Our client was involved in an accident in Mississauga when his vehicle struck another car. The police attended at the scene and administered a roadside blood alcohol test. Our client registered a “fail.” He was taken to hospital whereby blood alcohol testing determined that he had readings of 119 mg and 99 mg of alcohol per 100 ml of blood. Our client was charged under Section 253 of the Criminal Code (“Over 80”) and released.

Our client’s car was determined to be a write-off. Our client’s auto insurer paid out the balance our client owed on the financing agreement.

Upon discovering that our client was charged with – but not convicted of – “over 80,” the insurance company sued our client for the return of their payout.

The insurer relied on Section 7.2.2 of the Ontario Automobile Policy (OAP 1) which states:

We won’t pay for loss or damage caused in an incident:

– if you are unable to maintain proper control of the automobile because you are

driving or operating the automobile while under the influence of intoxicating


– if you are convicted of one of the following offences under the Criminal Code

of Canada relating to the operation, care or control of the automobile, or

committed by means of an automobile, or any similar offence under any law

in Canada or the United States:    

-causing death by criminal negligence

– causing bodily harm by criminal negligence •

-dangerous operation of motor vehicles

-failure to stop at the scene of an accident

– operation of motor vehicle when impaired or with more than 80 mg of alcohol in the blood

-refusal to comply with demand for breath sample

-causing bodily harm during operation of vehicle while impaired or over 80 mg of alcohol in the blood, or

-operating a motor vehicle while disqualified from doing so.  


Counsel for the insurer alleged that our client – by virtue of the blood alcohol reading – was not able to “maintain proper control of the automobile…while under the influence of an intoxicating substance.” Under cross-examination, Douglas Strelshik elicited evidence from the investigating police officer to show that despite the blood alcohol readings our client exhibited very little evidence of impairment and indeed was never charged under Section 253 of the Criminal Code for “impaired driving.”

Douglas requested of the Judge that she dismiss the claim as our client showed scant evidence of impairment, and the Plaintiff did not present any evidence that our client was unable to maintain proper control of his car “while under the influence of intoxicating substances.”

Douglas suggested that there could be a myriad of reasons why the collision occurred. For instance, our client may have been inattentive, distracted, or on his cell phone. The Judge agreed with Douglas and dismissed the case.