An occupant of a motor vehicle is not entitled to insurance coverage if the vehicle is operated without the owner’s consent

The Court granted an application by the automobile Insurer striking out the Plaintiff’s claim on the grounds it contained no reasonable cause of action after finding that the statutory provision in the Ontario Automobile Policy excluding coverage for an occupant of an automobile operated by a person without the owner’s consent did not contain a knowledge requirement.

McCauley (Litigation guardian of) v. Blagdon, [2006] O.J. No. 5471, Ontario Superior Court of Justice, B.T. Granger J., December 14, 2006

This was an application by the Defendant, Axa Insurance (“Axa”), seeking an Order pursuant to Rule 21.01(1)(b) striking out the Plaintiff’s claim on the grounds that it disclosed no reasonable cause of action, as the Plaintiff, Ms. McCauley, was excluded from coverage under the policy. The Plaintiff had been injured while riding as a passenger in a motor vehicle driven by the Defendant, Mr. Blagdon, and owned by the Defendant, Mr. Seys. Mr. Blagdon did not have the consent of the owner of the vehicle to operate it when the accident occurred. The Plaintiff commenced an action seeking damages against the driver, Mr. Blagdon, and the owner, Mr. Seys, as well as Axa.

Axa claimed that the Plaintiff was precluded from recovering damages from it under the O.P.C.F. 44R – Family Protection Coverage as a result of the wording of section 1.8.2 of O.A.P. No. 1 which stated that there was no coverage under the policy for an occupant of an automobile used or operated by a person in possession of the automobile without the owner’s consent. The issue was whether the Plaintiff should be entitled to coverage in circumstances where she was not knowingly an occupant of an automobile used or operated by a person in possession of the automobile without the owner’s consent.

The Court held that lack of knowledge that the automobile was being operated without the consent of the owner was not part of the plain, existing language of the provision and did not prevent the exclusion as set out in s. 1.8.2 of O.A.P. No. 1 from applying. As the Plaintiff’s claim was barred in law, the pleadings disclosed no reasonable cause of action and the action against Axa was dismissed pursuant to Rule 21.01(1)(b).

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