No Insurance

2016onca453

2016onca453

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Kozel v. The Personal Insurance Company

2014 ONCA 130

Kozel v. The Personal Insurance Company

2014 ONCA 130
Court of Appeal for Ontario — LaForme J.A. (Rosenberg and MacPherson JJ.A. concurring) | February 19, 2014

Background

Barbara Kozel, a 77-year-old Ontario driver, received a renewal notice from the Ministry of Transportation in August 2011 but put it in her china cabinet without opening it. Her driver's license expired on her birthday, October 7, 2011. Four months later, in February 2012, while driving in St. Petersburg, Florida, she severely injured a motorcyclist named Arthur Grimes in a collision. Florida charged her with driving with an expired license, though the charge was later dismissed under Florida's six-month grace period.

The Personal Insurance Company advised Kozel they might deny coverage because she violated statutory condition 4(1) of her policy — the requirement that drivers be "authorized by law" to operate a vehicle. Grimes sued her in Florida, and Kozel faced potential personal liability of over $1 million. She applied to Ontario Superior Court seeking a declaration that her insurer owed her both a duty to defend and indemnify.

Issues

1. Was Kozel entitled to a "due diligence" defence for driving with an expired license?
2. Could she obtain relief from forfeiture under section 98 of the Courts of Justice Act?

The Due Diligence Defence Fails

The application judge found that Kozel could use a due diligence defence because driving without a valid license is an offence of "strict liability," not "absolute liability." Under Lévis v. Tétrault, this defence succeeds if someone "reasonably believed in a mistaken set of facts" or "took all reasonable steps to avoid the particular event."

But the Court of Appeal disagreed. Justice LaForme found that Kozel, despite 60 years of driving experience, did absolutely nothing to inquire about her license renewal. She received the envelope, placed it unopened in her cabinet, and even when she later opened it while buying a car, she only paid attention to the plate sticker renewal. The court distinguished this from cases where drivers actually took some reasonable steps — this was "passive ignorance," which isn't a valid defence.

Relief From Forfeiture Saves the Day

The real legal breakthrough came on the second issue. The Court of Appeal ruled that section 98 of the Courts of Justice Act — which allows courts to "grant relief against penalties and forfeitures" — applies to insurance contracts, even though section 129 of the Insurance Act provides more limited relief.

The court applied the three-part test from Saskatchewan River Bungalows: (1) Was the applicant's conduct reasonable overall? (2) How grave was the breach? (3) Is there a disparity between what's forfeited and the actual damage? All three factors favored Kozel. Her overall conduct was reasonable — she'd always renewed on time before and fixed the problem immediately when discovered. The breach wasn't grave — it had no impact on her driving ability or the insurer's rights. And the disparity was "enormous" — losing $1 million in coverage when the breach caused the insurer zero prejudice.

Key Takeaway

Even when you can't prove due diligence, relief from forfeiture under section 98 of the Courts of Justice Act can save your insurance coverage if the penalty is completely disproportionate to any actual harm.

This decision significantly expands when courts will intervene to prevent insurance companies from denying coverage based on technical breaches that cause no real prejudice to the insurer.

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Ontario Driver's Policy (O.P.F. 2)

Unreported

Ontario Driver's Policy (O.P.F. 2)

Standard Form Document
Approved by the Superintendent of Financial Services for use as the Driver's Automobile Policy on or after September 1, 2010

Background

This isn't a court case at all — it's the actual text of Ontario's standard driver's insurance policy form, known as O.P.F. 2. This is the template that insurance companies in Ontario must use when issuing automobile insurance policies to drivers. The document was approved by the Superintendent of Financial Services and became effective September 1, 2010.

The policy contains six main sections covering everything from third-party liability to statutory accident benefits, plus all the fine print that most people never read until they're in an accident and desperately need to know what's covered.

Issues

1. What coverage does a standard Ontario driver's policy actually provide?
2. What are the key exclusions and limitations that could leave drivers exposed?

The Six Sections That Matter

Section 1 covers Third Party Liability — this is what pays when you hurt someone else or damage their property. Section 2 deals with Accident Benefits — the no-fault benefits that cover your medical expenses and lost income regardless of who caused the accident. Section 3 handles Liability for Damage to Non-Owned Automobiles — what happens when you're driving someone else's car.

Section 4 covers Uninsured Automobile Coverage — your protection when the other driver has no insurance or can't be identified. Sections 5 and 6 contain the General Provisions and Statutory Conditions — the legal fine print that includes your obligations as a policyholder and the insurer's rights to terminate coverage.

Key Exclusions That Bite

The policy excludes coverage for criminal acts, racing, driving while impaired, and using your car for commercial purposes like Uber without proper coverage. It also won't cover you if you're driving without a valid license or operating a vehicle you're specifically excluded from driving.

Key Takeaway

This standard form policy is what every Ontario driver has, but most people don't understand what it actually covers until it's too late.

If you're facing charges related to an accident, understanding these coverage provisions and exclusions could be crucial to your defense strategy, especially if insurance coverage (or lack thereof) is part of the prosecution's case.

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R v Bedard

[2009] O.J. No. 4720

R. v. Bedard

[2009] O.J. No. 4720
Ontario Court of Justice — J.D. Takach J. | Heard December 8, 2008, Judgment October 22, 2009

Background

Trevor Greenidge, a Ministry of Transportation officer, stopped Paul Jonathan driving a 1992 Ford pickup truck in Hamilton. Jonathan couldn't produce valid insurance and only had a health card for ID. The vehicle registration showed the owner was Kimberly Bedard of Hamilton. Officer Greenidge gave Jonathan his business card with a fax number, requesting proof of insurance within 24 hours. No proof came in the next two days, so Greenidge had an information sworn and summons issued to Bedard.

Bedard was personally served and appeared at trial with an agent. She didn't testify. The Crown proved the vehicle registration matched the plate number and vehicle stopped. The Justice of the Peace dismissed a non-suit motion but then dismissed the charge anyway, saying the Crown hadn't proven Bedard "permitted" the driver to operate the uninsured vehicle.

Issues

1. What type of offence is section 2(1)(b) of the Compulsory Automobile Insurance Act — does it require mens rea or is it strict liability?
2. Was there sufficient evidence that Bedard "permitted" the operation of her uninsured vehicle?

The Strict Liability Analysis

Justice Takach applied the landmark R. v. Sault Ste. Marie framework, which recognizes three categories of offences: (1) true mens rea offences requiring intent/knowledge, (2) strict liability offences where proving the prohibited act creates a presumption of guilt but the accused can escape by proving reasonable care, and (3) absolute liability with no defences.

The court held that "permit the operation" under the Insurance Act creates strict liability, not mens rea. The word "permit" doesn't require knowledge or intent — if the legislature wanted that, they would have used words like "knowingly" or "wilfully." Since uninsured driving is a public welfare issue (protecting innocent road users from financial harm), the law presumes you're responsible once the Crown proves your vehicle was driven uninsured. However, you can escape liability by proving you took reasonable care to prevent it, or reasonably believed facts that would make the act innocent.

The Agency Presumption

The court also found that when someone produces your vehicle ownership documents during a traffic stop, that's prima facie evidence they had your permission to drive. Jonathan "had no difficulty producing the ownership and, apparently, knew where to find it with ease." This creates a presumption that he was your agent driving with consent — unless you prove otherwise.

Key Takeaway

Being the registered owner of an uninsured vehicle that gets caught on the road creates a legal presumption that you permitted it — ignorance isn't a defence.

If you're charged as an owner, you need to prove either that you took reasonable steps to ensure the vehicle wouldn't be driven uninsured, or that it was driven without your permission. Simply not knowing doesn't cut it under strict liability.

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R v Egharevba

[2012] OJ No 397

R. v. Egharevba

[2012] O.J. No. 397, 2012 ONCJ 43
Ontario Court of Justice — Justice S. Ray | January 31, 2012

Background

Osayomore Egharevba owned a car that got pulled over by police. The problem? Someone else was driving it, and that driver couldn't produce an insurance card when the officer asked for license, ownership, and insurance. The officer testified that the driver had the key, there was no sign the steering column had been tampered with, and the car hadn't been reported stolen. A Ministry of Transportation search confirmed Egharevba owned the vehicle, and both she and the driver lived at the same address.

The Crown charged Egharevba under s. 2(1)(b) of the Compulsory Automobile Insurance Act — not for driving without insurance herself, but for "permitting" her vehicle to be operated without insurance. The Justice of the Peace dismissed the charge, saying there wasn't enough evidence that Egharevba had actually "permitted" this to happen. The Crown appealed.

Issues

1. Is s. 2(1)(b) of the Compulsory Automobile Insurance Act a strict liability offence or does it require proof of mens rea (guilty mind)?
2. Was the circumstantial evidence strong enough to prove Egharevba "permitted" her vehicle to be operated without insurance?

The "Permit" Offence: Strict Liability, Not Mens Rea

Justice Ray had to decide what kind of offence this was. Following R. v. City of Sault Ste. Marie, regulatory offences fall into three categories: absolute liability, strict liability, or mens rea. The judge ruled this was strict liability — meaning the Crown doesn't have to prove the owner intended or knew they were permitting uninsured driving. The word "permit" is broader than words like "knowingly" or "wilfully," which aren't in the section. This makes it easier for the Crown to prove their case, but they still have to prove the owner actually "permitted" the driving, which can be done through circumstantial evidence.

However, even though it's strict liability, the Crown still needs evidence strong enough to support an inference that permission was given. The judge noted that just because someone else is driving your car doesn't automatically mean you "permitted" it — there has to be enough evidence to draw that conclusion.

Circumstantial Evidence: When "Light" Evidence Isn't Enough

The Crown's case relied entirely on circumstantial evidence: the driver had keys, the steering column wasn't tampered with, the car wasn't reported stolen, and the driver and owner lived at the same address. But Justice Ray found this wasn't enough. The investigating officer couldn't even remember if the driver had ownership papers, and no one had contacted Egharevba about the incident. The judge called this "precisely the kind of investigation" that was inadequate in other similar cases, where even prosecutors admitted the evidence was "a little light."

The court emphasized that circumstantial evidence can prove permission, but it has to be "cumulatively strong enough for an inference of guilt to be drawn." Living at the same address and having keys might suggest permission, but without more investigation or stronger evidence, it's not enough to meet the burden of proof.

Key Takeaway

Even for strict liability offences, the Crown must prove every element of the offence with sufficient evidence.

If you're charged with "permitting" someone to drive without insurance, the Crown doesn't have to prove you intended it, but they do have to prove you actually gave permission. Weak circumstantial evidence won't be enough, especially if the investigation was sloppy or incomplete.

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R v James [2006) OCJ

No summary has been written for this decision yet.

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R v. Man-Fo Wong [2004] ONCJ 222

[2004] ONCJ 222

No summary has been written for this decision yet.

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R v Sawa

[2008] O.J. No. 5994

R. v. Sawa

[2008] O.J. No. 5994
Ontario Court of Justice — M.L. Hogan J. | November 26, 2008

Background

Martin Sawa owned a car. Someone else — a driver named Currio — was caught operating that car without insurance after being stopped for running a stop sign. The officer discovered Currio wasn't the owner, tracked down Sawa, and charged him under the Compulsory Automobile Insurance Act with "permitting the operation of a motor vehicle without insurance."

Sawa didn't show up for trial (his lawyer withdrew because he couldn't reach his client), so the Crown proceeded with an ex parte trial. The charging officer was the only witness. He testified that he stopped Currio, found out the car belonged to Sawa, contacted Sawa, got some kind of written statement from the driver, and charged Sawa. The Justice of the Peace convicted Sawa, concluding there was "implicit permission" even though there was no evidence of explicit permission.

Issues

1. Did the Crown prove beyond a reasonable doubt that Sawa "permitted" Currio to drive the uninsured vehicle?
2. Can permission be inferred simply from the fact that someone else was driving the owner's car and it hadn't been reported stolen?

The Permission Problem

This case exposes a critical weakness in how these charges are often prosecuted. The Crown's entire case rested on the assumption that if someone else is driving your car and you haven't reported it stolen, you must have given them permission. But assumption isn't proof.

The Crown prosecutor argued that "permit" includes allowing something to happen "by failure to prevent" it — essentially arguing that being careless with your keys makes you liable. But as Justice Hogan pointed out, that only works "if you know it is happening." The officer's testimony was vague about his investigation. He said he did "further investigation" and received a "brief written statement from the driver," but never explained what those actually revealed about permission.

When pressed by the judge to show where the evidence of permission was, the Crown couldn't point to anything concrete. The officer never testified about what Sawa or Currio actually told him. There was no statement from either person about permission being granted. The prosecution failed to ask "some fairly key questions" about what the investigation uncovered.

Key Takeaway

The Crown can't prove "permission" by pointing to an empty space where evidence should be.

Even in Provincial Offences Court, the Crown must prove every element of the charge beyond a reasonable doubt using actual evidence — not assumptions, not inferences from silence, not vague references to investigations that produced no clear results.

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R v Stone

[1984] O.J. No. 912

R. v. Stone

[1984] O.J. No. 912
Ontario County Court, County of Northumberland — Judge Murdoch | January 30, 1984

Background

On April 3, 1982, Raymond Stone was driving his vehicle on a Haldimand Township road when he was stopped by police at 6:07 p.m. The officer asked Stone for his ownership and insurance papers. Stone produced a bill of sale but was "unable" to produce insurance documentation. The officer concluded Stone had no insurance and charged him under section 2(1)(a) of Ontario's Compulsory Automobile Insurance Act — the offence of operating a motor vehicle without insurance.

At trial before Provincial Court Judge Bark, the Crown's evidence was remarkably thin. The officer testified that Stone "didn't have any insurance and there was no insurance on the Odyssey," but provided no explanation of how he reached this conclusion. Judge Bark dismissed the charge, finding the evidence insufficient. The Crown appealed to County Court.

Issues

1. Was there sufficient evidence that Stone lacked insurance?
2. Who bears the burden of proving insurance coverage — the Crown or the defendant?

The Burden of Proof Battle

County Court Judge Murdoch agreed the evidence was weak — Stone's inability to produce papers could mean he forgot them at home, not that no insurance existed. But the real fight was over who has to prove what. The Crown argued that the word "unless" in section 2(1)(a) creates an exception under section 48(3) of the Provincial Offences Act, shifting the burden to the defendant to prove they do have insurance.

Judge Murdoch agreed, citing multiple precedents including Regina v. Park Hotel and Williams v. Russell. The key principle: when facts are "peculiarly within the knowledge of the accused," they must prove the exception applies. Since only the vehicle owner knows whether they have valid insurance coverage, they bear the burden of proving it. The judge noted it would create a "moral impossibility" for the Crown to prove the negative — that someone lacks insurance among all possible insurers.

Because Stone elected to call no evidence at trial, he failed to discharge this burden. Judge Murdoch allowed the Crown's appeal, entered a conviction, and imposed a $500 fine.

Key Takeaway

In insurance cases, you must prove you have coverage — the Crown doesn't have to prove you don't.

If you're charged with driving without insurance, bring your insurance documents and be prepared to prove your coverage was valid on the date in question. Simply staying silent and hoping the Crown can't prove their case will likely result in conviction.

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R v Zwicker

[1994] OJ No 197

R. v. Zwicker

[1994] O.J. No. 197, 17 O.R. (3d) 171
Court of Appeal for Ontario — Lacourcière, Robins and Finlayson JJ.A. | February 10, 1994

Background

On July 10, 1992, Zwicker was driving her recently purchased Chevrolet Nova westbound on Danforth Avenue in Toronto when police stopped her. She couldn't produce proof of insurance and was given 48 hours to report to the police station with it. She never showed up. When police contacted her by phone twice and finally attended her home on August 5, 1992, she admitted she had never insured the vehicle. She was then charged under section 2(1)(a) of the Compulsory Automobile Insurance Act.

Here's the twist: Zwicker had bought the car from a friend about three weeks before being stopped, but she never registered herself as the owner under section 11(2) of the Highway Traffic Act. The vehicle and licence plate weren't registered to her until July 13, 1992 — three days after she was stopped. Her defence? Only a "registered owner" could be guilty of operating without insurance, and since she wasn't registered at the time, she couldn't be convicted.

Issues

1. Does the word "owner" in section 2 of the Compulsory Automobile Insurance Act apply only to the "registered owner" of a motor vehicle?

The Meaning of "Owner"

Zwicker relied on an earlier Court of Appeal decision, R. v. Sherman (1972), which interpreted "owner" to mean "registered owner" in the context of the old Motor Vehicle Accident Claims Act. But the court wasn't buying it. Justice Robins explained that Sherman dealt with completely different legislation with a completely different purpose — that old act required owners to either pay into a government fund or have insurance, and registration was the only practical way to identify who owed the fee.

The current system is fundamentally different. Under today's Highway Traffic Act, when you buy a car, the seller must remove their plates and you must put on your own plates immediately — even before registering the vehicle itself. The court noted that "registration is thus no longer the sole means of identifying the owner of a given vehicle." More importantly, the Compulsory Automobile Insurance Act is designed to ensure every car on the road is insured, period.

The court ruled that "owner" in section 2(1) includes both registered owners and common law owners — people who have bought and possess a vehicle even if they haven't done the paperwork yet. As Justice Robins put it: "To interpret 'owner' in that manner would permit the person with all the rights of common law ownership to avoid corresponding responsibilities of ownership." The court also noted it would be "anomalous indeed if a breach of the Highway Traffic Act [failing to register] could amount to a shield against liability under the Compulsory Automobile Insurance Act."

Key Takeaway

You can't avoid insurance requirements by simply failing to register a vehicle you've purchased.

If you buy a car and drive it, you're the "owner" for insurance purposes whether you've completed the registration paperwork or not. Your legal obligations start the moment you take possession, not when you get around to visiting a ServiceOntario office.

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