Pursuant to the OAP1, certain benefits (including NEBs) are not payable to an occupant of an automobile who at the time of the MVA knew, or ought reasonably to have known, that the driver was operating the automobile without the owner’s consent. The Dominion wished to rely on this exclusion at trial. The Defendant sought an order precluding Dominion from relying upon the exclusion on the basis that it would be an abuse of process because Dominion had previously paid accident benefits to the Plaintiff. Justice Mullins denied the relief sought by the Defendant on the basis that NEBs were only paid to the Plaintiff as part of the accident benefits settlement and that the payment was made without prejudice to the insurer’s liability defences with respect to the tort claim.
