Improper Excluded Driver Forms Can Still Be Enforceable

September 7, 2017 | Sean McGarry

The Ontario Court of Appeal, in Royal & Sun Alliance Insurance Company of Canada v. Intact Insurance Company (“RSA v. Intact”)[1], recently addressed the manner in which the OPCF 28A excluded driver form may be issued by the insurer.

In Ontario, an insurer may require a driver to execute an excluded driver endorsement, the 28A form, acknowledging they are not insured to drive a particular vehicle. Failure to comply with this endorsement will result in a denial of coverage. The 28A form is pre-approved by the Superintendent of Financial Services and requires the excluded vehicle to be listed on the front of the form. The objective is to make the form as clear as possible to prevent drivers using vehicles for which they will not be provided insurance coverage.

In RSA v. Intact, Intact’s endorsement did not list the vehicle as excluded, but simply referenced an attached certificate of insurance. The driver was then involved in an accident. Intact denied coverage. RSA, the uninsured carrier, brought an application to determine coverage. Intact was successful before the Motion Judge.

The Court of Appeal concluded that the statutory scheme did not forbid changes to the standard form, provided the deviations did not affect the substance of the form and were not “calculated to mislead.” Neither was the case in this action. Accordingly, the appeal was dismissed.

This case does not impact an insurer’s obligation to adequately explain the exclusion to the insured as described in Gore Mutual Insurance Co. v. 1443249 Ontario Ltd.[2]

 

[1] 2017 ONCA 381

[2] 2004 CarswellOnt 768

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