The last two decades have seen dramatic changes in the public perception and legal treatment of marijuana throughout North America. Today, nearly a dozen U.S. states have legalized marijuana for both medicinal and recreational purposes. In Canada, medical marijuana has been legal since the early 2000s, and the Canadian Parliament is currently considering a bill that would legalize recreational uses.
Legalization raises a host of legal and public policy questions, but as Ontario personal injury lawyers, we’re particularly interested in how it could impact Ontario automobile insurance coverage. Or, to put it more cynically, we want to anticipate how insurers might try to rely on a driver’s legal use of marijuana to limit or eliminate benefits under his or her insurance policy.
As we see it, there are at least a few ways insurance companies might do this, which we’ll explain in more detail momentarily.
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Timeline of Marijuana Legalization in Ontario
First, some history: Since the turn of the century, the laws regarding marijuana use in Canada have become increasingly liberalized. These changes began with a series of early-2000s court cases regarding the use of marijuana for medicinal purposes, and has recently led to the introduction of legislation that would legalize the recreational use of marijuana at the federal level.
In 2000, the Court of Appeals for Ontario held that the prohibition on possession of marijuana in the Controlled Drugs and Substances Act violated section 7 of the Canadian Charter of Rights and Freedoms, because it forced those who needed marijuana for medicinal purposes to choose between their health and imprisonment.
Then, over the past 18 years, a series of regulatory changes and court cases have led to an increasingly liberal medical-marijuana policy. In 2015, the Supreme Court of Canada ruled that a restriction under existing regulations that only allowed patients to access dried marijuana (as opposed to, e.g., oils or cookies) was unconstitutional.
In response, in August 2016, Health Canada implemented the current medical-marijuana regulatory regime, the Access to Cannabis for Medical Purposes Regulations (ACMPR). (Those interested can learn more about the ACMPR here.)
Separately from the debates and litigation surrounding medical marijuana, the past few years have also seen a growing movement to legalize the possession and use of marijuana for recreational purposes. Shortly after the federal elections in 2015, new Prime Minister Justin Trudeau listed the legalization and regulation of marijuana as one of the top priorities for Jody Wilson-Raybould, the new Minister of Justice and Attorney General of Canada.
That mandate led to the creation of the Task Force on Cannabis Legalization and Regulation, which issued a final report on the subject of legalization in November 2016. Then, in April 2017, Bill C-45 (the Cannabis Act) was introduced in the House of Commons. If enacted, then starting in July 2018, adults 18 years or older could legally buy (or grow), possess, and use limited quantities of marijuana. (A summary of the Cannabis Act is available here.)
Ontario Auto Insurance, Accident Benefits and Impaired Driving
Of course, legalizing marijuana won’t eliminate all criminal prohibitions involving the drug. After all, consuming alcohol has long been legal, but that doesn’t mean that someone can, for instance, drink and drive. It is these continuing criminal laws that we believe insurance companies will try to use against Ontario drivers who legally possess or consume marijuana.
In particular, we think they will:
1. Deny certain Statutory Accident Benefits.
Section 4 of the standard Ontario auto insurance policy describes the Statutory Accident Benefits (SABs) provided under the policy. SABs are the no-fault portion of an Ontario insurance policy — they cover the insured person for his or her own injuries resulting from an accident.
Relying on section 30 of the Statutory Accident Benefits Schedule, section 4.4 of the Ontario auto policy lists limits on SABs coverage. In particular, it denies income-replacement benefits, non-earner benefits, and payments for other expenses if an insured driver is convicted of a criminal offence involving the operation of an automobile.
So, for example, an insurance company could deny those benefits to a driver who was convicted of driving under the influence of marijuana — even though using marijuana would, by itself, be legal.
2. Deny Some Optional Coverages.
Ontario law requires motor vehicle insurance policies to include certain minimum coverages, but it permits insurers to sell additional coverage in exchange for increased premiums. One of those, described in section 7 of the standard Ontario auto insurance policy, covers loss of or damage to an insured’s own automobile caused by a peril like fire, theft, collision, or other perils, depending on the specific coverage selected.
In such an event, the insurer is supposed to pay for the repair or replacement of the lost or damaged automobile.
However, under section 7.2.2, that coverage does not extend to a loss or damage caused by a driver’s inability to maintain control of his or her motor vehicle because he or she was driving it under the influence of intoxicating substances. Insurance companies will likely rely on this provision with some frequency, since there is no requirement that the driver be convicted of a crime before it denies coverage.
3. Increase insurance premiums.
Finally, in addition to denying coverage after an accident happens, insurance companies may also try to price a driver out of an insurance policy (or refuse to issue a policy altogether) if he or she is convicted of driving under the influence. According to MADD Canada, a conviction of impaired driving can result in a premium hike of up to $8,000 per year, making it unaffordable for many Ontarians.
The effects of legalizing marijuana will take some time to fully flesh out. Already, suggestions have been made regarding changes to Ontario’s impaired-driving laws in response to legalization. And, although we’ve tried to think as cynically as possible to anticipate how insurance companies will use legalization to their advantage, we’ve no doubt barely scratched the surface.
If you’ve been involved in an Ontario car accident, whether anyone was under the influence of anything or not, you should contact the personal-injury lawyers of Preszler Law Firm to help you deal with your insurance company. We offer a free consultation, and because of our years of experience helping others involved in auto accidents, we can help you anticipate the strategies and arguments that your insurance company will use to try to avoid paying you what you deserve.