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Making the HIGHway a Road less Traveled

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Operating a motor vehicle while under the infuence of an intoxicating substance can lead to a denial of priority coverage, liability coverage or specified benefits under the SABS:

Cannabis Regulations in Auto Insurance Policies

The Financial Services Commission of Ontario recently released three revised Automobile Policy Forms (“OAP”), effective April 1, 2019. These updates expand the list of Criminal Code (“CC”) offences that result in no coverage under the policy. Section 31 of the SABS has also been amended to include drug impairment or combination of drug and alcohol impairments.

So, what’s new?

Section 7.2.2 of the Owner’s Policy (OAP 1) deals with "Illegal Use". It has been revised to include an expanded reference to "intoxicating substances", including cannabis. Driving while high could lead to a denial of property damage or liability coverage. Section 31 of the SABS has been similarly amended.

Previously, the guide only referred to operating a vehicle when impaired with alcohol. Now, it also refers to a blood drug concentration the exceeds the limits set out in the Criminal Code.

These limits are outlined in the Blood Drug Concentration Regulations (SOR/2018-148) and depend on the type of drug in question. With respect to cannabis, the maximum allowed THC (tetrahydrocannabidinol, the active ingredient in cannabis) within two hours of driving is 5 ng/mL (five nanograms per millilitre of blood). The maximum allowed combined levels of alcohol and cannabis are 50 mg/mL (fifty milligram of alcohol per 100 mL of blood) and 2.5 ng/mL (two and a half nanograms of THC per 100 mL of blood). The maximum level of alcohol alone remains at 80 mg/mL.

To summarize:

• Cannabis = max 5 ng/ML
• Alcohol = max 80 mg/mL
• Cannabis and alcohol = max 2.5 ng/ML of THC & 50 mg/mL of alcohol

How much cannabis is too much then?

It is difficult to say. The THC blood marker depends on the amount of cannabis consumed, its THC concentration, manner of consumptions (inhalation or digestion) and the body’s rate of metabolism. THC is a more complex molecule than alcohol and there is no clear evidence as to how much cannabis can be consumed before it is unsafe to drive or before the prescribed blood drug concentration levels are exceeded. THC is detectable in the bloodstream within seconds of inhalation (ingestion results in relatively slower absorption). It is important to note THC levels are maintained in the body for a long time after use, potentially up to several days. It is therefore challenging to determine how long someone should wait before driving after consuming cannabis.

The updated s. 7.2.2 of the OAP 1 also addresses the refusal to comply with a lawful demand to provide a breath sample, perform physical coordination tests or submit to an evaluation. With respect to testing for drugs, s. 320.27 of the CC lists appropriate requests for samples of bodily substances, such as oral fluid, urine or blood. This means that a refusal to comply with a lawful request to determine your blood drug concentration may result in the insurer not paying for any loss or damage.

These new drug-related provisions also impact s. 7.4.2 of the OAP 1, which deals with scenarios where the insurer is able to recover payment from the policyholder for a loss. Policyholders are now on the hook for any damage that occurs when they permit someone else to operate their vehicle with a blood drug concentration that exceeds the limits discussed above.

These updates have been mirrored in s. 3.4 of the Ontario Driver’s Policy (OPF 2) and s. 5.11 of the Ontario Garage Automobile Policy (OAP 4). The insurer will not to be liable for any loss that occurs when a policyholder drives a non-owned vehicle or allows someone else to drive their own vehicle while impaired by alcohol and/or drugs. Same applies to refusing to comply with a lawful demand to test for drugs. Select your designated driver at your own peril!

So what does all this mean for you?

With the new freedom around recreational cannabis use, there is also greater responsibility to drive safely. This means being informed of the changes to regulations that affect your auto policy coverages and being aware of the possible consequences of mixing cannabis with driving.

As for insurers, it’s important to inform customers of these updates when issuing new policies or renewals to policyholders.

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