith" has managed to attract additional punitive damages in the order of $50,000 to $100,000! An idea that will leave any insurer running for cover!

Talk to your insurer about the possibilities of "Failure-to-Deal-in Good Faith"; and you can reasonably expect your insurer is to to be running-to-the-hills for cover in an effort to accomodate you!