Donald H. Rogers

The appellant insurer appealed a trial judge's decision that the insured was "authorized by law" to operate a motor vehicle under statutory condition 4(1) of O. Reg. 777/93, despite being in breach of a probation order prohibiting him from driving at night and driving with alcohol in his system.

The insured had a valid driver's licence at the time of the accident.

The Court of Appeal upheld the trial judge's decision, holding that "authorized by law" refers only to the provincial licensing scheme operated by the Ministry of Transportation and does not extend to breaches of court orders unrelated to driving licence conditions.

The court found that a broader interpretation would be inconsistent with s. 118 of the Insurance Act and would undermine the legislative intent to protect innocent tort victims.

The plaintiff, a cyclist with significant pre-existing psychological and cognitive vulnerabilities, was struck by a police cruiser while riding through a pedestrian crosswalk at night.

The court apportioned liability 60% to the defendant police officer and 40% to the plaintiff.

Applying the thin skull rule, the court found the collision exacerbated the plaintiff's pre-existing conditions and caused a mild traumatic brain injury, rendering him completely disabled and requiring 24/7 attendant care.

Total damages were assessed at over $5.2 million, reduced to $3,131,370 after accounting for contributory negligence.