Novice & Young Drivers – Basics
Two important categories of drivers exist under the graduated licensing rules:
- Novice drivers, i.e., drivers with a G1 or G2 licence (or an M1 or M2 licence)
- Young drivers, i.e., those under age 22 regardless of their class of licence
It has been widely known since the graduated licencing provisions were first introduced in Ontario in approximately 1994 that it is an offence for a novice driver to operate a motor vehicle when his or her blood alcohol concentration is not zero. Similarly, it is widely known that it is an offence for a G1 driver to operate a vehicle on a 400 series highway. Other rules are less well known, but see our blog post for a complete list of graduated licencing conditions.
It is also well known that as of August 1, 2010, young drivers cannot have any alcohol in their system when driving.
However, it is not widely known that novice drivers and young drivers potentially void their insurance coverage if they operate a vehicle in violation of the zero alcohol or other graduated licencing rules. Without insurance, the financial and personal consequences of an accident can be especially devastating for a young person. See our blog post for a description of the potential consequences of driving without insurance.
Fortunately, a relatively recent decision of the Ontario Court of Appeal has opened up the possibility of courts being able to relieve against forfeiture of insurance coverage for minor breaches of the graduated licencing rules or other driver’s licence conditions. For details of the case, see our blog post Relief from forfeiture under the Courts of Justice Act in auto insurance cases: A review of Kozel v. The Personal Insurance Company.
In this post I will: (1) review several motor vehicle cases which have dealt with the insurance consequences of violating the graduated licencing rules; (2) compare the insurance implications for young people who drink and drive to the implications for older drunk drivers; and (3) provide some food for thought for novice and young drivers and their parents.
Blood Alcohol Not Zero – Northover  I.L.R. I-3889 (Ontario Superior Court of Justice)
This lawsuit arose from an April 10, 1997 car accident. The defendant, then age 18, was driving a vehicle he owned, with his friend as a passenger. In an accident involving another vehicle, the friend was killed. Two occupants of the other vehicle were injured.
The defendant had pleaded guilty to dangerous driving causing death in a criminal charge. He had admitted that just prior to the accident he drank a “large sip of beer”. Consistent with this, blood testing done one hour and forty five minutes after the accident confirmed that he had only “trace” amounts of alcohol in his blood. At the time, the defendant was a novice driver and had a G2 licence. The graduated licencing rules stated that it was a “condition” of the licence that “the novice driver’s blood alcohol concentration must be zero at all times while he or she is operating the motor vehicle.”
In a pre-trial ruling, the court had to decide whether the defendant was driving in breach of the conditions of his G2 licence and in breach of the conditions of his insurance.
Every motor vehicle insurance policy in Ontario has a condition that no one can drive the insured automobile unless the person is “authorized by law to drive or operate it”. This provision is contained in statutory condition 4(1) of the standard auto policy (OAP1). Because of this provision, an unlicenced driver has no coverage for damage to the vehicle or for liability to others.
However, this provision was held to apply in the circumstances of the Northover case as well. The court ruled that if the evidence established that the defendant had any alcohol present in his blood at the time of the accident, he was “not authorized by law to drive” and he would have no insurance coverage – including no liability coverage for the lawsuits brought against him by the deceased’s family members and the occupants of the other involved vehicle.
As it turned out, the judge had no evidence about how long it takes for alcohol to enter the blood stream after it is ingested, so no final decision was reached. The matter was later settled with no contribution from the defendant personally, but the case highlights the potential for devastating consequences to a novice driver or young driver who has any alcohol in his or her system when driving.
The Kozel decision, which was decided in 2013, has altered the landscape in these cases, and has created a strong likelihood that the courts will grant relief from forfeiture of insurance coverage in circumstances in which there are only “trace” amounts of alcohol in the driver’s blood. However, relief from forfeiture may not be available where there has been more significant alcohol consumption by a novice or young driver.
Highway Speed Limit Over 80 km/h – Vanderwal v State Farm(1994), 20 O.R. (3d) 401 (Ontario Divisional Court)
In this case, the plaintiff, a novice motorcyclist, had a serious accident on June 29, 1992 when driving his motorcycle on the Q.E.W. A condition of a novice motorcyclist’s licence is that driving “on a highway with a speed limit in excess of 80 kilometres per hour” is prohibited. The plaintiff was not being sued but rather he was seeking accident benefits from his insurance company, State Farm.
Every Ontario automobile insurance policy requires an insurer to pay income replacement and other benefits, regardless of fault for the accident, in circumstances where the insured person is disabled in an auto accident. The premiums we all pay include this coverage.
However, the regulations in place at that time excused State Farm from paying any income replacement benefit to the plaintiff because he “was not authorized by law to drive” at the time and place where he was driving.
Since then, the accident benefit regulations have changed. For accident benefits, the issue is now “does the person have a valid driver’s licence”– not “is the person authorized by law to drive.”  But for liability and collision coverage, the regulations have not changed. In other words, even though this case dealt with accident benefits coverage, it applies to liability coverage as well and in fact the Court in Northover followed this case.
Not Enough Seatbelts– Certas Direct Insurance v Strifler (2005) 25 M.V.R. (5th) 150 (Ontario Superior Court of Justice)
In Certas Direct Insurance v Strifler, the defendant was a G2 driver who was driving a Nissan Pathfinder which had seating and seatbelts for five, including the driver. There were eight people in the car. Three were in the cargo area and were not belted. The G2 driver lost control of the vehicle and rolled it, destroying the vehicle. The vehicle was leased to the driver’s father. Certas paid $23,110 to the leasing company for the value of the vehicle. Certas then sued the G2 driver and successfully argued that the driver was not covered by its policy on the vehicle because of the policy violation – the driver was “not authorized by law to drive” given that there were too many occupants in the vehicle. Certas successfully obtained judgment against the G2 driver.
Other Potential Breaches
In the case of a novice driver or a young driver driving with a blood alcohol content of more than zero, it may not matter if the driver is actually impaired. Similarly, in the case of a novice driver driving on a highway with a speed limit of more than 80 km/h, it may not matter whether the novice driver was actually travelling less than 80 km/h at the time of the accident.
Other breaches of the graduated licencing rules may also give rise to insurance coverage difficulties. Examples include: a Class M1 driver driving a motorcycle more than half an hour before or half an hour after sunset; a Class G1 driver driving without a qualified accompanying driver, e.g. one who has not been licensed for at least four years; a class G2 driver driving with four friends in the back seat, when the back seat is only equipped with three seat belts; or a class G2 driver driving a pickup with a person in the back (i.e. the bed) of a pick-up truck.
These examples all describe illegal behaviour. It is an offence for a novice driver to contravene any of the conditions or restrictions prescribed by the regulations. But, again, it must be remembered that these offences may void insurance coverage.
The coverage rules seem unfair when you consider that similar conduct by experienced, fully licenced drivers does not void insurance coverage. For example, the following serious offences by experienced drivers void collision coverage but not liability coverage: impaired driving; failing to give a breath sample; failing to stop at an accident; and dangerous driving. These activities seem far more serious than, for example, driving with more passengers than the number of available seatbelts, which is a violation by a young person that could give rise to a loss of coverage.
The unfairness of the existing rules for novice or young drivers can be highlighted by comparing the consequences faced by the novice or young driver who has consumed alcohol to the consequences faced by an experienced, fully licenced drunk driver.
Let’s say they each cause an accident involving another vehicle in which the other driver is seriously injured or killed and both vehicles are destroyed.
Since Kozel, the novice or young driver could presumably get relief from forfeiture, and thereby maintain coverage, if he or she has only trace amounts of alcohol in the blood. However, at some level of impairment it is likely that the court would consider the conduct to be a “serious and substantial” breach of statutory condition 4(1), and coverage would be void. 
On the other hand, the experienced drunk driver can commit a flagrant violation of the criminal laws against drinking and driving and still have insurance coverage. He may have spent hours getting extremely drunk, knowing full well he must drive many kilometres to get home. He may have many times the legal level of alcohol in his blood. He may have known he was too drunk to drive safely but he tried to drive anyway. He may have been driving at a grossly excessive speed. He may have left the scene of the accident. He will still have liability coverage (but not collision coverage).
The novice or young driver will face liability to the injured persons and their families, potentially for large sums of money, without the benefit of liability insurance. The novice or young driver’s insurer will not have to pay to fix his car. If the novice or young driver is driving his parents’ car and the parents were unaware their child was violating the licence condition, the insurer must pay the parents for the vehicle damage, but the insurer can claim the amount back from the novice or young driver. If the matter is pursued against the novice driver, his driver’s licence will potentially be subject to indefinite suspension unless a payment plan is reached and kept up-to-date.
The novice driver will also face a 24-hour roadside suspension, a fine in the amount of not less than $60 and not more than $500, and a 30 day licence suspension on conviction of violating the graduated licencing rules. Depending on the level of alcohol in the blood and the level of impairment, the novice or young driver will also face criminal charges and potential jail time.
The drunk experienced driver will have motor vehicle liability coverage. His insurer will have to pay the compensation to which the victims of the accident are entitled (up to the limits of the policy) and he will not have to reimburse his insurer. The drunk driver’s collision coverage will be void so his insurer will not have to pay for the damage to his car – the drunk driver will be on his own for that expense. Also, the drunk driver will likely face roadside suspension, vehicle impoundment, criminal charges and upon conviction jail time and fines and long term licence suspension. However, the drunk driver’s liability insurance for the injury or death will remain valid. The potential financial consequences to him will not be as devastating as those of the novice or young driver.
2010 Legislation Reinforces the Interpretations of the Courts to Date
Legislation, which tends to confirm this state of affairs, came into force on August 1, 2010. This legislation moves the “zero alcohol” condition from a regulation under the Highway Traffic Act into the Act itself.
Also, the Act as of August 1, 2010 introduced the rules about young drivers. It has a provision, which states: “It is a condition of the driver’s licence of every young driver that his or her blood alcohol concentration level be zero while he or she is driving a motor vehicle on a highway.” A young driver is defined as “a driver who is under 22 years old.”
This language parallels the language formerly used in the graduated licencing regulations. There is every reason to believe that the courts will interpret the insurance coverage issues for the new young driver provisions in the same way the novice driver regulations have been interpreted – that is, the young driver is “not authorized by law to drive” if his or her blood alcohol level is not zero and therefore in this circumstance the liability and collision coverage is void, subject to possible relief from forfeiture if the violation is not serious or substantial.
Expect a Constitutional Challenge
The young driver provisions in the Highway Traffic Act seem particularly vulnerable to a constitutional challenge, on the basis of discrimination based on age. The provisions are apparently intended to reduce drinking and driving, regardless of the amount of alcohol and to set young drivers “on the right path.” New and young drivers know they are not allowed to have any alcohol in their system when they drive and that undoubtedly helps to achieve the intended goal. However, as so few people understand the insurance implications of violating the graduated licencing provisions, it seems doubtful that the insurance coverage issues that the legislation has created are useful in helping to meet that goal.
It should also be noted there are likely no or negligible savings to the auto insurance industry as a result of the coverage issues described here, because accident victims can invariably access insurance coverage from their own insurer or from the Motor Vehicle Accident Claims Fund.
The parents of novice and young drivers must understand the rules. If you as a parent permit a novice driver or a young driver to drive your vehicle after he or she has had a “sip of beer”, or in other in circumstances in which the driver is “not authorized by law to drive”, you are committing a policy violation. Your insurance policy says you shall not “permit any other person to drive or operate the automobile unless the … other person is authorized by law to drive or operate it.” You risk having no coverage in the event of an accident.
Have you thought about sending your stone sober 16 year old child, a G2 driver, to pick up your 19 year old child and two friends from a party after midnight, using your car? If there’s alcohol at the party, you might think it’s the responsible thing to do. But if you do, your 16 year old will be committing an offence because the G2 conditions require that between the hours of midnight and 5:00 a.m., there must not be more than one passenger (who is not an immediate family member) in the vehicle under the age of 20. Your 16 year old will not be “authorized to drive” in those circumstances. You will have permitted your 16 year old to drive when not authorized to do so. You will risk having no insurance coverage, for either your 16 year old or yourself. One might anticipate relief from forfeiture to be available under such circumstances, but who wants to risk that uncertainty?
It’s important that you understand the graduated licencing rules (again, see our blog post for a list) and the importance of ensuring that your children follow the graduated licencing conditions cannot be overstated.
Experienced Drivers Beware
Furthermore, experienced drivers may void coverage if they drive in violation of licence conditions, or permit others to do so. It would appear from the above cited decisions that any violation of the driving conditions for a given class of licence will violate the “not authorized by law” condition for insurance.
For example, if you drive a motorcycle, but don’t have a class M, M1 or M2 licence, you are “not authorized by law to drive” and therefore are not covered. If you drive without wearing your required prescription glasses or corrective lenses, it appears your coverage would be void. If you tow a trailer with a weight of more than 4,600 kilograms, you need a Class D licence. If you do so without a Class D licence, you are “not authorized by law to drive”, and it seems your coverage would be void.
 Refer to the Statutory Accident Benefits Schedule, s. 31.
 It remains to be seen whether a novice driver would be able to obtain relief from forfeiture under Kozel in such circumstances.
 See our blog post for a complete list of the graduated licencing conditions.
 Note that it is a valid defence to such a charge “if the accused novice driver establishes that he or she took all reasonable measures to comply with the regulations”: Highway Traffic Act, s. 57.2(2). See our blog post on a case in which it was held that a due diligence defence was also available to prevent a loss of insurance coverage.