An unlicensed driver includes anyone who has never obtained a driver’s licence or whose licence is suspended, inappropriate, expired or denied. It’s against the law to drive without a proper licence, and if you allow an unlicensed driver to drive your vehicle and they cause an accident, be aware that you may not be entitled to claim statutory accident benefits under your automobile insurance policy.
Accident reports show that there is a correlation between unlicensed driving, risky driving behaviours, such as running red lights and speeding, and a higher risk of serious motor vehicle accidents. About 2000 accidents involving unlicensed drivers occur in Ontario every year, and motor vehicle accident statistics suggest that unlicensed and uninsured drivers are between 2 to 4 times as likely to be involved in a fatal accident.
In the trial of a man who was accused of driving with a suspended licence on multiple occasions, R. v. Kang, the judge asserted that unlicensed drivers are “a statistically proven menace on the highways” and demonstrate “a contempt for the law and an irresponsible attitude”. Accordingly, driving without the proper legal authority (i.e. without a proper licence) is designated as a criminal offence pursuant to the Criminal Code. And, under Ontario’s HighwayTraffic Act, a person found to be driving without a proper licence will find their vehicle impounded for 7 days, and will be subject to a fine of $200 to $1000. And, persons with a previous conviction for this offence face possible jail time.
Konopka v. Traders General Insurance: What happens if you’re injured or sick and ask an unlicensed driver to drive your vehicle?
Even if you become ill and consequently rely on an unlicensed driver to temporarily take over driving, your insurance company may deny your accident claim if you're involved in a car accident and your insurer believes your decision wasn't absolutely necessary and reasonable. This is what happened when a 71-year-old woman asked her unlicensed common law spouse (also in his 70’s) to take over driving her car after she felt lightheaded and nauseous and decided she couldn’t continue driving. The woman alleged that there was no one near by to ask for help, so she pulled over to the curb lane; however, because she didn’t think it was safe to stop in this location, she asked her common law spouse to drive to a nearby mall where she could rest until she felt better. Soon after taking the wheel, the man caused an accident while turning late into an intersection after missing the mall entrance. Police records showed that the man’s driver’s licence had been suspended 20 years earlier because he drove without valid insurance, and he had not been driving since.
The insurance company denied the woman's accident claim on the grounds that she "consciously, unreasonably, and without necessity, breached s. 4(1) of the Ontario Automobile Standard Policy by permitting an unlicensed person to drive her automobile". During the trial to decide this case, Konopka v. Traders General Insurance Co. (2018), the judge referred to Tut v RBC General Insurance Co. (2011) where the Court of Appeal asserted that “there is an assumption of strict, but not absolute liability” when an insured person breaches their obligation not to allow an unlicensed person to drive their vehicle, under the Ontario Automobile Standard Policy. This means that the offence is subject to a due diligence defence and a claimant may qualify for insurance if they “took all reasonable steps to avoid the particular event”. Also, pursuant to the Courts of Justice Act s. 98, claimants may be granted relief against forfeiture of their coverage if: 1) the policyholder’s actions were reasonable; 2) the breach was not grave; and 3) there is a disparity between the damage caused by the breach and the value of the property forfeited. Essentially, both defences against loss of insurance benefits apply only it it’s determined that the claimant acted reasonably when she asked her unlicensed spouse to drive after she felt ill.
The claimant testified under oath that she drove at the beginning of their trip and didn’t give her spouse the wheel until she felt incapable of driving. However, during his examination in Konopka, her spouse gave inconsistent testimony and appeared confused in his account of the events leading up to the accident. He initially stated that the claimant did not feel well from the beginning of the trip so he drove the entire time, but near the end of his examination he said he thought he only began driving after the claimant had driven for some time.
The claimant’s lawyer conceded that if the spouse was driving during the entire trip, it would be difficult if not impossible for the claimant to claim that she asked her spouse to drive out of necessity and it was a reasonable decision. And, in such a case, neither the due diligence defence nor relief from forfeiture would be applicable. On the other hand, if the judge found that the spouse was confused when he stated that drove from the onset of the trip and he actually only began driving when the claimant became ill, there is a chance that the claimant’s actions were out of necessity.
Defence counsel pointed out that, when she felt unwell, the claimant failed to avail herself of other options. Specifically, she could have used her cell phone to call someone to pick them up, call 911 for an ambulance, or put her hazard lights on and remain at the side of the road. Further, when the spouse began driving, he did not pull into the first parking lot or plaza they passed, which would have been the most prudent action.
The judge found that, even if the claimant felt ill, her spouse was equally unfit to drive since his licenced was suspended for more than 20 years, he was out of practice driving, and clearly suffered some frailties, given his inability to understand and focus on straightforward questions asked during discovery. After considering all the evidence, the judge ruled in favour of the insurer and agreed that the claimant did not act reasonably under the circumstances since she knew her spouse was unlicensed and incapable of driving.
Statutory Accident Benefits under Ontario’s ‘no fault’ insurance will allow a driver who sustained vehicle damage or personal injury losses to be covered under their own vehicle insurance policy, when a car accident is caused by another vehicle driven by an unlicensed driver. However, the ruling in Konopka prevented the claimant from being covered for damage to her own vehicle due to the accident. Further, there is a strong likelihood that her insurance rate will rise due to the fact that she allowed an unlicensed driver to drive her car.