Executive Summary: Key Legal and Evidentiary Issues

• Definity Insurance sought summary judgment to dismiss Allstate Insurance's third-party claim against it.
   
• Central to the motion was whether the OPCF 28A excluded driver endorsement extends to "other automobiles" not specifically named in the form.
   
• Justice Kalajdzic found an ambiguity between the language of OPCF 28A, the OAP 1 policy wording, and the Insurance Act.
   
• Resolving that ambiguity required interpreting sections 225 and 240 of the Insurance Act alongside section 1.3 of OAP 1.
   
• Both parties agreed the dispute was purely a question of law suitable for summary judgment, with no credibility issues requiring a trial.
   
• The court ultimately sided with Definity, holding that excluded drivers lose coverage for "other automobiles" as well.
   

Facts of the case

Definity issued a standard Owner's Policy of Automobile Insurance ("OPA 1") to Dominique Meyer and Caitlin Meyer for a one-year term beginning October 1, 2014, with $1 million in liability coverage. The policy was renewed in 2015 and 2016. On September 19, 2017, Ms. Meyer asked that an excluded driver endorsement (OPCF 28A) naming her as an excluded driver be added to the policy; the form applied to "all vehicles listed on the policy," and both Mr. and Ms. Meyer signed it, with the endorsement taking effect October 1, 2017. On October 10, 2017, the policy was amended so that a Toyota Rav 4 became the only insured vehicle, and it remained the sole insured vehicle through subsequent renewals, including the fifth renewal effective October 1, 2018, at which point Ms. Meyer continued to be listed as an excluded driver. On April 17, 2019, Mr. Meyer asked his agent to remove Ms. Meyer from the policy because the couple no longer lived together; after confirming the Rav 4 was registered solely in his name, the agent processed her deletion. Definity later conceded that the termination letter sent to Ms. Meyer on April 23, 2019, did not meet the requirements of Ontario Regulation 777/93, so her removal was invalid and she remained an excluded driver.

On September 19, 2019, Ms. Meyer was involved in a motor vehicle accident while driving a vehicle owned by her co-defendant, Megan Phillips, allegedly striking a vehicle driven by the plaintiff, Richard Chorostecki, which was insured by Allstate. [The judgment's disposition section states the accident occurred on "September 29, 2019," which conflicts with the September 19, 2019 date given earlier in the background section; both dates are preserved here as they appear in the source.] Chorostecki commenced his civil action in February 2021. Allstate initially treated Meyer as an uninsured driver but later learned of the Definity policy, denied that she was uninsured, and issued a third-party claim against Definity seeking a declaration that Definity was liable for the plaintiff's claim under the policy.

Policy and legislative provisions at issue

The dispute turned on how several provisions fit together. Section 1.3 of OAP 1 defines "the automobile" to include described automobiles, newly acquired automobiles, temporary substitute automobiles, and certain "other automobiles," while section 2.2.3 extends liability coverage to "other automobiles" driven by the insured or a spouse living with them, subject to special condition 5, which withdraws that coverage where the vehicle is owned or regularly used by the insured or a household member unless that person is listed as an excluded driver for that specific vehicle. The OPCF 28A form itself lists only three classes of restricted vehicles — described automobiles, newly acquired automobiles, and temporary substitute automobiles — without expressly mentioning "other automobiles," though it states that "all other terms and conditions of your policy remain the same." Section 225 of the Insurance Act provides that an insured does not include a person who causes loss while "any automobile insured under the contract" is being driven by an excluded driver, and section 240 similarly relieves the insurer of liability for loss occurring while an excluded driver drives "an automobile insured under the contract." Definity argued these provisions, read together with the legislative purpose behind the excluded driver regime under section 249 of the Act, must capture "other automobiles" as well, while Allstate argued the OPCF 28A form should be read narrowly and would need to name "other automobiles" explicitly for the exclusion to apply.

Reasoning and analysis

Justice Kalajdzic agreed that no material facts were in dispute and that the sole question — how to interpret the OPCF 28A endorsement — was appropriate for summary judgment. She found real ambiguity: the OPCF 28A form and the OAP 1 definition of "excluded driver" refer only to described, temporary substitute, and newly acquired automobiles, yet "other automobiles" fall within the broader definition of "the automobile" under section 1.3 of OAP 1, and sections 225 and 240 of the Insurance Act withdraw coverage for an excluded driver operating "any automobile insured under the contract" without distinguishing between vehicle classes. Drawing on the legislative history of the excluded driver scheme, which was designed to let insurers exclude a poor-risk driver from liability coverage rather than raise premiums for the whole household or refuse coverage altogether, the court reasoned that the goal of protecting insurers from that risk would be undermined if an excluded driver remained covered whenever they drove someone else's vehicle. She rejected Allstate's narrow-construction argument for three reasons: a named insured could not realistically promise to prevent an excluded driver from ever driving any third party's vehicle; the OPCF 28A form expressly incorporates the rest of the policy, including OAP 1's broader definition; and there was no public policy reason to require such a promise, since owners of "other automobiles" are better positioned to control who drives their own vehicles and those vehicles are separately presumed insured under the Compulsory Automobile Insurance Act. The court also found no coverage gap of the kind that justified a contrary result in Jubenville v. Jubenville, since any risk to third parties injured by an excluded driver is addressed through uninsured motorist coverage. Because the interpretation urged by Definity was consistent with the wording of the Insurance Act and the policy's incorporation of OAP 1, the court concluded it was the only reasonable reading.

Ruling and overall outcome

Justice Kalajdzic held that "other automobiles," as defined in section 1.8.2 of OAP 1, are incorporated by reference into the OPCF 28A excluded driver endorsement, so that sections 225 and 240 of the Insurance Act removed liability coverage for Ms. Meyer, an excluded driver, while she was driving Ms. Phillips's vehicle at the time of the accident. Definity's motion for summary judgment was granted, and Allstate's third-party claim against Definity was dismissed. Definity, the successful party, was found presumptively entitled to costs of the motion; the judgment did not fix a specific costs amount, instead directing that if the parties could not agree, Definity was to file a Bill of Costs and submissions of no more than three pages by August 14, 2026, with Allstate to respond in kind by August 28, 2026. No other monetary award is identified in the decision.