In October of 2011, the Ontario Court of Appeal ruled in the case of Tut et al. v. RBC General Insurance Company, that s. 6(1) of O. Reg. 340/94 creates an offence of strict liability rather than absolute liability. Under this provision, a driver with a G2 licence is not permitted to drive with a blood alcohol concentration in excess of 0 per cent. The insurer of the vehicle denied coverage, relying on statutory condition 4(1), which provides that an insured shall not operate, or permit any other person to operate, a motor vehicle unless the person is authorized by law to operate it.
The Court accepted that the driver had a reasonable belief that his blood alcohol content was zero on the morning of the accident and this was supported by a witness who saw no evidence that he had alcohol in his system, and by the fact that he had slept for a number of hours before driving. In the case of the owner of the vehicle, the test under statutory condition 4(1) was whether she knew or ought to have known under all the circumstances that her son was not authorized to operate her car because he had a blood alcohol content greater than zero. The insurer had the onus of establishing that that test was met and the C.A. ruled that there was no basis on which to conclude that the insurer did not discharge its onus.
