Under the Insurance Act, RSO 1990 c.I.8, not every person who operates a listed automobile is an insured for whom indemnity is provided. To fall into that category, one must not only be driving an autombile listed on the policy, but must also be either a named insured or driving with the insured's consent. The Court found that the driver was not an insured and was not driving with the insured's consent.

[2015] O.J. No. 3537

2015 ONSC 4231

Ontario Superior Court of Justice

S.E. Firestone J.

July 3, 2015

The main action arose following a motor vehicle collision in which it was alleged that the driver was responsible for injuries to the plaintiff and the plaintiff's passenger. The driver of the vehicle was the son of the named insureds of the vehicle. The insurer denied coverage to the driver on the basis that he was not an insured under the policy. The plaintiff's insurer provided uninsured and underinsured coverage to the plaintiff and the plaintiff's passenger. The plaintiff's insurer argued that the driver was an insured under his parents' automobile insurance policy, and sought to recover from the parents' automobile insurer. The parents' insurer brought a summary judgment motion to determine the issue of coverage.

Under the Insurance Act, RSO 1990, c.I.8, for insurance coverage to be granted under a motor vehicle policy, there must be a named insured, a vehicle owned by a named insured, or a person driving with the named insured's consent.

The court gave written reasons following the first hearing relating to this issue, Brown v. Williamson, 2014 ONSC 5487. During the hearing, the driver had claimed that he was in the process of purchasing the vehicle from his father but that the transaction had not been finalized because he had not yet paid his father in full for the vehicle. However, the title of the vehicle had been transferred to the driver approximately one year previous to the accident, though the insurance policy continued to be under the parents' names. The driver alleged that he borrowed the vehicle from his father and step-mother with his step-mother’s express permission and his father’s implied consent. The step-mother provided oral evidence at the hearing that the car did not, contrary to the driver’s evidence, stay at the parents’ house.

In his previous written reasons, the judge determined that the father’s evidence was necessary before proper determination could be made by way of summary trial; however, the father was unavailable to provide evidence prior to or at the second hearing on the issue. Ultimately, the trial judge preferred the step-mother’s evidence over the driver’s, and held that she never consented to the driver's use of the vehicle. The Court further held that the father was not the legal or common-law owner of the vehicle, that the vehicle was not located or kept at the parents' house, and that there was no evidence that the father had anything to do with the car after it was transferred to the son. Accordingly, the parents' insurer was successful in having the claim against it dismissed.