Law Times

Page 12 April 3, 2017 • lAw Times www.lawtimesnews.com "In the third-party context — where a plaintiff sues a driver who was impaired or a restricted driver — it may be possible for the insurer to argue that same constituted a breach of a statu- tory policy condition, allowing the insurer to limit itself to pay- ing the statutory minimum of $200,000, provided the insured [the intoxicated driver] can't de- feat the defence," he says. "The existing standard Ontario auto policy excludes coverage under s. 7.2.2 for ac- cidents caused by drivers under the inf luence of intoxicating substances. This means that in the first-party context — claims against your own insurer for loss or damage claims to your automobile — coverage is void- ed by the exclusion, leaving the insured up the creek." Dawson thinks proof of marijuana impairment will be very relevant in respect to civil liability. "If you have got evidence that someone caused an injury to others, say an at-fault motorist or other tortious act, and they were impaired because of mari- juana, that is grounds for neg- ligence and instructive for tort action," he says. Dawson speculates that "it might be a battle of experts for served," he says. "The insurance industry needs to go above and beyond." Another recommendation in the IBC submission that causes the insurance bar some concern is the proposal to use apps to purchase insurance online. "One problem with online [communications] is whether people are being fully informed of all the coverages," states Der- fel. "They may not read the fine print or be fully aware of what's available. There need to be measures to ensure they really know what they're getting and what they might be giving up." Derfel stresses that "insur- ance is a very, very important thing." "People are trying to protect their home, their life or their family," he says. "God forbid something hap- pens and they find out they clicked on the wrong thing or didn't answer questions prop- erly." Derfel prefers that people call their broker and have all the op- tions explained. "Live human interaction has its advantages," he says. "An in- dividual will want to answer questions properly and the broker will want the person to be fully informed." Van Rensburg says some in- surers in the United States have very sophisticated online tools. "They can do everything to get a quote or pay a premium or report a loss. It involves sharing very sensitive personal informa- tion," she says. "Clients might find it easier to deal with, but I'd be telling them that they need to be very in tune to privacy concerns and what information they are making available." There are also security con- cerns over the recommendation that e-signatures be allowed. "I'm not comfortable as far as e-signatures go," says Derfel. "In my practice, every signa- ture is in person." Van Rensburg cautions that with e-signatures it can be hard to validate who signed a docu- ment, and it can be hard for an insured person to prove he or she did not sign it. "If there is a dispute, there needs to be a presumption that it's not their signature," she says. One recommendation that is met enthusiastically by both lawyers is the proposal for FSCO to allow the use of electronic proof of auto insurance. "That would be welcomed by my clients," predicts van Ren- sburg. "I don't see that as risky, and if you've lost your proof of insurance or you're not in your own vehicle and need to present it, that would be welcome." Derfel goes further and calls the idea "absolutely wonderful." "Electronic proof of insur- ance is a great idea," he says. "Our phones are becoming our wallets. It will stop those awkward times when you're charged with failure to produce proof of insurance even though you have insurance. What's the one thing nobody leaves home without? Their phone." Other recommendations in- volve changing regulations to allow usage-based pricing mod- els — where a usage system in the car records driving habits — regulations to allow loyalty pro- grams and the encouragement of risk-mitigation strategies. The IBC would also like the ability to make marginal chan- ges in prices, rather than engage with the full price approval pro- cess every time. "Insurance is sold by private corporations, but it exists for the public good," stresses Derfel. "If the government implements these changes, it must be for the public interest. It can be done carefully so long as the public is looked after, not taken advan- tage of." LT a time while they are develop- ing data and studies regarding the relevance of composition of the body, body mass and toxi- cology. "It can affect the body dif- ferently from person to person. Different chemicals enter the bloodstream, different strands of marijuana are used and there are different methods of ingest- ing it," he says. "It's a lot more complicated than alcohol — for which you ask how many drinks were con- sumed within an hour or within an evening, and take a blood al- cohol reading. It's all very open for a lot of debate and lot of re- search." LT Continued from page 10 Decriminalizing pot could mean more legal business 'Live human interaction has its advantages' Continued from page 11 FOCUS

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